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Simple Jury Persuasion: Is that foreigner lying up there on the witness stand?
None of us like to be lied to and we hunt for indicators of deception in the behavior of others. A dilemma occurs in our assessments of witnesses from other cultures–since social norms are culture-specific. We observe the behavior of others and make judgments as to whether they are lying according to our sense of whether they are violating social norms for no apparent reason. And when we don’t understand that cultural norms may be different for the speaker than they are for us, we are prone to make errors in our judgments as to their duplicity.
And it isn’t just us! I traveled to France and Germany a number of times to prepare witnesses who were going to testify in American courtrooms on sensitive issues related to whether they had designed dangerously defective products. As I got to know them, I learned that their beliefs about Americans in general were informed by bad movies, worse television, and unflattering news coverage. They were understandably terrified of testifying in front of their conception of “Americans”. I had to teach them about American courtrooms, the trial process, and how to understand juror decision-making. The trial process in the United States is very different from what happens in France, Germany, or (in civil trials) anywhere else on earth. Knowing what to expect helped them to diminish their anxiety as we began witness preparation processes.
Essentially, the Australian researchers we are talking about today did much the same thing. They wanted to see if educating people about cultural differences in non-verbal behavior would “counteract the cultural bias in deception judgments”. They recruited 69 (17 male and 52 female) older undergraduate students with an average age of 33.6 years. The students responded to an ad on psychology department bulletin boards with the title “Can you spot a liar?”.
The research participants were divided into three groups: a control group was given no information; those in the general condition group were told the video clips they were about to observe were of people from the Netherlands and that research has demonstrated that typical nonverbal behavior can vary across cultures. The third group, the specific information group, was told that the video clips were of people from the Netherlands and that research has demonstrated specific behavioral differences between the Dutch and the Australians. Specifically, Dutch people were described as smiling more, making less direct eye contact and having more hand and arm movements while speaking than are typical for Australians.
The researchers prepared 20 different video clips (duration of 30-40 seconds each) in which 10 amateur actors (half male and half female) each produced two versions of a rehearsed statement. One of the versions was nonverbally norm-consistent (that is, the actor gestured in ways Australians do as they speak) and the other was inconsistent with Australian social norms (that is, the gestures and non-verbal behavior was not commonly seen in the Australian culture but more akin to what some of the participants were told was common for the Netherlands). The actor in the video was describing someone they liked as the video was recorded, but the researchers turned the sound off as they played the video for the participants so all the participants would be able to rely on was the actor’s nonverbal behavior. In other words, the participants watched a video without sound and attempted to identify deception from nonverbal behaviors only.
All 69 participants/students viewed a number of video clips and judged whether each person in the videos was lying or telling the truth. They were asked to make the following judgments after each video: was this person lying or telling the truth; if they believed the person was being deceptive, what was the reason they believed the person was lying; and then how certain they were of their judgment.
And what they found was intriguing:
Participants in the control and general information groups were more likely to think the actors in the norm-inconsistent tapes were lying.
Participants in the specific information group did not see any difference between the norm-consistent and the norm-inconsistent tapes in terms of predicting lying.
It would seem that, in this instance, a little knowledge is a good thing. Those participants without specific information on how nonverbal behaviors vary across cultures were more suspicious of actors displaying norm-inconsistent behavior. On the other hand, those educated about what to expect in terms of nonverbal cultural differences were neither suspicious or not suspicious. They seemed to choose not to make assumptions based on nonverbal behavior alone.
This is instructive from both directions for witness preparation. While it’s salient for preparing foreign witnesses, it can apply equally well to Americans who come across as somehow ‘different’.
Prepare the jury for your witness. If you have a witness whose manner is likely to be seen as odd or unfamiliar to the jury, it can be useful to have a preceding witness describe them, perhaps make an aside about their lovable quirks, and establish the value of their testimony. This becomes especially important when your foreign witness has behaviors that could be seen as “odd” to your American jurors.
Educate your foreign witnesses about what to expect in American courtrooms and non-verbal behavior common in America so they are not prone to misinterpret what they see in the courtroom and become anxious.
Preparing foreign witnesses is a challenging yet very rewarding opportunity. It requires bridging the cultural gap between the assumptions of the witness and the assumptions of the jurors. It also requires sensitivity to foreign parties who see the American court system as frightening and threatening. Finally, it requires the awareness that things each of us take for granted can communicate vastly different information to the cross-cultural observer. The challenge is to balance diplomacy and tact with truthful feedback.
Castillo, P., & Mallard, D. (2011). Preventing Cross-Cultural Bias in Deception Judgments: The Role of Expectancies About Nonverbal Behavior. Journal of Cross-Cultural Psychology, 43 (6), 967-978 DOI: 10.1177/0022022111415672
Simple Jury Persuasion: Teaching Jurors to Better Assess Eyewitness Testimony
While we know that eyewitness testimony is often suspect, it can be useful to help jurors know how to assess the validity of eyewitness testimony for themselves. You might be interested in a new study identifying a simple strategy for teaching them just that.
The authors point out that eyewitness testimony is frequently the primary (and often the sole) source of evidence in a criminal case. Yet, eyewitness error is also the leading cause of wrongful felony convictions. Their review of the literature indicates jurors have trouble evaluating eyewitness accuracy for a number of reasons.
They have limited knowledge of eyewitness testimony in general.
They rely on factors that are not good predictors of accuracy and inaccuracy (e.g., consistency of testimony, ability to recall minor details and the eyewitness’ confidence).
And they overlook factors that are good predictors of accuracy or inaccuracy (e.g., presence of a weapon, perpetrator use of a simple disguise like a hat, and police procedures in the specific case).
Jurors have trouble integrating what they do know about eyewitness factors into their judgment of the specific case. This is true even when they are given expert testimony during the course of the trial.
The researchers tested the “I-I-Eye” model (interview-identification-eyewitness model) for analyzing eyewitness accuracy. This model has three steps: first, the interview conducted by law enforcement is assessed; second, the identification procedures are identified using scientific guidelines; and finally, the actual eyewitness factors at the crime scene are assessed to determine how they might have affected eyewitness accuracy.
293 undergraduate students (enrolled in Psychology 101 naturally) from three different universities read a trial transcript for the robbery of a convenience store and murder of the store clerk with one eyewitness. The participants read either a case with strong eyewitness evidence or one with weak eyewitness evidence. The cases were made either strong or weak by the police procedures (either strong or inconsistent) described in the case transcript. One group of the participants was trained in the I-I-E model; another group was educated about the Biggers factors (the Supreme Court mandated model that came up for review in 2011); and a third group was simply given general information about a trial that would likely be received by jurors. Finally, a fourth group was given both the general information and the Biggers information.
The authors describe the information given to the research participants as follows:
“Jury Duty aid: The Jury Duty teaching aid (hereafter ‘JD’) was one of two control aids. It emphasized the importance of being fair and impartial, and weighing all of the evidence before reaching a verdict. It also presented information about a defendant’s right to a jury trial, identified the main participants in a criminal trial, and defined legal terms, such as opening statements, cross-examination, closing arguments, and jury instructions.
Neil v. Biggers aid: The Neil v. Biggers control teaching aid (hereafter ‘NvB’) described the five eyewitness factors that the Supreme Court stated jurors should consider when evaluating eyewitness accuracy (Neil v. Biggers, 1972). It also presented a rationale for each of the Biggers factors.
I-I-Eye aid: The I-I-Eye teaching aid described a three-step method for analyzing eyewitness accuracy. It instructed participants to first evaluate whether the eyewitness interviews were conducted properly, then to assess whether the identification procedures were conducted properly, and finally to evaluate whether the eyewitness factors at the crime scene were conducive to an accurate identification. The I-I-Eye aid gave participants examples of factors they should consider when evaluating the interview (e.g., open-ended questions vs. closed-ended or leading questions, the time between the crime and the interview), the identification procedure (e.g., a double-blind lineup vs. a non-double-blind lineup, the time lapse between the crime and the identification procedure, the size of the lineup, whether the suspect stood out from the fillers, and whether a statement of confidence was taken prior to any feedback) and the eyewitness factors at the crime scene (e.g., a same race or cross-racial identification, problems with alcohol or drug intoxication, the level of stress, the eyewitness’s age, and whether the perpetrator was disguised). The I-I-Eye aid emphasized the importance of interview and lineup variables on eyewitness accuracy because they can generally be controlled and documented, whereas the effects of crime scene factors on eyewitness accuracy can only be estimated. The participants were instructed that if the interview, lineup, or both were suggestive or unfair, they should question the accuracy of the eyewitness’s identification. They were also instructed that if the interview and lineup were conducted properly, then the eyewitness’s identification may still be accurate even if the eyewitness conditions during the crime were somewhat less than ideal.”
In each transcript, the eyewitness was a police officer and there was an alibi witness who was the “defendant’s girlfriend”. The researchers hypothesized that those who viewed the I-I-E aid would give more guilty verdicts for the strong eyewitness case and fewer guilty verdicts for the weak case when compared to those participants seeing either the Jury Duty aid or the Biggers aid. And they were right. Here is a graphic from the article showing the difference between jurors assessments of who was guilty and who was not across the strong and weak cases.
In brief, not only did the I-I-Eye training help participants better assess the quality of the eyewitness testimony–it increased their ability to do that by 25% to 28%. That’s a big margin of difference, and there was no traditional expert testimony. The authors say the benefit of using the I-I-Eye training is that it not only educates about eyewitness factors but also teaches the learner how to apply those factors to a specific case. They also comment that the I-I-Eye model could be of benefit to the legal system at multiple junctures in a case.
The authors’ assertion that there was no eyewitness testimony in the I-I-Eye training is obviously questionable. The training itself is expert testimony of a sort, and it isn’t clear to us that courts would allow it. If allowed, though, training could be incorporated into testimony by an eyewitness expert to aid jurors in assessing the accuracy of testimony.
Clearly, the results of this study indicate that jurors will evaluate the testimony with much more confidence about credibility. It also seems likely that if jurors knew more about what makes eyewitness testimony more reliable, investigators will begin conducting interviews in a way that is consistent with the identified strategies. Minimizing inaccurate eyewitness testimony (or teaching jurors how to evaluate it) should reduce conviction errors and cases of false imprisonment.
Pawlenko, NB, Safer, MA, Wise, RA, & Holfeld, B. (2012). A teaching aid for improving jurors’ assessment of eyewitness accuracy. Applied Cognitive Psychology.
Simple Jury Persuasion: Add this to your “nerd defense” strategy!
You know we don’t think much of the nerd defense here at The Jury Room. But we bet this one is going to be added to the nerd defense strategy soon (if it hasn’t been already). In addition to sticking glasses on your defendant, you may also want to use tinted contact lenses to modify your client’s eye color to brown! “Do tell…”, you say. And of course, we will do just that.
A new Scientific American blog write up of a study in the online journal PLoS ONE trumpets the news that people with brown eyes appear more trustworthy to others. According to the Scientific American account,
“…238 participants rate[d] the faces of 80 students for trustworthiness, attractiveness, and dominance. [snip] Female faces were generally more trustworthy than male ones. But that’s wasn’t all. A much more peculiar correlation was discovered as they looked at the data: brown-eyed faces were deemed more trustworthy than blue-eyed ones. [snip] All the participants, no matter what eye color they had or how good-looking they thought the face was agreed that brown-eyed people just appear to look more reliable.”
Voila! Fake glasses. Brown contact lenses. A sure-fire formula for acquittal. And then again, maybe not.
The dilemma for nerd defense advocates is that they simply only read the popular media headlines and not the actual research article. And the popular media got it wrong. If you do that again here, you’ll be wasting your money on those brown contact lenses.
In this study, the researchers next swapped eye color on the photographs so that photos that used to feature brown-eyed photos were now of the same people, but with blue eyes, and photos that had been blue-eyed photos now had the same people appearing to have brown eyes. And something strange happened. The ‘eye color’ explanation blew up. Now the blue-eyed photos were judged more trustworthy and reliable. It wasn’t about eye color at all. It was about face shape. And this time, the popular media got it right. Good job, Scientific American! (Although it probably helps that the blog post was written by a PhD student in Cell and Molecular Biology!)
“To get at what’s really going on, the researchers took the faces and analyzed their shape. They looked at the distances between 72 facial landmarks, creating a grid-like representation of each face. For men, the answer was clear: differences in face shape explained the appeal of brown eyes. “Brown-eyed individuals tend to be perceived as more trustworthy than blue-eyed ones,” explain the authors. “But it is not brown eyes that cause this perception. It is the facial morphology linked to brown eyes.””
Note these findings declare the results are for men. And just for fun–the original research article says that more trustworthy men (i.e., the brown-eyed men) had “rounder and broader chins, a broader mouth with upward-pointing corners, relatively bigger eyes, and eyebrows closer to each other” while less trustworthy men (i.e., the blue-eyed men) had “more angular and prominent lower faces, a long chin, a narrower mouth with downward pointing corners, relatively smaller eyes and rather distant eyebrows”.
Women, on the other hand, were a bit different. The shape of women’s faces was much less variable than was the face shape of men. So the findings didn’t reach statistical significance for women–although the researchers say they “trended in that direction”. What makes for a trustworthy female face requires more research.
The goal of this post is to arm you against misinformation when the popular (and less informed) press and blogosphere starts to spin the study in errant directions. As far as trial advocacy goes, it’s obviously a lot easier to tweak someone’s eye color than it is the shape of their face. The good news is that we have no reason (yet!) to think that this initial photo-impression would survive even a brief exposure to the person live, in person, or on a witness stand. Sometimes, reality trumps expectations.
Kleisner K,, Priplatova L,, Frost P,, & Flegr J (2013). Trustworthy-Looking Face Meets Brown Eyes. PLoS ONE, 8 (1).
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Simple Jury Persuasion: “That was the witness who spoke so sadly”
Our mock jurors often assess the emotionality of witnesses during deposition or testimony. They comment when emotion seems excessive and they comment when emotion seems to be lacking. Those evaluative comments result in judgments–either negative or positive–for how jurors will remember witness credibility and reliability.
Some interesting new research adds more information to our knowledge of what jurors will remember after emotional (or neutral) testimony. Researchers examined the differences in how observers retain information after hearing emotional speech versus neutral speech. It likely makes sense to all of us that emotional speech captures our attention immediately. What this research looks at, however, is whether emotion has a lasting effect on how we remember what was said during the emotional speech. That is, do we remember words differently if they were spoken sadly versus when they are spoken neutrally?
Researchers had almost 100 participants (48 men and 48 women) listen to words spoken in either sad voices or neutral voices. Then they were shown individual words on the computer screen for very brief periods of time. Some were the same words they had heard verbally and others were words that had not been spoken aloud. The participants were asked for recognition (“is this an old word you heard spoken earlier or a new word?”) and attitudes toward the words. While the participants looked at the visual images, the researchers measured brain activity using EEGs to see if there was “evidence of vocal emotional coding”.
There was more word recognition if participants had heard the words spoken in the neutral tone rather than the sad tone.
When asked about attitudes toward the visually presented words, those that had been spoken in the sad voice were remembered more negatively.
Women were better at recalling the tone (neutral or sad) of the speaker’s voice than were men.
The researchers concluded that emotional voices not only capture the listener’s attention but also produce changes in long-term memory. Emotional voices assign emotion to otherwise neutral words.
In terms of litigation advocacy, this research has useful information for us. Jurors are going to remember emotional testimony. The emotional testimony may result in a negative recollection (as in “oh, that was so horrible”). And women jurors are going to be more able to identify (and then resonantly recall) the emotional testimony.
You don’t need to erase emotionality from witness testimony. It does need to be contained so that jurors don’t see the emotion as “over the top” and presume manipulation. If your witness deals with genuine emotion by becoming stoic and distant, explain that via earlier witnesses so that jurors can view the witness’ lack of emotion as a coping mechanism or a sign of shyness or pride rather than a lack of feeling.
Schirmer A, Chen CB, Ching A, Tan L, & Hong RY (2012). Vocal emotions influence verbal memory: Neural correlates and interindividual differences. Cognitive, Affective & Behavioral Neuroscience PMID: 23224782
Simple Jury Persuasion: It’s really pretty black and white….
Many of us like to think our opinions on ethical issues are nuanced–and not reactive, knee-jerk black and white perspectives. Many of us would be wrong. The ease with which we are influenced on what we likely consider deeply held and stable values and perspectives would be humorous if it wasn’t so disconcerting.
Researchers are always interested in exploring how we make judgments of moral or ethical issues. And, naturally, they always want to know if they can modify how we respond by making small adjustments in what they present to us. These researchers used the “Heinz” story–a commonly used stimulus in moral dilemma research.
In Europe, a woman was near death from a special kind of cancer. There was one drug that the doctors thought might save her. It was a form of radium that a pharmacist in the same town had recently discovered. The drug was expensive to make, but the pharmacist was charging ten times what the drug cost him to make. He paid $400 for the radium and charged $4000 for a small dose of the drug. The sick woman’s husband, Heinz, went to everyone he knew to borrow the money, but he could only get together about $2000, which is half of what the drug cost. He told the druggist that his wife was dying and asked him to sell it cheaper or let him pay later. But the pharmacist said, ‘No, I discovered the drug and I’m going to make money from it.’ So Heinz gets desperate and considers breaking into the man’s store to steal the drug for his wife.
After presenting the dilemma, the researchers asked participants to tell them (using a 7 point Likert scale ranging from very right to very wrong) how right or wrong it would be of Heinz to steal the drug for his wife. Of course, that wasn’t all the researchers did. The Heinz dilemma was presented to the research subjects on a computer screen but in three different ways.
Some participants saw a solid gray frame around the story.
Others saw the story framed with a black and white checkerboard pattern.
And the remaining participants were given a story framed in a blue and yellow checkerboard pattern.
Those who saw the black and white checkerboard pattern gave more extreme responses than did those seeing either the gray or blue/yellow frames. That is, they tended to give either strong “it’s very right” or strong “it’s very wrong” responses. Further, those who saw gray or blue/yellow frames around Heinz’ dilemma gave virtually identical responses (which tended to be very neutral)! It was only the black and white checkerboard pattern that exerted a strange and metaphorical pull on the respondents to give the extreme (very right or very wrong) responses.
A followup study asked for opinions on the morality of six social issues (e.g., pornography, adultery, using drugs, littering, smoking and using profanity). In the second study, the participants were asked for their opinions while having the computer screen sport either a gray frame or a frame with a black and white checkerboard pattern. Again, those who saw black and white checkerboard frames were more extreme in their judgments. The researchers thought perhaps the black and white borders spoke to participants about the need to have a firm opinion one way or the other rather than delivering a more neutral or nuanced (aka “gray”) opinion.
And they go further! The researchers opine that these sorts of presentation issues could be particularly problematic in “contexts that involve judgments of others’ guilt or innocence”. Subtle things such as if the courtroom is tiled in black and white “might unconsciously influence legal actors, leading to biased judgments and decisions”.
Oh dear. You simply cannot be too careful out there. This could perhaps lead to “change of courtroom” motions.
Zarkadi, T., & Schnall, S. (2012). “Black and White” Thinking: Visual Contrast Polarizes Moral Judgment Journal of Experimental Social Psychology DOI: 10.1016/j.jesp.2012.11.012
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