According to some new research, if your case facts promote pro-religious themes or invoke pro-religious feelings, and you are plaintiff/prosecutor, you want intuitive jurors. If you are defense, you want those analytical jurors. If you weren’t thinking that far ahead, or end up with a mix of both types (the likely outcome) on your jury–you want to tailor your case narrative and case themes to resonate with both sorts (again depending on the side of the aisle).

In other words, you want to encourage the analytic to be more intuitive and encourage the intuitive to embrace the analytical. Why? Essentially, it levels the playing field. In plain English, the more analytically (e.g, rationally, logically) you think through evidence, then–the more you set aside religious beliefs–even if you are religiously devout and, even if you are already a skeptic.

In a fact is stranger than fiction move, the researchers successfully triggered analytical thought by showing research participants images of Rodin’s The Thinker  and having them review text written in “hard to read fonts” [e.g., fonts smaller and in a much fainter, typewriter-style font for harder review fonts, versus enlarged and darkened for ease of review].  Both were found to increase analytical thought and reduce religious beliefs. This study has gotten tremendous attention in the popular media.

We are not as interested in the relationship between analytical thought and religious belief–as we are in the ability to promote an analytical cognitive process over an intuitive one. Intuitive thought has been found to be related to quick cognitive processing (impulsive judging) using stereotypes/heuristics as short-cuts. Analytical thought, on the other hand, promotes logic and rationality–resulting in fewer short-cuts in the decision-making process and more complete evaluation of evidence. You want to give jurors an invitation to attend carefully to the evidence presented. 

When you want jurors focused analytically, and thus processing evidence carefully rather than making quick and biased conclusions based on pre-existing attitudes, beliefs, and values–consider the experimental manipulations used in this research.

You might use an illustration of Rodin’s famous sculpture on visual evidence to nudge jurors to think analytically.

Use logical/rational language. Use language like ‘thoughtful and careful review’, ‘study of evidence’, ‘serious and thorough’. Do not be seen as applying ‘spin’ to the story. Tell the story with little drama but a tight and efficient story structure. You are helping jurors to piece together what happened and providing them with the facts, evidence and data to conclude (consistent with your presentation) what actually happened.

Overall, you are encouraging the sort of thought (that would be “analytical”) that promotes evidence processing rather than quick and dirty decision-making characterized by the use of bias and stereotypes. If you want that sort of thinking process in your jurors–these researchers have pointed to a couple of (free) ways to promote it.

Gervais WM, & Norenzayan A (2012). Analytic thinking promotes religious disbelief. Science (New York, N.Y.), 336 (6080), 493-6 PMID: 22539725

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Yes, we know. You get this. Since 9-11-2001, we are all wary of Muslims and other turban-wearing people [who, after all, must be Muslim]. Regardless of the (in)accuracy of this perspective, it is prevalent and seemingly hard-wired in our brains. All the “true Islam does not condone violence” clarifications in the world do not seem to mitigate the bias.

We still see 2012 surveys showing (for example) that about half the Republicans in Alabama and Mississippi believe Obama to be Muslim. We see multiple depictions of President Obama wearing a turban which we presume, are meant to incite anger and fear. So, here’s a study we missed earlier on how we automatically kill video game non-Caucasian opponents who wear turbans first. Because they are wearing turbans. Which makes them dangerous. Because they wear turbans. Turbans = Danger. (See how life just got simpler?!)

This study was conducted in Australia with “otherwise liberal and tolerant Australian undergraduates” and the authors suspect there would be an even stronger “turban effect” in either the US or Britain (both of whom have experienced assaults by Muslim terrorists). In the study, participants playing a violent video game were much more likely to shoot “Muslim-looking characters” whether male or female–even if they were carrying an innocent item rather than a weapon. And, perhaps not surprisingly, the subjects all denied any intention to behave in this biased way and the post-game debriefing left them “very uncomfortable”.

“Whether they’re holding a steel coffee mug or a gun, people are just more likely to shoot at someone who is wearing a turban,” says author Christian Unkelbach, a visiting scholar at Australia’s University of New South Wales. “Just putting on this piece of clothing changes people’s behaviour.”

Another odd finding in this research was that a positive mood increased the tendency to shoot more at turban-wearing characters while an angry mood increased the tendency to shoot at all characters. The researchers took this finding to indicate that a positive/happy mood often results in a “top-down, assimilative processing that facilitates the influence of stereotypes on responses”. In other words, being in a positive mood makes you more likely to act on stereotypes and selectively shoot more video game opponents wearing turbans. They also comment (in plain language this time) that “even tolerant university students will display strong negative biases towards Muslims”.

So what does this mean for litigation advocacy? A lot.

If you have a Muslim client who wears a turban, headgear or a hijab, you need to pay special attention to bias as you proceed through voir dire, witness preparation, and pretrial research. You’ll find some additional voir dire tips here.

Obviously, you need to make your client as similar to the jurors as possible to minimize the impact of his or her ‘differentness’ and threat. The opportunity to do that with their attire may not be possible, so you have to do it through other means (collateral witnesses, personal life story, discussions of their work, their family, their kids. etc.). By doing so, you control the “intuitive interpretations” jurors may make in the absence of a conscious effort to draw connections between your client and the jurors themselves.

We’ve seen bias against Muslims in our pretrial work that is intense and intractable and acceptance that is a thing of beauty. Recently, we hired a Iranian subcontractor to do some computer programming for us on a jury selection tool. In our first meeting, curious as to how he had gained entry to the US after 9/11, we asked him to tell his story. His face lit up as he described how he came to be in this country, his family (his hijab-wearing wife and three daughters), his sense of the US (“I have found my country”) and his directives to his daughters on breaking the ice with new acquaintances (“Tell them you are not a terrorist”). Ultimately, we were touched and felt emotional similarities with him we would not have predicted.

It often works with jurors too.

Unkelbach, C., Forgas, J., & Denson, T. (2008). The turban effect: The influence of Muslim headgear and induced affect on aggressive responses in the shooter bias paradigm Journal of Experimental Social Psychology, 44 (5), 1409-1413 DOI: 10.1016/j.jesp.2008.04.003

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We’ve read repeatedly about how video games might increase aggression and how the internet makes us stupid. Each of these positions has proponents and opponents who hotly debate each other at seemingly every opportunity. And if you have heard of the movie, Mean Girls, then you know what the term “relational aggression” means.

Researchers wondered whether media depictions of both physical and relational aggression contribute to aggressive thoughts in women. While prior research had examined the impact of physical aggression (and found that viewing it does increase aggressive thoughts) these researchers were interested in whether viewing relational aggression would also increase aggressive ideation.

They showed female participants clips from one of three different movies: one depicting physical aggression (Kill Bill); one depicting relational aggression (Mean Girls); and one depicting no aggression (What Lies Beneath). They then assessed emotional arousal, had participants complete various questionnaires measuring aggression and asked about television viewing.

The researchers found that both physically and relationally aggressive thoughts are activated following viewing of media aggression.

Those women who saw the Mean Girls clip displayed more relationally aggressive thoughts while women viewing Kill Bill had both higher physically aggressive and higher relationally aggressive thoughts.

The researchers suggest that aggression begets aggression–or that the act of watching physically aggressive media activates the general aggressive neural networks of the viewer. This would encompass both physical and relational aggressive thoughts and would explain the increases in both types of aggressive thoughts after watching a physically aggressive movie clip.

Alternately, they suggest the finding may be gender-dependent and have occurred due to the all-female sample of research subjects. Physical aggression is depicted less often among females and watching Uma Thurman attempt to “kill Bill” may also activate aggressive thoughts of a type that is more gender-normative (i.e., “relational aggression”). They suggest future research investigating the impact of these types of media on male research participants.

From a litigation advocacy standpoint however, what we care about is the activation of the aggressive thoughts–not so much whether viewing physical aggression activates both physically and relationally aggressive thoughts across genders. What this research corroborates is that viewing media depictions of aggression stimulates aggressive thoughts. We know from years of research (and years of work in litigation research) that angry jurors are more likely to act (and award damages or convict) than are sad and hopeless jurors. What this research says is that viewing aggressive media activates aggressive thoughts.

This may have implications for ‘day in the life’ videos, evidence videos/animations, or other court admitted film/video. While it is straightforward to see how a physical injury/assault case can make use of aggressive visuals, even a videographer’s depiction of a broken contract can be presented with aggressive themes/visuals. Editing strategies can be smooth or jarring. Sound tracks can be soothing or edgy. The idea is to activate the aggressive cognitions within your jurors and then give them an action to take to honor those aggressive impulses.

If you are opposing counsel, you want to reframe the aggressive actions depicted by the plaintiff/prosecution as sad, misdirected anger that won’t turn back time. While the plaintiff/prosecution wants to ramp up anger, you want to turn it down and replace it with sadness and hopelessness–a “stuff happens” reaction that will inoculate against high damage awards or a guilty verdict. And find a way to convey that video editing, formatting images, and sound tracks can be argumentative and prejudicial.

Coyne SM, Linder JR, Nelson DA, & Gentile DA (2012). “Frenemies, Fraitors, and Mean-em-aitors”: Priming Effects of Viewing Physical and Relational Aggression in the Media on Women. Aggressive Behavior PMID: 22331575

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We’ve written a lot about racial bias and how it effects all of us. This research is a little scary in highlighting how simple it is for well-meaning ‘interventions’ to result in negative impact for ethnic minorities.

Most of us are familiar with the idea of “color-blindness” when it comes to varying racial groups. Many of us were taught as children that it was more polite to simply not notice the race, ethnicity, and even the skin color of those we encountered.

What does it mean to be “color-blind” when it comes to ethnicity?

“Colorblindness is the racial ideology that posits the best way to end discrimination is by treating individuals as equally as possible, without regard to race, culture, or ethnicity.” 

The authors point out that in, for example, employment settings, the more a multicultural ideology is endorsed by White employees, the more engaged ethnic minority coworkers are in the work itself. So these researchers wondered what effect it would have on ethnic minorities to have Whites primed with colorblindness (versus multiculturalism).

Research participants were female and worked in dyads. They were previously not acquainted with their research partner. The sample included 31 White/White dyads, 25 White/Asian dyads and 23 White/Black dyads. Each of them read news editorials that endorsed colorblindness, multiculturalism or the importance of eating locally grown food (the control condition).

In the interracial dyads (White/Asian or White/Black), White participants read either the multicultural or colorblind editorial while ethnic minorities read the control editorial on locally grown food. In the White/White dyads, participants were randomly assigned to read any of the three editorials.

After reading the editorials, there followed a five minute discussion [this is important--it was only a five minute discussion!] within the dyad on either modern racism or ethnic diversity in schools–and thereafter, each participant went to a separate room to complete a computerized measure of cognitive performance. [Performance on the cognitive tests is significantly affected by emotional states. If a person is upset, distracted, or stressed, performance is expected to be lower.]

The results are disturbing. The important variable was the computerized measure of cognitive performance.

In White/White dyads, there was no difference in level of cognitive performance between the partners.

In both the White/Asian and White/Black racial dyads, the Asian and Black participants were more cognitively depleted after interacting with a White partner primed with the color-blind editorial than they were after interacting with a White partner primed with the multicultural editorial.

Overall, the effect of either the colorblind or the multicultural primes were not different for White participants but differed significantly (and detrimentally) for the ethnic minorities.

Further, judges (who were not informed as to whether a White research participant had been exposed to the color-blind or multicultural editorial) viewed the five minute videotaped discussions and rated the color-blind White participants as communicating in a more racist fashion than the multicultural White participants. When tested, the level of the ratings on color-blind White participants prejudicial statements was related to the level of cognitive depletion experienced by the minority partner.

The researchers say that for short-term interactions, an exposure to the color-blind content among Whites negatively effects the cognitive function of the ethnic minority. We would go a bit further. In our experience, when race is salient (as it was in these dyadic discussions) really strange and volatile things can happen in deliberating groups. We’ve had to intervene between combative jurors when offense was taken (and given). We’ve worked our mock jurors through tears and frustrations and un-politically correct tirades. Do we think our minority jurors were cognitively depleted by those experiences? You bet.

Do we work to combat those experiences so they don’t happen in the actual jury room? You bet we do. This is a terrific research example of why it’s so important to connect your jurors to parties or witnesses via what we think of as universal values. Even if “they” look different than me, we share values of family, community, education, work, and more. The goal is not to make your jurors color-blind but to expand their view of how they may be different and yet the same from the “different” other. “Colorblind” doesn’t work any better than “separate but equal”. Silence doesn’t work. “Be fair” doesn’t work.  It requires building a connection between people through values, priorities, commonalities, and the stories of everyday life.

That’s how you prime your jurors to be multicultural in the courtroom. And more importantly, that’s how you prime your jurors to remember to be multicultural during deliberations.

Holoien, D., & Shelton, J. (2012). You deplete me: The cognitive costs of colorblindness on ethnic minorities Journal of Experimental Social Psychology, 48 (2), 562-565 DOI: 10.1016/j.jesp.2011.09.010

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Hearsay testimony is often admissible in cases of child abuse when the individual who interviewed the child recounts the child’s testimony in court. This strategy is meant to protect the child from embarrassment and repetitive trauma in the courtroom. Recent research (according to the current authors) has highlighted at least two potential issues with even this limited exception to the hearsay rule.

Interviewers often lack the ability to retain and accurately report interview details. While they likely recall the gist of the interview, the specific details are often fuzzy. It is further compounded by the typical process of contemporaneous written notes being later converted and often interpreted by the interviewer into a report.

To further complicate matters, jurors often believe the interviewer testimony more than they would believe the testimony of the actual child whose statements the interviewer is reporting.

Researchers wondered if expert testimony that raised multiple questions regarding the validity of hearsay evidence would be more persuasive to jurors than no expert at all or an expert testifying about only one issue with the hearsay evidence validity. That is, if you hear no expert witness at all, is that more persuasive (or as persuasive) as an expert testimony discussing only one of the above issues with hearsay evidence validity? And what if the expert testimony covers both of the afore-mentioned issues with hearsay evidence? Is that the most persuasive of all?

We’ve written about the “one at a time effect” as part of our Simple Jury Persuasion series and based on that, we’re expecting the expert who has multiple reasons the hearsay evidence is problematic is going to be more persuasive to their listeners.

The research included about 200 participants (undergraduate students) who were given a written mock trial summary where a hearsay witness [a counselor at the Department of Human Services] testified on behalf of a child alleging sexual abuse by her father. The research participants also received testimony from a character witness for the defense. Then the study introduced the variable of ‘testimony on the effect of hearsay evidence’ by an expert witness (an experimental psychologist). They were randomly assigned to one of four expert witness conditions:

In the first condition, no expert testimony was presented.

In the second condition, the expert testimony covered the research on poor interviewer memory with regard to hearsay witnesses.

In the third condition, the expert testimony presented research showing that jurors tend to over-believe hearsay witnesses.

And in the fourth condition, the expert testimony presented research covering both types of expert testimony (e.g., poor interviewer memory and juror tendency to over-believe the hearsay witness).

The researchers found that most of the jurors were unaware that interviewers had poor memory with regard to the specific details of their interview conversations. Jurors who heard expert testimony gained knowledge whether they heard about one issue with hearsay evidence or two.

However, it was only when they were given expert witness testimony on both issues with hearsay evidence that perceptions of credibility were affected and actual verdict decisions changed. The researchers offer the suggestion that marketers who say “more is better” are likely accurate. Multiple reasons to doubt testimony reliability are more persuasive than one or none.

So, we were right!  The earlier research on the “one at a time” effect is affirmed. It’s a pretty intuitive outcome when you think about it. Give jurors education and information on why what they believe to be true may not be. It’s akin to how to best deflate the impact of ‘dueling experts’. We have to trust our jurors. And we have to educate them so they can make informed decisions.

Maybe it isn’t so much a one-two punch for jurors as the authors propose in their article title–but rather a one-two punch for the trial lawyer to reinforce the importance of education along with advocacy for optimal courtroom effectiveness.

Nunez, N., Gray, J., & Buck, JA (2011). Educative expert testimony: A one-two punch can affect jurors’ decisions. Journal of Applied Social Psychology.

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