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Archive for the ‘Voir Dire & Jury Selection’ Category

guiltproneThree years ago we wrote about the goodness of fit for the guilt-prone with the presiding juror position. Counter-intuitive as it may seem, there were a number of reasons supporting them in that role. And today, new research gives us another reason the guilt-prone may be more skilled at leadership—they are more able to identify emotions of others.

The Australian researchers wanted to see how guilt-prone and shame-prone people differed in their abilities to correctly identify the emotion experienced by others. They begin by defining the difference between guilt and shame.

“…a key difference between shame and guilt lies in the perceived role of the self in the problematic behavior. With experiences of shame, the focus of the individual’s negative evaluation is squarely on the self (e.g., “How could I have done that?”), with the transgression or failure viewed as evidence that the self is defective (e.g., “I am a terrible person”).

In contrast, the individual experiencing guilt is focused not on the self, but squarely on their problematic behavior (e.g., “How could I have done that?”) and the ways in which they may make amends for their failure or transgression (e.g., “I need to fix this”).”

While experiences of shame are highly aversive—they are also associated with feelings of “inferiority, exposure, powerlessness and a strong desire to conceal one’s real or imagined deficiencies”. Guilt, on the other hand, is described as “unpleasant and niggling, but less aversive than shame”.

Given those definitions, the researchers asked 363 students and community members (age range 18-67 years with an average age of 27.48 years; 71% White, 12% Asian, 4% Hispanic, 3% African and 10% of other or mixed ethnicity) to predict how they would feel in 11 hypothetical and negative scenarios. The scenarios were taken from a measure of what is called “self-conscious affect”. The researchers used only those scenarios measuring shame-proneness and guilt-proneness. For example, one scenario involved a big mistake on a work project and the students selected their most likely reaction. If they chose “I should have recognized the problem and done a better job”, the researchers categorized them as guilt-prone. If, on the other hand, they selected a response such as “I would feel like I wanted to hide”—they were categorized as prone to shame.

After this task, they looked at photographs of actors dramatizing different facial emotions and chose one of five emotions as best fitting the emotion on the actor’s face: happiness, sadness, disgust, fear, anger or shame. What the researchers found is this:

Those participants whose responses on the first task indicated a guilt-prone perspective were better at identifying emotions on the second task even when the emotions dramatized were lower intensity. The authors say that past research also supports their findings—in the past, guilt-prone people have been reported as having overall better than usual psychological adjustment and to have good relationship skills.

Conversely, participants whose initial responses categorized them as shame-prone were not very good at accurately identifying emotions and the authors say this is consistent with past research demonstrating shame-prone people have lower levels of empathy.

The researchers conclude that when people who are guilt-prone experience guilt following a transgression, “they remain firmly focused on the negative impact that their transgressive behavior may have had on others”. Thus, according to the researchers (and consistent with past research) the guilt-prone person is likely to be compelled to learn from their bad behavior and make attempts to repair things. Conversely, the shame-prone person is less likely to have empathy for the experience of the other—they focus so much on their “badness” that they are blinded to the feelings of others.

We view this on a somewhat less complicated level. People who feel guilt are thinking in terms of having failed the expectations of others. It is an outwardly focused, interpersonal emotion. Shame is a defensive frame of reference, focused on themselves, rather than others. People feeling guilt are concerned about the feelings of others, while those feeling shame are concerned about how they are judged by others. While our primary focus in this blog is litigation applications, this research also contains intriguing implications for hiring decisions. Which employee—guilt-prone or shame-prone— is more likely to admit a mistake, and which one is more likely to hope no one notices?  Which one is more likely to be an effective manager or team leader? Which is more likely to be proactive in the face of possible problems? Overall, you can’t beat a guilt-prone employee.

From a litigation advocacy perspective, this is an intriguing study. If indeed you can categorize people based on their responses to negative situations (like the example offered earlier on a bad mistake made at work) into either guilt-prone or shame-prone individuals—that may work well for your case. (Of course, you’d want to test this in pretrial research to see if being either guilt-prone or shame-prone worked well for your case.) If you are curious as to whether you are more guilt-prone or shame-prone or more prone to blame others for bad things that happen (i.e., externalization-prone), you can take and score the TOSCA-3 here.

Treeby MS, Prado C, Rice SM, & Crowe SF (2015). Shame, guilt, and facial emotion processing: initial evidence for a positive relationship between guilt-proneness and facial emotion recognition ability. Cognition & Emotion, 1-8 PMID: 26264817


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kinsey-scaleIllustrating this post is the Kinsey Scale of Sexual Behavior. As you can see, the scale asks people to describe themselves sexually on a scale ranging from “exclusively heterosexual behavior” to “exclusively homosexual behavior”. In the wake of Caitlyn Jenner’s emergence into the public eye, there’ve been many articles about gender identity and sexual preference as people attempt to sort out how a hyper-masculine Olympian has always felt like a woman on the inside.

A well-regarded polling company ( decided to ask 1,632 adults in Britain to simply place themselves on the Kinsey scale. They made some interesting discoveries about age and sexual identity.

72% of the British public identifies as “completely heterosexual” and 4% identify as “completely homosexual” while 19% say they are somewhere in between. (Kinsey classified the in-betweeners as “bisexual in varying degrees”.) Of those in the 19% in-between group, 15% are closer to the heterosexual end, 2% place themselves directly in the middle, and 2% are closer to the homosexual end of the scale.

However, reports that “with each generation, people see their sexuality as less fixed in stone”. They say the results for 18-24 year olds are particularly striking with “43% placing themselves” in the “in between” areas and 52% placing themselves at one end or the other. In this group 46% say they are “completely heterosexual” and 6% say they are “completely homosexual”.

The authors say that people (regardless of age) now accept the idea that sexual orientation is on a continuum (60% of heterosexuals and 73% of homosexuals support this idea) rather than a completely binary choice. They see this as indicative of an increasing open-mindedness to sexuality.

The full results of the study can be seen here. In the first URL, you can see from the intensity of the comments that this entire idea remains one which inflames the senses for some people.

From a litigation advocacy perspective, this is important information of which to be aware. While Caitlyn Jenner’s very public transition has precipitated a national (and perhaps international) discussion on sexual identity and sexual orientation, the bottom line is that younger jurors may well have more fluid definitions of their individual sexual orientation. It’s one more thing to remain cognizant of as you present cases where sexual identity may or may not be an issue.


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gaydarstickerA study a while back showed ‘above chance’ guessing of sexual orientation based on photographs of faces alone. The results were explained as proof of gaydar. Now, a new study says gaydar is not real and is a way to stereotype others that is seen as more “socially and personally acceptable”. They point to a difference in photograph quality in the 2008 study saying gaydar was real—apparently the gay men and lesbian women whose photographs were used in the study had “higher quality pictures than their straight counterparts”. When the photo quality difference was removed, participants were unable to say who was gay and who was not.

The current researchers conducted five experiments to see if gaydar was real. What they found, in brief, was that when you are told gaydar is real, you tend to use stereotypes to identify sexual orientation based on appearance. However, when you are told that gaydar is not real, you use stereotypes less to identify sexual orientation. In other words, when you know calling your stereotyped assumptions “gaydar” is really just a stereotyped assumption—you use it less. It’s what we see over and over again in our pretrial research. When you alert people to the existence of a stereotypical bias, they use it less. When you don’t alert them, they use it and form conclusions based on stereotypes.

These researchers used descriptive sentences to either communicate gay stereotypic ideas, neutral stereotypic ideas or straight stereotypic ideas. Like this: “He is an interior designer” (gay stereotype); “He likes spaghetti” (neutral stereotype); or “He drives a pickup truck” (straight stereotype). Participants were very willing to endorse someone being gay or straight based on being given these stereotypes unless they were told gaydar was not real but merely the application of stereotyped inferences.

The researchers say that the “folk concept of gaydar” provides a “legitimizing myth” that allows people to think they are expressing intuition rather than making judgments based on stereotypes. Their discussion section at the end of the paper offers an education on the fallacies behind stereotypic reasoning. Here is just one paragraph from their general discussion section:

“In some ways, the idea of gaydar—being able to tell who is gay versus straight—seems useful at best and harmless at worst. The very fact that it seems harmless, however, may ultimately be responsible for its most pernicious effects. Our findings from Study 5 demonstrated that belief in gaydar perpetuates the use of stereotypes to jump to conclusions about orientation. [snip] Thus, the gaydar myth may not only promote the use of stereotypes to make inferences about orientation but may also indirectly facilitate discrimination—even aggression—based on these inferences.”

It is common to want shortcuts to categorize people and we see that not only in our pretrial research but also in many approaches to voir dire using demographic stereotypes. In fact, we see it so routinely in voir dire approaches we wrote a full length paper on it, published in The Jury Expert. We see stereotypes based on occupation, gender, race, and age. For example, teachers are cheap and critical. Young jurors are selfish and don’t care. Women and minorities are good for the Plaintiff and men for the Defense. Engineers have no feelings. Old people can’t keep up cognitively. Men with pink shirts are gay and women with short spiky haircuts who wear pants are lesbian. People of color will always support each other.

None of those generalizations are any more true than the one these researchers explore: you cannot predict sexual orientation based on someone’s appearance. So don’t bet your case on it.

Cox, W., Devine, P., Bischmann, A., & Hyde, J. (2015). Inferences About Sexual Orientation: The Roles of Stereotypes, Faces, and The Gaydar Myth The Journal of Sex Research, 1-15 DOI: 10.1080/00224499.2015.1015714


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As you know by now, I edit The Jury Expert for the American Society of Trial Consultants and we try to alert you when new issues upload 4 times a year. This issue is special since it focuses on the perhaps premature reports of the death of the civil jury trial. Here’s the Editor Note from the new issue of The Jury Expert explaining how it all evolved and with some extra  links thrown in so you can go directly to the articles themselves. –Rita

When we at The Jury Expert saw Renée Lettow Lerner’s writing on the collapse of the civil jury system in the Washington Post when she guest-blogged for the Volokh Conspiracy it was clear the ideas she expressed were not ideas that resonated with our own experiences in the courtroom. So we asked her to write for our readers here at The Jury Expert and she graciously agreed. Professor Lerner discusses her perspective and a trial consultant (Susie Macpherson) and a well-known litigator (Tom Melsheimer) offer very different points of view.

After Professor Lerner’s thoughts on problems with the US justice system, we have an article on changes in the Swiss civil system as they moved to abolish jury trials. This article is by two Swiss scholars (Gwladys Gilliéron and Yves Benda) and an American scholar (Stanley Brodsky). It describes the existing Swiss system and how abolishing the civil jury trial changed (and did not change) the application of justice in Switzerland.

Shortly after Renée Lerner’s work in the Washington PostAdam Benforado wrote an excerpt from his new book UNFAIR that was published at The Atlantic website and titled: “Reasonable Doubts About the Jury System: Trial consultants allow the affluent to manipulate the biases of those who judge them, putting justice up for sale”. As you might expect, the article isn’t likely to fit the point of view of most trial consultants, so his viewpoint is important for any trial consultant to understand. I contacted Professor Benforado, and invited him to write an article for us that addressed the issues he raised in The Atlantic. He agreed, in the face of knowing there was vigorous disagreement among trial consultants with the position he took in The Atlantic. His article elicited thorough responses from Diane Wiley (representing all trial consultants), Jason Barnes and Brian Patterson (representing visual trial consultants), and Stanley Brodsky (representing academic and research trial consultants).

Following those first three articles about problems in our justice system, Hailey Drescher (a trial consultant) offers an interview with Steve Susman (a well-known litigator) and Tara Trask (a trial consultant) on Susman’s new Civil Jury Project at New York University. This ambitious, long-range project is unlike anything that’s been done before in this country and will attempt to examine the civil jury trial and offer suggestions for improving it. Read the interview if you want to know more about this project or the upcoming conference they will be sponsoring.

Then we move on to other exciting new research and ideas on the jury system from here in the United States. Krystia Reed and Brian Bornstein (academic researchers) offer recommendations on how to use joinder differently if you are in a civil versus a criminal trial. Sonia Chopra and Charli Morris (trial consultants) respond to this article and offer insightful questions and suggestions on implementing the research. Richard Gabriel (a trial consultant) saw the issue of peremptory strikes in the New York Times (again) and provides us with new ways to think about strikes (both peremptory strikes and strikes for cause). Allen Campo (a trial consultant) describes a newer way he’s been helping attorneys understand their cases—he calls it a feedback group. And finally, Bill Grimes updates us on the research literature about deception—do we know how to tell who’s lying yet?

It’s an intriguing quandary—the numbers of civil juries are declining, yet there is a plethora of ideas, programs, research, and strategies for improving our ability to work together to improve litigation advocacy. Is our system dying? That is questionable, although it is undoubtedly changing, as it always has. The energy around these new and exciting ideas makes me think perhaps our system isn’t dying. It is merely evolving and thus has to face hard questions as a new definition of our justice system emerges.

The role of trial consultants has evolved over time, as well. The idea that the trial consulting profession contributes to bias (while most trial consultants feel they are in the business of rooting out bias, not creating it) produced deep reactions from responders who are members of the American Society of Trial Consultants. Many of the founders of the profession are still alive and actively practicing—trial consulting is a young profession. I appreciate the measured responses from our trial consultant members in this issue and I appreciate the generosity and courage shown by Renée Lettow Lerner and Adam Benforado in writing about and standing behind their convictions despite disagreement. Both their offerings and the thoughtful commentary by ASTC members give us all much to consider. Combined, these contributors keep The Jury Expert an intellectually and morally stimulating forum, for which we are all grateful.

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Nominations are now being accepted for the ABA Blawg 100 list. If you value this blog, please nominate us at the ABA site: The only catch is you have to do it fast! Nominations close at midnight THIS COMING SUNDAY (8/16/2015).

you-look-guilty__24398_zoomWe like a good conspiracy theorist and last year we ran across an article on some out-of-the-mainstream-conspiracy-theories we had not heard of before. So naturally, we blogged about them. Along the same lines, although Stan Brodsky and some of his colleagues have written an article on jury duty excuses—it appears they missed a few. Although they covered hardship, and goofy excuses (like Tina Fey dressed up like Princess Leia in an effort to be excused) we just don’t think they identified demonic transference as an excuse. As a public service, let us add to their list.

A recent article in The Columbian newspaper listed some of the more creative reasons potential jurors wanted to be excused.

Demonic transference: Judge David Gregerson said he once had a juror explain that he believes in demonic transference, the act of a demonic spirit taking over a mortal body. Gregerson said he didn’t know what that meant at the time and later looked it up. (We must confess that we had no idea what that was either but the pictures you find if you search the internet for ‘demonic transference’ are pretty scary.)

A plastic baby doll: Judge Suzan Clark said her predecessor had a juror who showed up to trial with a plastic baby doll. She said the doll accompanied the man through the entire trial.

Inappropriate T-shirts: (like the one illustrating this post) have also caught Clark’s eye.

I need to meditate: Clark said when she was a defense attorney she encountered a woman who during voir dire said she couldn’t serve on a jury because she needed to meditate for 10 minutes every hour. In the end, she wasn’t selected.

You stink: Many people have said they can’t sit through trial because of the smell of the other jurors’ aftershave or body spray, Clark said. [On several occasions we have had mock jurors request reseating because the person next to them smelled awful. Upon investigation, the complaining juror was always correct.]

You can see people talking about jury duty every day on Twitter, Instagram, tumblr, and even Pinterest. Most of the entries on all of these platforms are either illustrations of their jury summons or questions about how to get out of jury duty. It’s like a cottage industry about getting out of your civic duty!

It’s intriguing to us because it just isn’t what we see and hear in our pretrial research. Most of our mock jurors who’ve been actual jurors tell us they enjoyed their stint as a juror and felt they’d done an important thing by participating. Recently, we had one woman say she’d just finished as a juror in a murder trial and had been traumatized by the photos so she wondered if we would be showing photos of dead people. We assured her we would not.

We tend to think how jurors respond to jury duty has a lot to do with whether they know how to do their job as a juror. When attorneys teach jurors how to deliberate—our guess is satisfaction with the task goes up. And it’s tough to figure out how to engage a juror who didn’t want to be part of your case and now has to attend a lengthy trial against their will. Indeed, if someone has a terrible attitude coming in, they are probably going to be distracted by their own attitude and less likely to attend to the evidence.


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