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Archive for the ‘Voir Dire & Jury Selection’ Category

How headlines can help you pick a jury 

Wednesday, February 25, 2015
posted by Douglas Keene

????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????CNN just ran a cover story on what they call “Southern Discomfort”. The story is all about the status of same-sex marriage in the United States and the discomfort with it, especially in the southern states.   If you are going to trial soon, it would serve you to consider whether the attitudes, values and behaviors that result in antipathy toward same-sex marriage will play for or against your specific case.

The CNN story leads with two men and two women who come from very religious backgrounds and also both recently married in Alabama. CNN explains that same-sex marriage is now legal in 37 states and the District of Columbia. They use quotes from the spouses that make it clear these are people who struggled with their decisions and the lack of family support for their relationships but who loved each other and wanted their relationship legally sanctioned so they could enjoy the legal benefits of marriage. The story also covers the reactions to same-sex marriage laws by Chief Justice Roy Moore in the state of Alabama who says same-sex orientation is a choice rather than a characteristic such as race or gender and thus not entitled to constitutional protection.

“I’m not standing in any door. I did not bring this on. This was forced upon our state. This is simply federal tyranny,” he said. “This is not about race. This is about entering into the institution of marriage.” Race, he said, is biologically predetermined and therefore can’t be used to deny someone her or his rights under the Constitution. Homosexuality, he claimed, is a choice. “People can choose different lifestyles and no doubt they have since Sodom and Gomorrah,” he said.

If the state supreme court judge’s opinions reflect those of the larger population in the heart of the Bible Belt, it is imperative that you know it. We tend to pay more attention to surveys (national and regional) than to major news sites (who, after all, gather their stories from survey data) as we look at the attitudes, values and beliefs in any potential trial venue.

But when a site as mainstream as CNN runs this sort of story, you want to take a very close look at what underlies the antipathy.

Is it religious beliefs?

Is it bias akin to racism or sexism or ageism?

Is it lack of knowledge?

Is the bias worse against males marrying or females marrying?

And most importantly, do the values in your case narrative bounce up against any of the values that result in this negativity toward same-sex marriage? If yes, that could be a very dangerous thing for your client and for your case. What does it reflect generally about the reception a witness will have if they are perceived to be gay or lesbian (accurately or not)?

Know the venue. Know your venire. Know the values your case narrative pushes against. Know the random, largely irrelevant values and beliefs that will still find their way into a jury’s deliberations. And finally, know how to tell your specific story in a way that invites jurors to join with you and not react against you.

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man selfieLast month we were asked to provide internet research on a very large jury panel, and to complete it overnight. What that means is we want to find out as much as we can about the attitudes, values and behavior of those in our venire panel. We do that background research on the internet and on multiple sites. It is painstaking work and must be accurate, no matter how late (or early) it gets. In this case, we started about 3pm one day and finished up about 5am the next morning (with the help of pizza delivery, lots of peanuts, and ample caffeine).

We’ve noted before that pretrial juror research can result in hilarity only achievable in the wee hours of the morning as exhaustion sets in. While, in this research batch, we found a plethora of selfies with duck-faces (mostly by women), today’s research article was garnering lots of press while we were pounding our keyboards (and then sleeping).

This particular research finding does not surprise us at all. When you see men with all sorts of selfies on social media—particularly shots showing off their physique, musculature, and general buffness—what might you conclude? If you say “narcissist”—then you agree with today’s researchers.

The researchers obtained a “nationally representative sample” of 800 men aged 18-40 years (average age 29.3 years, 73.1% White; 13.3% Black; 7.6% Hispanic; 6.1% Asian; 1.3% Native American; 2.3% multiracial; and 2% other) who completed an online survey task.

The 800 participants completed scales measuring self-objectification (e.g., how much the individual values their physical appearance above other traits, to see the self-objectification scale questions, follow the link above and scroll to page 120 of the document that opens), and the dark triad (e.g., psychopathy, narcissism and Machiavellianism; to see this scale’s questions, follow the link and see items in Table 8 on page 429 of the document that opens).

In addition to completing these scales, the participants also estimated the time they spent on social networking sites daily, reported how often they posted selfie photos and,  whether they edited the photos they posted to enhance their appearance.

And here are the (not particularly shocking) findings:

Men who spent more time (the average in this study was 78.73 minutes with a maximum report of 16 hours a day) on social media sites each day were more narcissistic and higher in the trait of self-objectification.

Men who posted more selfies were more narcissistic and psychopathic.

Men who edited their photos before posting them were more narcissistic and higher in the trait of self-objectification.

The researchers opine that men high in dark triad traits (narcissism, psychopathy and Machiavellianism) will edit photos before uploading them to social networking sites so as to present themselves in the best possible light and attract short-term partners. The researchers call these “cheating strategies”—but they could just as easily be called  “editing photos to be more flattering”.

We want to point out that although these men “higher in dark triad traits” did measure higher in narcissism, psychopathy and Machiavellianism—their scores remained in the normal range and could simply indicate good self-esteem.

While most of the mainstream media coverage we’ve seen has reported this fact—it tends to be tucked in at the bottom of the coverage, and you will be unlikely to see headlines trumpeting, “Men With Good Self-Esteem Post More Selfies!!!”.

So therein lies the dilemma. It is easy to make assumptions about lots of selfies on male social networking accounts. But drawing assumptions from one piece of data is always risky.

An example from this most recent round of research was the young male who had only one book listed on his Facebook profile under books he’d read: The Stoner Cookbook. It would have been very easy to write him off as “just a stoner”, but there were other data points that showed him to have much broader interests and to be a reasonable prospective juror.

Today’s research is just one study that has taken off in the mainstream media (like the study on criminal defendants wearing eyeglasses that was so misinterpreted). “Selfies” are one data point when you are doing juror research before voir dire. They may be an important point of data, depending on content. On the other hand, they may not be relevant, and assumptions leading to incorrect conclusions can undermine your painstaking research.

Fox, J., & Rooney, M. (2015). The Dark Triad and trait self-objectification as predictors of men’s use and self-presentation behaviors on social networking sites Personality and Individual Differences, 76, 161-165 DOI: 10.1016/j.paid.2014.12.017

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

TJE_logoA new issue of The Jury Expert has been published, and as usual, it’s one worth reading. As Editor since May, 2008–I get to see the articles as they come in and am always surprised at (and appreciative of) the creative and stimulating content we receive. The Jury Expert, like this blog, is all about litigation advocacy and understanding how new research can help inform your strategies in the courtroom. Here’s what you can see in the lineup for the November 2014 issue.

Does Video Image Size Affect Jurors’ Decisions? A Look at How Image Size Interacts with Evidence Strength, Defendant Emotion and the Defendant/Victim Relationship

Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.

Moral Outrage Drives Biases Against Gay and Lesbian Individuals in Legal Judgments

Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you’ve not previously considered.

Anti-war Protestors and Civil Disobedience: A Tale of Two Juries

Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It’s like lifting up the top of her head and peering inside her brain.

A Qualitative Examination of Self-Care in Lawyers

Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but–what’s important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.

Favorite Thing: Plain Text

Why, you may wonder, would Plain Text EVER be a Favorite Thing. Because it is fabulous. Or, perhaps because, “Plain text is the cockroach of file types: it will outlive us all.”

The Selective Allure of Neuroscience and Its Implications for The Courtroom

Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here’s a shocker: the impact of the neuroscience evidence is related to the individual listener’s prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.

Book Review: Law and Neuroscience

Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the “my brain made me do it” defense).

Promoting Communications between Social Scientists and Lawyers

Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn’t mean you are actually communicating. How do you talk so your expert knows what you mean?

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

quackery

We just wrote about popular blogs picking up old survey data and discussing it as though it were new and relevant. Now, Pacific Standard magazine has published a rehashing of the content of a book published in 2002 as though it was fresh and new. Our friend and colleague, Ken Broda-Bahm over at Persuasive Litigator has done a blog post that looks carefully and critically at the claims made and we encourage you to read his post as a counterpoint to the Pacific Standard article by Jane C. Hu. Ken closes his post where we wish to begin ours:

“And in the meantime, those who have questions about the foundation for trial consulting and jury selection assistance should ask an experienced practitioner, and should focus on the actual practices and not on the myths.”

If it wasn’t so annoying in its gross distortions about the practice of litigation consulting, the dated Kressel and Kressel book, Stack and Sway, would be amusing. If trial consultants actually had the power to “stack and sway” juries, we would be very, very wealthy and there would be a lot more of us than there truly are in the country today. And the system would be irreparably harmed. We are not experts in verdict slight-of-hand. We are students of–and aspiring experts in–identifying and uncovering bias. We research and seek to understand what life experiences and values bear upon the decisions juries reach, in an effort to keep those preconceptions from influencing verdicts against our clients. Yes, we would like to see our knowledge assist our clients. But the purpose of “scientific jury selection” is not to “win” but to swear in a jury that will actually listen to the presentation of evidence and make decisions based on what they hear, rather than deciding based on their pre-existing biases and predilections.

Instead of stacking and swaying, we would describe what we do as applied social science. We read voraciously in the social science research literature and apply what we find there, when relevant to our work. Rather than, as Hu suggests, “incentivizing the use of lazy stereotypes”, we work to identify stereotypes and then to excise them from voir dire, jury selection, and case presentation. As Broda-Bahm notes, a skilled and veteran trial consultant has actual knowledge about many (but not all) of the characteristics that identify biased jurors. With no knowledge or insight, all that is left is the “lazy stereotypes”. Hu poses the accusation against trial consultants, and then goes on to note the obvious contradiction–information reduces stereotyping in every area of life, including jury behavior and jury selection.

If you read this blog routinely, you know we focus intently on bias in many shapes and forms. What we know, as many of you also know, is that bias is powerful, pervasive, and persistent. We want to know where bias lurks and how it may twist and turn depending on case facts. It can take a lot of work to identify biases affecting decisions in a given case and it certainly is not a process we would describe as “lazy”.

Ironically, Hu’s example of how trial consultants use lazy stereotypes cites a case wherein a prosecuting attorney used a stereotype to strike a juror. Note to Hu: prosecuting attorneys are not typically trial consultants (nor do they typically use trial consultants).

Recently, I joined the trial team for a three-week intellectual property trial following the completion of a mock trial where we had measured the attitudes, values and beliefs of our mock jurors and looked closely at how those pre-existing characteristics were related, if at all, to eventual verdict in our mock trial. As every trial lawyer and litigant would wish, we tried to figure out as much as possible about who was in the jury box. Hu, in her recent Pacific Standard article, characterizes this as “creepy”. It really is more sensible than “creepy”. I would be intrigued to hear Ms. Hu list the information that, were she a party to a lawsuit or facing criminal prosecution, she would like to keep away from her trial counsel due to excessive creepiness.

When you work on litigation where there is a lot of money on the line, it is very likely that both sides have done pretrial research. The playing field is typically fairly balanced. Just as the trial team is looking into every legal theory that might aid in their client representation, litigation consultants are engaged to help strategize how to overcome bias in juror decision-making.

It is very likely that both sides are doing internet research to identify values, attitudes and beliefs that inform individual decision-making processes of potential jurors.

If there is no time for research on individual jurors prior to voir dire, it is likely that both sides are doing that research once a jury is seated in order to inform tweaks to case narrative.

If no jury research is done, voir dire is rushed or not permitted, and nothing else is known about the venire members–decisions will be made based on stereotypes.  And sadly, the attorneys who are making those calls will do it knowing that it is a lousy way to make strike decisions. Using demographic stereotypes (age, education, socio-economic status, race, employment, marital status, parental status, etc.) is a very crude tool, far too much like doing surgery with a very dull blade.

If you choose not to conduct pretrial research and eventual juror research in cases with budgets that can justify it, you are either naïve, over-confident, unaware, or perhaps you are just a dinosaur. Back in 2002, when Kressel and Kressel wrote their book, internet research was unable to find much. In 2014, the age of social media and online documentation of life, there is much to learn and there are ethical ways to guide that exploratory internet research.

We feel very comfortable with our work and with our attorney-clients. We are fortunate to have clients who are committed to advocacy and fairness. We are not, as Hu suggests, ethically challenged. We are not creepy. We do not stalk potential jurors and we do not attempt to friend them on Facebook. We look at what people put out there in public for all the world to see online. We are informed, educated, principled professionals who work hard to identify bias and level the playing field. Sometimes we win. Sometimes we lose. But we always try our best to identify where a person is at risk of losing track of the evidence and revert back to their historical biases and stereotypes.

We encourage you to read Ms. Hu’s article, keeping in mind what Ken Broda-Bahm has written and what we have shared here. Ultimately, what Ms. Hu writes of is not jury consulting, it is instead, someone’s confused fantasy about what our goals are, what our methods are, and what guides our practices. Our readership is smart and discerning. You’ll figure it out. And eventually, Ms. Hu might, too.

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online pornWe can hear the snickers and gasps now–and likely the immediate objection from (probably) the opposing counsel or (unquestionably) the judge. But not always. So why might this be something you want to know? According to new research in the Journal of Sex and Marital Therapy, a distinguishing characteristic of narcissists is that they watch more porn online. That actually makes intuitive sense since narcissists would want to avoid rejection and objectify others as sexual objects. We are not sure how you would get this sort of question in though–unless the case actually involved online pornography.

More interesting to us (by far) was the information on the frequency of porn viewing online. For the study, researchers asked 257 participants (aged 18-61 years with an average age of 29 years, 63% female, 89.1% heterosexual, 70% White, 12.1% Hispanic, 7.4% Black, and 10.5% Other) to complete measures of narcissism (using the Narcissistic Personality Inventory, the Pathological Narcissism Inventory, and the Index of Sexual Narcissism) and report on the specifics of their internet pornography viewing (they were asked if they had ever viewed, and if they currently viewed internet porn as well as how many minutes per week they viewed internet pornography).

79% reported they had viewed internet porn.

44% reported currently (recently) viewing internet porn.

Current viewers, on average, viewed internet porn 85 minutes per week (or about an hour and a half).

Men spend more time on internet porn (an average of 3 hours per week) than do women (an average of about 1/2 an hour per week).

There was a significant difference in level of narcissism between those (79%) who had ever viewed internet porn and the 21% who had never viewed internet porn.

The researchers comment the sample of those who had viewed porn (the 79%) was skewed by gender since 96% of men reported they had viewed internet porn. Nonetheless, the 4% of men who had not viewed internet porn was lower in narcissism than the 96% who had. As for women, 68% of women had seen internet porn and again, those who had not scored lower in narcissism than women who had seen porn on the internet.

There was also a difference in level of narcissism between those who currently use internet porn for all measures of narcissism. Current users of internet porn (67% of men and 30% of women) were higher in narcissism than were non-current users.

Finally, as the frequency of internet porn use increased, so did the levels of measured narcissism.

What the researchers say is that there is a relationship between “internet pornography use, narcissistic behavior and psychological harm” to the viewer. They believe that using internet porn “inflates an individual’s narcissism (i.e., selfishness, isolation, and entitlement)”. For the researchers, this work focused on narcissism and how it harms relationships.

While we don’t recommend using this as a method for spotting narcissists (the study falls far short of suggesting that), there are clearly cases (copyright cases, sexual violence cases, premises liability cases, and various wrinkles in family law, to name a few) where attorneys and jurors need to be comfortable talking about salacious topics such as this. From a litigation advocacy perspective, this research validates being able to ask about sex and pornography in court* with a reduced fear of offending jurors.

The asterisk is that you need to tell them that virtually all men and over ⅔ of women have watched pornography on the internet. Otherwise, many will feel embarrassment and anxiety. You can normalize by pointing out the truth. When more than 3/4 of a group of 250+ have viewed internet porn, it takes much of the fear of stepping on juror sensibilities away. In fact, you could even say you’ve seen studies saying almost 80% of adults have viewed internet porn at some point in their lives.

There are many times we think the themes in our case are sure to alienate the triers of facts. What we’ve learned in our pretrial research is that when you matter of factly explain the issues, without giggling, blushing, or perspiring, jurors are willing to join you in an adult discussion of case facts.

We’ve also seen glib puns, one-liners, and shared glances with disbelieving grins shared among our mock jurors but they have always been able to quickly redirect their attention when their humor was acknowledged and a focus drawn back to the issues at hand.

Kasper TE, Short MB, & Milam AC (2014). Narcissism and Internet Pornography Use. Journal of Sex & Marital Therapy, 1-6 PMID: 24918657

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