Archive for the ‘Voir Dire & Jury Selection’ Category
We often associate people who are especially trusting with gullibility, low self-esteem, and lower intellectual function. However, we seem to have it backwards according to new research (which successfully replicates the results of studies from 2010 and 2012).
Intelligent people are more likely to trust others while those lower in intelligence are less likely to be as trusting. The authors think it is due to intelligent people being better at judging character and thus befriending those less likely to betray them. Our take is that while they may or may not be better, they appear to have more confidence in the accuracy of their impressions.
The British researchers analyzed data from the General Social Survey (a public opinion survey administered to a nationally representative sample of US adults every 1-2 years since 1972). Their study is the first to ever use GSS data to look at the relationship between generalized trust and intelligence. Ultimately, they find that intelligence and generalized trust are strongly associated and that, even after “adjusting for intelligence, generalized trust continues to be strongly associated with both self-rated health and happiness”.
Here is their primary finding:
Those with the highest verbal ability are 34% more likely to trust others than those with the lowest verbal ability.
This relationship holds for both “men and women, among both blacks and whites, among the young, the middle-aged and the old, and in all five decades since the GSS began”.
From our general perspective, that’s a pretty fabulous finding. It’s nearly universal as it holds true across gender, age, and ethnicity–as well as across the past forty-two years. We don’t know of many personality descriptor variables that do that.
From a litigation advocacy perspective, it’s a quick way of assessing intellectual function for those situations where you cannot look at educational achievement, management experience, or leadership roles. If you know you want smart jurors, you may want to ask them how trusting they are of others. Or conversely, if you need someone to trust your client beyond the immediate facts, you would do best to pick someone smart enough to keep focused on a broader reality.
Carl N, & Billari FC (2014). Generalized trust and intelligence in the United States. PLoS ONE, 9 (3) PMID: 24619035
Amazingly, a study published in a highly respected medical journal (as opposed to, say, a Bigfoot site) found that 49% of those living in the United States believe at least one medical conspiracy theory. That’s only where it starts–18% believe in three or more. Wow.
The researchers wondered if US residents believe the public health conspiracies that have flourished over the past 50 years (over issues such as “water fluoridation, vaccines, cell phones and alternative medicine”). A “nationally representative, online survey sample of 1,351 adults” was gathered in 2013 by a market research company (YouGov). Here are the conspiracies about which they surveyed:
The Food and Drug Administration is deliberately preventing the public from getting natural cures for cancer and other diseases because of pressure from drug companies. [63% had heard of this theory and 37% believe it.]
Health officials know that cell phones cause cancer but are doing nothing to stop it because large corporations won’t let them. [57% had heard it and 20% believe it.]
The CIA deliberately infected large numbers of African Americans with HIV under the guise of a hepatitis inoculation program. [32% had heard it and 12% believe it.]
The global dissemination of genetically modified foods by Monsanto Inc is part of a secret program, called Agenda 21, launched by the Rockefeller and Ford Foundations to shrink the world’s population. [19% had heard it and 12% believe it.]
Doctors and the government still want to vaccinate children even though they know these vaccines cause autism and other psychological disorders. [69% had heard it and 20% believe it.]
Public water fluoridation is really just a secret way for chemical companies to dump the dangerous byproducts of phosphate mines into the environment. [25% had heard it and 12% believe it.]
Overall, 49% of the nationally representative sample endorsed 1 conspiracy theory and 18% endorsed a belief in at least 3 of the proffered theories. The authors say if you believe in either 0, 1 or 2 of these conspiracies you would be considered a “low conspiracist” and if you believe in 3 or more of these conspiracies they would consider you a “high conspiracist”. Okay. We might categorize them a little differently but certainly agree that the more conspiracy theories you agree with, the more extreme your behaviors. Right?
But these skeptical citizens don’t display extreme conspiracy-nut behaviors when you consider their beliefs about public health conspiracies. “High conspiracists”, according to this research, are simply more likely to buy farm stand or organic foods and use herbal supplements, and are less likely to use sunscreen, get flu shots or have annual checkups with a medical doctor. The authors conclude we should look at people who believe in conspiracy theories as “otherwise normal”.
“Although it is common to disparage adherents of conspiracy theories as a delusional fringe of paranoid cranks, our data suggest that medical conspiracy theories are widely known, broadly endorsed, and highly predictive of many common health behaviors. Rather than viewing medical conspiracism as indicative of a psychopathological condition, we can recognize that most individuals who endorse these narratives are otherwise ‘normal’ and that conspiracism arises from common attribution processes.”
Recently we published information on how much Americans (and Europeans for that matter) really do know about science and technology. Viewed through that lens, this report about broad-based beliefs in public health conspiracies is not surprising. But knowing that in a venire of 50 prospective jurors there are, on average, 9 (18%) who are reluctant to believe government reports or studies related to life-and-death issues needs to be considered by anyone relying on government data. Your experts may be starting out in a very deep credibility hole with a lot of your finders of facts.
Oliver JE, & Wood T (2014). Medical Conspiracy Theories and Health Behaviors in the United States. JAMA internal medicine PMID: 24638266
The Jury Expert is a trial skills magazine for attorneys, written by trial consultants, and published by the American Society of Trial Consultants as a (free) service to the litigation community. The February 2014 issue just published and it was worth waiting for!
Here’s a description of what you will see in our latest issue when you visit The Jury Expert’s website:
The ABCs of Religiosity: Attitudes, Beliefs, Commitment, and Faith: Gayle Herde writes this practical article on how you can understand the role religious beliefs could play in juror deliberations. How to measure religiosity (by looking at attitudes, beliefs, commitment and faith), how to listen to responses in voir dire to “hear” religiosity without asking for direct expressions on the role of religion in a potential juror’s life, the relationship of political persuasion and religion, the role of non-belief, and how to structure your SJQ effectively.
Neuroscience, The Insanity Defense, and Sentencing Mitigation: Adam Shniderman gives us a very current, plain language review of the neuroscience arena. What does all the conflicting media coverage mean? What does the research really say? How can you best defend a client with neurological issues? This is a terrific summary of how to understand the “my brain made me do it” media coverage distortions, learn what the research actually says, and then plan accordingly.
A (Short) Primer on Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Culture in America: Alexis Forbes brings us all up to date on research, why it’s important to understand this culture, and terminology. She includes helpful charts that visually demonstrate the relationships between common terms and even a “say this” and “don’t say that” graphic to help you communicate without offending. You may think you are up to date. Here’s a simple question: Do you know what ‘cisgender’ is? Go read this!
Defense Responses to Jailhouse Informant Testimony: Brittany Bates, Rob Cramer, and Robert Ray bring us this information on how to defend against allegations about your client by a jailhouse informant. From reviewing the literature to offering ideas for pre-trial research and SJQs, this is a practical article for when you are faced with damaging testimony from your client’s alleged jailhouse confidant.
Metaphors and the Minds of Jurors: We are very familiar with the power of the story model for case presentation but, according to Ron Bullis, we may not have paid as close attention to the power of the metaphor. Read this to learn how to listen for metaphors in deposition to hear (and know how to defuse) opposition arguments. This is a practical article that highlights the importance of the metaphor–how you can use the metaphor powerfully, and how you can defuse the power of opposing counsel’s metaphor.
Why Do We Ask Jurors To Promise That They Will Do the Impossible? Suzy Macpherson asks us to think about the impossibility of setting aside preconceived notions, life experiences, and values in order to be “fair and impartial”. This is a practical article that will leave you thinking about how to ask seemingly simple questions quite differently.
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The Top 10 Favorite Articles from The Jury Expert in 2013! Don’t you hate it when you don’t know about something many of your friends, colleagues, and opposing counsel know? Here’s a shortcut for you: This is a list of the top 10 articles our readers (your friends, colleagues and opposing counsel) explored in 2013. Catch up quick!
As Editor of The Jury Expert, one of the real benefits for me is reading all this information first. I love learning new things and being surprised by novel ways of considering complex issues. Please visit this new issue of The Jury Expert now.
We’ve written about the older juror before and the benefits of having them on your jury (sometimes). When it comes to actual trial practice, Prosecutors are more likely to use their peremptories to strike the younger potential juror while Defense attorneys are more likely to use theirs to strike the older potential juror. So, is it true that the older juror is more conviction-prone? Sadly, it would seem so.
Researchers examined data from more than 700 felony trials in Florida’s Sarasota and Lake Counties from 2000-2010. They were able to collect data not only on seated jurors but also to gather the same data on the entire pool for comparison. The researchers found the voir dire pattern noted above (with Prosecutors striking the younger juror and Defense attorneys striking the older juror) but note that the protected categories of race and gender were not disproportionately struck. That is, prosecutors and defense attorneys were about equally likely to strike black versus white and female versus male potential jurors.
The researchers look at how the age composition of the jury pool (randomly selected to appear that particular day) is related to conviction rate. They found that the average age of the venire drawn for a case is highly correlated to the age of the seated jury. That is, when potential jurors are called for jury selection, if the average age is above 50 (which happens in about half the trials in these counties), the seated jury will also be older. If the average age of the jury pool is below 50, the seated jury will also be younger. Makes sense.
When the average age of the jury pool is greater than 50 years, there is a 79% conviction rate.
When the average age of the jury pool is less than 50 years, there is a conviction rate of only 68% (and yes, those differences are statistically significant).
In other words, the older juror is more likely to convict. Conviction rates, say the authors, rise 1% with each year of increase in the average age of a jury. Specifically, “if a male defendant, completely by chance faces a jury pool that has an average age above 50, he is [snip] more likely to be convicted than if he faces a jury pool with an average age less than 50”.
Obviously, the age of the jury has nothing at all to do with the evidence you present, the quality of your presentation, or the merits of the prosecution. It is a randomly occurring event which, in turn, can mean that an acquittal or conviction can also be a random event. The authors question if this represents a “fundamental lack of equity with respect to the quality of true nature of the evidence in a case”. They believe this random conviction increase provides an argument for increasing the number of jurors in Florida from the current 6 required (except for death penalty cases) to a higher number in order to reduce the random variations in outcome that are independent of the evidence admitted and presented.
And until that happens (or if it happens), it probably makes sense to keep using peremptories to attempt to either increase or decrease the age of your jury.
Anwar, S., Bayer, P., & Hjalmarsson, R. (2012). The role of age in jury selection and trial outcomes. National Bureau of Economic Research Working Paper. DOI: 10.2139/ssrn.2014963
We can hear it now, “Your Honor, we would like to strike for cause all prospective jurors who believe in Bigfoot.” While it is likely such a request would hit the papers, it is unlikely any judge would grant that sort of disqualification. Yet, according to a recent survey, almost 1/3 of Americans still believe in the existence of Bigfoot. There is even a current television show, now starting a fourth season, called “Finding Bigfoot”. Whether you think it ridiculous or not, Bigfoot lives. If you experience the popular belief in Bigfoot as being kind of depressing, get in line.
We don’t recommend using random conspiracy beliefs, or random fringe beliefs (such as alien abduction, the moon landing, British government involvement in the death of Princess Diana, or the US government involving in the terrorist attacks of 9-11-2001) to attempt to strike jurors. Why? Well, because there are so many times when conspiracy theories tailor-made to your case spring up during pre-trial research and help you figure out how to avoid giving the conspiracy theorists in the room a foothold. And sometimes, they come up in the most unexpected moments and in cases that seem, on the surface to be dry and technical. Who would have thought they would be so laden with sex, drugs, and inappropriate behavior?
Wrongful termination: “That girl was just leading him on for drug money. I think the company principals put her up to it so they could fire her boss. He thought she really cared about him and that’s why he gave her that promotion and a company car. Did you see how she was sniffing in her deposition? She is obviously on cocaine.”
Breach of fiduciary duty: “Wow. She is so much older than him. What’s going on between those two? She ended up moving to a new company with him and now he is her boss? Hmmmm…(with knowing glances to other jurors).”
Breach of contract: A mock trial just this past month included a very normal looking, retired high school English teacher who we’ll call Victoria. As she viewed the deposition excerpts she was consistently critical: “He needs a haircut”, “Her hair is certainly a very odd color”, “Who dressed him for deposition?” but her nature came through even more clearly when the group began to deliberate.
The observation room was filled with half a dozen attorneys whose jaws collectively dropped when she turned her venom on a fellow mock juror who mildly disagreed with her by saying, “Oh, I don’t know, I thought the witnesses for that party were pretty good.” The retired teacher drew back like a snake about to strike. “WELL! That’s your opinion. I don’t need anyone to tell me what I think!” And she refused to entertain any suggestions that her opinions might be a little off-kilter. General Counsel for our client leaned over and said quietly, “Do you think we can come up with a Victoria filter?”.
Or you may hear tantalizing comments on a wide variety of case topics that give you clear intimation someone is leaning toward some sort of secret or conspiracy.
“I think the doctor and nurse had an affair and it ended badly.”
“I think they did steal the idea from [the inventor] and they are paying off their researcher to take the fall for it so they can blame him and not the whole company.”
“I have a feeling something strange is going on here and we need to question everything they told us. I think they are lying to us and I am not sure why.”
It’s a shame that shows like the X-Files and Lie to Me are no longer on television. It wasn’t that they were fabulous television (although the X-Files came close), but when we would see fans of those shows show up for trial, we knew we had a clue about how drawn they were to conspiracy. A research study on fans of the show Lie to Me found those viewers were not really better at lie detection (although they thought they were!) but instead, simply more suspicious of everyone. Which, we think, made them more likely to fill in the blanks in a case narrative with their own “truth”.
Over the years, we’ve written a lot about conspiracy theories and conspiracists on the mock jury. They are certainly odd. And pretty entertaining when they fall in favor of your case. But, they can also bring a vivid imagination to your case narrative. That imagination causes both consternation and hilarity in the observation room but also highlights holes in your case narrative that you can fill prior to trial. As we’ve said before, filling those holes won’t necessarily stop the conspiracy theorist from re-digging them and leaping in with both feet, but it will give other jurors in the deliberation room ammunition with which to refute their (conspiracy-based) assumptions.
For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita