Archive for the ‘Voir Dire & Jury Selection’ Category
Here’s another this-and-that post documenting things you need to know but that we don’t want to do a whole post about–so you get a plethora of factoids that will entertain your family and entrance your co-workers. Or at least be sort of fun to read and (probably) as awe-inspiring as the stack of vegetables and fruit illustrating the post.
Just don’t do it: How bringing up politics ruins your workplace
You probably know this already since many people say their Facebook feeds are a toxic combination of politics and rage these days. So. Bringing up politics up at work is now officially a bad thing. We used to think that being exposed to varying ideas in the workplace broadened all our world views. But that was before this round of extreme political polarization and the strong feelings on both sides of the aisle. Here’s a survey from Wakefield Research and workplace consultants Betterworks that gives factual information on workplace conflict surrounding politics. While reading it won’t make you feel that much better, it will certainly tell you that your own workplace is not the only one so negatively charged (and give you some tips on dealing with employees obsessively checking social media).
Can you trick narcissists into actually feeling empathy?
Recent research says yes you can—simply by reminding them to take the other person’s perspective. In short, the researchers found that those high in narcissistic traits (but not meeting diagnostic criteria) were able to demonstrate perspective-taking but they had to be directed to do so. We have talked about this when it comes to implicit racial biases so the idea is not entirely new, but it is an interesting idea that narcissists would not even consider basic empathy (i.e., imagining the other person’s perspective) unless prompted to do so.
More on beards—this time in healthcare
Just like tattoos, we have covered beards a lot here and addressed issues related to beards like women’s preferences in long-term relationships, bearded men and sexism, extra punitiveness towards bearded men, bearded experts in East Texas, genetics and your bushy beard, and even identifying the elusive lumbersexual on your jury. There is so much debate and research about beards that we’ll give you that link again so you can catch up on all things beard in this blog. Mostly the only question never adequately addressed is “what is it about beards that mobilizes any sort of attitude at all?”
This particular controversy on beards has apparently been going on since the 1800s so it is a bit surprising we don’t have something on it already. Doctors. Should they have beards? Is it a hygiene issue? Should they be able to look older, wiser, and more knowledgeable than they may be chronologically by growing a beard? Scientific American blogs has an entry telling us (among other things) that “beards retained microorganisms and toxin despite washing with soap and water” and that bearded surgeons should “avoid wiggling the face mask” to prevent bacterial contamination during surgery. There are multiple other studies cited that come down on both sides of this hygiene debate. You will want to know about this one. Even though your life won’t be improved by the debate.
We’ve also blogged about earworms a number of times (hey—it’s an important topic!) Buzzfeed recently published a list of pop songs likely to get stuck in your head—which is what an earworm is—by definition. As a public service, here is one of our top choices for “most likely to give you an earworm” pop song.
And now that you have that list of songs to give you earworms—here’s recent research giving you a “cure” for the earworm. Chew some gum! The researchers say when you are chewing gum your brain is unable to form the associations essential for the creation and maintenance of an ear worm. Okay then. We can’t say if it’s true (and apparently it doesn’t work for everyone) but go buy some gum (it’s for science).
Throwing out advances in knowledge (is that what we want to do?)
We have lived in The Age of Reason (aka the Enlightenment) since emerging from the darkness and magical thinking of the Middle Ages. A new opinion piece from Daniel J. Levitin, an educator (published at the Daily Beast) asks us to consider whether we really want to live in an era where we avoid rational thought. It’s a brief and well-written piece that will give you talking points on why a return to the Middle Ages or even the 1950s is not a goal for which we should strive.
Beaman, CP, Powell, K, & Rapley, E (2015). Want to block eagworms from conscious awareness? Buy gum! The Quarterly Journal of Experimental Psychology,, 68 (6), 1049-1057.
Hepper EG, Hart CM, & Sedikides C (2014). Moving Narcissus: Can Narcissists Be Empathic? Personality & Social Psychology Bulletin, 40 (9), 1079-1091 PMID: 24878930
After we published that “molecular genetics overlap” post showing curiosity is found in smart people—one of our readers asked exactly how you “see” smart during voir dire. The question was posed on Twitter but the answer is not exactly expressed in 140 characters—so we’re doing it here. Among other things, we made these comments in that post:
All we need to do is look to see who is smart and we will then know we can select curious jurors (while considering whether our client’s case benefits from higher levels of intelligence and curiosity).
And, as we often say to our clients—especially in rural areas like the far east and west ends of Texas, “smart does not necessarily mean highly educated”. It is typically, however, a lot easier to see or hear “smart” than it is to see or hear “curious” (or open to experiences). So it can be a voir dire short cut (which can qualify as a secret weapon).
So. Here are some of the signs that a member of the venire might be smart and curious, regardless of their level of formal education:
Do they have less formal education than expected for the job they hold?
Do they have a creative occupation that requires quick associations or problem-solving?
Are they a researcher (of any sort) or scientist?
Do they write professionally (books, magazines, blogs, et cetera, in both fiction and nonfiction)?
Are they a long time manager in a fast paced workplace setting?
Do they work in a fast-changing field?
Are they a technology worker familiar with NDAs and confidentiality?
Do they have hobbies that involve curiosity, problem-solving, or thinking?
Do they think of themselves as questioning authority, or going along with the group consensus?
Does the juror have a history of being self-employed and an above average income?
It is always important to consider whether any particular trait or attitude reflects more or less receptivity to your trial story. In our experience, most attitudes and traits don’t make much difference, but the few that do can have a profound effect on their view of evidence and argument, and their predisposition toward one verdict or another.
There are certainly other characteristics we look for to “see” or “hear” smart, but this is a brief list to get you started. Each case will result in variations on what we look for in a “smart” juror for that specific case (just as there are many kinds of intelligence).
Back in October of 2016, we wrote about a paper by the Cultural Cognition Project on assessing “scientific curiosity”. Here is some of what we said then about what Kahan and his colleagues found by measuring scientific curiosity:
“What they found was that participants who scored higher on the curiosity scale were more likely to choose the story that would disconfirm their preexisting beliefs (that is, it would surprise them) and the participants enjoyed that process of surprise.”
We concluded that 2016 post this way:
From a litigation advocacy perspective, the challenge is to identify jurors who are curious and enjoy the surprise of learning new things—even when the new information may be in conflict with pre-existing beliefs. This is a subgroup for which we have an increased chance of persuading them to accept change (typically a very difficult task). What we have to do is figure out how to surprise them and we have several blog posts on what happens to our brains when we experience surprise.
So with that backdrop as a reminder, today we bring you a study that is pretty far afield of our usual focus on social science findings with relevance to litigation advocacy. This is a scientific study on genetics that found something unexpected: a personality trait that was related to overall intelligence but actually embedded in the genes. The researchers refer to it as “a molecular genetic overlap” between intellectual ability and curiosity.
You likely know we’ve written a number of times about curiosity and when we like to see that trait in our jurors. The issue is always how to measure curiosity. While Kahan and his colleagues at the Cultural Cognition Project traversed a lengthy route to assessing scientific curiosity—we may not actually have to go to all that trouble.
First, let’s discuss some research vocabulary. What we refer to as curiosity is referred to by researchers as something different. They use the term “openness to experience” (renaming familiar things to make them sound exotic is a proven strategy for getting academic tenure). There are multiple ‘scales’ to measure openness to experience (here’s an example) but typically, they are not appropriate for use in court. Neither, unfortunately, is the Kahan version of a science curiosity scale. Here, however, is an intriguing finding from some molecular geneticists. Scintillating and yet mind-numbing, all in the interest of our blog readers!
Today’s research article:
This molecular genetics research is based on work from a project known as the Cognitive Genomics Consortium (COGENT) and this particular paper was written by a team of more than 60 international researchers who examined the “genes of 35,000 people – measuring the brain function of these participants through tests of learning, memory, and other cognitive function components”. But that is all backdrop so you know just how credible this finding is for us.
“Interestingly, and for the first time, the COGENT researchers also discovered a molecular genetic overlap between cognitive ability and personality. They found that genetic predispositions towards higher cognitive ability were linked to greater “openness to experience.” In order [sic] words, some of the genes that make people more likely to be curious about new ideas and experiences are the same as those that enhance cognitive ability.”
The researchers see this finding (based on a sample of 35,000 people) as instructive for research and treatment for disorders like schizophrenia, autism, and ADHD—and they have plans to expand their study to include more than 100,000 DNA samples. Fortunately, our intentions are less lofty.
We see this as a secret weapon for voir dire.
How so? If we know that hard-wired into our genes (in this “molecular genetic overlap”), cognitive ability and curiosity go hand in hand—we can use that information to make the quick decisions often required in voir dire and jury selection. We do not need to assess “openness to experience” (or “science curiosity” or even curiosity). All we need to do is look to see who is smart and we will then know we have curious jurors (although, in some cases, we will prefer jurors who are not so smart and therefore, not so curious).
And, as we often say to our clients—especially in rural areas like the far east and west ends of Texas, “smart does not necessarily mean highly educated”. It is typically, however, a lot easier to see or hear “smart” than it is to see or hear “curious” (or open to experiences). So it is a voir dire short cut (which can qualify as a secret weapon).
We would also add in a caveat. There is a difference between those that are merely curious but do not enjoy the analytical process, and those who are both curious and who enjoy thinking and analyzing. We think of this distinction as the difference between jurors who are “high complexity” and “low complexity”.
If your case is very complex, you will want high complexity jurors (who will almost always be curious but also enjoy the process of thinking and analyzing).
If your case is not that complex, or the complexity of the fact pattern works against your case, you will want low complexity jurors who rely more on biases and heuristics (their pre-existing belief systems) to make decisions in cases where they are unfamiliar with the content matter.
We don’t really recommend you go and read this article since we don’t understand much of it and doubt you will either unless you happen to be a molecular geneticist. In this case, we encourage you to trust the interpretation linked to above (which we verified in a few different places like here and here and here). This is a new sort of finding and they have their excitement about it and we have ours. Of course, if you are curious, you can try to understand it!
Trampush, J., Yang, M., Yu, J., Knowles, E., Davies, G., Liewald, D., Starr, J., Djurovic, S., Melle, I., Sundet, K., Christoforou, A., Reinvang, I., DeRosse, P., Lundervold, A., Steen, V., Espeseth, T., Räikkönen, K., Widen, E., Palotie, A., Eriksson, J., Giegling, I., Konte, B., Roussos, P., Giakoumaki, S., Burdick, K., Payton, A., Ollier, W., Horan, M., Chiba-Falek, O., Attix, D., Need, A., Cirulli, E., Voineskos, A., Stefanis, N., Avramopoulos, D., Hatzimanolis, A., Arking, D., Smyrnis, N., Bilder, R., Freimer, N., Cannon, T., London, E., Poldrack, R., Sabb, F., Congdon, E., Conley, E., Scult, M., Dickinson, D., Straub, R., Donohoe, G., Morris, D., Corvin, A., Gill, M., Hariri, A., Weinberger, D., Pendleton, N., Bitsios, P., Rujescu, D., Lahti, J., Le Hellard, S., Keller, M., Andreassen, O., Deary, I., Glahn, D., Malhotra, A., & Lencz, T. (2017). GWAS meta-analysis reveals novel loci and genetic correlates for general cognitive function: a report from the COGENT consortium Molecular Psychiatry, 22 (3), 336-345 DOI: 10.1038/mp.2016.244
When facing a panel of prospective jurors for voir dire and jury selection it is important that you update your perceptions of who these people are in 2017. It is hard to keep up with change and to replace our outdated ideas of “how North America is” but here is some data to help you do just that. These facts are wonderful perspective changers and we hope some of them will surprise you (since that will help you remember and update your perceptions of those potential jurors).
“Normal America is not a small town of white people”
The people over at Nate Silver’s fivethirtyeight.com site did us an incredible service with this article first published in spring 2016. So—before you go look, when you think of “normal America”, what picture comes to mind? For those of you who think of a scene more consistent with 1950s America, this is a must-read. Things, times, our citizens and what is now “normative” has changed a lot since the 1950s. Here’s a look at the communities most like 1950s America and the communities most like the America of the present. The two sets of communities are incredibly different. It is a nod to why it is so very important to know the demographics of your venire but also an imperative to update that mental picture you have of “normal America”. We are so not in Kansas anymore, Toto.
Digital news and followup by race of online news consumer
So…when you think of who reads news online and who follows up on that news—would you think those who follow-up more likely to be Black or White? You don’t have to answer out loud,—just think to yourself and read on. Pew Research just published an article based on questioning more than 2000 online news consumers twice a day for a week.
As part of that questioning, Pew asked the news consumers if they took any of six pre-identified follow-up actions: speaking with someone either in person or over the phone; searching for additional information; posting, sharing or commenting on a social networking site; sending an article to someone by email or text message; bookmarking or saving the news for later; and commenting on a news organization’s webpage.
As a reminder, you are predicting whether Black or White online news consumers are more likely to do any of these six follow-up actions. Got your prediction? Here’s what Pew found:
Black online news consumers preformed at least on of these actions 66% of the time on average. For Whites it was 49%.
There are other fascinating differences by race in this recent report from Pew. You can read the entire (brief and succinct) summary here.
Who counts as Black anymore?
This is an opinion piece that mentions the Dark Girls and Light Girls documentaries and the difficulties both groups (Blacks with dark skins and Blacks with light skins) face in being Black in the current day. The author encourages us to stretch (and update) our perceptions of what constitutes race and Blackness. A worthwhile read from the website The Conversation.
How many US homes have televisions?
Here’s another shifting reality. In the not too recent past, most US homes had televisions and often multiple televisions. That is changing. Again, from the Business Insider: the number of homes that do not include a TV set has “at least doubled since 2009”. While the percentages are still low (2.6% of American homes now do not include a TV) they are growing quickly and are a reflection of people turning to computers and mobile devices to access media. Percentages of homes without televisions is expected to continue to increase as young people grow older and continue to use alternate screens for viewing programming.
Who reads newspapers anymore? Older or younger Americans?
Young Americans have been less likely to read newspapers than older Americans for some time. But, recently, Pew Research looked closely at newspapers with a more national focus (e.g., The New York Times, the Washington Post, Wall Street Journal, and USA Today). While readership of election news was roughly equal for USA Today, the other three (NYT, WaPo, WSJ) attracted more readers under 50 than over 50 when it came to election news coverage. This is different from the patterns for local newspaper which are read more by older readers. Pew concludes that digital outreach efforts are working for these national papers in attracting younger readership.
Just how common is crime by immigrants? (Not at all common.)
Despite ongoing political rhetoric about victims of crimes by immigrants, it is simply not a significant problem. The Business Insider summarizes the statistics this way:
According to a September 2016 study by Alex Nowrasteh at the Cato Institute, a libertarian think tank, some 3,024 Americans died from 1975 through 2015 due to foreign-born terrorism. That number includes the 9/11 terrorist attacks (2,983 people) and averages nearly 74 Americans per year.
Since 9/11, however, foreign-born terrorists have killed roughly one American per year. Just six Americans have died per year at the hands, guns, and bombs of Islamic terrorists (foreign and domestic).
According to Nowrasteh’s analysis, over the past 41 years (January 1975–December 2015), and including the 9/11 attacks:
The chance an American would be killed by a foreign-born refugee terrorist is 1 in 3.64 billion per year, based on the last 41 years of data.
The chance of an American being murdered by an undocumented immigrant terrorist is 1 in 10.9 billion per year.
The chance an American could be killed by a terrorist on a typical tourist visa was 1 in 3.9 million.
This article contains tables of numbers that are easy to read and point out the reality behind the rhetoric. The political rhetoric is about fear and not about reality. Read beyond the rhetoric to get to the facts.
How America changed during Barack Obama’s Presidency
If you have looked at any of these changes with some level of surprise, it would also prove useful to look at another Pew Research report examining changes in America during the eight years of the Obama presidency. This report covers attitudes important in voir dire and jury selection as they reflect values and beliefs relevant to case decision-making. So many changes have taken place in the past eight years that it is staggering to see them all summarized in this report. There are sure to be some changes (and corresponding shifts in attitude) that will be related to your own upcoming cases.
It is disconcerting to watch the political upheaval in this country but similar things seem to be happening around the world. We just found a new group that measures societal changes in trust. Edelman has surveyed “tens of thousands of people across dozens of countries” for the past 17 years measuring levels of trust in business, media, government, and non-governmental organizations (NGOs) which are typically non-profit. According to Edelman, this year is the first time the average level of trust (“to do what is right”) in all four types of institutions decreased. They also report the following statistics:
71% of survey respondents said government officials are not at all or somewhat credible.
63% said CEOs are not at all or somewhat credible.
60% of respondents trusted “a person like yourself” (which was in line with trust in a tech expert or an academic). In other words, they say, peers are now on par with experts.
NGOs were most trusted, Business was a close second (only one point behind NGOs), media came in third, and government came in fourth. (These place finishes should be considered skeptically since their combined overall approval rating was less than 50%.)
The following graphic shows a comparison of 2016 and 2017’s trust ratings for the four areas surveyed.
In addition to the Executive Summary, you can view Global Results, and watch a video on what Edelman calls a trust implosion. When trust declines, populism rises says Edelman—and we have seen that internationally as well as here at home.
From a litigation advocacy perspective, perhaps most important for our work is their lessons on how trust has been broken—housed over at Scribd. Here are a few of their lessons we see as related to litigation advocacy:
Leading the list of societal concerns and fears we measured that are commonly associated with populist actions are corruption (69% concerned; 40% fearful); globalization (62% concerned; 27% fearful); eroding social values (56% concerned; 25% fearful); immigration (55% concerned; 28% fearful); and the pace of innovation (51% concerned; 22% fearful).
People are nearly four times more likely to ignore information that supports a position they don’t believe in; don’t regularly listen to those with whom they often disagree (53%); and are more likely to believe search engines (59%) over human editors (41%).
53% agree that the pace of change in business and industry is too fast. They worry about losing their jobs due to lack of training or skills (60%); foreign competitors (60%); immigrants who work for less (58%); jobs moving to cheaper markets (55%); and automation (54%).
The trust crisis demands a new operating model for organizations by which they listen to all stakeholders; provide context on the issues that challenge their lives; engage in dialogue with them; and tap peers, especially employees, to lead communications and advocacy eﬀorts.
We will be paying careful attention to these issues as we pursue pretrial research and litigation advocacy in 2017. The ways that people (aka “jurors”) evaluate cases will reflect the kinds of mistrust and alienation that this study identifies. Anger seems to be intense, we are devaluing experts, concerned about those different from us, and not listening to those with whom we disagree. These states of being have direct relevance to our efforts to teach, explain, and persuade.