Archive for the ‘Voir Dire & Jury Selection’ Category
We do a lot of pretrial research where complicated processes, inventions, ideas, software, tools, widgets, and other intellectual property ideas are explained. And we do a lot of pretrial research where something that doesn’t seem complicated (like a family estate, for example) gets very complicated, very quickly. We’ve found there are often vocal mock jurors who will pontificate on whatever the topic is (from highway guard rails, to heated patches for sore backs, to hair straighteners, to types of pizza crust, to coin counting machines in grocery stores, and more) and so we defer to their expertise by politely and with great interest asking them to explain to the group how it works, in their own words. They rarely can. They often sheepishly say they guess they don’t really understand after all and their standing as an expert rapidly evaporates.
Today’s research speaks to this issue directly by saying that extreme political views are often based on a false sense of understanding. That is, people typically know a lot less about complex political policies than they think they know. Their understanding is typically quite simplistic (like that of our mock jurors) and when they are asked to explain how a policy works–they are unable to do so (like our mock jurors).
What the researchers found in their first experiment is that when people who loudly support a particular policy are asked to explain how it works in their own words, they are unable to do so. Subsequently, they report their support for the policy they initially supported so strongly has become only moderate. In other words, the initial strong support for a policy was based in “unjustified confidence in understanding” the policy. When asked to explain the policy, the research participants (like our mock jurors) realized they didn’t really understand the policy after all.
The researchers designed another study where participants were asked to rate their position on a given policy and then either explain how the policy worked or list their reasons for supporting or opposing it. Finally, they would choose whether or not to donate a bonus payment to a relevant (i.e., either pro or con) advocacy group. Since prior research shows, according to the authors, that enumerating your reasons for supporting or not supporting a policy reinforces your support/lack thereof, they hypothesized that those who enumerated reasons would be more likely to donate than those who explained how the policy worked. They were right. Those who enumerated reasons were more likely to donate the bonus payment to the relevant advocacy group.
The authors explain their findings as follows:
Asking people to explain how a policy (for example) works, leads them to endorse more moderate positions on the policy and makes them less likely to donate to advocacy groups. The authors say these people are forced to confront their own ignorance.
Asking people to list reasons they support a policy (when those reasons can include values, hearsay and general principles) merely reinforces their belief systems and makes them more likely to donate to relevant advocacy groups.
From a litigation advocacy perspective, you can assist jurors in “confronting their own ignorance” by using the strategy we discussed here earlier on embedding skepticism into your case narrative. [Tip: This strategy is designed to gently embarrass the opinionated extremist, so it’s crucial that you do this gently and politely so you aren’t seen as humiliating him or her. Appearing to be a bully will result in voir dire ending sooner than you had in mind, as no one will talk to you.] As the attorney expresses skepticism (or a lack of understanding of how something works), the jurors resistance to hearing the full explanation is weakened.
Fernbach PM, Rogers T, Fox CR, & Sloman SA (2013). Political extremism is supported by an illusion of understanding. Psychological Science, 24 (6), 939-46 PMID: 23620547
The options for online searches of potential jurors seem to be a fast-moving target. Our experience is that often there is simply no time for more than the most cursory efforts that often happen during a very short voir dire session itself. In other cases, if there is time to conduct such research, sometimes the information required to do accurate online research (i.e., full name, address, date of birth) are not provided. Yet presentations talk about the importance of a thorough search and some go so far as to say it is not ethical to forego such background internet research into potential jurors [citing the 2010 Missouri Supreme Court standard]. So it was good to see this (hard to obtain) article from last year on what is actually being done in the trenches.
Researchers did their own background search of an actual jury venire using the following sites as search tools: Google, MySpace, Facebook, LinkedIn, and GoogleBlogSearch. They actually found information on more than a third (36%) of the jurors (in our experience, this is a fairly high proportion, and suggests that this was probably an urban venire).
They performed four separate searches on each of the five sites: full name, full name + state, full name + city, and full name + date of birth.
However, 94% of the information they found was procured via simple Google searches. Only 6% of the information they found was unique to other internet sites. On the other hand, their strategies for ensuring they had the correct “Joe Johnson” were not as intensive as we actually do in our internet searches where accuracy is critical.
The researchers’ [common sense] interpretation of finding the vast majority of information in one spot was that it really was not particularly efficient nor effective to search multiple sites– it is more efficient to stick with Google.
They then turned to lawyers, trial consultants, law students and undergraduates to see the level of information known on social media, attitudes toward use of that information in jury selection, and what was actually being done (and taught) in the trenches of litigation advocacy and law school classrooms about juror’s right to privacy as well as the possible ethical issues in using online search tools for jury selection.
Study participants identified four areas wherein they saw ethical issues:
- juror rights [either a right to privacy or the idea that they should not post information online if they wanted privacy],
- defendant/accuser rights [a fair and impartial jury is a constitutional right but some thought these online searches ethical and indicative of competent lawyering while others did not],
- court processes [some felt the jury selection process should be uniform across individual jurors and those with online presence would be subject to unfair scrutiny] and,
- the sites themselves [using the sites for purposes other than social networking is inappropriate and the information is of questionable validity].
It’s an interesting article although the sample sizes are quite small (175 undergraduates, 27 law students, and 11 trial consultants and trial lawyers). The authors see this as an initial foray with follow-up work to be done in the future. The takeaway for us is this: when time pressure is intense–the most bang for your buck comes from a Google search. When you have ample time and budget (perhaps for the high-profile trial) using other searches may be worthwhile if the extra 6% is critical information to have. If, for instance, the value of their home, the model of car they drive, the level of their education, or the number of people who live with them is crucial, there are better ways to find it unless you do a lot of drilling-down through Google links. The authors also recommend the use of paid search sites and perhaps, even a private investigator.
We think we’ve seen the gamut of investigations, ranging from none to those using both paid search sites (in the event you don’t know this, “privacy” is largely a pleasant fiction) and private investigators. Even in the latter cases, though, our work in slogging through site after site after site (in search of that elusive 6%) did yield information previously unknown. Whether it was essential information or not is highly variable. The overall cost benefit analysis of social media research during voir dire remains, for us, an open question. It just depends.
Neal, TMS, Cramer, RJ, Ziemke, MH, & Brodsky, SL (2013). Online searches for jury selection. Criminal Law Bulletin, 49 (2)
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