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Archive for the ‘Voir Dire & Jury Selection’ Category

Nominations are now being accepted for the ABA Blawg 100 list. If you value this blog, please nominate us at the ABA site: http://www.abajournal.com/blawgs/blawg100_submit/. 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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TVNewsLogoSo here’s a voir dire fantasy: When race is salient to your case, strike for cause all potential jurors who say they watch their local television news. For what cause?

Because they’re more likely to be racist—at least according to today’s research.

Local news coverage tends to focus on crime according to the researchers and they tend to cover crimes committed by African-Americans all out of proportion to their actual occurrence in the local community. The regular local TV News viewer might therefore be under the impression that African-Americans are a significant and dangerous criminal element in their community—and that impression is a distortion of the actual criminal activity engaged in by African-Americans in their community.

To test the hypothesis embedded in the previous sentence, researchers asked participants how many hours of local news coverage they watched on a daily basis. What they found was striking:

The more local news participants watched, the higher they scored on the Implicit Association Test (a measure of unconscious bias that we’ve written about  before).

In other words, regular exposure to stereotypical television news increases negative implicit biases in the viewer (which can, in turn, say the researchers, alter explicit attitudes and result in discriminatory behavior). This research finding is supported by a recent Media Matters report looking at local TV News coverage of crime (see graphic at right) as well as what the authors describe as a “substantial body of [additional] research” on biased news coverage. What is less clear is whether people who watch these news sources are “made more biased” by the reporting that they watch, or whether they watch the news because it reinforces the beliefs they already held.

media matters insertFrom a litigation advocacy perspective, it’s an intriguing issue. If we know that watching local news corresponds to higher levels of implicit biases (biases of which we are unaware), which increase likelihood of explicit biases (biases of which we’re aware) which, in turn, can result in discriminatory actions—would that not be an important variable to assess? It is at least of interest at the pretrial level to see if the report of local news viewing is related to eventual verdict. Hmmm. Perhaps jurors don’t need to watch the news during the trial to be affected by it; maybe it is telling that they watched local news during the week prior to jury duty.

Arendt, F, & Northup, T (2015). Effects of long-term exposure to news stereotypes on implicit and explicit attitudes. International Journal of Communication,, 9, 732-751

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bias free zoneAt least that’s what the headlines say. But the quieter truth of what the research says is enough for me: the intervention reduced implicit bias and the results held when re-measured one week later. Wow. This is pretty amazing stuff that needs to be used for good and not evil.

Can you imagine? This means we don’t have to do research to figure out how to address the impact of bias. Instead we have people “sleep away” their implicit biases (the ones they don’t even know they have). And the research is legitimate!

Researchers in our hometown of Austin, Texas were curious as to whether sleep could somehow “undo” our implicit biases. In the plain language version of the research article, researcher Xiaoqing Hu describes implicit biases as “those learned negative associations we make through repeat exposure—things like stereotypes about women not being good at science or biases against black people”. We’ve written about implicit biases before, and you can check your own level of implicit biases at Harvard’s Project Implicit website. So the researchers say in their description of the research that they knew sleep researchers say memories are consolidated during sleep and that training can reduce biases (even in humans).

As an aside, these researchers are prime examples of why you have to learn things you think you’ll never use. When you put those disparate things together—sometimes magic happens!

So, in addition to sleep research and research on reducing implicit biases—the researchers also harkened way back in science time to Pavlov and his salivating dogs. Wisely, they incorporated the Pavlovian bell and discarded the salivating dogs.

The researchers recruited 40 participants (all White, 18-30 years of age, all college students) and measured the extent to which the individual participants associated women with art or associated women with science (and the reverse for men). Next, they measured the extent to which Black men were associated with negative adjectives or positive adjectives (and the reverse for White faces). By measuring these attitudes, the researchers were establishing baseline gender and racial biases in the 40 individuals.

The participants were then seated at computers and trained to associate women with science and Black men with positive adjectives. Whenever the participant would respond to a photo of a woman with a science response—an unusual bell-tone would sound. (This is the Pavlovian part. The unusual bell tone was therefore “learned” to be related to a woman+science response on the part of the participant.) For those in the Black men and positive adjectives condition—when a participant would pair a Black male with a positive adjective, another unusual bell-tone would sound.

After this training, participants were allowed to take a 90 minute nap (wired up of course to monitoring systems but still, what a great experimental credit!). Once the participant had entered slow wave sleep(aka SWS sleep), the researchers would randomly play the unique bell-tone associated with a woman+science photo or the unique bell-tone associated with Black men and positive adjectives. If the participant began to awaken, the researchers would immediately stop the bell-tone. And during the 90 minutes, on average participants were played their unique bell-tone 258 times (+/- 24 tones) during their 90-minute nap.

What the researchers were attempting to do is this: by playing the gender bias or racial bias unique bell-tone during slow wave sleep, they wanted to force the memory of a non-biased response with gender or race to be repeatedly replayed and consolidated in the brain. Prepare to drop your jaw. It worked.

It didn’t make their implicit bias go away entirely. But it reduced it and the reductions were still there a week later when a re-measure was done. The researchers call this “targeted memory reactivation”.

Essentially to jumpstart “targeted memory reactivation”, you call up the desired memory (paired with a unique sound during training) and then put the brain on the job reducing bias while someone sleeps.

This is such a cool thing. You could use it to help people reduce many biases. And yes, arguably it could be used to create them, as well. While some might say this has overtones of Aldous Huxley’s Brave New World, this is not, as we mentioned earlier, knowledge that should be used for evil. Only for good. We are strict about that. Imagine the new world of jury selection. Potential jurors arrive for jury duty and do some brief training on biases relevant to their assigned case and then take a nap. (This should result in many more positive tweets on #juryduty.) Then, rested and cleansed of biases, they do their civic duty.

Seriously though. This is an instance where a fairly inexpensive technology can help reduce bias and increase fairness. We think Xiaoqing Hu has made quite a contribution and we look forward to reading more as his career continues.

Hu X, Antony JW, Creery JD, Vargas IM, Bodenhausen GV, & Paller KA (2015). Unlearning implicit social biases during sleep. Science (New York, N.Y.), 348 (6238), 1013-5 PMID: 26023137

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smartphones-thumbJust when you thought you could relax a little about jurors accessing the internet during a jury trial, we learn this factoid from the smart folks at Pew Research Center:

“64% of American adults now own a smart phone of some kind, up from 35% in the spring of 2011. Smartphone ownership is especially high among younger Americans, as well as those with relatively high income and education levels.”

Yes. Smartphone ownership has almost doubled in the past four years. While a smart phone is now more likely than not, for some Americans, the smart phone is almost the only way they can access the internet and that particular group is different from those with multiple access points in some important ways.

Here are some of the findings from the Pew survey of 2,002 adults in the United States completed between December 4th and 21st, 2014 by telephone:

10% of Americans who own a smart phone do not have any other form of high-speed internet access.

15% of Americans between the ages of 18 and 29 are heavily dependent on a smart phone for online access.

13% of Americans who earn less than $30K a year are smart phone dependent for internet access. (As a comparison, only 1% of American households earning more than $75K per year rely on their smartphones for internet access.)

While 12% of African-Americans and 13% of Latinos are smart phone dependent for internet access, the same is true for only 4% of Whites.

Those who are smart phone dependent for internet access are also less likely to own another type of computing device, less likely to have a bank account, less likely to have health insurance, and more likely to rent or live with a friend or family member as opposed to owning their own home. Further, nearly half of those who are smart phone dependent have had to shut off their cell phone service for a period of time since the cost was prohibitive.

Among younger smart phone users, the smart phone is popular for avoiding boredom and to avoid interacting with others. They also use their phones more often than older users to watch videos, listen to podcasts, and get turn-by-turn directions to a desired location.

From a litigation advocacy perspective, this is one more reminder to remain vigilant about educating jurors on why smart phone research is a problem when deciding justice. On the other hand, this may also be a good question for determining financial stability and socio-economic status if you are unable to assess it otherwise.

“Do you have other means of internet access in your home besides your smart phone?”

The answer to that question could potentially give you insight into your potential juror’s life and their access to information that other questions cannot.

Pew Internet Research. 2015. US Smartphone use in 2015.

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beard and tattoosRecently we blogged about an emerging demographic subgroup: the lumbersexual. After reading the flurry of mainstream media articles about this group, here is how we described them:

“As far as we can tell, the lumbersexual is an urban male (typically White and heterosexual) who dresses like a lumberjack even though he is far from a lumberjack. While it is a recognizable fashion statement, there are (as yet) no attitudes, values and beliefs attributed to the lumbersexual. While there is a sense that these are men trying to look “like real men” according to a hyper masculine definition—there is no evidence that their attitudes, values and beliefs would line up with what we think of as stereotypically masculine.”

This was an emerging demographic subgroup observed in society fashion pages and written up in the mass media. We wondered if there would be research emerging to tell us more about the lumbersexual as a group. Are they conservative like the “real men” they emulate in dress or are they hipsters in search of a new look? We did not have to wonder long because, just like that, the academics weighed in with a refinement of the emerging stereotype.

You may notice that the male illustrating this post looks less like a nerd wearing lumberjack clothes and more like a male model with a colorful tattoo sleeve and an untrimmed beard. That is no mistake. The researchers we write about today see the beard and the tattoo (along with any existing piercings) as a way the male decorates himself to be more attractive to potential sexual partners. Yes, these researchers would be of the evolutionary psychology persuasion.

The researchers look at coloration and various “ornamentation” (think orange butts, big brightly colored noses, the beards of howler monkeys, and so on) and related sexual prowess in monkeys of various sorts and then apply their thoughts to human males who decorate themselves with beards and tattoos because, well, it just makes perfect sense to the evolutionary psychologist to make this (gigantic) cognitive leap.

They cite research showing that human males with beards, for example, receive higher ratings of aggressiveness, age and masculinity, but not attractiveness compared with non-bearded men. This means, say the researchers, that other men are cowed by the physical superiority of the bearded man and so they step back which leaves the bearded (and perhaps tattooed and pierced) man more access to the partner of their choice. They also attribute the same level of success to the bald man since baldness is a sign of increased testosterone and thus intimidates other men.

We actually wrote about how bald men cannot help but exude authority, confidence, power, and masculinity back in 2012. [If that sounds crazy, read the post!]

From a litigation advocacy perspective, these researchers would probably say that the bearded (and otherwise adorned male) human would be more of a leader than the non-bearded male human—their rationale would be that from physical observation the bearded male would be seen as more masculine and powerful. They would likely hold the same view of the man with the bald head (or shaved head).

We are not evolutionary psychologists and we beg to differ. Sometimes men with beards are leaders in the jury room and sometimes they are not. It isn’t so much about having or not having a beard or having or not having a full head of hair—it’s about life experiences, beliefs, attitudes and values (one of which may be presenting oneself as a more masculine man), and charisma. Overall, despite this research, we would encourage you to look for other indicators of leadership than the presence of a beard or a bald head (even when both are present in the same potential juror!) as you engage in voir dire and jury selection.

Grueter, C., Isler, K., & Dixson, B. (2015). Are badges of status adaptive in large complex primate groups? Evolution and Human Behavior DOI: 10.1016/j.evolhumbehav.2015.03.003

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