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Archive for the ‘Voir Dire & Jury Selection’ Category
Excuse me potential juror: Is your brain red or blue?
Brain researchers are increasingly focused on whether our brains are red or blue–as in Democrat or Republican. And there appears to actually be something to it. But it reminds me of that Dr. Seuss book One Fish Two Fish Red Fish Blue Fish. I confess the charm of Dr. Seuss wore off for me a great deal faster than it did for my kids… Even after reading his books aloud over and over and over and over again to my kids they still loved them. Once they began to read, I had to listen to them read them aloud over and over and over and over again. Of course, my antipathy toward Dr. Seuss was nothing compared to my feelings about a giant purple dinosaur whose name will not be spoken here. Suffice to say, his affections were most assuredly not returned by me. I couldn’t even listen to the YouTube video of that song without shuddering and I shut it off after the first line.
But I digress. In this study (freely accessible online thanks to PLoSONE) researchers look at how having either a Democrat or Republican political affiliation may change how your brain functions during risky decision-making. It is also important to note that these researchers use the descriptors Democrat/Liberal and Republican/Conservative interchangeably. They believe that this idea is valid and point to a 1998 article to explain:
“While party registration is not a perfect proxy for ideology, a realignment that started in the 1970s has caused the two to become increasingly correlated over the past 40 years. Political polarization at both the mass and elite levels have created a period where ideology and partisanship are substantially overlapping concepts. This trend has been even stronger in California (where the participants in this study resided) than in other states.”
Their use of a Democrat = Liberal and Republican = Conservative assumption is further supported by a more recent 2008 article:
“However, our evidence indicates that since the 1970s, ideological polarization has increased dramatically among the mass public in the United States as well as among political elites. There are now large differences in outlook between Democrats and Republicans, between red state voters and blue state voters, and between religious voters and secular voters. These divisions are not confined to a small minority of activists—they involve a large segment of the public and the deepest divisions are found among the most interested, informed, and active citizens. Moreover, contrary to Fiorina’s suggestion that polarization turns off voters and depresses turnout, our evidence indicates that polarization energizes the electorate and stimulates political participation.”
The current researchers cite prior research on what the brains of liberals and conservatives look like structurally. Using a “simple gambling game”, prior research found that “liberals and conservatives have significantly different brain structure, with liberals showing increased gray matter volume in the anterior cingulate cortex, and conservatives showing increased gray matter volume in the in the amygdala”.
For the current research, the researchers looked at what areas of the brain were used during those gambling tasks and found a difference in what parts of the brain were activated during those decisions. When considering risky decisions:
Democrats relied on the left insula (associated with social awareness and self awareness).
Republicans relied on the right amygdala (associated with the fight or flight system).
What was particularly surprising is that looking at the brain activity alone could show with 82.9% accuracy whether a person had voted Democrat or Republican. (In comparison, a model using the political affiliation of parents to predict a child’s political affiliation has only 69.5% accuracy!) The researchers believe that this information shows that Democrats and Republicans use their brains differently. They also believe that this research may result in new research on voter behavior that can help us understand better how people think.
From a litigation advocacy perspective, this is yet another finding that makes us wish for added functionality to Google Glass so we could see the “color” of potential juror brains. On the other hand, we sure would want to back up this assumption that political ideation equates to liberal vs. conservative attitudes with pretrial research on a pretty large scale. The size of the researcher’s sample for this study (N = 82; 35 males, 47 females) leaves much to be desired. Even the researchers wish they could have inquired more closely:
“Ideally, we would have also directly inquired about the individuals’ ideological self-identification and attitudes about a set of political issues. However, we were not able to re-contact the participants.”
So it isn’t quite perfect. But it’s a start. So, once having determined that Democrat = Liberal and Republican = Conservative, we have to determine whether it matters. And what the role might be in a particular case of such social or political alignment. In our experience, it has more salience in personal injury cases or cases involving ethnic minorities than it does on complex commercial or intellectual property cases. But ultimately, research on understanding jurors is interesting when it is descriptive, but only worthwhile when it becomes predictive of verdicts.
Schreiber D, Fonzo G, Simmons AN, Dawes CT, Flagan T, Fowler JH, & Paulus MP (2013). Red brain, blue brain: Evaluative processes differ in Democrats and Republicans. PLoS ONE, 8 (2) PMID: 23418419
You might be a conservative if…you prefer Wal-Mart to Trader Joe’s?
Please feel free to join us in disbelief at this post title. How can this be? New research just released says, according to Pacific-Standard, Wal-Mart could expect more business from conservatives than from liberals. And why? Because conservatives prefer brand name products. Apparently, it isn’t about whether you prefer the clientele at one store or the other. Nor whether you think one of the stores is cleaner than the other. No. Just whether you are liberal or conservative. Hmmm.
Somehow this sort of statement seems like the old (and wrong) ideas that women jurors are always good for plaintiffs or Lutherans are prone to convict. So we had to take a closer look. For a start, we go to the actual research article rather than the main stream media publication where we found this headline about Wal-Mart and Trader Joe’s.
The researchers gathered data from a “comprehensive scanner database that tracks weekly store sales of thousands of products”. Data were “obtained from 1,860 stores belonging to 135 supermarket chains and spanned a period of 6 years (2001-2006)”. Based on traditional dictionary definitions of conservatives as preferring the status quo and resisting change, the researchers expected conservatives to prefer name brand and existing products to either generic or newly released products. They used county-level Republican voting patterns and county-level data on religiosity (e.g., either being a member of a congregation or a non-member who attends services regularly) to identify conservatism in the various geographic areas data had been collected. The researchers indicate that the “correlations suggest that both Republican voting and religiosity capture aspects of conservative values, independently of each other”.
And what they found is indeed odd. In counties that were higher in conservatism (based on proportion of Republican voting patterns and religious attendance/adherence), more name brands and existing brands were purchased.
“Our empirical results, based on extensive field data, provide strong evidence that more conservative ideology is associated with higher reliance on established national brands (as opposed to generics) and a slower uptake of new products. These tendencies are consistent with traits typically associated with conservatism, such as aversion to risk, skepticism about new experiences, and a general preference for tradition, convention, and the status quo.”
There is, however, nothing in the article itself comparing Wal-Mart to Trader Joe’s and store preferences of liberal versus conservative shoppers. This is why it’s important to go to the actual article rather than accepting the popular media headline. It’s also why we only write about articles we actually see ourselves rather than giving you information about them based on second-hand sources. You just never know when what you are seeing in the popular media is accurate and when it is not. Consider the now infamous example of Jonah Lehrer.
In terms of litigation advocacy, we will say a few things. This study does not say that a good voir dire question for identifying conservatism would be “Do you prefer Wal-Mart or Trader Joe’s?”. However, knowing how religiously observant a potential juror is or whether they vote Republican could well be good screeners of conservatism, which may or may not be relevant to your case. Both of these are much less flashy than the Wal-Mart vs Trader Joe question. But they are likely much more substantive when it comes to actual results.
Khan R, Misra K, & Singh V (2013). Ideology and Brand Consumption. Psychological Science PMID: 23381562
The “cannibal cop” case: Can a SJQ be homoerotic?
A few months ago we blogged about the “cannibal cop” NYPD officer and wondered why that story wasn’t attracting more press. The case has given rise to a proposed supplemental juror questionnaire [SJQ] that is unlike anything we’ve seen in twenty years of trial consulting. Apparently judges haven’t seen the likes of this either. Included in the defense pleading are quotes from “objective and open-minded judges” including reactions such as, “profoundly disturbing”, “close to the most depraved conduct and the most dangerous conduct one could imagine”, “unspeakable”, “depraved, bizarre [and] aberrational”. We have to share. Because we don’t think you’ve seen anything like this before either. And it’s nice to share.
You can read the initial story at the Atlantic. And you can see the original complaint in full at the Scribd website. So the defendant says he was only discussing sexual fetishes/fantasies that he had no intention of ever actually enacting. It was that kind of website and he was one of more than 40,000 visiting the pages and chatting with fellow fetishists. (It’s called the “fantasy defense” and is often used by alleged pedophiles caught in chatroom stings.) So you can see why the Defense wants a SJQ. The judge plans to send out a final SJQ to a pool of 75-100 potential jurors on February 8, 2013. That would be today.
Here’s a bit of background on the SJQ issue from the Courthouse News site:
“Prosecutors in the “cannibal cop” case may probe jury tolerance for violent sexual fantasies with questionnaires that superimpose women’s faces over cartoons of cooked bodies. New York City Police Officer Gilberto Valle, 28, faces charges of conspiring with men he met on Internet chat rooms to “kidnap, rape, torture, kill, cook and eat” women. He insists, however, that he was just one of more than 40,000 visitors to a website catering to extreme sexual fetishes he never wanted to enact. With a February trial approaching, the parties convened in Southern District of New York on Monday to debate how to screen a jury of his peers.”
The Defense expresses concern that jurors will see the Defendant’s behavior (in talking very very specifically about his sexual fantasies with other men) as homoerotic. (We think this is an odd concern as the behavior in question is not homosexual but sadistic. They are not the same and we wonder why the association is being made by the Defense.)
“Prosecutors call the question irrelevant because they alleged only a conspiracy to rape and eat women. Gatto pointed out that Valle constantly discussed his sexual fantasies in detail with other men. ”I think jurors might view this as homoerotic,” she said.”
The Prosecution doesn’t think a SJQ is necessary but offers to let the court (in its wisdom) decide. If a SJQ is allowed, the Defense wants to couch the questions in a more clinical language–asking if jurors can impartially weigh evidence on “rape, bondage, debreasting, castration, necrophilia and sadomasochism fantasies”. The Government prosecution says questions should not include the clinical language and instead say outright that the evidence contains “descriptions of violence, including sexual violence and the abuse of children”. Whoa. Can’t you just see the potential jurors poring over this questionnaire they innocently opened in the mail? This one could bring in a very interesting pool of potential panelists falling all over each other to be one of the chosen. Or not.
While there is a question early on about whether you are very disturbed by watching horror movies–here’s just one of the sexually specific questions from the voluminous SJQ submitted by the Defense:
“You will hear testimony about BDSM, Bondage, Discipline/Domination, Submission/Sadism, Masochism. BDSM includes the practice or thoughts of practices which, if performed in neutral or nonsexual contexts could be considered unpleasant, undesirable and downright abusive. Some examples of BDSM conduct include torture, binding, suffocation, burning, gagging, restraint, whipping, and flogging. However, people who consent to BDSM or otherwise voluntarily associate themselves with these practices, are sexually aroused by the conduct or the thought of such conduct. Will you have a bias or prejudice against an individual who participates or associates themselves with BDSM? Would your view of such persons prevent you from presuming them to be innocent? Would it prevent you from applying the concepts of the “burden of proof” and “reasonable doubt” as I have explained them to you? Could you still decide the case solely on the evidence despite whatever distaste you may have for BDSM?”
The pleadings are shocking. The SJQ is shocking. But bizarre behavior that is consensual is not illegal in most cases. The defense position is that jurors who are shocked into bias at the notion that the defendant endorses or participates in such behavior should not be permitted to serve. As I read it, it raises questions about what kind of jurors would be left in the venire. People who don’t find such behavior disturbing or offensive? And who are those people? How many jurors would have to be examined in voir dire to eliminate those who find these behaviors extremely creepy?
“So, Juror #1102, I understand from your answer that you believe that if debreasting/burning/torturing a woman is consensual, you would be able to consider all of the evidence and judge whether my client broke the law? Thank you very much.”
We have written numerous times about the importance of determining how to make your client “like the jurors”. In this case, with that prospect appearing to be virtually impossible in a typical random sample of citizens, the attorneys are seeking to remove the large majority of the public from the venire who find such behavior reprehensible and depraved (even if consensual). As much as I consider myself open-minded, it would be difficult for me to set aside the thought that someone who enjoys “fantasizing” about such behavior is a short walk away from acting it out. And, while I don’t consider BDSM as a civil rights cause, I am also aware that the horror and distaste that we might feel about this is similar to the reaction that many have had in past eras to interracial marriage, and more recently toward homosexual marriage or transgender issues. The shock value of the SJQ and voir dire could make finding a jury willing to focus on the facts difficult to achieve. But no one said that justice was going to be easy.
Yamagami, DS (2000). Prosecuting cyber-pedophiles: How can intent be shown in the virtual world in light of the fantasy defense? Santa Clara Law Review
Intergenerational Law Offices and Intergenerational Juries
We have a new article in The Jury Expert with insight and strategies for avoiding the dreaded “failure to communicate” and offering ideas on how to apply what we know about generational differences to your workplace, your courtroom presentations and, naturally, to voir dire. Why?
Our age and our generation shapes the lens through which we view the world. Not only because of the number and type of life experiences age presents, but also due to the key events that teach each generation what is important, and what needs to be considered in determining personal priorities and justice. Those experiences have patterns across the generations, but also differences. The marker events that shape our views can’t be transferred so easily. For those who grew up looking at black and white television images of the civil rights demonstrations in the 1960’s, the world is different than for those who grew up with iPods and text messaging. But how? Are we really that different? Can a workplace successfully accommodate the differences? Can juries come to a collaborative verdict with diverse age groups in the box?
The legal blawgosphere has been filled with anecdotal tales of what is termed “generational conflict” for years now. Based on conversations with our clients, contentious inter-generational interaction is not just out there “on the web”. It’s everywhere. We’ve written extensively on issues related to generations–both in the courtroom and in the office.
As litigation consultants, we hear senior partners aiming sharp criticism toward both younger jurors and younger lawyers (especially new law school graduates), and we see the associates roll their eyes and grit their teeth at the disrespect they feel from some partners. The work ethic of the younger attorneys (judged as inadequate by older attorneys) is blamed for their trouble in finding jobs. “If they were not so lazy”, the opinion seems to go, and “if they did not want instant success, they wouldn’t have such a tough time finding work.” It is, in short, their own fault they are unemployed. They have bad values. Or so it is said by many of their elders. Especially the subgroup of employers, supervisors, and–occasionally–parents. But is that accurate?
It turns out that it’s likely untrue. A recent editorial in the LA Times points out that from 2004 to 2008, the legal field grew less than 1% on average (and the same growth rate is predicted until 2016). The number of likely attorney positions opening per year is thus 30,000. US law schools are graduating 45,000 new JDs every year. Fully one-third of US law school graduates will likely not find employment as attorneys.
What we’ve learned is that cross-generational communication is complicated. There isn’t an easy recipe for success, but there is a path toward effectiveness. There are principles and strategies to use both in successful intergenerational work teams as well as effective jury dynamics. In other words– they don’t all have to be just like you in order for things to go smoothly. Visit this new article at The Jury Expert site for both “how to” and “why to” strategies that will aid you in skillfully negotiating generational differences–in the courtroom and in the office.
Douglas L. Keene, & Rita R. Handrich (2013). Values, Priorities, and Decision-Making: Intergenerational Law Offices, Intergenerational Juries. The Jury Expert, 25 (1.)
Should I choose the creative juror, the introvert/extravert, or the religious juror?
We’ve written before about creative folks, extraverts and those who are religious. Three social science projects now give us additional clues as to times when you might want to choose one characteristic over the others. Or not.
As you might guess, it all comes down to your case themes and specifics. Let’s say you are left with one peremptory strike and three venire members in question. One is strongly religious, one is an artist and one is clearly extraverted. Here’s what the new research would say about how those three could differ on some important details.
Creative people, according to Dan Ariely, are better at rationalizing small ethical lapses that can spiral out of control. Ariely says creative sorts are not evil masterminds, but rather have justified minor wrongs that then escalate without warning.
Introverts and extraverts use language differently. And not just in terms of talking more or less. Introverts use more concrete words and are more precise or descriptive while extraverts are more abstract and interpretive.
Researchers asked participants to describe what was happening in a series of photos. Introverts were more likely to concretely describe the photo (e.g., “He could be writing a letter”) while extraverts described the photo more abstractly (e.g., “He could be lonely”). The researchers also opine that the introvert’s style of description is more likely to result in judgments that are situational in nature (e.g., “Camile yells at Martin”) while the extravert is more likely to make judgments as to traits that are more enduring (e.g., “Camile is unfriendly”).
Finally, those who are religious or paranormal believers are more likely to see “face like areas” on photographs than were the skeptics or atheists participating in research. (Yes, this is like those postings of toast with religious images in them on eBay.)
Participants were shown some photographs that were judged as having face like areas and others that were not. The researchers found that those who were religious and paranormal believers were more likely to see the face like patterns (whether they were present or not) than were the skeptics and the atheists.
So what can these varied findings mean for your use in litigation advocacy? That’s a very good question. And here are some thoughts…
Does the case involve allegations or ethical or moral transgressions? The creative juror might be more able to see how a small wrong could spiral out of control for the accused. The introverted juror might be more likely to attribute the misbehavior to situational factors rather than attribute it to character traits. The religious juror might adjudge the defendant more harshly particularly if they see past behavior repeating itself.
Does the case involve allegations of broken promises–like a contracts case, a partnership crushed by betrayal, or warranties of safety or reliability? Again, the creative person may be more likely to believe a good story of a minor wrong that grew beyond expectation. The introvert may be more likely (especially if behaviors of the accused are described concretely) to see the issues as more situational than personality-driven. The religious person may be more likely to see past patterns of behavior repeating themselves.
Since non-economic damages (and the credibility of the economic models used by each side) are often driven by perceptions of character and implied intent, it becomes crucial that you consider what juror is likely to harshly judge your client’s character, or the intent of the opposition.
According to these research findings, you have an extra tea-leaf to predict who will respond one way or another. But our experience with thousands of jurors differs from that of these social science researchers. Whenever you use one trait or characteristic to profile your jurors, you are on a very slippery slope. Just like striking a venire member based on race, age, gender, or income–deselecting based on religion, personality traits or occupation is dangerous and likely just plain wrong. The decision matrix is invariably more complex than that.
Attitudes. Values. Beliefs. Experiences. Those things reflect more about how any particular juror will respond to any particular fact pattern than any single demographic descriptor.
No matter what else you may read–that’s a good thing to remember in voir dire.
Beukeboom, C., Tanis, M., & Vermeulen, I. (2012). The Language of Extraversion: Extraverted People Talk More Abstractly, Introverts Are More Concrete Journal of Language and Social Psychology DOI: 10.1177/0261927X12460844
Riekki, T., Lindeman, M., Aleneff, M., Halme, A., & Nuortimo, A. (2012). Paranormal and Religious Believers Are More Prone to Illusory Face Perception than Skeptics and Non-believers Applied Cognitive Psychology DOI: 10.1002/acp.2874
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