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Archive for the ‘Voir Dire & Jury Selection’ Category
My soul is not for sale!
Oh really? Then why are the US Navy, the US Air Force and the NSF looking at how we make decisions to sell our souls? As it happens, when we are considering disavowing “sacred values”, a specific cognitive process occurs. That has to be good, of course, since we wouldn’t want soul-selling to be relegated to our general, everyday cognitive processes.
For this research, participants were wired up to fMRI machines to measure and record brain responses. In phase one of the experiment, participants were shown statements like the mundane “you are a tea drinker” to the more controversial “you are pro-life”. They were asked to choose if they agreed or disagreed with the statement.
In phase two, participants were offered up to $100 for signing a document stating the opposite of what they believed. For those statements they valued highly, they could opt out of the monetary reward. When a participant refused to sell out their values (aka ‘soul’), the researchers identified that statement as a personally sacred value for that individual. The researchers compared the fMRI’s for non-sacred and sacred values and found that different areas of the brain were activated when the individual considered whether they would sell the value statement. Thus, the researchers saw an entirely different decision-making process underway.
These findings are not particularly surprising to those who track the neuroscience literature. What is unknown is which values and attitudes are “personally sacred” to the individual. Or, as we think of it in constructing trial arguments, which statements correspond to firmly held or ‘core’ beliefs and values? The experiment was done as part of a series of experiments looking at cultural conflicts. What we see in our focus groups and mock trials is that there are idiosyncratic “sacred” ideas or perspectives for some jurors.
When we are doing corporate or contract work, we hear jurors who say “that just isn’t right” and other jurors who say “it’s just business and it happens all the time”.
When we are doing patent work, we hear jurors say “the inventor should get money for this idea for all time” and others who say “technology has moved on and this patent doesn’t have value”.
In personal injury death cases, we hear jurors agreeing that “No amount of money can compensate the family for the loss of a loved one”. But the impact of that belief is that some jurors say that as a result the family should get little or nothing, while others feel that the moon is not high enough.
All of these positions represent sacred values to those engaged in the dispute. The key is to do one of three things:
Identify those whose core beliefs are at odds with your case, and strike as many of them as possible.
Reframe your trial story so that jurors won’t feel that the verdict is inconsistent with their core or soul-defining values.
Since strategies 1 and 2 above are often incomplete strategies, determine which jurors with problematic values you can still live with. Identify those that will be open to your story and will surprise themselves by making a decision inconsistent with what they believe is a deeply held value. We’ve seen this happen. And when it does happen, it can be a beautiful thing.
Berns, G., Bell, E., Capra, C., Prietula, M., Moore, S., Anderson, B., Ginges, J., & Atran, S. (2012). The price of your soul: neural evidence for the non-utilitarian representation of sacred values Philosophical Transactions of the Royal Society B: Biological Sciences, 367 (1589), 754-762 DOI: 10.1098/rstb.2011.0262
Does a ‘bad heart’ lead to a bad heart?
John Edwards apparently has a bad heart and this will delay his criminal trial. Cynical commenters snipe “oh, he has a heart?” and there is little sympathy for a man people see as narcissistic. And now we see this research showing that narcissistic men have chronically high cortisol levels which leads to (you know this) heart problems. The ultimate irony. A bad heart leads to a bad heart.
Some wonder about the timing of this medical record disclosure–saying only a narcissist would leak his medical records at a time like this–shouldn’t we have heard about this when he was running for President? Our friend Charli Morris (a self-described “loyal Democrat”) tells us that the up-close view of this trial from her North Carolina home is not a pretty picture.
John Edwards took a short cut on the long slide from from “golden boy” to “most contemptible”. Not unlike Newt Gingrich, he had an affair with a woman during his wife’s convalescence from cancer, and is now suffering the complications of having to deal with the stunningly insensitive abandonment. It’s the ultimate challenge to pretrial publicity. While recent research would say that older jurors might be better for John Edwards, it’s hard to believe that jury selection will be that simple in his case. There are too many wrinkles and caveats and too many negative opinions.
While Gingrich prevailed among the Christian evangelical voters in the South Carolina Republican primary with claims that it was an error of the past brought on by excessive devotion to work(!), Edwards has much bigger problems. Edwards’ betrayal was relatively recent, with a wife who has consistently been more popular than he is, who died after having been in recovery at the time that the scandal was made public. While potential jurors may say they are able to be fair, it’s hard to see how most people can put the media information aside completely and offer a verdict based on facts alone.
It’s part of what makes voir dire such a constantly changing puzzle. Everyone tries to find an edge. Whether that edge is assessing social anxiety from Facebook profiles or some other strategy–we all look for clues in the arena of the not easily observed that will lead to a better jury selection. It’s our guess that the Edwards’ defense team is doing extensive pretrial research to identify trial themes, case narratives, and juror experiences that work for them and not against them.
Fernandez, K., Levinson, C., & Rodebaugh, T. (2012). Profiling: Predicting Social Anxiety From Facebook Profiles Social Psychological and Personality Science DOI: 10.1177/1948550611434967
Earlobes askew and crooked nose. Aha, it’s a transformational leader!
Most people would agree that Jeff Bezos of Amazon is a transformational leader. But many of us would likely look askance at using earlobes that are unevenly aligned as a measure of leadership potential.
But according to some new research, we might want to think again! As it happens, asymmetry occurs in-utero as a result of stress. Scientists say higher symmetry is a sign of genetic fitness. When they see asymmetry between the right and left sides of the body, scientists say those fetuses were less able to develop symmetrically in the presence of those in-utero stressors. Poor babies!
Leadership researchers talk about transactional versus transformational leaders. Many of them prefer the transformational style of leadership but we’ve seen terrific examples of both among trial lawyers.
A transactional leader is very precise and linear. Communication styles are likely factual, detail oriented, chronological and thorough. They invite you to think and consider the evidence without telling you what you should conclude, and their style of persuasion is very subtle. You are drawn to the transactional leader because they are clear, straightforward, and trustworthy. One of our very successful long-term clients has this style and jurors love it.
A transformational leader is charismatic. Communication styles are more emotive even though they may also be factual and thorough. You are drawn to the transformational leader because of their intensity, passion, and commitment to their cause. The transformational leader is able to inspire followers to put aside self-interest for the good of the group. Another of our very successful long-term clients has this style and jurors love it.
In this study, researchers looked at stereotypes of symmetrical people and asymmetrical people. Symmetrical people are seen as better looking, healthier, more intelligent and more dominant. They are the classic alphas. The asymmetrical person “has to develop more positive social skills to compensate for these perceived shortcomings.”
Then, they measured leadership style via self-report questionnaires and actual small team leadership observation over the course of 22 weeks when groups were required to complete a computer simulation task. They also measured participant earlobes, wrist widths, and finger lengths and assigned scores for overall symmetry to each participant.
What they found is interesting.
Highly asymmetrical people saw themselves as having higher [self-reported] leadership abilities. They saw themselves as more able to intuit others’ feelings and needs and as more able to inspire others.
And this was confirmed as a reality via group performance. The more asymmetrical the leader, the better the team performed (about 20% better on average).
The researchers think that if you’re born with asymmetries you likely focus on developing more “people skills” to overcome perceptions that you are unattractive or not very intelligent. It’s an intriguing idea. Perhaps it is also that people with asymmetry are more interesting looking–and the longer eye gaze from others as they assess the asymmetry leads to development of skills to sustain others’ interest.
Regardless of the reason, it’s a good visual to look for as we select jurors. Crooked ears and signs of social intelligence sparkling in those too far apart eyes? Now there’s a jury leader! [If you’d like to check your own facial symmetry, [for scientific purposes] visit this website.
Senior, C., Martin, R., Thomas, G., Topakas, A., West, M., & M. Yeats, R. (2011). Developmental stability and leadership effectiveness The Leadership Quarterly DOI: 10.1016/j.leaqua.2011.08.005
Senior C, Martin R, West M, & Yeats RM (2011). How earlobes can signify leadership potential. Harvard Business Review, 89 (11) PMID: 22111428
Pretrial publicity & bias: Take a look at the age of your jurors!
Despite the Supreme Court ruling [Skilling v US] that pretrial publicity [PTP] does not bias the public perception and limit the right to a fair trial, most of us who have experienced the impact of pretrial publicity disagree.
It is an accepted truism that older people are more conservative than younger people. So it’s interesting to see some research on how pretrial publicity affects older jurors [range = 60-80 years old, average age = 69.5] and younger jurors [range = 18-21 years old, average age = 19]. In this instance, researchers looked at the impact of both positive and negative publicity on mock juror decision-making related to a specific set of case facts.
Mock jurors read either positive or negative pretrial publicity accounts of the case (via mock news articles) and then, one week later, they watched an edited 30 minute video of the trial. (This video was used in previous research and found to be realistic, believable and ambiguous as to guilt. Pretrial publicity is believed to be most important when guilt is ambiguous.) Following viewing of the trial video, they were told to disregard any relevant information from their readings the week before and then they wrote down their individual verdicts.
Older jurors were only affected by positive pretrial publicity.
Younger jurors were only moved by negative pretrial publicity.
In other words, even though the mock jurors were given identical information “pretrial” and then viewed the same video summarizing the trial, they came to very different conclusions. Older jurors were only biased by the positive PTP while younger jurors were more conviction prone than the older jurors only when exposed to negative PTP.
The researchers summarize by saying:
“the same PTP can have a large biasing effect on the decisions made by one age group while having no significant effect on decisions made by the other. [snip]
…these attentional biases [in older adults] may lead to more biased decisions, when the biasing information is positive and less biased decisions when the biasing information is negative”.
They also suggest that this age-related attentional focus may be more important in terms of decision-making than overall liberal or conservative orientation.
What this research would suggest is that when you have negative pretrial publicity, older adults (early Boomers and Silents) are going to make less biased decisions than when they have been exposed to positive pretrial publicity.
If you have a well-known and positively regarded client, older adults are going to be more affected by the ‘halo’ surrounding your client than will younger adults.
If you have a high level of negative publicity and your client is a relative unknown, younger jurors are going to be more swayed (negatively) while older jurors are largely unmoved.
It’s an intriguing finding for us for two different reasons: one is that this is a demographic finding–attitudes and values are almost always more powerful in affecting decision making. The second point is the question of why the older jurors were only moved by the positive PTP. They are, for the most part, more conservative. If they were looking for reasons to be punitive, the negative PTP would be powerful. Instead, another finding in our analysis of generational research seems to fit: older jurors are happier. They prefer to pay attention to news and information that says ‘the world isn’t so bad after all’. Setting aside our crazy aunt Freda who is fixated on conspiracy theories and Glenn Beck, you can expect older jurors to prefer positive stories, good character, and good manners.
This is an important new study (heading into press now) that we hope will see follow-on research to add nuances to our understanding. We’ll be watching, and will keep you posted.
Ruva, C., & Hudak, E. (2011). Pretrial publicity and juror age affect mock-juror decision making Psychology, Crime & Law, 1-24 DOI: 10.1080/1068316X.2011.616509
Lutherans revisited: Did we dismiss Darrow too soon?
Remember Clarence Darrow’s wonderful essay on how to pick a jury? He covers almost every possible stereotype–including religion–in a thorough essay that was then ground-breaking and now a reflection of the wide-reaching stereotypes we attempt to avoid. [A sample from his essay is below with a link to the entire essay.]
“Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.”
But have we perhaps dismissed Clarence’s advice too soon? Some researchers exploring the relationship of religious beliefs to attribution appear to say we should look again. And so look we shall.
The researchers were interested in one of our favorite concepts: the fundamental attribution error.
We commit a “fundamental attribution error” when we over-value the personality-based explanations [“it’s in their character”] for what we see in the behavior of others and under-value the situational factors [“it was pressure from the economy”] behind their behavior.
Interestingly (but not too surprising), when we are assessing our own behavior we do the reverse! We give ourselves the benefit of a doubt but know full well that others are simply “bad”.
The researchers wanted to explore whether religious belief (Protestant vs Catholic affiliations) was connected to assuming personality-based explanations for behavior (as opposed to situational explanations). Their assumption, based on a review of the literature, was that the importance of the “belief in a soul” inherent in the Protestant belief system would lead Protestants to assert personality-based explanations for behavior to a larger degree than Catholics. Why?
“We suggest that for religious people, and for Protestant Christians especially, the soul is very much a salient concept and that belief in a soul promotes a tendency to attribute behavior to dispositions, not situations. [snip] Since the Protestant Reformation, most non-Catholic Christians have believed, for example, that repenting of one’s sins and trusting in Jesus Christ as the Savior will assure rewards in the afterlife. This “inner” form of religion [snip] is typically contrasted with both intrinsically and “extrinsically” motivated Catholicism with its more ecclesiastical requirements for salvation.”
And after four different experiments, their hypothesis was supported. Protestants do attribute behavior to personality-based explanations more often than do Catholics. The researchers controlled for cognitive rigidity (i.e., the need for structure), the Protestant work ethic, and intrinsic and extrinsic religiosity to avoid confounding their results with these variables.
Chief among their findings were:
Protestants endorse more internal/personality-based explanations for behavior than do Catholics. This tendency is mediated by the Protestant belief in a soul.
Protestants (either active or inactive but raised in a Protestant home) who were reminded of their religious beliefs or upbringing through a process known as ‘priming’ were more likely to endorse intrinsic/personality-based explanations for behavior. [The ‘priming’ used was related to the concept of a soul. There was no change in the number of external/situational explanations for behavior.]
The authors describe their findings as a “fundamental(ist) attribution bias” and assert that social psychological research should explore the differences between various religious dominations and belief systems. Their feeling is that we sweep too many potential differences under the rug in the belief there is not significance in the relationship between religious affiliation and values, beliefs and attitudes.
In our view it depends on the strength and relevance of these complex religious communities– there is no single attribute of “Protestant” or “Catholic”. But the researchers included both practicing and inactive ‘Protestants’ in their research. It’s an interesting finding.
For many years, there has been a general expectation that, other things being equal, Catholics are better for plaintiffs in PI cases, and Protestants are more likely to assign higher levels of contributory negligence and award lower damages. This research offers a suggestion as to why this could be so. The next step would be a careful analysis of whether there is evidence that this is more than another sweeping generalization. We don’t know where that data will lead us, but we’ll get back to you when the results are in.
Li YJ, Johnson KA, Cohen AB, Williams MJ, Knowles ED, & Chen Z (2011). Fundamental(ist) attribution error: Protestants are dispositionally focused. Journal of Personality and Social Psychology PMID: 22082060
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