Archive for the ‘Witness Preparation’ Category
Conspiracy theories that arise during pretrial research are instructive for filling holes in the case narrative. Recently though, Popular Mechanics ran a feature on a number of conspiracy theories we haven’t heard arise in our work (so far). The conspiracy theories run the gamut from the government burying Atlanta, Georgia (very recently) in “poisonous snow” that did not burn but instead, “blackens, twists like plastic, and stubbornly refuses to melt”, to sharks involved in attacks off the coast of Egypt really being “remote-controlled Israeli spies”.
Recently we wrote about Bigfoot believers and the fact that almost 1/3 of Americans believe Bigfoot exists. (As an aside, we have been told that Bigfoot used to exist but a Las Vegas hunter has since claimed to have killed the Bigfoot near San Antonio, TX and will soon be taking the body on the road so you can see it with your own eyes). Popular Mechanics does not include Bigfoot in their list of outrageous conspiracy theories. Among the theories they do include, like the moon really being a hologram, were a few that we would love to hear jurors or mock jurors share. In public. If for no other reason but to see the reactions of the others gathered, and possibly to see whether the judge would consider them too crazy to serve. Obviously, we don’t get out enough because most of these were completely new to us. Forewarned though, is forearmed.
The lizard people: We think it possible this one could arise in cases of government corruption or political malfeasance. Only four in a hundred Brits (allegedly) believe this theory but a close friend of Princess Diana claims Diana confided that the British royal family were actually lizard people. Apparently, “cleverly disguised reptilian aliens traveled to Earth thousands of years ago to infiltrate our highest echelons of government”. There are YouTube videos described as “terrifying” and also videos to debunk the videos. Popular Mechanics opines this one may actually be true due to “lack of any better explanation for Rob Ford”.
The Siri Apocalypse: This one could come up in a high-tech patent or IP dispute as jurors debate the merits of technology in society. If you read this blog regularly, you know we have a fondness for Siri (the iPhone personal assistant). But who knew she was scheduling events without our asking, like designating July 27, 2014 as the “appointed time for the Opening of the Gates of Hades”. We tried this one and it didn’t work but Siri seems to know a lot, so who knows what Steve Jobs might be orchestrating from beyond the pale?
Denver International Airport is, quite literally, hell on earth. As far as we know, this one wasn’t started by frustrated, stranded travelers. But one can never be sure. And, like many conspiracy theories, this one is quite complex. These theorists believe DIA to be the “den of the devil”, that a FEMA death camp is hidden beneath the airport, that the terminal runways form a swastika, and the walls are lined with satanic symbols (in the guise of artwork). There is even a two-part YouTube documentary on the coverup at DIA. It’s certainly worth a tour next time you are stranded in Denver. Just don’t undertake the tour alone!
In short, there are many topics about which conspiracy theories emerge, yet, in our experience, a good conspiracy theorist is very good at connecting the dots between your case and their bizzaro-world. We’ve seen cases where fairly routine facts led to proclamations of very unlikely sexual partners imagined, cocaine use assumed when a not well-liked witness sniffled, and a social media site being described as “the devil’s work” by a school teacher to the agreement of a significant portion of other mock jurors in the room. Still, it is within the realm of possibility that you may hear about lizard people, Siri, and the devil’s den being in Denver.
When these sorts of comments are made, we always take time to make sure we understand how the connection was made and how others in the room reacted to the suggestion so we can then plug that hole in the narrative. Now, there may be no real hole in your narrative and you may just have an odd, idiosyncratic association on the part of a single juror. It is always to your benefit to consider when to plug a hole, when to leave it open (and maybe open it just a little wider), and when to add information when there isn’t a hole–but it’s better to not have jurors wondering and creating a hole where none really existed.
I did not intend to binge watch the newly-released second season of House of Cards. But once I saw the first episode, I could not stop and watched the entire season over the next 4 days. As a fellow fan, I understood Barack Obama’s tweet about the show
and thus, you will find no spoilers here. Suffice to say, the first episode destroyed any ability I had to wait and allow the story to slowly unfold. So when I saw the Atlantic’s recent story on “ruthless winners” featuring the example of Claire Underwood on House of Cards–I had to go read it (although you should not if you have not yet watched all of Season 2!). Essentially, the Atlantic piece asks why we root for the ruthless pragmatist–from Frank and Claire Underwood to Walter White in Breaking Bad to Tony Soprano in the Soprano’s. It’s a worthwhile question for us to consider. I find myself both shocked and intrigued as I watch these shows. It’s a phenomena we’ve written about before here. They are so evil and dishonest and yet, so creative in their machinations. They are evil geniuses–and now we may know why.
Harvard researcher Francesca Gino has published a new paper on the link between dishonesty and creativity. She says, “by acting dishonestly, people become more creative, which allows them to come up with more creative justifications for their immoral behavior, and therefore more likely to behave dishonestly”.
Gino recruited 153 people online and asked them to “quickly scan a series of numbers to find combinations that added up to ten”. They knew that if they were randomly selected for a bonus, they would receive $1 for every combination they found (they were self-reporting their solutions). After that they were asked to do the Remote Association Task (which measures creative thinking). In this study, 59% of the participants “over-stated” the number of problems solved on the number test. (Another way to communicate the participants over-stated their results would be to come right out and say they lied.) But, the liars performed better on the creative thinking test.
Next, Gino tried a similar experiment with 101 college students. In this experiment, 51 of the 53 participants with the opportunity to lie, lied. And yes, they performed better on the creative thinking test than did their peers who had no opportunity to lie or cheat. It was as though dishonesty was favored by participants inclined to “feel unconstrained by rules” and that freed them up to think more creatively.
Getting back to Frank and Claire Underwood, they have certainly had a lot of practice behaving dishonestly, feeling “unconstrained by the rules” and thus thinking of creative strategies to manipulate others. We’ve blogged before about a study concluding that creative people make us anxious and uncertain. Perhaps this study can explain why… we simply don’t trust them!
It’s also a good thing to consider if your client is a creative type– an artist, inventor, software writer, poet, actor, etc. Present testimony showing their good works, honest treatment of others, and overall good character. Your creative client needs to defy any “evil genius” characterization. Make sure jurors know that.
Gino F, & Wiltermuth SS (2014). Evil Genius? How Dishonesty Can Lead to Greater Creativity. Psychological Science PMID: 24549296
The sad and painful tale of Dylan Farrow has emerged again following her letter to the NYT after Woody Allen received the Golden Globes Lifetime Achievement Award. Woody Allen responded to Ms. Farrow’s open letter and she responded to his response. The internet has been on fire with reactions, pro-Farrow, pro-Allen, and everything in between. You can find them with a simple internet search and we won’t link to them here.
This post isn’t really about the letter, the responses, or the internet reaction to them. Instead, it’s about the original judge in the dispute and a cautionary tale for the attorneys who hire expert witnesses everywhere. I first saw the judge’s written opinion when it was sent around on a mailing list. It reads like a “don’t do this” text for the would-be forensic expert witness. There are so many legitimate reasons this case would not have succeeded at trial–regardless of Mr. Allen’s actual culpability.
Among the trial attorney lessons to be culled from the judges’ opinion, are the following:
Be sure your experts are really experts.
“Both Dr. Coates and Dr. Schultz expressed their opinions that Mr. Allen did not sexually abuse Dylan. Neither Dr. Coates nor Dr. Schultz has expertise in the field of child sexual abuse.” (p 22)
Make sure your expert keeps notes made during the process of report completion.
“The notes of the [Yale-New Haven] team members were destroyed prior to the issuance of the report, which, presumably, is an amalgamation of their independent impressions and observations. The unavailability of the notes, together with their unwillingness to testify at this trial except through the deposition of Dr. Leventhal, compromised my ability to scrutinize their findings and resulted in a report which was sanitized, and therefore, less credible.” (p 23)
Make sure your expert documents rationale behind conclusions and does not draw conclusions about anyone s/he has not seen.
“Dr. Herman faulted the Yale-New Haven team for making visitation recommendations without seeing the parent interact with the child; for failing to support adequately their conclusions that Dylan has a thought disorder; for drawing any conclusions about Satchel, whom they never saw; for finding that there was no abuse when the supporting data was inconclusive; and for recommending that Ms. Farrow enter into therapy.” (p 23-24)
Make sure your expert doesn’t say anything ridiculous like they just “know” when someone is not telling the truth.
“He claimed to have an intuitive ability to know if a person is truthful or not. He concluded, “based on my experience”, that Dylan lacked credibility.” (p 24)
Reading the written opinion is disturbing. The level of dysfunction in the Farrow/Allen household appears to have been very high and the judge’s opinion leaves little to the imagination when describing impressions of the adult parties. It is hard to imagine that Yale is particularly proud of the standard of practice by their ‘experts’, if the judge’s characterizations are accurate. It violates both common sense and standards of practice employed by psychologists who do custody evaluations (see the guidelines published by the American Psychological Association). All the more reason to ensure your expert is going to have the highest standards of practice possible and thereby not contribute to a possible miscarriage of justice.
What’s American? Mom. Apple pie. The Superbowl. CocaCola. Well, maybe not CocaCola. They did the unthinkable in the eyes of some Americans by pointing out the obvious. They made a Superbowl commercial about diversity! America is a nation of many different peoples and Coke is a common denominator across cultures and languages in this country. To some, this is evidently a disturbing truth, and one that an American icon like Coke should not celebrate.
We used to call America a “great melting pot” but apparently references to that aspect of our country are now seen as divisive by some. The commercial aired and within seconds there were angry comments posted on websites, and a certain type of television pundit was beating the war drums, expressing outrage at CocaCola’s attempt to divide the country. [Yes. To acknowledge differences is evidently the same as creating them.] But many other Americans saw the commercial as beautiful, as reflecting the nation’s diversity, and as thought provoking about what it really means to be an American. The most intriguing part of it to me is that hearing “America the Beautiful” sung in different languages was evidently more inflammatory than the scene in which two men are obviously parenting a young child. That might have been a tough choice for some– which bias do you lead with, and which comes second? Here’s the commercial:
And here are just a few of the ways people saw the commercial differently:
Glenn Beck: Beck described an “in your face” effort by the beverage company to “divide people”. “That’s all this ad is,” Beck said on his radio show Monday. “It’s an in your face — and if you don’t like, if you’re offended by it, then you’re a racist. If you do like it, you’re for immigration, you’re for progress. That’s all this is, is to divide people.”
Andrea Mitchell: “This is a melting pot,” Mitchell said after showing a few of the tweets attacking the sentiment behind the ad. “I thought this was a beautiful commercial.”
Twitter.com: Tweets brought out both positive and negative reactions to the commercial–and some who became incensed by reading all the tweets. @chasegoforth Feb 2: “Search Twitter for #boycott #coke and try to keep your head from exploding.” You can also search Twitter under #AmericaisBeautiful or #SpeakAmerican for more reactions.
GLAAD: GLAAD President and CEO Sarah Kate Ellis responded to the ad: “Including a gay family in this ad is not only a step forward for the advertising industry, but a reflection of the growing majority of Americans from all walks of life who proudly support their LGBT friends, family and neighbors as integral parts of ‘America the Beautiful.’”
Stephen Colbert: In his over-the-top, tongue-in-cheek manner, Colbert not only ‘skewered’ the commercial by comedically echoing the likes of Glenn Beck, he also included the news that the lyrics were written by Katherine Lee Bates in 1895, a woman who was a devoutly Christian lesbian who lived wither her partner for over 25 years, at a time when this was politely referred to as a “Boston marriage”.
It reminds us of the original Cheerios ad that brought so much fury to bear on the company for airing an ad that happened to feature a multi-racial family. And Cheerios came back this year with the same family and the new ad featured negotiation skills as well as cereal.
So what does all this mean for litigation advocacy? It’s a reminder that we can see the exact same thing (or witness, or visual evidence, or attorney, or plaintiff, or defendant, or judge, or fellow juror) and conclude very different things about what we’ve seen or heard.
In the CocaCola commercial, some saw divisiveness, support for immigration that weakens the country, attempts to advance the homosexual agenda, and positive depictions of terrorists.
In that same commercial, some saw diversity, an embracing of the different cultures that make up our country and strengthen us, a quiet acceptance of different definitions of “family” and an awareness that not all in hijabs want to harm us.
In other words, where some see divisiveness, others see diversity. The same commercial (which CocaCola plans to run in a 90-second version during the Olympics) causes some to react negatively and others to react positively. Part of what we try to test during pretrial research is if anything or anyone in the fact pattern is this sort of lightning rod for conflict. Our attorney clients will often ask whether we thought a witness was likable and our own reaction may be quite different from that of the mock jurors.
A few years ago, we were in Kentucky testing a wrongful death case and watching deposition excerpts of a nurse struggling to maintain her composure while answering questions about her own actions during the ultimately catastrophic delivery of a child. She was clearly distraught in our eyes. However, when mock jurors observed her, several saw her as cold, uncaring, and “not even shedding a tear for this poor baby”. It was so far from what the labor and delivery nurse was really feeling that the mock juror reactions were a shock to her.
It became important in witness preparation to help her share the joy and privilege she felt at assisting in the birth of a child, feeling the joy of each family over her years of service, and then juxtaposing the trauma of seeing a childbirth go terribly wrong despite doing everything possible to prevent it. She went from being cold and uncaring during pretrial research to being one of the best witnesses for the Defense. And the best way to prep her and to structure her direct examination would not have been clear without that pretrial research.
In short, do not only rely solely on your own reactions to elements of the case. You are not a typical juror. What is touching or heartwarming or offensive and disturbing to you is predictably different than it will be to someone else.
And then have a Coke. America is often very beautiful indeed.
Late addition: Here’s a news anchor giving her thoughts on the controversy.
We’ve written before about the intoxicated witness. While our mock jurors tend to dismiss them as unreliable, recent research presents a mixed picture as to their accuracy. New work out of New Zealand adds to the murkiness by having apparently intoxicated confederates witness an incident along with the research participant and then contribute misinformation during a discussion of what they had seen. The researchers were interested in whether apparent intoxication would influence the participant’s acceptance of the (intoxicated) co-witnesses’ misinformation.
The researchers hypothesized that when the misinformation presented by the intoxicated witness was something the participant had not seen for themselves, it might “fill in the gaps” in participant memory and therefore be accepted as fact.
In those circumstances where the participant had their own memory and the intoxicated witness report varied from their own recollection–the participant would not accept the intoxicated person’s information as fact.
To test their hypotheses, the researchers had participants (and their paired confederate) watch a video clip of two simulated thefts committed in the university library by a male and female working together.
In half of the cases, both people drank lemonade (e.g., the sober co-witness condition). In the other half of the cases, the participant drank lemonade and watched their companion/confederate drink what appeared to be three alcoholic beverages (the intoxicated co-witness condition). The confederate behaved exactly the same way in both conditions (i.e., whether “sober” or “intoxicated”) so that the only difference was the research participant seeing them drinking a mixture of what appeared to be vodka and lemonade and then having the researcher “test” blood alcohol (which was always “over the legal limit”).
If you are wondering what the participant thought of being given lemonade while the confederate drank what appeared to be alcohol, the recruitment advertisement had warned the participants that they “may be required to consume enough alcohol to place them over the legal driving limit”. Plus, researchers are ever alert to suspicion, so, prior to each video viewing, the “bench surfaces in the testing room were wiped down with an alcohol solution” so that a distinct smell of alcohol was present.
After watching the videos, the two observers (i.e., the actual participant and the either intoxicated or sober co-witness confederate) discussed what they had seen (while the experimenter allegedly went to print some forms) and the confederate introduced misinformation (e.g., the accomplice’s eyes were blue not brown, a male student was visible behind the thieves and not a female student, the male thief wore black rather than blue jeans, and the thieves stole an MP3 player rather than a phone).
The experimenter then returned and separated the two so they could “complete subsequent tasks separately”. The actual research participant then completed a “filler task” on a computer and was then asked a series of questions about what they had seen on the video. They were asked to do another “filler task” for a few minutes and then were shown a series of 6 photographs with the actual thief in the video not present among them. They were told the actual accomplice might not be present in the photos and asked to identify the accomplice if possible.
The researchers went to great lengths to present a convincing “intoxicated co-witness” and had apparently done a pretty effective job, based on the impressions of research participants following the experiments. However, the research participants were just as likely to accept misinformation from the intoxicated co-witness as from the sober co-witness.
Follow-up analysis showed them that when there was a clear discrepancy between what the participant observed and what the co-witness told them (i.e., the misinformation), the participant was more likely to accept the accuracy of the sober witness than the intoxicated witness.
However, when the participant did not know the answer to the question shared by the misinforming co-witness, there was no real difference between their tendency to accept the information from a sober witness or an intoxicated witness.
It should be noted that this is research from an undergraduate population, a group that is surely very accustomed to interacting with intoxicated people towards whom they have positive feelings. Indeed, they might be regular ‘over the legal limit’ drinkers themselves. These factors are surely relevant to findings. Almost certainly, people who don’t ever drink, who are members of anti-drinking groups or who are critical of drinking seem likely to respond is a different way.
While our mock jurors resoundingly say you cannot rely on an intoxicated witness, these findings (and other research) muddies the water. Intoxicated witnesses may actually be credited with unimpaired recall, and, despite the voluminous research on issues with eye witness identification, participants in today’s research are more likely to rely on their own recollections than the discrepant feedback from even a sober co-witness.
Depending on your goals, there are two ways to go based on this (and prior) research:
Educate the jurors about problems with eye witness identification.
Educate jurors about the actual research showing intoxicated witnesses may have unimpaired recall.
Bolster the cognitive capacities of the intoxicated person, if possible, by pointing out that they did various things well (spoke clearly, was considered sober by non-drinkers present with them, et cetera) that indicate capacity.
Reasonable doubt, anyone?
Zajac, R., Dickson, J., Munn, R., & O’Neill, S. (2013). Trussht me, I know what I sshaw: The acceptance of misinformation from an apparently unreliable co-witness. Legal and Criminological Psychology. DOI: 10.1111/lcrp.12032