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credibility and smilingWomen smile more than men. Men are typically seen as more credible than women. So these researchers decided to see if there was a relationship between smiling and assessments of credibility on actual witnesses in the courtroom. 

The researchers used the Witness Credibility Scale to assess actual witnesses overall credibility. They thought that if smiling influenced observer evaluations of likability, confidence, trustworthiness and knowledge (the facets of credibility measured by the Witness Credibility Scale) then smiling could influence witness credibility. So off to the courtroom they went to collect observational data from real courtroom testimony. They observed both criminal and civil trials (including proceedings related to worker’s compensation, assault, domestic violence, drug trafficking, and capital murder) over a period of 6 months and, in total, observed 22 male and 10 female witnesses. The majority of the ratings (87.5%) were based on direct examination by the prosecution (84.4%).

There were 21 Caucasian witnesses and 11 African-American witnesses and witnesses ranged in age from 19 to 70 years. The researchers used four trained raters–two assessing the frequency of “smiling behavior” and two assessing credibility using the Witness Credibility Scale. (The credibility raters were trained to use the scale but had no awareness of the study’s hypotheses. The raters counting smiles included the principal investigator and one other person who knew the hypotheses.)

Here is what the researchers found:

Of the 32 witnesses observed, 23 smiled (71.9%) and nine (28.1%) did not.There were more women that smiled than men and although the difference between male and female smiling witnesses did not reach significance, it “trended that way” according to the researchers.

Male witnesses were seen as more trustworthy than female witnesses.

Witnesses who smiled were seen as more likable and female witnesses who smiled were significantly more likable than both smiling male witnesses and non-smiling female witnesses. Oddly, smiling female witnesses were not more likable than non-smiling male witnesses. (The researchers wonder if the smiling male witnesses were seen as behaving in a way incongruent with gender norms and thus the smiling male witnesses were less likable than the non-smiling males.)

The researchers say that, “Contrary to expectations, gender and smiling did not impact ratings of trustworthiness”. Men were found more trustworthy than women witnesses, but when women smiled, they were more likable than everyone but unsmiling men. The researchers recommend female witnesses smile during testimony since it is expected of them (by virtue of gender roles).

As with the research on female expert witnesses we covered earlier this month, there is not a lot of good news for women witnesses here but what we do know now is that women witnesses can relax a little and smile–it won’t make them more credible than stoic men but it will make the women witnesses a little more likable. And every little bit helps.

Nagle JE, Brodsky SL, & Weeter K (2014). Gender, Smiling, and Witness Credibility in Actual Trials. Behavioral sciences & the law PMID: 24634058

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paranoia-240x300Not long ago we blogged about the reality that half of Americans believe in at least one public health conspiracy. The same researchers have now looked into other conspiracy theories and found similar trends: half of Americans believe at least one conspiracy theory. So. Let’s take a look at what the researchers say about the sort of personality that lies behind the acceptance of conspiracy theories.

First, you need to have a tendency to attribute the reason behind unexplained or extraordinary events to “unseen and intentional forces”.

Second, you need to also have a tendency to be attracted to “melodramatic narratives” as explanations especially those narratives that interpret historical events as a classic struggle between good and evil. (If you want to stump your friends, this sort of duality is known as a Manichean narrative.)

This time, rather than public health conspiracy theories, the researchers examined various general and ideological conspiracy theories popular among your friends and neighbors (and perhaps even you!) as sampled by a YouGov/Polimetrix survey of 1,935 individuals in 2011. Here are the conspiracy theories they assessed (and the percentage expressing a belief in them).

The US invasion of Iraq was not part of a campaign to fight terrorism, but was driven by oil companies and Jews in the US and Israel. (This was called the “Iraq War conspiracy” and was familiar to 44% of respondents and 19% agreed.)

Certain US government officials planned the attacks of September 11, 2001 because they wanted the US to go to war in the Middle East. (“Truther conspiracy” was familiar to 67% of the respondents and 19% agreed.)

President Barack Obama was not really born in the US and does not have an authentic Hawaiian birth certificate. (“Birther conspiracy” was familiar to 94% and 24% believed it.)

The current financial crisis was secretly orchestrated by a small group of Wall Street bankers to extend the power of the Federal Reserve and further their control of the world’s economy. (“Financial Crisis conspiracy” was familiar to 46% while 25% believed it.)

Vapor trails left by aircraft are actually chemical agents deliberately sprayed in a clandestine program directed by government officials. (This was called the “Chem Trails conspiracy” was familiar to 17% of respondents although only 9% believed it.)

Billionaire George Soros is behind a hidden plot to destabilize the American government, take control of the media, and put the world under his control. (The “Soros conspiracy” was familiar to 31% and 19% believed it.)

The US government is mandating the switch to compact fluorescent light bulbs because such lights make people more obedient and easier to control. (“The CFLB conspiracy” was familiar to 17% and believed by 11%.)

Overall the researchers say that 55% of the 2011 respondents believed at least one of these theories. The most popular (at 25%) was the Financial Crisis conspiracy, followed by the Birther conspiracy, which was also followed closely by the Truther, Iraq War and Soros conspiracies. The Chem Trails conspiracy theory was far behind the other conspiracies. They do not initially mention the light bulb conspiracy but it was comparably accepted to the Chem Trail conspiracy.

Later the researchers confess to having made up that CFLB theory just to see if anyone would bite. (It’s so hard to trust those conspiracy researchers although they do confide in the reader that there actually are conspiracy theories that CFLB “lights contribute to greater fatigue or may serve as a weapon to induce mercury poisoning through a massive electromagnetic pulse”.)

They remind us that large portions of the population are drawn to the Manichean-style narrative with the struggle between good and evil and that this tendency is particularly strong in “the high proportion of Americans who believe we are living in biblical end times”. The researchers seem to believe that conspiracy theories are simply part of the American experience particularly for the many of us for whom “complicated or nuanced explanations for political events are both cognitively taxing and have limited appeal”. Conspiracy theories are more exciting and engrossing and thus, we choose, in some cases, to believe them.

From a litigation advocacy perspective, it’s a good reminder (again) of how often the message you mean to send can trigger associations to something altogether different. And if in voir dire, you make a joke about an absolutely nutty conspiracy theory, keep in mind that a good number of your jurors are going to believe it, while others will be muttering to themselves on break that they had no idea that your theory was true, and still others will think you are out of your mind. This is a variation on our general advice to avoid making jokes during trial about anything or anyone but yourself. And yet, sometimes it is just irresistible…

Oliver, J., & Wood, T. (2014). Conspiracy Theories and the Paranoid Style(s) of Mass Opinion American Journal of Political Science DOI: 10.1111/ajps.12084

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jailcell2You remember the better than average effect. It’s what makes us evaluate ourselves as better than others. I’m a better driver than the average driver. I’m a better swimmer than other non-competitive swimmers. Or even, I’m a better citizen than those who, unlike me, are not in prison. Yes. “I’m in jail. They are not. But, I am more moral, more kind, more self-controlled, more compassionate, more generous, more dependable, more trustworthy, and even more honest. I am not, however, more law-abiding than those who are not in jail. Because nobody’s perfect.” 

Those are the findings of a recent study that presents perhaps the strongest evidence for the better than average effect ever. Even when you are locked up as punishment for a crime, you see yourself as better than other prisoners (even more law-abiding than other prisoners) and better than citizens who are not imprisoned on a number of desirable characteristics. If you want an example, consider the recent lengthy interview with Bernie Madoff. Bernie doesn’t claim to be a great guy, just better than the politicians and greedy co-beneficiaries of his larceny.

British researchers tested 85 convicted inmates (age ranged from 18 to 34 years with an average age of 20.4 years–no information was given on other demographic descriptors) at an English prison. They were imprisoned for a variety of offenses although the majority were crimes against people and 17.7% chose the option “prefer not to say” when asked about their offense. There was ultimately no relationship between offense committed and the inmate scores on the better than average effect.

The inmates were told they were participating in a study of self-perception. They were asked to perform three different tasks: first to rate themselves compared to the average prisoner; second to compare themselves to the average member of the community; and third to complete demographic questionnaires containing demographic information. The characteristics they were asked to rate themselves on during the first and second tasks were: being moral, being kind, being more self-controlled, more law-abiding, more compassionate, more generous, more dependable, more trustworthy and more honest.

Participants rated themselves better than the average prisoner on all of these traits.

Participants rated themselves better than the average community member on all traits except that of being law-abiding. Importantly, while the prisoners did not rate themselves as more law-abiding than the average community member, they rated themselves as equally law-abiding as the average (not imprisoned) community member.

The researchers are taken aback by this last finding and wonder if the findings “raise issues regarding the self-views of other groups who have especially poor skills or detrimental behavior habits”. For example, they ask, “Do students on academic probation believe that they have better than average academic skills? Do serial divorcees think they are better marital partners than the average spouse? Do people who overeat, smoke cigarettes, and fail to exercise think they have average or better than average health habits? If so, the prospects for people in these categories to improve their abilities and characteristics are not promising.”

From a litigation advocacy perspective, this certainly has implications for witness preparation and for how your client presents him or herself. That witness who seems to refuse to take advice might actually think they’re the best witness ever. Sometimes it’s enough to show a witness how they come across on video (so prep them with a camera and show him or her the ways they undermine themselves). If that doesn’t help and the budget permits, holding a focus group– however low-budget might be required– can make a big difference. Our stubbornness usually fades in the face of people mocking us or describing why they dislike us. It is an experience both painful and sobering.

Like the recently viral deposition videos for Justin Bieber demonstrate, most of us are not as smart and clever as we would like to imagine.

Sedikides C, Meek R, Alicke MD, & Taylor S (2014). Behind bars but above the bar: Prisoners consider themselves more prosocial than non-prisoners. The British Journal of Social Psychology PMID: 24359153

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woman expert witnessFemale attorneys know they a special challenge to being accepted as authoritative, just because they are women. Looks like things are about the same for expert witnesses who are women. A new literature review just published by Tess M.S. Neal in Behavioral Sciences and the Law offers a succinct picture of what the research has found over the years. This is an article well worth reading and we are only going to cover the main effect summary findings. There are few rays of sunshine in this research but it’s important information to know (and we bet Tess Neal will be around doing good work for some time to come).  

Neal first discusses stereotypes and gender roles and looking at the historical (and unfortunately current) reality that men are expected to be leaders and logical while women are expected to be more emotional followers. Research as recent as 2009 shows we still value what we continue to define as masculine characteristics (e.g., competence, assertion, rationality) above those characteristics defined as feminine (e.g., warmth and expressiveness).

She reviews research findings on the gender of experts, finding women experts twice as likely as men to believe gender is a factor in the selection of an expert witness. Women experts report being sometimes told explicitly that the hiring attorney thought their gender would help the case (e.g., being a female expert in a sexual harassment or sexual assault case). Another study found 55% of female attorneys but only 13% of male attorneys thought judges assigned more credibility to male experts than to female experts. A 1994 study showed women made up only 11% of experts identified in written court opinions, and testifying in 21% of cases overall. The good news was the number increased over time (and Neal points out that trend has likely continued since 1994). And then she summarizes the research on the gender of the expert witness. Here are the highlights of only the main effects findings:

Male experts are rated as more likable, believable, trustworthy, confident, and credible than female experts in a 2010 study. (Yes. 2010–aka, yesterday.)

Expert gender (when the expert was an automotive engineer) made no difference in terms of verdict in a civil case involving an auto accident. However, female experts elicited higher compensatory damages than did the male experts in a 2002 study.

A 1984 study tentatively suggested that female experts might be preferred over male experts when the testimony concerned opinions about child custody. The researchers think research participants could think (due to gender role stereotypes) that women would be better judges of what children need than would men.

There is much more covered in this article. Neal examines the importance of context (what is the gender “domain” of the case, how complex is the information the expert must convey, when is the expert giving testimony in the overall case presentation, and will the experts violate expectations for behavior of men or women). The author of the 1994 study cited earlier observed that women were more likely to be testifying in disputes that had a “human” face–like education, family court or social services. Women accounted for only 4% of experts in corporate cases and 0% of those in contract disputes (again, in 1994). However, the traditional division of labor still seems to be in force in the more recent research Neal reviews.

Finally, she makes recommendations for both experts and attorneys hiring experts, based on the findings in the literature.

Consider if the case revolves around a traditionally male or traditionally female domain. Either gender may have an edge if the conflict is in their domain.

Consider whether the testimony is complex, because jurors may grant men an advantage. When testimony is not complex, women may have an advantage.

Competence is important for both men and women witnesses, but paying attention to gender role expectations may also matter. A 2008 study showed male witnesses were seen as more credible if they maintained high levels of eye contact with the questioner (“assertive eye contact”) but women’s eye contact with the questioner did not matter in terms of their credibility.

Being likable is more important for women experts than for men (according to 2009 and 2012 findings). She recommends the use of informal speech, explaining key terms, using the Plaintiff or Defendant’s name rather than referring to them as either the plaintiff or the defendant, among other things.

Overall, Neal says there are indeed gender differences in how male and female experts are perceived but those differences tend to be relatively small and largely determined by context. So, a little good news and a fair amount of what female expert witnesses likely already knew. Times are changing, albeit slowly. What was a major obstacle documented in 1994 now appears to be a lower barrier.

Neal TMS (2014). Women as Expert Witnesses: A Review of the Literature. Behavioral Sciences & the Law PMID: 24623554

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THE BIG BANG THEORYLawyers are often taken aback when they hear mock jurors discussing their case and demonstrating little understanding of what was actually presented in evidence. We tend to see that emotional reaction go hand in hand with the excess consumption of peanut M&Ms. The more distorted the mock juror’s understanding of the evidence, the more the supply of peanut M&Ms in the room dwindles and the more attorneys pace back and forth and talk with their mouths full. 

My Dad was a pilot stationed in Italy during WWII, and enjoyed telling a story about a guy in his flight group who somehow thought that if he spoke English slowly and LOUDLY, the Italians (who spoke not a word of English) would understand him. The fact that it never worked didn’t make a difference to him. He blamed the Italians for not getting it. As smart as our readers are, I’m thinking that you know where this is heading…

It’s probably a good thing that the National Science Foundation surveys the American public routinely to see what we really know. And it’s probably a good thing for you to read it and understand how to gauge the appropriate level at which to present your case.

80% of Americans say they are interested in “new scientific discoveries”: That’s quite a lot of us. We would guess that while many are “interested”, few really bother to understand or seek out specifics beyond the headlines.

It’s the internet, not TV (and certainly NOT print media although online versions of newspapers are popular): First off, most people’s information about science and technology comes from the internet (40%, up from about 33% in 2010) and then TV. We are all familiar with the ever-present use of smart phones to look up a term or clarify our understanding, or see when our favorite reality show is showing reruns. A significant proportion still get their science and technology information from TV viewing, though. So what are they watching on TV or streaming on the internet? Bill O’Reilly, Jon Stewart, the Discovery Channel, or $10M Bigfoot Bounty? It would likely be to your benefit to know.

Zoos, aquariums, and museums: The majority of Americans say they visited a zoo, aquarium or museum in 2012 but attendance is down at zoos and aquariums. Science museums tend to be visited by those with higher income and education.

Americans scored 64% on a science factual quiz in 2012: And this is similar to our scores in previous years. Surprisingly, perhaps, Europeans score at about the same level as Americans. Questions posed had to do with evolution, the big bang theory, whether the sun revolves around the Earth or the Earth revolves around the sun, and so on. Yes, there is a big faction in our country that believes the Biblical account of creation dates the Earth to about 6,000 years, but they remain familiar with more scientifically validated ‘truths’.

We can answer a little on research design but are uncertain of specifics: Most Americans could answer two multiple-choice questions about probability but had trouble describing why one would need a control group in scientific experimentation. There was also difficulty in describing what makes an activity “scientific”.

And the list goes on and on. Americans are divided on climate change. Our support for oil and nuclear energy has rebounded. We have trouble identifying just which occupations are “scientific” and we have difficulty distinguishing science from pseudoscience. We’re not particularly concerned about genetically modified food stuffs compared to other countries. We see using stem cells from human embryos in medical research as “morally acceptable”.

We have an obligation to understand what language our jurors speak. If they don’t understand you, being loud or repetitious isn’t going to help you in court any more than it helped my father’s friend in Italy. If you know the limits of their knowledge, you can present the evidence in a way that teaches, not merely in a way that  justifies argument.

We work on a great deal of patent litigation, sometimes on software code or scientific processes that not even the lawyers for the parties truly understand. The judge doesn’t understand it. Certainly the jurors don’t. But a version of this densely scientific material can be taught. Understanding and patient testimony from an expert can reassure jurors that this witness can be trusted, and that this person will help them find their way through this strange wilderness of code, formulas, or physics.

Would trials be better if they were more like peer-review panels? Arguably, Markman hearings, rulings on motions in limine, and summary judgment decisions already get pretty close to that situation. We find that leaving the balance of the judging to actual citizen jurors usually has them finding a just verdict.

It’s worth a look at the overview of findings and the entire report itself. The results are sometimes surprising and other times disturbing. It’s information you can use to understand the level of knowledge to expect from your audience at trial.

National Science Board. 2014. Science and Engineering Indicators 2014. Arlington VA: National Science Foundation (NSB 14-01). http://www.nsf.gov/statistics/seind14/content/overview/overview.pdf

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