Archive for the ‘Witness Preparation’ Category
This isn’t really about bad memory—it’s about something much scarier—the power of others to modify your memory without your awareness. New research out of California tells us that it is possible to change the statements of the person giving testimony in such a way that they may not even notice! To make matters worse, it is possible the altered testimony will be so firmly accepted as truth by the fact-teller that they even develop a false memory supporting the account.
The researchers label this effect “memory blindness” and define it as our failure to recognize our own memories. For those of you who remember the flurry of controversies about implanted memories and “False Memory Syndrome” (such as the McMartin Daycare scandal from 1983), and the research done by Ralph Underwager, Elizabeth Loftus, and Richard Ofshe, this will sound familiar. It was seen as something fairly common in children, but this research addresses how susceptible adults are, too.
You may think this impossible but the researchers found it not only possible but disturbingly easy to achieve. The researchers conducted two experiments. In the first, they showed 165 undergraduate student-participants a slideshow of a woman who interacted with three different people—one of whom ultimately stole her wallet. Fifteen minutes after they had watched the slideshow, participants were asked questions similar to what the police would ask (e.g., how tall was the thief, what was the thief wearing) and their responses were written down. Fifteen minutes after that response, the participants were shown their responses in written form but, the researchers had randomly changed three of their answers so they were incorrect. The researchers let another 15 minutes pass and then asked the participants the same “police type” questions to see if they changed their answers.
The majority of the group did not notice their responses had been changed and when asked the questions the second time, repeated the information that was not what they had initially reported but instead was the incorrect information inserted by the researchers.
As an aside, only 18% said they thought “something was odd” in how the experiment was conducted. The researchers do not know what the other 82% were thinking but had to assume they did not notice anything amiss with their responses.
In the second experiment, the researchers gathered 379 participants to watch a slide show of a man stealing a radio from a car. This time, instead of asking the participants what they had seen happen, they were asked to pick the thief out of a photo lineup (with “relatively dissimilar faces”). The misinformation in this second study was telling the participants they had selected a different person from the lineup than they had originally identified.
Over half (53.7%) changed their answer in the final photo array to match the false feedback—which means that 47.3% realized their choices had been changed.
The researchers say that eye witnesses given typed copies of their statements to sign may not notice errors (due to typographical mistakes or more nefarious reasons) and that reviewing their incorrect statements alone may contaminate their memories. Even though almost anyone would say that they wouldn’t fall for this kind of mistake, the majority of participants did not notice changes and modified their reports to match inaccurate reports of past behavior.
Still others might say the police would never alter statements intentionally, and to them we would encourage a review of the Hillsborough disaster in the UK (more than 25 years ago) where almost 100 people were crushed to death during a football match. A recent inquest uncovered the reality that eye-witness testimonies had been “deliberately altered” by the police.
It is disturbing to realize that our memories can be so easily messed with by researchers and more disturbing to see examples of the same thing done by the police. While we’ve blogged before about the lack of reliability of eye-witness testimony, this is certainly another one to add to the list of reasons to question the memory of those who assert they “saw it with my own eyes”. If memory can be altered in as short a time delay as 15 minutes, it can certainly be altered over the time it takes a case to come to trial.
Cochran, KJ Greenspan, RL Bogart, DF Loftus, E 2016 Memory blindness: Altered memory reports lead to distortion in eyewitness memory. Memory and Cognition.
Earlier this week we wrote a post about how to invoke morality as a persuasive strategy with your jurors. Now Gallup has helped us by identifying the moral values most Americans agree on and the five about which they most disagree.
Gallup measures views on moral issues each year (since 2001) as part of their tracking of attitude shifts on social issues. They assign respondents to one of five religious groups (e.g., No religion, Jewish, Catholic, Protestant, Mormon) and then measure their attitudes on various social issues to determine what they see as moral and not moral. True, it is not a complete religious typology, but it is an interesting start.
They vary a bit from their typical single (annual) survey presentations by combining all their data from 2001 through 2016: “Results for this Gallup poll are based on combined telephone interviews in Gallup’s 2001 through 2016 annual Values and Beliefs poll, conducted each May with random samples of U.S. adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia”. This gives them a total sample size of 16,754 Americans opining on moral issues.
Here are the moral issues which most religious groups in the US generally agree are either “morally acceptable” or “not morally acceptable”:
Divorce, death penalty, wearing clothing made of animal fur, medical testing on animals—are all viewed as morally acceptable with more than 50% of respondents agreeing.
On the other hand, suicide, cloning humans, polygamy, and extramarital affairs are seen as not morally acceptable (again, as measured by less than 50% of Americans surveyed agreeing they were morally acceptable behaviors).
And here are the moral issues which religious groups in the US generally disagree on (that is, some see them as acceptable and but the majority do not):
Abortion, doctor-assisted suicide, cloning animals, gay-lesbian relations, having a baby outside marriage.
We’d consider these five to be “hot button issues” which may make jurors close their minds to the facts of your case rather than considering the circumstances involved. Intriguingly, one of the religious groups measured (the Mormons) was distinctly different when it came to their views on premarital sex, stem-cell research, and gambling.
Mormons are more likely than other religious groups to view stem cell research negatively by a slight margin (54%). They see premarital sex as clearly morally unacceptable (71%) and gambling is viewed askance as well (with 63% saying gambling is morally unacceptable).
While it is important to stay abreast of research pointing toward new litigation advocacy strategies like our post on “making it moral”, it is also important to keep up with changing attitudes toward social issues and how religious beliefs and affiliations may result in differing attitudes from the norm. Know your venue, know your jurors, and keep up to date as societal attitudes shift and sway.
John Oliver recently took on mass media coverage of scientific findings on his HBO show, Last Week Tonight. The result is a searing video mocking the distortions and misinterpretations (and even flat-out lies) about research findings as presented in mass media. Since his episode aired (a link to the video is at the end of this post) another one came out. You perhaps read about how taking acetaminophen (aka Tylenol) will make you less likely to feel empathy for the pain of others. The article (full article here) makes note that this is an initial research effort and more work obviously needs to be done but the headlines were sensational and they were everywhere:
Medical News Today: Does acetaminophen reduce empathy?
Washington Post: This popular painkiller also kills kindness
Before it’s News: Tylenol PROVEN to KILL emotions, ERASE empathy!
There were many, many more headlines along these lines—135,000 according to a quick Google search. And then, slowly, science bloggers emerged with posts saying the media translation was, in too many cases, just plain wrong.
Neurocritic: Acetaminophen probably isn’t an “empathy killer”
One of the problems was of, course, that this is a single study. Second, the sample was undergraduate students and only 200 of them at that (so, a small sample). Third, the effect was fairly small and if true, would probably not be noticeable. And that doesn’t even include the statistics behind the work. Neurocritic goes into extensive detail on why he doesn’t think the statistical tables are reported accurately. Even readers of the Washington Post version were appalled at how the study was described with hyperbole and offer multiple common sense reasons they would not take this study seriously. “I call horse dooky” says one reader, and others use a few more words but communicate essentially the same message. Gizmodo weighs in on the controversy by balancing a flashy headline and making sure cautions are pointed out (albeit in a single paragraph at the tail end of the article).
From a litigation advocacy perspective, one way to apply this cautionary lesson is to think about it in terms of your expert witness. A discredited expert can torpedo your case. So how do you ensure you know about potential landmines in your experts’ testimony?
It is critically important that someone read (and understand) the original source document that is being relied on to support the testimony. That seems pretty obvious but it’s easy to overlook all the original source documentation when skimming summaries for salient details.
Make sure your expert knows what is published but also knows how to explain it to jurors in a way they can understand.
Make sure your expert witness includes supporting documentation for any opinion the opposing expert may present as a rebuttal.
This can easily be introduced on direct examination with a question like, “Okay. Now what would someone who disagreed with your opinion have to say?” and after the witness has responded, follow-up with “And how would you respond to that?”
There are other suggestions for expert witnesses and if you are interested in those, please read our prior posts on expert witnesses. Now, in the event you missed it, here’s John Oliver mocking mass media accounts of research findings. While he doesn’t say it here, we believe he would echo our call to “read the primary source”.
Mischkowski D, Crocker J, & Way BM (2016). From painkiller to empathy killer: acetaminophen (paracetamol) reduces empathy for pain. Social Cognitive and Affective Neuroscience PMID: 27217114
Sometimes we find articles we want to blog about almost immediately and other times we go through a lot of reading to identify something appropriate for a post. But along the way we almost always have tidbits we thought intriguing, resonant of a past post or series of posts, esoteric, or just plain weird. When we pull together enough of them for a post of assorted “conversation starters”, you know we’ve been reading a lot more than we’re posting!
Calm down, you are not addicted to your smartphone!
You simply have an anxious attachment style. The BPS Research Digest returns to a topic we’ve covered here before called nomophobia—which describes the anxiety experienced when we have no cell phone in our possession. They describe research completed in Hungary which says that everyone would experience anxiety over not having a cell phone—it is just expected in today’s society. The researchers say, that we should think of our relationship with our phones in terms of attachment theory. They suggest that anyone who has a fear of abandonment (an attachment issue) in their human relationships is likely going to be more anxious about being separated from their phone as well—it’s just an anxious attachment style. You were a worrier before, so you also worry about not having your phone. You feel better now, right?
When DNA implicates the innocent & Eye witness identification errors
In the event you missed them, Scientific American has had really good articles on the legal system recently. Don’t miss this article highlighting times when DNA is very, very wrong or this one on how level of certainty in eyewitnesses can improve the efficacy of police lineups. Both are worthy of your time to read.
How to sound charismatic
We’ve written about deep voices and how appealing they can be and now here is an article from the Atlantic dissecting how politicians vary their voice pitch and tone during speaking engagements in order to appeal to the widest audience possible. It’s disturbing.
We’ve written a lot about other kinds of self-appointed experts on your jury (and how to dethrone them) but today’s work is a reflection of another aspect of perceived expert status.
When you think you already know a lot about something, you can become closed-minded. You finish the testimony before the witness does. A closed mind is a problem everywhere, but in a jury room it is dangerous.
We’ve seen this a lot in pretrial research (like this post about a retired teacher named ‘Victoria’) but today’s research tells us that when you see yourself as a relative expert on an issue—you are less likely to be open to other information and/or opinions.
It’s an assumption that is somewhat counter-intuitive since “real experts” need to be open to new information in order to remain “experts” as new knowledge is identified. Yet, these “self-appointed” experts, became quite dogmatic across all six experiments the researchers conducted. The researchers label this tendency the “earned dogmatism effect”—likely a close relative of the Dunning -Kruger effect.
A relatively easy example is when someone (for example, a doctor or a nurse in a personal injury case) is required to set aside their professional knowledge and rely solely on the testimony offered in trial. Their training and experience is not evidence, so if they believe something to be true that is inconsistent with the evidence, they are to rule out their experience, not the evidence.
Of course, humans rarely can do that. Typically, such actual ‘experts’ are stricken from the jury. The greater problem are informal ‘experts’, who think that because they can fix cars they know why a jet engine failed, or because they are married to a bookkeeper they understand the nuances of complex tax fraud. These informal experts are often much more difficult to identify, especially in courts where attorney voir dire is limited or prohibited.
From a litigation advocacy perspective, you want jurors to be listening to new information you are presenting and we’d encourage you to review our earlier posts on how to maximize the chances of that happening and how to teach jurors to disrupt this self-appointed expert during deliberations. Self-appointed experts can range from retired schoolteachers like Victoria to shade tree mechanics and everything in between—you often don’t know they are there until they make themselves known verbally.
Ottati, V., Price, E., Wilson, C., & Sumaktoyo, N. (2015). When self-perceptions of expertise increase closed-minded cognition: The earned dogmatism effect. Journal of Experimental Social Psychology, 61, 131-138 DOI: 10.1016/j.jesp.2015.08.003