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Archive for the ‘Witness Preparation’ Category


As Editor of The Jury Expert since 2008, I’m happy to share the table of contents of our new Winter 2016 issue! As always, The Jury Expert is brought to you free of charge by the excellent trial consultants who write for us and by the academic researchers who take their time to summarize their research and share it so we can use it in our day-to-day work for litigation advocacy.

Trial Consultants, TV Law, and a Load of Bull

Richard Gabriel takes a close look at the new television show ‘Bull’ and muses about how the show does and does not represent reality as well as how it may affect perceptions of the justice system by potential jurors (who do watch TV).

What Television Can Teach Us about Trial Narrative

Stepping back, Richard Gabriel teaches us how television shows (like ‘Bull’ but certainly not limited to ‘Bull’) can help us craft more effective courtroom narratives.

Juries, Witnesses, and Persuasion: A Brief Overview of the Science of Persuasion and Its Applications for Expert Witness Testimony

Rebecca Valez, Tess M.S. Neal, and Margaret Bull Kovera team up to offer a primer on persuasion. What modes of persuasion will work best in the testimony of your expert witness? Then we have trial consultant responses from Jennifer Cox and Stan Brodsky, John Gilleland, and Elaine Lewis and a final reply from the authors.

Graphics Double Comprehension

Jason Barnes succinctly tells us how graphics can result in your words telling a much more effective story–even doubling comprehension of the listener.

Making It Moral: How Morality Can Harden Attitudes and Make Them More Influential

Andrew Luttrell offers this intriguing strategy (based on his research) to make attitudes stronger and more influential. Trial consultants Sonia Chopra and Charli Morris react to his work with commentary on how they would use this research in day-to-day litigation advocacy.

The Hidden Lives of Court Reporters

They are always present and always silent. But what is going on in the minds of those dutiful court reporters as they type everything said in cases ranging from the mundane to the traumatizing? Claire E. Moore, Stanley L. Brodsky, and David Sams talk to court reporters and share their perspectives and coping strategies.

More Techniques for Uncovering Juror Bias before It’s Too Late

Mykol Hamilton and Kate Zephyrhawke share how to uncover bias in change of venue surveys in criminal cases by using alternate wording for time-honored questions that result in very different answers (and higher bias).

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While you may think you have heard this line recently, this is really (based on new research) what most of us think about ourselves. It is called the “better than average effect” and it is very persistent. We might smirk at politicians who actually say things like this aloud, but that’s only because we tend to keep those thoughts to ourselves. We (persistently) view ourselves as just better than others, and of course, two new research studies underscore this point.

The first study (Tappin & McKay) recruited 270 adults and asked them to judge the desirability of 30 traits representing agency (e.g., hard-working, knowledgeable, competent), sociability (e.g., cooperative, easy-going, warm) and moral character (e.g., honest, fair and principled). Participants also were asked to indicate how desirable the trait was. how much this specific trait described both the average person and how much it described themselves.

While the agency and sociability traits were rated variably, almost all the participants rated themselves much higher on moral character than they rated the average person.

In an intriguing secondary finding, while the researchers found that overall self-esteem was not related to feelings of superiority, overall self-esteem was related to a sense of moral superiority.

In the second study (Howell & Ratliff), researchers used data from the Project Implicit website where people take various psychological tests that measure unconscious or implicit biases. They focused on people who took tests involving weight biases (these are tests that ask how much you—and the average person—prefer thin people to fat people).

Once again, participants rated themselves as less biased against fat people than the average person was and when given feedback that they were indeed biased against fat people, they were defensive. The more they had rated themselves as unbiased, the more defensive about fat bias feedback they were. They were then asked whether they thought the test was valid—unsurprisingly, they did not think it was valid since it contradicted their self-assessments.

The problem with this belief that we are better than others, both in terms of moral superiority and in our belief that we are less biased than others (which apparently we all share) is that it stops us from honestly assessing ourselves. Therefore, we are prevented from taking action to combat our own prejudices and biases (since we don’t think—or won’t admit—that we have them). Typically, when we hear information about those who are biased or less good than we are, we presume the speaker is talking to “those other people” and tune out.

From a litigation advocacy perspective, these studies have important implications for witness preparation, case narrative, and voir dire. We have discussed the importance of knowing when to raise juror awareness of their own biases and when to stay silent on this blog before. We’ve also posted before on when “playing the race card” works and when it doesn’t work.

This research seems to indicate the importance of using those previously published guidances to direct your decisions about witness preparation, voir dire and case narrative in your specific case. Additionally, it will be important to share “redeeming” information on your client’s involvement in positive activities and your client’s life reflecting the values shared universally by jurors (e.g., family, community, education, volunteerism, et cetera).

Tappin, B., & McKay, R. (2016). The Illusion of Moral Superiority Social Psychological and Personality Science DOI: 10.1177/1948550616673878

Howell JL, & Ratliff KA (2016). Not your average bigot: The better-than-average effect and defensive responding to Implicit Association Test feedback. The British Journal of Social Psychology. PMID: 27709628

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Last week the Shark Tank television show was apparently shown during a time my DVR was trying to record another show for me. As I watched it, I was amused to see a couple of entrepreneurs whispering to each other to do “power poses” before they pitched to the shark-investors.

I was amused, because I’d just read the Chronicle of Higher Education’s article on new research that was unable to replicate the benefits of power posing in terms of performance. The idea (which we’ve blogged about here in the past) catapulted Amy Cuddy to the second most watched TED Talk of all time (almost 38M views at this writing) has become so mainstream her work is even cited in this webpage on doing the most perfect Shark Tank presentation!

The Chronicle article is hard on her ideas and refers to the power pose as imminently “clickable” and seems to deride Cuddy for being an “Ivy League professor” . They go on to say that while Cuddy personally became a celebrity (calling power posing a “free, low-tech, life hack”), the actual research article was crumbling with other teams failing to replicate the finding that power poses lead to hormonal changes. Even her co-author (Dana Carney) said (in a fairly unprecedented move) that she didn’t think the research effects were real—not just once, but at least twice—both on her personal website and in a story broadcast on NPR.

Bartlett, the Chronicle writer, says this story is a sign of how research used to be practiced (referencing the failures to replicate many of social psychology’s most popular findings) and perhaps a sign of how things are changing for the better (with Dana Carney’s disavowal of the results).

As you might expect, Amy Cuddy has responded to criticisms and expressed “concern about the tenor” of the discussion and that the criticisms could have a “chilling effect on science”. Some other well-known psychologists have agreed with her (questioning whether the criticism would be as vicious if Cuddy were a male researcher) and other well-known psychologists have stood with her detractors. Even officials at TED have added the following disclaimer (displayed in bold font) to the video description on their site:

Body language affects how others see us, but it may also change how we see ourselves. Social psychologist Amy Cuddy shows how “power posing” — standing in a posture of confidence, even when we don’t feel confident — can affect testosterone and cortisol levels in the brain, and might even have an impact on our chances for success. (Note: Some of the findings presented in this talk have been referenced in an ongoing debate among social scientists about robustness and reproducibility. Read Amy Cuddy’s response under “Learn more” below.)

It is a dilemma for blogs like this who follow emerging research in social psychology. But, know this: there was research, there was a peer-reviewed and approved paper published, and there is an ongoing controversy that has apparently gotten both personal and nasty.

Yet, as the Chronicle article points out, “power posing gains enthusiastic new adherents every day. [snip] Some people do find it inspiring. Besides, we are not talking about a cure for cancer here. Why does it matter if people stand like Wonder Woman in front of the mirror for two minutes every morning? Really, what is the harm?” [Here’s a video of surgeons using the pose prior to doing brain surgery on the Grey’s Anatomy television show.]

Bartlett, T. (2016). Power Poser: When big ideas go bad. Chronicle of Higher Education. (December 4)

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trustworthy-or-notIf you try to identify what it is that makes someone trustworthy, you might list their forthrightness, values consistent with your own, or even their willingness to embrace unpopular positions. And that is all well and good but it likely is untrue. Instead, researchers tell us, we draw “relatively stable trustworthinesss impressions from facial appearance”.

Apparently, based on the photo illustrating this post (taken from the research article) we define trust as having less prominent eyebrows and jawlines, softer lips and slightly narrower noses. Overall, a softer appearance. The more “trustworthy” photos in the left column look younger, with less prominent brows and generally more traditionally feminine than the “untrustworthy” photos in the right column. But this is merely how they strike us— we should point out the researchers described the more trustworthy faces as neutral, neither masculine nor feminine.

In this research, participants were asked to imagine they were moving to a new area and had asked real estate brokers to find a home for them. To add to the realism of the task, the participant’s only clues as to the skill of the realtor were these photos and typed statements ostensibly made by each realtor in describing the home they had identified for the participants (sensible factors for how we ourselves would choose a realtor for a cross-country move). After seeing the photos and statements, the participants were asked to respond to how willing they would be to pick the house this realtor recommended and then how trustworthy the realtor seemed to them.

Across four different experiments (and more than 400 undergraduate student-participants), the researchers found that participants spontaneously presumed trustworthinesss from facial appearance alone.

While we have blogged on this idea before, it has been in the context of not trusting men with wide faces (which is simply based on higher testosterone levels). This research is not from evolutionary psychologists but we can see the “untrustworthy” faces in the right column of the graphic illustrating this post are clearly wider. While today’s researchers say facial trustworthiness may have “pervasive consequences in everyday life” we would say you always want to assess if a witness or party would look more trustworthy with a few appearance tweaks.

We already pay attention to attire and accessories but we’ve also written about things like covering tattoos or even something as seemingly unnecessary as telling a witness to not place their fist in their mouth when testifying. And speaking of those “pervasive consequences in everyday life”, recent studies have shown us that men with wide faces are more likely to receive the death sentence (even when the conviction is later found to be wrongful).

While it may seem ridiculous to consider shaping a witness or party’s eyebrows or considering makeup techniques or glasses to make deep-set eyes appear more wide-set—it is also ridiculous to infer trustworthiness based on appearance alone. But we do it all the time. Just add this as “one more thing” to consider in preparing your witness or party for the courtroom.

Klapper, A., Dotsch, R., van Rooij, I., & Wigboldus, D. (2016). Do we spontaneously form stable trustworthiness impressions from facial appearance? Journal of Personality and Social Psychology, 111 (5), 655-664 DOI: 10.1037/pspa0000062

Image taken from the article itself (the researchers used software to morph the faces)

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atheist-update-2016We’ve written about atheists here (and how unpopular they are in North America) a number of times. The first time was in 2010 when we wrote an article in The Jury Expert because we were so taken aback by the level of vitriol we’d seen in a blog post describing a new research article on atheists. We found the level of vitriol reserved for atheists hard to believe but, when we went to the literature, it was a consistent theme for decades.

It is hard to believe six years has passed since we wrote that article, but the authors of the original research article have published an update ten years later. Despite some religious groups improving their images in the eyes of the public in the last decade, the level of dislike for atheists has remained (although they are now statistically tied with Muslims) as “most disliked”.

In their ten-year update (drawing from the 2014 version of the nationally representative survey they used for the first article in 2003) the researchers tell us about how attitudes have not changed toward atheists and that the negativity toward atheists also colors perceptions of those who describe themselves as “spiritual but not religious”. Here are a few quotes pulled from the new article that illustrate some of their findings.

While Muslims have surpassed atheists as the least-accepted group, Muslims and atheists still receive the most negative evaluations compared to all other groups in 2014, as they did in 2003.

…moral concerns about atheists are, in fact, relatively common in American society; for example, over a third of Americans (36 percent) either somewhat agree or strongly agree that atheists “lack a moral center”.

…it seems that the term “atheist” denotes a cultural category that signifies a general and diffuse sense of moral threat.

…public distrust of atheists is primarily motivated by cultural values, and private distrust of atheists is motivated by cultural values and private religious beliefs, but both effects are substantially mediated by respondents’ moral concerns about atheists.

Moral concerns about atheists have consequences for how Americans perceive the overall decline of religious affiliation. Overall, the spiritual but not religious (SBNRs) are more favorably perceived than are atheists; beliefs that atheists are immoral increase negative sentiment toward SBNRs.

Our analyses show that anti-atheist sentiment in the United States is persistent, durable, and anchored in moral concern. A substantial percentage of Americans see atheists as immoral, and are therefore significantly more likely to say that atheists do not share their vision of America and to disapprove of their son or daughter marrying an atheist.

Overall, atheists are still seen as “other” and devalued for having fewer morals than those with religious beliefs which may be weak but are not a complete repudiation of religiosity. The FBI has just released a report that hate crimes against Muslims are up by 67% in 2015 so (given that this survey was completed in 2014) Muslims are probably even more unpopular now.

From a litigation advocacy perspective, it behooves us to pay special attention to atheists and Muslims involved (even as non-party witnesses) in jury trials. In the effort to overcome “otherness” regarding atheism, there are testimony topics that might be helpful. Atheists are thought of in terms of what they don’t believe, leaving open the question of what they do believe. Of course the answer to that is as diverse as the population, but it is a potentially positive association, rather than a negative one. Also, given the recent presidential elections and the aftermath protests and demonstrations, we would do well to pay special attention to bias against any party to litigation who is not White, and possibly also not male.

Only time will tell if the slightly more than ⅓ of the US electorate that elected Donald Trump will be emboldened in the deliberation room to actively and openly express discrimination toward parties of color. In the meantime, prepare witnesses and clients to espouse universal values and be vigilant to hidden (and not so hidden) biases whether anticipated or complete surprises.

Edgell, P., Hartmann, D., Stewart, E., & Gerteis, J. (2016). Atheists and Other Cultural Outsiders: Moral Boundaries and the Non-Religious in the United States. Social Forces, 95 (2), 607-638 DOI: 10.1093/sf/sow063

Image taken from article itself

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