You are currently browsing the archives for the Witness Preparation category.

Follow me on Twitter

Blog archive

We Participate In:

You are currently browsing the archives for the Witness Preparation category.

ABA Journal Blawg 100!







Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Login

Archive for the ‘Witness Preparation’ Category

less than fully humanHere’s an intriguing article on how some nurses cope with stress. If you think, based on the title of this post, they do it by dehumanizing their patients, you would be correct. Somehow we think this is not a good thing to admit on the witness stand, but it is an understandable and human reaction to the stressful and often upsetting work that nurses have to do.

Essentially, what these researchers found was that “the more patients are perceived as rational and moral, the more nurses are likely to suffer from stress, while the more patients are perceived in terms of instinct, drive, impulsiveness, the less nurses suffer from stress. In other words, it seems that perceiving patients as less than human makes more bearable their suffering and protects nurses from stress symptoms”.

There is no argument that those in the nursing profession experience very high levels of stress. There are likely a range of coping mechanisms nurses employ to maintain their emotional balance and avoid burnout.

A few years ago, we were in Kentucky researching juror reactions to 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 she felt able to do 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. Instead of being professionally aloof, she was encouraged to join with the jurors in their emotional distress, while talking about the reasons she was unable to prevent the tragic outcome. In this case it did appear that the responsibility for the birth trauma was not hers, and once she became more ‘real’ to the jurors, they saw it the same way.

It’s interesting, with that case in mind, to review this research. It is one thing to use various strategies to cope in the moment. It is another to use that same strategy in an attempt to seem strong and competent on the witness stand when the observing jurors want to see your humanity and your caring for the person (or in this case, newborn) who died. Part of being mentally healthy is being able to flexibly move between different modes of self-presentation depending on the situation in which you find yourself.

When we are under stress (like when testifying about our role in the death of a newborn in a wrongful death suit), it is natural to become more rigid and less flexible. Anyone who has a heart is deeply disturbed by the outcome, and the best nurses want to distance themselves from the tragedy. The challenge is to understand what the listener wants from you. They want to trust your skills, but also your humanity. They want to know you care. They want to know you feel sad for the parents that will never again hold their child. You don’t have to have done anything wrong to have those feelings and jurors will understand that. It’s a strange concept, but sometimes witness preparation is a lot like a mini-therapy session wherein  the goal is to learn to communicate the whole of your message effectively.

Trifiletti, E, Di Bernardo, GA, Falvo, R, & Capozza, D (2014). Patients are not fully human: a nurse’s coping response to stress. Journal of Applied Social Psychology. 

Image

Share

The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

gay or straightAt least so says CBS News. Recently, CBS News reported on the results of a 2013 Center for Disease Control and Prevention survey (the National Health Interview Survey) of almost 35,000 adults. This was the first time the CDC asked people to report their sexual orientation as part of the survey and while the numbers may be a bit low, here is how CBS described the survey respondents:

The survey, conducted in 2013, included nearly 35,000 adults. Among the participants, 96.6 percent identified themselves as straight, while 1.6 percent identified as gay or lesbian, and 0.7 percent identified as bisexual. The remaining 1.1 percent didn’t select any of the options.”

Here are some of the ways those respondents who self-identified as gay, lesbian and bisexual described their health differently than those who self-identified as straight. We point out that this is self-report and the numbers of those identifying as lesbian/gay/bisexual total only 2.3%, which is dramatically lower than population estimates from other sources. (This begs the question of how those who self-identified as lesbian/gay in the survey may differ from the actual community of people who are lesbian/gay. Is this sample representative of the lesbian/gay community, or does it differ in a meaningful way?) Nonetheless, it is the first time we’ve had a national survey that allowed respondents to self-identify sexual orientation and it is a useful tool for beginning to describe health issues and how they differ across subgroups in our society.

Gay/lesbian (35.1%) and bisexual (41.5%) respondents said they had 5 or more drinks on one day at least once in the past year compared to just 26% of those who identified themselves as straight. A higher percentage of gay/lesbian/bisexual people said they were smokers when compared to straight respondents.

Bisexual people (11%) reported higher levels of “serious psychological distress” in the past 30 days than did their straight (3.9%) counterparts.

There were no differences in level of physical activity or in the numbers of men and women saying they were in excellent or very good health. However, a lower percentage of lesbian and bisexual women had “a usual place to go for medical care” than did straight women. On the other hand, straight respondents were more likely than gay or bisexual respondents to not seek medical attention due to cost.

The new report discusses the significance of being a minority group member when  health issues are concerned, and cites differences in health based on race and ethnicity, gender, and income which are well-documented. This is the first time being a part of a sexual orientation minority has been studied on such a large scale. Hopefully, as people feel more comfortable acknowledging sexual orientation in such research the number of respondents reporting being gay, lesbian or bisexual will become more realistic. This will help us know more about specific health concerns, targeted interventions, and access to or use of healthcare. In addition to understanding more about health differences, researchers will also examine the role of social stressors (stemming from unequal treatment) in the reported health disparities.

From a litigation advocacy perspective, this is yet another reminder that we need to identify differences and similarities between our clients and the jury pool. The comments following the CBS article make it clear there is much anger and hatred directed at gay, lesbian and bisexual people. And it affirms our general impression of the kinds of people who make comments on popular news websites.

Health of gay and straight people compared in first major survey. CBS News: http://www.cbsnews.com/news/health-of-gay-and-straight-people-compared-in-first-major-survey/ 

Image

Share

The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

dittohead1

Here’s an intriguing study about how consensus is assumed and how it may inspire both activism and a false sense of confidence about the future. Despite a new Pew survey showing the perception is not accurate, conservatives assume more consensus among those sharing their political perspective than do liberals.

NYU researchers conducted three separate experiments looking at assumptions of consensus as related to political beliefs (i.e., liberal or conservative). The researchers say this false sense of consensus may be related to the shock and disbelief expressed by conservatives after Barack Obama won re-election in 2012.

Study 1: 107 online participants (72 female, average age 34.7 years with a range of ages from 18 to 64) viewed photos of 30 White male undergraduates and were asked to indicate whether the man pictured was gay or straight, the likelihood that the man pictured was born in November or December, and finally, whether the man pictured preferred fruit or vegetables. Then, once that descriptive task was done, they were asked “What percent of participants overall made similar judgments as you did?” and then, “What percent of participants who do not share your political beliefs made similar judgments to one another?”. While there was no consensus on judgments about the photographs with regard to birth dates, conservative participants had a stronger desire to see other conservatives agreeing with them than did liberal participants. Oddly, conservatives did reach consensus on whether the male pictured in the photograph was likely gay or straight.

Study 2: 150 online Americans (94 women, average age 34 years with a range of 18 to 65 years of age) who described themselves as “active members of a political party” performed the same tasks as in Study 1. This time the researchers wanted to see if perceiving consensus among like-minded others would be related to seeing your political party as “efficacious”. Again, conservatives actually were more in consensus on whether the male pictured was gay or straight (perhaps conservatives have better gaydar?). And, again, conservatives believed there would be higher consensus among ideologically similar participants while liberals did not. Conservatives were also more likely to see their political party as effective.

Study 3: For this study, the researchers wondered if seeing your political party as effective would make one more likely to vote. Three hundred and eleven online American participants (210 female, average age 32.9 years with an age range of 18 to 70 years) were asked to complete a study “focusing on the beliefs of individuals who belonged to a political party”. This time the participants were divided into three conditions: one group was the control group, another group was primed with a task for affiliating and the last group was primed with a task for not affiliating. Each participant judged only one of the ratings included in the first two studies. That is, 101 participants judged sexual orientation, 106 judged birth month, and 104 judged the likelihood of eating fruits or vegetables. Again (this is so odd) conservatives had more consensus on sexual orientation. Those conservatives who saw their beliefs as more in consensus with those sharing their ideology were more likely to see their political party as more effective and more likely to report plans to vote in the 2012 elections. (The researchers do not say if the conservatives were accurate in identifying sexual orientation, they just say they were in agreement as to who “looked gay”.)

Overall, say the researchers, conservatives may be motivated to perceive consensus while liberals may be motivated to perceive their beliefs as relatively unique. They cite other 2014 research showing conservatives over-estimate their similarity in beliefs to other conservatives while liberals under-estimate their belief similarities to other liberals.

From a litigation advocacy perspective, this work speaks to our belief in the importance of presenting your case with “universal values” rather than allowing hot-button (e.g., political perspective) issues to shape jurors’ perspectives on the case. To the extent that this research is accurate among your jurors, there are some important implications:

Conservative jurors are more likely to expect consensus with other conservatives and more likely to expect a lack of consensus with liberal jurors.

Don’t tell the story in a way that pushes juror’s political beliefs.

Focus on shared values of fairness, education, community involvement, and family connections.

Stern, C., West, T., Jost, J., & Rule, N. (2014). “Ditto Heads”: Do Conservatives Perceive Greater Consensus Within Their Ranks Than Liberals? Personality and Social Psychology Bulletin DOI: 10.1177/0146167214537834

Image

Share

how women leadWe’ve written about women and leadership before. While some new research shows female leaders handle stress more effectively than male leaders, we’re not going to write about that one today. Instead, here is a report on a study showing some other good news: women are no longer punished for behaving assertively in a leadership role!

It’s a positive change. The past research showed us that women who were assertive were seen negatively due to perceived violations of their gender role expectations. That is, men are assertive and women are sweet. And when women are not sweet, we call them witches (or something like that). So. The news that what these researchers call “agentic behavior” (i.e., acting like a leader) is now acceptable for women (as long as they are not aggressive and ruthless as they exhibit leadership behavior) is good news indeed.

Alas, though. Every silver lining seems to have a cloud and the battle is not yet won. As it happens, while women are now evaluated just as positively as men leaders for behaving assertively in their leadership role–women leaders who are tentative or submissive are rated much more negatively than are tentative or submissive men who lead. Leaders frequently fake their confidence and strength, but if a woman is seen as doing that, reactions they get are worse than those accorded to men.

The researchers used 185 participants (47% female, average age 28.3 years, either undergraduate students or graduates from an Australian university) who were told they were participating in a study on effective communication. The participants read a transcript of a speech (on climate change) which was identified as being given by an Independent (non-party-affiliated) candidate for national office. They were told the speech was given by a female (Annette Hayes or Susan Hayes) or a male (David Hayes or Andrew Hayes).

The speech itself was written in either an assertive voice (indicating dominance, confidence and strength) or a tentative voice (indicating deference, hesitancy, and a lack of confidence). After reading the transcripts, the participants rated the candidate’s likability and influence (i.e., how persuasive they were and therefore how likely to convince others of their position). They also rated the leaders on agency (i.e., how dominant, forceful and confident they were) and communality (i.e., how friendly, sensitive and warm they were).

Assertive female leaders were rated more likable than tentative female leaders but there was no difference in likability between the assertive and tentative male leaders. Further, while there was no difference in likability between assertive male and assertive female leaders, tentative males were more likable than tentative females.

Assertive female leaders were significantly more influential with participants than were the tentative female leaders. There was no difference in influence exerted on participants between the assertive and tentative male leaders. Further, while participants saw no difference in influence by the assertive women and assertive men leaders, they saw the tentative man as more influential than the tentative woman.

In other words, say the authors, women in political leadership will only be as effective as men if they are always confident, strong and decisive. When their behavior deviates from these male-stereotypic leadership ideals, they will be punished far more than their male counterparts. A follow-up study found the same pattern. The authors summarize their findings as follows:

“Based on men’s continued dominance in positions of power, expectations of women to show unwavering signs of confidence and strength will provide a considerable challenge. While a few women will be able to meet this expectation, the majority who cannot remain disadvantaged, with men avoiding similar penalties for equivalent non-agentic behaviors. Therefore, this subtle form of prejudice towards women demands our attention and effort if gender equality is to be achieved.”

It’s a societal double standard recently highlighted by Jon Stewart on the Daily Show. When male leaders display emotion– even inappropriate emotion– it is often celebrated. When women display even a little emotion, it is interpreted very negatively. It’s a good thing to keep in mind as you consider the behavior and leadership potential of male and female attorneys. We are all subject to bias– until we pay attention to it. Merely by being conscious of its potential, it can become a much smaller problem.

Bongiorno, R., Bain, P., & David, B. (2013). If you’re going to be a leader, at least act like it! Prejudice towards women who are tentative in leader roles. British Journal of Social Psychology DOI: 10.1111/bjso.12032

Image

Share

invisible gorilla 2014We’ve written about change blindness (also known as inattentional blindness) before and it’s probably best known as including those experiments with the invisible gorillas. My personal favorite is the one where researchers hid their gorilla in brain scans and had radiologists review the slides. (And social science researchers wonder why professionals like radiologists usually just say NO when asked to participate in their research…)

Today though, we are talking about another (often maligned) area–that of eyewitness identification. It is well-known that eye-witness testimony is often inaccurate even though jurors usually pay close attention to testimony by a witness who “saw it with my own eyes!”. Canadian researchers used 180 undergraduate students (129 women, average age 19.9 years) and had them view two different videos after instructing them to take the role of an eye-witness and pay close attention to what they saw in the videos.

The videos contained footage of a man dressed in what we think of as the Steve Jobs uniform of blue jeans and a black sweater (later referred to as the video innocent) walking up to and entering a building. He then enters two different hallways, shaking the handles of each locked door. Then a second man (also dressed in blue jeans and a black sweater but weighing about 50 pounds LESS than the video innocent) was shown walking through another hallway. He (later referred to as the video culprit) approaches an office door, forces it open, enters the office and finds an iPad. He then exits the office with the iPad in his hand. The video itself was 67 seconds long, the video innocent was on-screen for 33 seconds and the video culprit was on-screen for 31 seconds.

The researchers were interested in whether the research participants would notice there were two different men in the video (one significantly heavier than the other) and whether they would make the correct identification in culprit-present and culprit-absent lineups.

First the participants were asked to recall as much as they could about the video and the researchers used this task to see if the participant had noticed the two different actors (“change detection” versus “change blindness”). Then, they were given black and white photographs of a lineup and asked to circle the photo of the person who stole the iPad, if present. They were told the video culprit may or may not be present in the photograph and they should write “not here” on the photo sheet if the thief was not present.

Only about 1/3 (36.1%) of the participants noticed there were two different men in the video. There was not a significant difference in noticing the two actors based on participant gender (men noted the change 34% of the time, women 36.4%).

Correctly identifying or rejecting lineup photos was lower in the change blindness group (28.7%) than in the change detection group (53.1%). In those situations where the culprit was not present, those who had not noticed there were two actors in the video (i.e., the change blind group) only correctly rejected the lineup 31% of the time (compared with 69% of those in the change detection group). The change blindness group also had higher misidentification rates (i.e., they chose either a filler or the video innocent as the thief). In contrast, none of the change detection group misidentified the video innocent as the thief.

However, being aware of the two actors in the video did not lead to an increase in correct identifications when the culprit was present! The change blind group correctly identified the culprit 26% of the time and the change detection group correctly identified the culprit 34% of the time but this difference was not significant (p = .43).

In short, the majority of participants (64%) did not notice there were two actors in the video (the video innocent and the video culprit). And, while the participants who noticed the two actors in the video did better in avoiding misidentification of the video innocent, they did no better at all in accurately identifying the video culprit when he was present in the lineup. (In research-speak, false positive identification was prominent, but no difference was seen in false negative identification.)

The researchers say that when eye witnesses experience a change blindness error, they are more likely to misidentify a person who is then at risk of wrongful conviction. The researchers clarify the application of their research to a line up task at a police station in that while “fillers should match either a description of the culprit or the appearance of the suspect, archival research suggests that line-ups are often biased towards [a similarity to the appearance of] the suspect”. This is, the researchers say, a “biased lineup” and can lead to a miscarriage of justice. However, if the lineup is properly constructed, the researchers say “change blindness may have few negative consequences for identifying a culprit from a line-up”.

From the perspective of litigation advocacy, you of course want to ensure the lineup was an appropriate one but you also want to consider educating jurors on the well-documented problems with eye-witness identification–particularly in cases of cross-race identification. In our experience, jurors want to do the right thing and if the only strong evidence is an eye-witness identification, that may be enough to introduce reasonable doubt.

Fitzgerald, R., Oriet, C., & Price, H. (2014). Change blindness and eyewitness identification: Effects on accuracy and confidence Legal and Criminological Psychology DOI: 10.1111/lcrp.12044

Image

Share