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conspiracy theoriesIt is no secret that we are intrigued by conspiracy theorists here at The Jury Room. Not only are they good for entertainment value during pretrial research, they are also very useful to help us plug holes in case narrative that could derail deliberations. When it comes to the actual trial though, conspiracy enthusiasts are usually seen as too risky for either side, and their presence often results in agreed strikes.

Here’s an interesting piece of research that doesn’t really help us to identify the individual conspiracy buff, but, does tell us the sort of environment in which the conspiracy theorist thrives.

These researchers believe that emotional uncertainty creates a desire (even a need) to compensate. We try to achieve a sense of certainty and, despite how odd it may sound, there is comfort in the conspiracy theory (since it can provide an explanation for why things are the way they are). Whether it is a reasonable or logical explanation is not what is important. And it isn’t just conspiracy theories that give us comfort in times of uncertainty. Horoscopes, seeing real or even illusory patterns, belief in a strong government or a “controlling and interventionist god”– all these things give a sense of stability and order in the world. Or as the authors put it,

“Whether one finds comfort in a strong government, astrological predictions, or vast conspiracies mapping out our fates, all are responses potentially driven by the uncertain seeking predictable structure in our capricious world.”

So, the researchers wanted to see if emotional uncertainty could affect conspiracy beliefs, beliefs in the paranormal, or the tendency to defend government actions. They used emotions that resulted in both certainty and uncertainty, as well as positive and negative emotions. Specifically, they examined happiness and contentment (certain and positive emotions); anger and disgust (certain and negative emotions); surprise and hope (uncertain and positive emotions); and worry and fear (uncertain and negative emotions). Once they identified these emotions, they asked 251 participants (112 male, average age 32.5 years) recruited from an online survey program to:

“Please recall a particular incident in which you were very [emotion]. What made you feel [emotion]? Recall this situation as vividly as you can. Please describe this situation in which you were [emotion] — what happened, how you felt, etc.”

By asking for this description of the situation, the researchers are “priming” the research subjects to re-experience the emotions. In this pretest, they found that when they asked participants to respond to this stimulus, participants felt the emotion described and their experiences were indeed experienced as either certain or uncertain (as the researchers had intended). The researchers then moved on to three separate experiments.

In the first experiment, the researchers examined the support of governmental defense and had 98 participants complete the same emotional recall task. They found that those in uncertain emotional conditions scored higher on (that is, they felt more strongly positive about government defense.

When they were uncertain, they wanted stronger governmental defense.

On the second experiment, the researchers looked at conspiracies and the paranormal. The 97 participants completed the same emotional recall task as before and were then asked to read scenarios that were purposely ambiguous “as to whether several individuals were coordinating their efforts to obtain an outcome”. Then they answered items from two scales measuring their belief in the paranormal. Again, those in uncertain emotional conditions showed greater endorsement of conspiracy beliefs and greater endorsement of belief in the paranormal.

When they were uncertain, there was higher belief in both conspiracy and the paranormal.

Finally, in the third experiment, the researchers looked at whether they could intervene in a way that would negate the power of the uncertain emotions. They cite prior research saying “having individuals contemplate and affirm important values they hold increases many positive states, including perceptions of personal control”. This time the researchers asked 161 participants (161 male, average age 29.8 years) to identify which of six values taken from  the Allport-Vernon-Lindzey Values scale were most important to them. In the affirmation condition, the participants were asked to complete a subscale on the same value they had ranked most important. This, said the researchers, gave the participants the opportunity to self-affirm (that is, focus on things of greatest importance to themselves, giving them a greater sense of self-assurance). Those in the no-affirmation condition completed a subscale on the value they ranked as least important to them (and thus had no affirmation).

This time, those who had uncertain emotions but were given a chance to self-affirm, had no desire for increased government defense. In other words, self-affirmation worked to help participants feel they had control and structure and thus they did not look to external aids (like increased government defense) to help them feel safer.

Overall, say the researchers, uncertainty in emotional state–regardless of whether it is positive or negative– leads to a desire for structure and a sense of control. Thus, uncertain people are prone to accept conspiracy theories, belief in the paranormal, and to endorse agreement with higher levels of governmental defense. Those tendencies can be curbed, however, by offering the uncertain individual self-affirmation. Self-affirmation stabilizes the uncertainty and allows the individual to respond in a measured way not driven by the uncertainty.

This raises interesting questions about case presentation at trial. There is a tendency to want to satisfy jurors’ interest in “knowing” all of the facts. But this research says that in some cases, leaving jurors with a sense of uncertainty or foreboding might actually bring them to a state of mind more useful to your case.

Do you want to focus their attention on a particular alleged wrong-doer (typically a Plaintiff or Prosecution goal), or do you want to create a diffusion of responsibility, where it is borne by a number of parties, perhaps some not named in the dispute (more likely a Defense goal)?

So part of the task for the psychologically savvy trial lawyer is to give thought to what kind of emotional tone is best for jurors to carry into deliberations.

Do jurors tend to favor your position when they feel centered, focused on their values and priorities, and confident?

Do they think your way when they are worried or anxious, uncertain about life, and powerless?

This knowledge won’t change the facts, and the impact of this research is nuanced. But when you are seeking out every advantage you can identify, this is one that shouldn’t be overlooked.

Whitson, J., Galinsky, A., & Kay, A. (2015). The emotional roots of conspiratorial perceptions, system justification, and belief in the paranormal Journal of Experimental Social Psychology, 56, 89-95 DOI: 10.1016/j.jesp.2014.09.002

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Same sex marriage is okay but please, no PDA!

Wednesday, December 17, 2014
posted by Douglas Keene

We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

same sex pdaWe’ve blogged a number of times about changing attitudes toward same sex marriage.  The majority of Americans now support same sex couples being allowed to marry but that doesn’t mean we want to watch “them” be publicly affectionate.

And “we” are not alone. Even gays and lesbians express some discomfort with public displays of affection (PDA) for same-sex couples. The authors see this as “entrenched prejudice” on the part of heterosexuals and perhaps, as an “internalized stigma” for gays and lesbians responding to the survey.

The researchers surveyed 1,073 Americans (258 lesbians, 310 gay men, 240 straight women and 265 straight men). They were randomly assigned to read vignettes about a couple who met, fell in love and had been living together for the past 2 years. One-third read about “Brian and Jennifer”. Another third read about “Heather and Jennifer” and the final group read about “Brian and Matt”.

After they read the vignettes describing either a heterosexual couple, a lesbian couple or a gay couple, they were asked to respond to a series of queries about this specific couple’s rights. Some of the questions were of a more formal legal nature (like about inheritance or hospital visitation rights) while others were more informal such as their right to tell others they were a couple, hold hands or kiss in public settings. For each question, participants responded on a 4-point Likert scale ranging from strongly agree to strongly disagree.

On formal (legal) rights, there were no differences for heterosexual males approval for the same rights for heterosexual, gay or lesbian couples. Heterosexual women were more approving of insurance benefits for the lesbian couple than the heterosexual couple. Gay and lesbian participants were more approving of all the formal rights for gay and lesbian couples than for heterosexual couples (which makes sense, since they are seeing these couples as “in group” members).

When it comes to informal rights, the picture grows murkier.

Heterosexual males were less approving of informal privileges [defined here as holding hands in public or kissing] for both the gay and lesbian couples than for the heterosexual couple–and they were significantly less approving of the gay couple than the lesbian couple.

Heterosexual females also approved more of the heterosexual couple’s informal privileges than either the gay or lesbian couples–but they did not approve of the lesbian couple over the gay couple.

Lesbian and gay participants were sometimes more willing to grant informal privileges to the heterosexual couple over their own in-group couple. Lesbians and gays were both less approving of their own in-group couple holding hands in public compared to the heterosexual couple. Lesbians thought it was okay to kiss on the cheek or French kiss for both lesbian couples and heterosexual couples, but gays were significantly less approving of the gay couple kissing on the cheek or French kissing than they were for the heterosexual couple.

The authors say that the bias against these informal rights may reflect attitudes that are changing more slowly than our attitudes toward legal rights. They also highlight the reality that the gay couple are penalized more than the lesbian couple and more work should explore this issue.

From a litigation advocacy perspective, this is useful information. When we think about our changing jurors and their changing attitudes toward same-sex marriage, this survey warns us to make no assumptions on what behaviors are seen as “acceptable” in public. Homophobic responses and disapproval can arise anywhere–much like bias that arises covertly around issues of race and citizenship. Being aware of how bias against sexual orientation continues can aid you in party and witness preparation for in court appearance, behavior and testimony.

Doan, L., Loehr, A., & Miller, L. (2014). Formal Rights and Informal Privileges for Same-Sex Couples: Evidence from a National Survey Experiment American Sociological Review, 79 (6), 1172-1195 DOI: 10.1177/0003122414555886

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

TJE_logoA new issue of The Jury Expert has been published, and as usual, it’s one worth reading. As Editor since May, 2008–I get to see the articles as they come in and am always surprised at (and appreciative of) the creative and stimulating content we receive. The Jury Expert, like this blog, is all about litigation advocacy and understanding how new research can help inform your strategies in the courtroom. Here’s what you can see in the lineup for the November 2014 issue.

Does Video Image Size Affect Jurors’ Decisions? A Look at How Image Size Interacts with Evidence Strength, Defendant Emotion and the Defendant/Victim Relationship

Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.

Moral Outrage Drives Biases Against Gay and Lesbian Individuals in Legal Judgments

Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you’ve not previously considered.

Anti-war Protestors and Civil Disobedience: A Tale of Two Juries

Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It’s like lifting up the top of her head and peering inside her brain.

A Qualitative Examination of Self-Care in Lawyers

Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but–what’s important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.

Favorite Thing: Plain Text

Why, you may wonder, would Plain Text EVER be a Favorite Thing. Because it is fabulous. Or, perhaps because, “Plain text is the cockroach of file types: it will outlive us all.”

The Selective Allure of Neuroscience and Its Implications for The Courtroom

Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here’s a shocker: the impact of the neuroscience evidence is related to the individual listener’s prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.

Book Review: Law and Neuroscience

Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the “my brain made me do it” defense).

Promoting Communications between Social Scientists and Lawyers

Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn’t mean you are actually communicating. How do you talk so your expert knows what you mean?

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

trusting too much kills youBack in August we wrote a post on a study saying women are lied to more in negotiations. One of our readers re-tweeted the post and added, “Happy Women’s Equality Day”. Another article from the same research group says women are more likely than men to trust a liar again after they learn of deception.

The authors we are studying today conducted three separate studies to assess gender differences in trust following deception (or what the authors refer to as a trust violation). Their findings were consistent:

Women trust more than men after a deception.

Women are less likely than men to lose trust in others following transgressions.

Women are more likely than men to re-establish trust after repeated transgressions.

It seems to be about socialization–women want to maintain relationships and that desire results in a gender difference in trust after a “trust violation”. If these results are accurate, it is no wonder men keep lying to women. Women are willing to believe the apology. Women, say the authors, are more forgiving, and more motivated to work through relationship problems.  We could go on at some length about these findings but instead we want to focus on one of the measures they used to assess the importance of maintaining a relationship. We had never heard of this scale before but it has a terrific name: The Unmitigated Communion Scale. And the 9 items in the scale below (taken from the article published in 1999) highlight the differences we continue to see between men and women in 2014.

 

Unmitigated communion scale

The items in this scale were designed to measure a focus on others even when that focus resulted in one’s own detriment back in 1999. And we still get gender differences in responses to the seemingly dated questions from this scale in 2014? Wow. Just wow.

Haselhuhn, M., Kennedy, J., Kray, L., Van Zant, A., & Schweitzer, M. (2015). Gender differences in trust dynamics: Women trust more than men following a trust violation Journal of Experimental Social Psychology, 56, 104-109 DOI: 10.1016/j.jesp.2014.09.007

Fritz, H., & Helgeson, V. (1998). Distinctions of unmitigated communion from communion: Self-neglect and overinvolvement with others. Journal of Personality and Social Psychology, 75 (1), 121-140 DOI: 10.1037//0022-3514.75.1.121

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

Trust-InfidelityOur clients are routinely stunned by the accuracy of  mock juror impressions of witnesses and parties based on a 6 to 8 minute video clip from depositions. Mock jurors quickly assess character and are often eager to share their insights. Their comments can be insightful, surprising, and sometimes biting in their judgments. So, okay. It’s probably reasonable that brief observation can point out annoying or distracting behaviors, impressions of trustworthiness, and unflattering attire or hairstyles. But what about predicting infidelity after watching romantic partners interacting for no more than 3 to 5 minutes?

The researchers conducted two different experiments. The first included 51 undergraduates (16 men and 35 women aged 18-23 years with a median age of 19) who participated along with their romantic partners. The undergraduates (N = 51) completed questionnaires prior to the experiment to assess their “emotional and physical infidelity”, while the romantic partners (who may also have been college undergraduates) did not complete questionnaires. Then the couples were videotaped completing a drawing task where one of the partners was blindfolded and the other gave instructions on what to draw. Later, six trained coders watched the videotapes (with a focus on the five questions listed below in this post) and accurately predicted infidelity at a level above chance (p=.05).

In the second experiment, 43 undergraduates (21 male, 22 female, ranging in age from 18 to 33 years with a median age of 20) participated with their respective romantic partners. This time, both members of the partnership completed questionnaires and the researchers summed “infidelity mean scores” for each participant based on their responses to whether they had been unfaithful and how “far” their infidelity had gone. The participants then completed the same drawing task the participants in the first experiment completed. Five trained coders viewed the videos and rated the participants with a “perception of cheating index” (based on their own observations when considering the five questions listed below). Specifically, what that means is that the participants self-reported on their own infidelities (the mean infidelity score) and then the coders observed and rated the participants (the perception of cheating index). Again, the observers (aka coders) were able to identify who had cheated on their partner at a level above chance (p=.01). In this second experiment, the researchers found that the observer’s sense of how trustworthy and committed a person  was to the relationship mediated the judgments of infidelity.

What does this mean? Apparently, we can “see” infidelity, if we are simply asked to observe interactions and then consider the “right questions” (such as those the coders were assessing as they watched the videos).

“How likely is it that this person has shown interest in an alternative to his/her partner?”

“How likely is it that this person flirted or made advances on someone other than the partner?”

“How likely do you think it is that this person has had sexual intercourse with someone other than his/her partner?”

“How committed is the participant to the relationship?”

“How trustworthy did you perceive this person to be?”

While we have never asked the first three questions, the last two questions are quite similar to some of the judgments we ask our mock jurors to make about our witnesses based on short snippets of videotaped depositions.

A number of years ago we did a focus group on a case with salacious tales of infidelity, strained family relations and abortion. The Plaintiff was a wealthy Mexican-American man, and many of our mock jurors were Hispanic (of various national origins). We wondered how the bad facts of our client’s behavior would be heard by those jurors. What we saw was intriguing. The Plaintiff was honest. He neither denied nor minimized his behavior. He described what he’d done and was direct and engaging in his testimony. The jurors loved him! While they didn’t want a friend of theirs to date him, they also felt that he was honest, in spite of his infidelity. The mock jurors (from all ethnic groups) did not like his sexual behavior (well, to be fair, some of them did!), but they liked him and were actually more critical of his spouse (whom they saw as cold and punitive).

It is an intriguing case to consider in light of this research. What if that Plaintiff had lied or minimized his multiple infidelities? What if he had not been seen as trustworthy? We will never know because he did not and he was. While we can apparently “see” infidelity, it appears that trust trumps infidelity in the eyes of the observer.

Witnesses who tell the truth about bad facts but are also likable, may elicit unexpectedly positive reactions from the triers of fact.

LAMBERT, N., MULDER, S., & FINCHAM, F. (2014). Thin slices of infidelity: Determining whether observers can pick out cheaters from a video clip interaction and what tips them off Personal Relationships DOI: 10.1111/pere.12052

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