Archive for the ‘Witness Preparation’ Category
Back in 2010, we published an article on atheists and how they are distrusted in the United States. The level of vitriol we saw in the research at that time surprised us. But the number of atheists in this country continues to increase. Pew Research has just offered a 2016 update on atheists in the United States that shows us the number of those identifying as atheists in the US has “roughly doubled” since 2007. The numbers are still small (currently 3.1% according to Pew) with an additional 4% currently identifying as agnostic (that is up also from 2.4% in 2007). Here are a few of the multiple tidbits Pew offers on atheists in the US as of 2016.
Atheists in the US are more likely to be male (68%) and younger than the overall population (34 compared to 46 for all US adults).
Atheists are also more likely to be white (78% compared to 66% for the general public) and have a college degree (43% compared to 27% of the general public).
About 2/3 of atheists in the US identify as Democrats (69%) and a majority (56%) call themselves political liberals.
While virtually no atheists (1%) say they turn to religion for guidance on questions of right and wrong—roughly a third (32%) look to science for guidance on questions of right and wrong. As a comparison, 44% of US atheists still cite “practical experience and common sense” as their primary guide on questions of right and wrong.
As you might imagine, this article from Pew has more comments than we’ve ever seen on a Pew report (968 at this writing) so it is obviously a topic of extreme interest to readers.
From a litigation advocacy perspective, it is well worth your time to update your awareness of atheists in this country (and on your jury panel). We regularly work on cases where the litigant or the trial team (or both) are deeply religious. For many, there is an immediate sense of disconnect with atheists. They are as misunderstood and mistrusted in much the same way that other socio-cultural minorities (such as gays and lesbians) have been. In contrast, research needs to be conducted on what biases this subgroup might bring into the jury room with them—are they as wary of those who profess their faith as the believers are of them? What do each think of the other? What is the common ground?
The comments section of the Pew report is like a very disturbing focus group with a few rational and erudite comments thrown in! Reading the first 100 or so comments will show you just how strong and knee-jerk the bias against atheists is in the US. If it is not salient to your case, it is certainly a good topic for a motion in limine. And as we have discussed before, if it is salient, it has to be discussed, both for the purposes of inoculation of irrelevant toxic attitudes and for strikes for cause.
Pew Research Center 2016. Ten facts about atheists. http://www.pewresearch.org/fact-tank/2016/06/01/10-facts-about-atheists/
Here is some new research that says while we cannot identify liars through our intuition — there are ways we can increase our ability to identify liars. Most of you know that successful lie detection is not something at which the majority of us are skilled. New research suggests a way to improve deception detection (which we’ve blogged about frequently) and it makes intuitive sense.
The researcher, Chris Street, says our ability to detect deception is poor because we are trying to juggle multiple cues we believe indicate deception. Our focus is so scattered that we are not usually successful. Instead, we should perhaps focus on a single cue—such as whether or not the person is obviously thinking hard—as a sign of deception. This is not a matter of improving our access to intuition or our “implicit knowledge” that someone is lying as described in past research. These researchers describe it this way:
“Indirect lie detection does not access implicit knowledge, but simply focuses the perceiver on more useful cues.”
It is not that deep down inside we have the ability to intuit lies if we would just free our intuition—it is simply that we’ve been trying to process too many different small signs (or cues) of deception and diluting our ability to zero in on behaviors associated with deception. The researchers call this an indirect lie detection approach.
In an indirect lie detection approach, you don’t look for signs of deception. Instead you look for behaviors known to be associated with lying. For example, the researchers point to “appears to be thinking hard” or “appears tense” as two behaviors associated with lying. To practice indirect lie detection then, you focus on a “single diagnostic cue” such as “thinking hard” as you appraise a speaker for either accuracy or deception.
In multiple studies, the authors found that when observers focused on the single deception clue of “thinking hard”, their accuracy in deception detection increased.
The researchers say that whether there truly is an “implicit awareness” of deception should be left for others to explore. Instead, we can focus on concrete and behavioral indicators and have improved accuracy. Their findings lead them to suggest that researchers focus on the single most important diagnostic cue and to simply ignore those that are less powerful or not at all indicative of deception. According to the researchers, attempting to apply multiple “signs of deception” as you listen to someone will result in lower levels of accuracy than will watching for one specific diagnostic cue.
We have talked about similar recommendations here before, and think the best way to improve your accuracy is to watch a single strong indicator of whatever behavior you are trying to assess (whether lies or some other behavior) in order to avoid confusion while trying to juggle multiple (and sometimes conflicting) cues to the behavior you are assessing.
Street CN, & Richardson DC (2015). The focal account: Indirect lie detection need not access unconscious, implicit knowledge. Journal of Experimental Psychology. Applied, 21 (4), 342-55 PMID: 26301728
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 EF (2016). Memory blindness: Altered memory reports lead to distortion in eyewitness memory. Memory & Cognition PMID: 26884087
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