Archive for the ‘Witness Preparation’ Category
Researchers wanted to study whether the pedestrian’s race had anything to do with yielding behavior of motorists at crosswalks. They tested with 173 motorists and 6 trained male pedestrian-confederates (3 Black and 3 White) in Portland, Oregon. The confederate pedestrians were all about the same age, were trained to walk in the same way/speed, were dressed identically and each was easily racially identifiable. The crossings were done across three separate months and always at non-peak hours and with only the confederate-pedestrian in the crosswalk.
“Black pedestrians were passed by twice as many cars and experienced wait times that were 32% longer than for White pedestrians.”
And let’s keep in mind that this is in Portland, Oregon. Having spent quite a bit of time in this wonderful city, one of the things that is strikingly peculiar is that drivers are almost annoyingly prone to yielding to both other drivers and pedestrians. Locals joke about it. Yet this is another study about implicit bias and how our attitudes are uncomfortably reflected in things we do (like deciding whether or not to yield to a pedestrian) on a daily basis. The researchers describe the differences in how Black and White pedestrians were treated by drivers as “stark”.
They are certainly not alone in their findings. Previous research on implicit bias has shown minorities to be medically misdiagnosed in greater numbers, have more difficulty having their resumes seriously considered for jobs, and famously more trouble hailing a taxi.
The researchers think their results reflect the experience of micro-aggressions for the Black pedestrian. One might say it really isn’t that big of a deal but if you consider the time this adds on to a stroll across town—it becomes increasingly significant. And as an indicator of anonymous racism (failure to acknowledge the pedestrian rights—or perhaps the mere existence— of a Black pedestrian trying to cross the street), this is about far more than cars and walkers. The researchers are now doing a followup project over the next 18 months (also in Portland) to examine the relationship of race and gender in pedestrians and drivers and also examining the influence of crosswalk design and street signage on yielding behavior.
Another motivator behind this work is the disparity in pedestrian injuries and fatalities:
The National Highway Traffic Safety Administration reports 4,735 pedestrians were killed in traffic crashes in 2013, representing 14% of all traffic fatalities.
Between 2000 and 2012, the Centers for Disease Control and Prevention reported that African-American and Hispanic males were more than twice as likely than white men to die in traffic crashes.
It is possible that, as people experience micro aggressions repeatedly, they might “force the right of way when cars are not stopping, potentially putting yourself into dangerous situations”?
From a litigation advocacy perspective, this work speaks to the need to carefully assess whether racial bias plays a role in how jurors respond to your case, and whether you, as an attorney, are prone to minimizing the needs or views of minority jurors. The research on classroom behavior (boys, as well as white people generally get called on to participate in discussions more often) supports this same pattern. In our work, we’ve found that when racial differences are present but non-salient, it can be particularly tricky to predict how racism emerges (to the detriment of the ethnic minority).
Despite popular sentiment—we clearly still have a long ways to go on how race influences us—especially when we are unaware.
Goddard, T., Kahn, K., & Adkins, A. (2015). Racial bias in driver yielding behavior at crosswalks Transportation Research Part F: Traffic Psychology and Behaviour, 33, 1-6 DOI: 10.1016/j.trf.2015.06.002
Well, okay—part of why it was not called ’12 Angry Women’ is because at the time the movie was made (1957), in most venues women were not permitted to serve on juries. But the research we’re featuring today says that even while on jury duty, it’s hard to be a woman.
Today’s researchers had 210 undergraduates (65% female; average age 19 years; 31% Asian, 28% Hispanic, 27% White 8% African-American, 6% Other) read and view a 17 minute computerized presentation based on a real case where a man was charged with murdering his spouse by slitting her throat (R. v. Valevski, 2000). The defense was that she had actually killed herself due to depression. Participants read summaries of opening and closing statements and read eyewitness testimonies. They also viewed photographs of the crime scene and the alleged murder weapon.
After reading all the information on the case, participants decided on a preliminary vote of either guilty or not guilty. Then they exchanged a series of messages with peers who were also participating in the study and making their decisions as to whether to convict or acquit.
Of course, you realize already that the messages were not really from other participants but from the researchers and were part of the study.
The researchers had five specific messages that each participant received ostensibly from five other participants—four of them agreed with the participant’s verdict and one did not. So there was a holdout juror—and that holdout juror had a name either clearly female (Alicia) or clearly male (Jason) while the four “jurors” who agreed with the participant had names the researchers describe as “gender-neutral” (e.g., JJohnson or syoun96).
As the group continued to exchange their messages in this electronic version of deliberation, the researchers had the holdout type some words in all caps to express anger and/or fear. So—all the participants had read the same information prior to exchanging messages with a small group of 5 other “jurors”. Sometimes the holdout juror’s arguments were made with fear and some with anger while the others were made in an emotionally neutral tone. Throughout the discussion—participants were asked how confident they felt in their initial verdict and then were allowed to change their vote if they wished to as the deliberations concluded. Only 7% of the participants modified their original vote.
Here is some of what the researchers found:
Once the participants learned their verdict choice represented a majority vote, they said they were more confident in their initial verdict.
However, if the “holdout” in their condition was male and he expressed anger, the participants began doubting their initial opinions (at a statistically significant level). In contrast, if the “holdout” in their condition was female and she expressed anger, participants became significantly more confident in their initial opinion over the course of deliberations.
Both male and female participants responded in this way—male holdouts were more convincing when expressing anger while women holdouts lost influence when they did exactly the same thing as the male holdouts. The authors do comment that perhaps in the situation where a man is charged with murdering his wife—the angry female holdout may have been seen as over-identifying with the victim. However, this pattern of results was also in the condition where the female holdout was arguing against convicting the male defendant.
And here is what the researchers have to say about their findings:
“We entrust very important decisions to groups and reaching consensus often breeds frustration and anger expression. Our findings suggest that in decisions we are all most passionate about in society, including life and death decisions made by juries, women might have less influence than men. Our results lend scientific support to a frequent claim voiced by women, sometimes dismissed as paranoia: that people would have listened to her impassioned argument, had she been a man.”
From a litigation advocacy perspective, this study has multiple implications—none of which are going to be particularly popular with women—although they may sound all too familiar based on life experiences.
If you are part of a trial team with both male and female attorneys, assign male attorneys to deliver angry or confrontational cross-examinations. (Remember, angry men persuade and angry women make people dig their feet into their own opposing position.) With that said, modulating anger remains important, as men are also criticized by jurors when they are seen as bullying or badgering.
When you are preparing a witness, pay attention to gender as you consider the testimony involved. (Remember, angry men persuade and are seen as more credible while angry women make people think the woman is losing emotional control and not particularly credible.)
It’s sobering to read a study from 2015 and realize that while we think we’ve come a long way, there is still a long way to go when it comes to gender and the expression of anger. It may help to think of this as an example of how to be flexible when it comes to strategically planning how to use anger, persuasion, and gender.
Salerno JM, & Peter-Hagene LC (2015). One Angry Woman: Anger Expression Increases Influence for Men, but Decreases Influence for Women, During Group Deliberation. Law and Human Behavior PMID: 26322952
Reviewing gruesome photographs and listening to emotional testimony about terrible injuries is something we do routinely. When we need to test their impact in our pretrial research, sometimes mock jurors (and occasionally trial jurors as well) are given the option of not looking at the photographs. They are put in an envelope, the envelope is passed around, and whoever wants to open it can do so. Gruesome photographs can be powerful. So can emotional testimony when seen as sincere and resulting from love and loss. So sometimes it’s hard to understand how research like this can lead to tenure since the answer is obviously “yes” for at least some jurors. But on this sort of work, careers are made, curriculum vitae are built, and academic research programs expand. So it goes.
These Japanese researchers wanted to see how strongly emotional testimony or gruesome photographs would affect eventual verdict decisions. So they gathered 127 participants (38 males and 89 females; aged 18 to 48 years with an average age of 20.83 years; 70 of the participants were over 20 years old and 57 were less than 20 years old) who attended a local university. Participants were asked to complete the Juror Negative Affect Scale (JUNAS) which they describe as an adjective list categorized into four subclass (fear/anxiety, anger, sadness and disgust—and for this study all the adjectives were translated into Japanese and listed in random order). The JUNAS was used to measure participant emotional states prior to the experiment and they rated each adjective on a 5 point scale from ‘not at all’ to ‘extremely’.
Then, jurors were assigned to a condition (photographs either gruesome or not gruesome and evidence either emotional or not) and listened to a trial transcript designed to be a weak case for a guilty verdict. The transcript was of a murder case where a homeless man randomly chose a young female victim and killed her so he would go to prison and have a place to live. Initially the homeless defendant confessed, but later he withdrew his confession and said he was innocent. The transcript (ranging from 20 – 23 minutes to review) contained opening statements, evidence presentations, cross-examination, eyewitness testimony and two kinds of circumstantial evidence. In those participants who were included in the emotional evidence presentation—they were read testimony by the victim’s father about the impact of his child’s death. In those participants who were in the gruesome photos condition, participants saw “six gruesome photographs taken from different angles” while they listened to the transcript being read with a description of the scene for about two minutes. At the end of the transcript, the Prosecutor asked for the death penalty while the Defense attorney asked for acquittal.
Finally, after listening to the transcript, participants again rated their emotional state using the JUNAS (with the adjectives presented in a different order than during the initial completion). They they made an individual verdict decision (guilty or not guilty) and if they chose guilty, they offered a sentencing decision and rated their confidence in their verdict decision (1=absolutely not guilty and 10=absolutely guilty). They were also asked to respond to how convincing the evidence was and how shocking the photos were to them. (Some of the participants did not complete the JUNAS completely and had to be removed from the study. The results are thus based on 112 participants.) Here is some of what the researchers found:
74 participants said the Defendant was guilty [despite the fact the transcript was designed to create uncertainty about guilt] and 38 participants said he was not guilty.
Participants who both heard testimony from the victim’s father and saw gruesome photographs were more likely (79%) to find the defendant guilty than those participants who either heard testimony from the victim’s father or saw gruesome photographs but not both (70%) and those who heard no emotional testimony from the victim’s father and also did not see gruesome photographs were even less likely to find the defendant guilty (46%). In other words, while all the participants heard the same trial transcript—the difference was whether they heard emotional evidence (e.g., the father’s testimony or the gruesome photos).
Emotional testimony was most powerful on guilty verdicts while gruesome photographs alone was a much weaker finding (although still significant) and the researchers think their professionally prepared but still fake photographs may have not been “gruesome enough”. However, when the photographs were combined with the father’s testimony, the power of the effect was startling according to the researchers.
Additionally, the participants who heard the emotional father’s testimony and saw gruesome photos also had more negative emotions on the JUNAS at the end of the experiment. The researchers think this reflects the use of “affect-as-information” whereby since the participants felt badly, they tended to punish the defendant with a guilty verdict.
From a litigation advocacy perspective, this study tells us that if there are both gruesome photographs and emotional testimony in the form of a victim impact statement, it would be good to use both of them during trial. This is likely not a newsflash for you. But the simple explanation the researchers offer may be new to you.
The reason this works is because emotional evidence elicits negative feelings in listeners/jurors and they then want to punish the defendant.
Oh wait. That isn’t news either! What this is though, is recent research that tells us what we believe to be true about the role of anger (what the researchers describe as “negative emotions”) in jurors appears to still be true. When jurors are angry, they look for someone to punish. Sometimes, that person may be your client.
Matsuo, K., & Itoh, Y. (2015). Effects of Emotional Testimony and Gruesome Photographs on Mock Jurors’ Decisions and Negative Emotions Psychiatry, Psychology and Law, 1-17 DOI: 10.1080/13218719.2015.1032954
We write often about lying and deception and none of us like to discover we’ve been lied to by either a stranger or by someone whom we know [or thought we knew] well. Despite how often we encounter dishonesty, there is a tendency to presume honesty in what we hear from others. So is it better to be wary of others and presume dishonesty until proven otherwise? Today’s researchers wanted to figure that out.
They asked 190 undergraduates (average age 19.3 years and 67.6% female) to participate and assigned them to random pairs (some were same-sex pairings and others were not). Two participants arrived at the experiment location at a time and were told they would be participating in a mock job interview—with one playing the role of the interviewer and the other playing the role of the job candidate. The participants were sent to separate rooms to prepare for the interviews and the candidates were given instructions to convince the interviewer they were the best person for the job (and told that “convincing” may involve them telling lies or exaggerating their credentials). Only some of the interviewers were told the candidates might lie or exaggerate their qualifications (the researchers label these two conditions naïve versus informed).
Following preparation, the pair was reunited in a room where they engaged in a 5 to 8 minute interview which was recorded. After the interview concluded the researchers had participants review the videos.
First, the candidates reviewed the video and indicated points at which s/he had thoughts or feelings during the interview. After reviewing the video and marking points where they’d had feelings or thoughts, the candidates then reviewed the video again and were asked at each point they’d marked as one where they had thoughts or feelings—how honest were you being as you expressed that thought or feeling on the videotape.
Then, the interviewer reviewed the video and as it was paused at each point the candidate reported thoughts or feelings—and the interviewer would attempt to identify the thoughts or feelings the candidate was having and then rated how honest they thought the candidate was being with them.
So—in this study both the interviewer and the candidate each rated candidate honesty. That is, the candidates rated how honest they were about thoughts and feelings at various points on the videotape and the interviewers rated how honest they [the interviewer] thought the candidate was being at the same points in time.
The researchers were interested in two main things: empathic accuracy (how closely the interviewers were able to identify the feelings of the candidates) and deception detection (how well they could tell that the interviewee was lying to them).
They measured empathic accuracy as the level at which the candidate’s report of thoughts and feelings matched the interviewer’s assessment of what they believed the candidate was feeling. Higher levels of agreement between the candidate and interviewer, demonstrates higher levels of empathic accuracy on the part of the interviewer.
Deception detection was measured in the same way. If the candidate reported they’d been dishonest and the interviewer assessed them as being dishonest, then the interviewer had correctly detected deception.
According to the researchers, these two “processes used to infer the thoughts and feelings of another person” had never been studied together before. They report the level of empathic accuracy attained by the interviewers was similar to that found in earlier studies of empathic accuracy alone. However, it did make a difference whether the interviewer was in the “naïve” group or the “informed” group. And this is an odd finding:
“regardless of the actual honesty of the thoughts [expressed by the candidate], naïve interviewer/perceivers were more empathically accurate than were informed perceivers”.
In other words, if you trust the person you are talking with, you are able to identify their feelings more accurately. Intuitively, it seems to us that if you are not struggling with trust issues (e.g., “is she lying to me?”) you are more likely to attend to the emotions of the person you are focused on.
From a litigation advocacy standpoint, what this tells us is that verbal content is still the best way to assess if someone is telling you the truth or not. What this research leaves out is the reality that in pairs of people who believe they know each other well, there is likely more room for errors in deception detection since the listener/target of the lie would have no reason to believe they were being deceived.
Nonetheless, it does remind us of just how complex detecting deception is and how wrong many people are when they believe someone is not being truthful. It doesn’t matter if they are wrong when it comes to your witness or party though—if they believe the witness is lying, things are unlikely to turn out well for your case.
DesJardins, N., & Hodges, S. (2015). Reading Between the Lies: Empathic Accuracy and Deception Detection Social Psychological and Personality Science, 6 (7), 781-787 DOI: 10.1177/1948550615585829
Apparently it’s all about motivated reasoning and uncertainty. When people hear new research findings that are unfamiliar or hear new findings that contradict what they already believe—they are likely to feel uncertain and confused. When you feel that way, it is unpleasant and you want to get back to feeling certain and clear about how things are (whether you are accurate or not).
A nation-wide (Taiwanese since the researcher is located in Taiwan) telephone survey was conducted to check the accuracy of the hypotheses that if reports of new research findings leave you uncertain and confused, you will discount the credibility of the source and have a more negative attitude toward research. Participants in the national telephone survey were only told the headlines of the report and not the contents of the actual stories themselves.
What they found was that the more novel or unfamiliar the research report, the less credible it was seen as being and the less likely participants were to say they would comply with the findings.
When contradictory headlines were presented [think of these as akin to dueling expert witnesses disagreeing with each other], they were rated as less credible and participants were less likely to say they would comply with the research findings.
Then the researcher wanted to see what would happen if participants actually read the entire story rather than headlines alone. They conducted two separate experiments using university students as participants—one experiment exposed the participants to novel versus familiar findings and the other exposed them to contradictory [e.g., dueling experts who disagree with each other] versus one-sided stories [e.g., only one expert testifies so participants do not know the other side of the story].
The researcher found that when participants were exposed to novel/unfamiliar research stories, they saw the information as less credible and were less likely to report plans to adopt the recommendations from the study.
When they were exposed to contradictory news, participants were less likely to have a favorable attitude toward health research than when they were exposed to one-sided news. Additionally, contradictory news was seen as less credible than the one-sided news.
The more unfamiliar and contradictory science presentations left participants defensive and uncertain and their attitudes toward health research became more negative than the attitudes of those who only saw familiar or one-sided research findings.
The researcher recommends that press releases describing research findings that are novel present their findings in context with the cumulative body of prior research and offer possible explanations for discrepancies with previous findings.
From a litigation advocacy perspective, this reminds us an awful lot of what we do when we expect dueling expert witnesses on the stand. Jurors don’t like experts that contradict each other and they tend to toss both experts testimony out and rely on their intuition or idiosyncratic reactions to the experts (e.g., “He looked sort of like Newt Gingrich. I’m not sure if that’s a good thing or a bad thing” or “His mustache reminds me of my favorite high school teacher”). We often work with our expert witnesses to not only present information in a way jurors can understand, but to also explain the contradictions in the research and why our experts’ perspective is more accurate. If the research is unfamiliar or is likely to run counter to their previously held positions, it often works best to embrace the novelty—call it ‘groundbreaking’ or ‘a major step forward in scientific understanding’, etc.—rather than minimizing the difference. Jurors appreciate an expert who is credible, personable, and who wants to help them in the difficult task of understanding complex new information.
This research would say that experts who contradict each other leave jurors feeling uncertain and confused—which is what we see over and over again in our pretrial research. Rather than taking the chance they will simply base their decisions on idiosyncratic associations to the expert’s appearance or demeanor, work with the expert to place the research in context, explain contradictions or inconsistencies in the research literature, and teach the jurors what they need to know to make the best decisions possible. They’ll appreciate you for it.
Chang, C. (2015). Motivated Processing: How People Perceive News Covering Novel or Contradictory Health Research Findings Science Communication, 37 (5), 602-634 DOI: 10.1177/1075547015597914