Archive for the ‘Witness Preparation’ Category
You are likely familiar with the fact that African-Americans and Hispanics often receive harsher sentences than do White defendants. So where do you think the undocumented immigrant or non-citizen would fall in that lineup? The undocumented receive the harshest sentences and non-citizens (who are in the country legally) come in second. Why? The authors of this paper have a hypothesis: we jury-eligible citizens are simply afraid, and are trying to maintain control of our country.
“…dominant group members feel threatened economically, politically, criminally, or culturally, and will step up efforts to maintain control when minority group populations are increasing.”
You may be surprised to know “more than 30,000 non-US citizens from approximately 150 countries” have been sentenced to time in US prisons by the federal courts each year since 2008. In fact, about half of all the offenders sentenced today in our federal courts are non-US citizens and a “large proportion are from Latin America”–leading some scholars to question if there was a “Hispanic penalty” in sentencing. Researchers examined archival data from US federal courts (using the US Sentencing Commission’s Standardized Research Files) in an attempt to examine if sentencing disparities existed between citizens and non-citizens. The findings are nothing less than stunning.
Compared to US citizens, non-citizen offenders are “over four times more likely to be incarcerated, and this effect is larger than the effects for race, ethnicity, gender, age, education, being convicted at trial, and any of the offense types”. (In other words, being a non-citizen trumps all the other extra-legal variables your client may embody.)
Non-citizens receive “roughly an additional 3.5 months of incarceration” when compared to citizens. “As a point of comparison, Hispanics receive between one and two months of additional prison time compared to whites.” This may sound relatively small, but as the authors point out, “When combining the citizenship penalty across the incarceration and length decisions, the cumulative increase in incarceration is 5,765 total prison years for 2008 alone”. While non-citizens receive higher sentences compared to citizens, the undocumented immigrant is at even higher risk for severe punishment than the legal immigrant.
In response to the questions raised about the “Hispanic penalty”, the researchers show that the “magnitude of the citizenship penalty is over four times stronger than Hispanic ethnicity” when it comes to sentencing. They go on to report that Hispanic ethnicity really explains almost none of the overall citizenship effect. These authors suggest that the harsher punishments observed for Hispanic defendants is more a function of their citizenship status than of their ethnicity.
Every ethnic group lacking US citizenship (including white non-citizens) receive harsher punishment than do defendants who are white citizens. For all races, citizens are punished less harshly than non-citizens.
As concerns about immigration have increased, so has the citizenship penalty. That is, the length of prison sentences assigned to non-citizens has grown substantially as the country has become concerned over the “dramatic influx of non-citizens and undocumented immigrants over the past two decades”. In areas where there are a higher influx of non-citizens, there is a higher “citizenship penalty” in sentencing.
From a litigation advocacy perspective, this article is useful to us in many ways. As the authors say, “citizenship appears to trump race and ethnicity when determining punishments for those who violate US law”.
Reading can help you obtain a sentence for your client that is consistent with those assigned to white defendants rather than incurring a citizenship penalty.
It can be used to educate jurors involved in sentencing decisions and judges making decisions on sentencing if your client is found guilty.
And unlike many statistically heavy articles that illustrate their findings with graphs and charts that are completely incomprehensible–this one makes the point clearly. The figure below (taken from the article itself) illustrates the differences in sentencing you see when you examine only race rather than incorporating citizenship status. This figure, presented and explained piece by piece, communicates clearly what happens with sentencing when the defendant is a non-citizen. Bias comes out in multiple ways we cannot see and, as these researchers clearly illustrate: citizenship trumps race and ethnicity.
Light, M., Massoglia, M., & King, R. (2014). Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts American Sociological Review, 79 (5), 825-847 DOI: 10.1177/0003122414543659
Our mock jurors (and many others as well) tend to believe the eyes are the “window to the soul” and that by simply looking at the eyes of another, they can intuit truthfulness and character. But it can be even easier! Just look at the face and you can actually assess introversion/extroversion, competence/incompetence, dominance/submission, and even trustworthiness/untrustworthiness. In short, if you are trustworthy, you have a more feminine face and tend to evidence positive emotions. If you are not trustworthy, you have a more masculine face and tend to evidence negative emotions. (See illustration above for an example. Doesn’t that woman on the right look more trustworthy than the man on the left?)
Unfortunately, this isn’t just some goofy research that we can make fun of and not take seriously. It is an example of the way we quickly look for shortcuts to assess character and personality traits. We all do it. And further, the consequences for the individual being judged are measurable and can be positive or negative. We know, for example, that attractive people get many benefits for simply being attractive. Apparently, we also have stereotypes about who appears trustworthy and who appears competent. We can take a glance at a face and make many assumptions. The problem is that our assumptions may be very wrong and it is very difficult to change first impressions.
The paper that forms the basis of this blog post was written to summarize the work on “facial morphological traits” and how they are linked to various social outcomes. While the early “science” of physiognomy (a system for identifying personality types and even criminality based on facial characteristics) has long been debunked, we still use many of the same sorts of shortcuts to make assumptions about each other. The research has shown many disturbing (and yet not hard to believe) results.
Politicians who possess particular facial characteristics (e.g., those viewed as reflecting competence and sociability) are more likely to win elections.
CEOs with faces that appear competent are more likely to be hired by large successful companies, even though their performance is no better than less competent-looking fellow applicants.
If you are in the military, you are more likely to be promoted to higher rank if your face appears dominant.
Defendants who have certain facial characteristics (e.g., appearing trustworthy or “baby-faced”) are less likely to be convicted of a crime than their peers who lack those characteristics.
There are multiple other findings that are clear examples of how you look being linked to social outcomes. The authors comment that there is causal evidence (not just correlational) showing facial appearance as influential in voting, economic exchanges, and legal judgments. We leap from facial appearance to character judgments of trustworthiness, competence, introversion, and dominance.
From a litigation advocacy perspective, this is obviously problematic if you have a deserving client who is not fortunate enough to have been born with the most acceptable facial characteristics. However, an intriguing fact is embedded in the article.
One study found that voters who have limited knowledge are more likely to vote for politicians with the most competent-looking faces. More knowledgeable voters showed no such tendency.
This bodes well for us. Educating jurors and finding likable things to show them about the client should mitigate first impressions. We often talk about the importance of using universal values in witness preparation and case narrative. The power of our stereotypes as we judge each other is shocking and illustrated clearly in the examples of trustworthy, extroverted, competent and dominant faces in the article itself. We need to pay attention to what we can do to reduce the biasing impact of facial appearance. The authors encourage awareness of just how challenging this goal will be:
“This is a challenging task because people are naturally inclined to draw inferences from faces to an extent that they may find it difficult to inhibit these tendencies. On the positive side, the evidence suggests that people sometimes rely on facial appearances less when they are armed with more relevant and valid types of information. Thus, in some contexts, educating people might be sufficient to reduce facial stereotyping. In other contexts, however, more research will be necessary to identify the best ways to mitigate the biasing influence of facial appearance. For instance, it still remains to be determined how justice can be truly blind – that is, how judges and juries can disentangle case-relevant facial information (e.g., expressions of remorse) from information that should be irrelevant to a case (e.g., facial morphological features perceived as criminal-looking).”
Olivola, C., Funk, F., & Todorov, A. (2014). Social attributions from faces bias human choices Trends in Cognitive Sciences, 18 (11), 566-570 DOI: 10.1016/j.tics.2014.09.007
Image taken from article referenced above.
Earlier this month I was on a Wi-Fi and Cable TV enabled flight. Passengers thought it very funny that two of the shows accessible on the cable TV channels were on plane crashes and jetliner engine failures. Well, some of the passengers thought it was funny. I was fortunate enough to be in the window seat while an over-sized traveler was in the middle seat and a man with a horrific and very productive cough (thank you very much!) was in the aisle seat. He hacked and hacked and hacked during our 6 hour flight and at one point, I looked at the middle seat passenger and whispered “ebola”. It was intended to be a joke but she began to sweat profusely and lean into me. It was not a good flight and from now on I will not crack jokes about potentially deadly things.
So today, I saw the headlines on CNN: Ebola hysteria. And then I checked my email to find an update from Rasmussen Reports saying Americans are not panicking over ebola. While I certainly prefer the Rasmussen Reports perspective, it does give a moment of question often voiced by our mock jurors: when you have dueling experts–how do you know who to believe?
We’ve answered this question before, but here are a few ideas on how to make your witness be the voice of authority in the jury room:
Establish the expert’s credentials, then let it go. If the expert is so insecure that they insist on acting intellectually superior, the jury will hate them. And as ridiculous as it might sound, during preparation emphasize to the witness the need to be nice. Expert witnesses are the worst when it comes to arrogance and gamesmanship. Getting them to be friendly, useful, and charmingly geeky is often quite a challenge.
Your expert witness is not there to tell what they know. Their job is to teach the material to a (usually) ignorant but motivated class of students. Not to teach the attorneys or the judge, but to teach the good folks in the jury box.
Give the jurors the dueling testimony but also let them know why what you are offering is more supported by the literature, has stronger support from professionals in the field, or other pieces of data that bolster your expert’s testimony.
Frame the testimony in a way that mitigates the values or belief conflicts that the skeptical jurors are likely to have. We know that (as with political polarization) jurors are going to ‘hear’ what supports their own belief systems, giving jurors for whom your message is pro-attitudinal the ammunition to support your position in the deliberation room is essential.
Make sure your expert’s testimony is factually accurate and examine the opposing witness’ testimony for factual accuracy. Showing jurors how a portion of an expert’s testimony is self-serving will kick in their tendency to doubt the expert’s credibility in total.
These are but a few strategies to help jurors to choose your expert as the one they believe or find most credible. You can find more on the blog by simply clicking here: dueling experts.
Not very Black at all. In fact, according to the 2013 American Values Survey from the Public Religion Institute, “the average white American’s social network is only 1% black”. But wait. It gets worse.
“Three-quarters of white Americans haven’t had a meaningful conversation with a single non-white person in the last six months.”
We are not talking about Facebook networks. Instead, we are talking about a much more meaningful definition of network. The researchers asked respondents to identify “up to seven people with whom you have discussed important matters in the past six months”. Respondents were then asked to provide descriptors of those individuals’ “gender, race and ethnicity, religious affiliation, 2012 vote preference, and relationship to the respondent”. In fairness, seven people in 6 months could mean that you have a pretty small circle for sharing significant things, but the results remain telling. For most people, this circle could mean family and close, intimate friends. For others, it could mean work collaborators and neighbors. It’s hard to predict. But what is clear is that most people live insular lives, accompanied by others much like themselves.
As you might imagine, the networks of some people were actually quite small.
While only 8% had no one identified in their network, 50% named between 1 and 3 people, and 43% named 4 or more people (up to 7).
People in the networks of Americans responding to this survey were only slightly more likely to be immediate family members (average: 1.8 people) than to be non-immediate family members (average: 1.5 people).
The picture becomes more surprising when we see just how segregated American society is by race and ethnicity. The following is a direct quote from the report.
“The degree of racial and ethnic diversity in Americans’ social networks varies significantly according to their particular race or ethnicity.
Among white Americans, 91 percent of people comprising their social networks are also white, while five percent are identified as some other race.
Among black Americans, 83 percent of people in their social networks are composed of people who are also black, while eight percent are white and six percent are some other race.
Among Hispanic Americans, approximately two-thirds (64 percent) of the people who comprise their social networks are also Hispanic, while nearly 1-in-5 (19 percent) are white, and nine percent are some other race.”
This table shows the tendency toward racial segregation among those with whom we talk about “important issues”.
You may think you know why this is the case. It is likely due to commonalities and differences other than race. But we cannot explain away the lack of racial diversity in our social networks by using our go-to arguments like age, political affiliation, gender, or even geographic residence. What differences there are, are fairly small.
It is a startling picture to contemplate considering the way race and the different ways the racial groups view race in this country have been highlighted with first, the Trayvon Martin shooting and now the Michael Brown shooting. We simply “self-segregate” says Robert P. Jones recently in the Atlantic in an article on Ferguson, Missouri. We self-segregate so much that it is no wonder white Americans and black Americans have very different perspectives on race in America. We just don’t talk to each other.
It’s another good reason to reinforce the idea that your client, witness, party is similar to the jury even if they are racially different. We need to expose our white jurors to the experience of black and brown Americans. We call it using universal values. This survey data would say our social networks and our day-to-day lives are not filled with an awareness of how universal those values actually are.
The American Values Survey: Race and Americans’ Social Networks. 2013 Public Religion Research Institute. http://publicreligion.org/research/2014/08/analysis-social-network/
According to new research, you can’t have both. Inspired by women who told them they “would not vote for Hillary Clinton [in the Presidential primaries a decade later] because she forgave then-President Bill Clinton’s infidelity”, these researchers looked at how male and female observers viewed male and female victims of infidelity based on how they responded to their partner’s behavior.
The researchers did three separate experiments:
The first experiment used 100 male fraternity members (aged 18 to 24 years) who read a story about (ostensibly) a member of their own fraternity whose significant other had posted photos of her infidelity on Facebook. (This is tempting to visualize–what sort of photos do you imagine were purportedly on Facebook?) When confronted, the woman apologized and in response, the fraternity brother either forgave her, broke up with her, or slashed his (ex-)girlfriend’s vehicle tires.
In the second experiment, 114 “female voters” (aged 20 to 79 years) read the story of a woman who was presented as a political candidate. Her spouse of 25 years had an affair with his secretary and when confronted, he apologized. The “female voters” in this study read that the woman either forgave him, divorced him, or slashed his car seats.
In the third experiment, (dare we anticipate the use of a knife again?), 94 male and 131 female undergraduate students (ranging in age from 17 to 55 years of age) participated. Half of them read the story (ostensibly published in their college newspaper) of “Natalie Lewis, a student at a “sister” campus who learned that her male partner, a student body president at another campus and chair of the statewide student senate, was unfaithful”. The other half read a similar scenario but in this case it was a male student leader (“Brandon Thomas”) who learned his female partner had been unfaithful. When confronted, as in the other two experiments, the unfaithful partner apologized. In response to the infidelity, the victim either forgave the partner, broke up with the partner, or (wait for it) posted embarrassing details about the partner’s sexual inadequacy on Facebook. (Well, at least the aggression avoided knife-play!)
We think maybe these researchers have some anger issues (and what is it with all these knives and public shaming?), but here is what they found:
The young fraternity brothers in Experiment 1 rated the “brother” who forgave as about the same level of maturity but as less competent than the brother who left the relationship. However, they did see the forgiving brother as violating shared values as to how one should respond to a publicly revealed infidelity. They rated the brother who forgave as more competent and less damaging to their group reputation in comparison to the brother who slashed her tires. (This is reassuring.)
The “female voters” in experiment two rated the forgiving politician as less competent, slightly weaker, and less worthy of support in comparison with the politician who divorced her philandering spouse. The female voters thought the forgiving politician damaged the group’s (presumably all of womankind) power and status and violated their shared values. They did see the car seat slashing politician more negatively than the forgiving politician (which again, is reassuring).
Finally, in the third study which included male and female undergraduates and featured male and female student leaders with unfaithful partners–observers rated the leader who forgave his or her partner as just as mature as the leader who broke up with the partner and as more mature than the one posting scandalous information on Facebook. However, the one who forgave was seen as weaker, less competent and less worth voting for than the student leader who left the relationship. The one who forgave was seen as violating shared group values and damaging the group’s power and status more so than the one who left. Overall, they preferred the leaver to the forgiver, but in one final gesture of reassurance, these undergraduates preferred forgiveness to retaliation.
In other words, even though participants across all three studies agreed that forgiveness can be mature–it also can make the forgiver appear weak and incompetent. In every experiment, the participants preferred the partner who left the relationship (despite the researcher’s insistence on incorporating slashing knives and public shaming into the scenarios) to the one who forgave–although they preferred the one who forgave to the one who retaliated.
From a litigation advocacy perspective, you need to think carefully about how to repair perceptions of competence and strength if your client has chosen to remain in a relationship after a public infidelity. Obviously, this is more often in the news with male politicians publicly apologizing to their constituents and to their spouses who stand (publicly shamed and likely humiliated) behind them. But, regardless of whether your client is male or female–choosing to stay has consequences. Mature but incompetent and weak political candidates are less electable. We’d guess Hillary’s consultants are on this one, and, if not, she can call us.
It would be interesting to see whether there are correlates of these findings for other forms of trust betrayal. What happens if a company finds an employee has used company assets improperly for personal reasons? Or violated confidentiality? Or violated behavioral guidelines (drinking or drugs on the job, or making sexist jokes, or aggressive behavior). Certainly the current controversy about the degree to which domestic violence should result in workplace ramifications is the biggest headline in professional football right now. Is this going to be treated as an anger management problem that calls for treatment, or misogyny and thuggery that is intolerable? This is an intriguing first phase of a research design with huge social ramifications.
J. Smith, H., Goode, C., Balzarini, R., Ryan, D., & Georges, M. (2014). The cost of forgiveness: Observers prefer victims who leave unfaithful romantic partners European Journal of Social Psychology DOI: 10.1002/ejsp.2054