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Do you want to know the future? You may want to say it all depends on which aspects of your future. Typically, while we seek information routinely to make decisions in our day-to-day lives, we don’t always want to know for sure what will happen in our futures. These researchers remind us about the story of Cassandra in Greek mythology.

“According to Greek mythology, Apollo granted Cassandra, daughter of the king of Troy, the power of foreseeing the future. Yet after his failed attempt to seduce her, he placed a curse on her so that her prophecies would never be believed. Cassandra foresaw the fall of Troy, the death of her father, the hour of her own death, and the name of her murderer. To helplessly watch the approach of future horrors became a source of endless pain, suffering, and regret of her terrible solitary knowledge.”

They also invoke Bob Dylan’s classic line from the song ‘Blowin’ in the Wind’,

“How many times can a man turn his head, pretending he just doesn’t see?”

They then summarize the research which shows us that people do not often want to know about specific results of genetic testing, or HIV tests, or even whether they are likely to become demented. What the researchers are most interested in, however, is what they call “deliberate ignorance”.

“We use the term deliberate ignorance to refer to the willful decision not to know, as opposed to the inability to access information or disinterest in the question. Deliberate ignorance can result from inaction, that is, not searching for diagnostic information, or from action, such as refusing information that someone else offers.”

In other words, when you actively choose not to know, you are willfully choosing to remain deliberately ignorant which is very different, according to the researchers, than simply not knowing—i.e., being ignorant. So the researchers did two different experiments (one in Germany and one in Spain (both with non-student populations) to see how common deliberate ignorance was and to investigate whether there was a pattern to choices to remain deliberately ignorant.

In Germany, they asked participants five positive questions and five negative questions — to ascertain in which situations the individual would choose deliberate ignorance. Here is how their sample (of more than 900 participants) responded:

Negative events:

Would you want to know today when your partner will die? No: 89.5%.

Would you want to know today from what cause your partner will die? No: 90.4%.

Would you want to know today when you will die? No: 87.7%.

Would you want to know today from what cause you will die? No: 87.3%.

Assume you are newly married. Would you want to know today whether your marriage will eventually end in divorce or not? No: 86.5%.

Positive events:

Assume you video-recorded a soccer world-champion game because you could not watch it live. While you are watching the recording, a friend enters who has already watched the game. Would you want to know from the friend how it ended (as opposed to asking not to tell)? No: 76.9%.

Would you want to know in advance what you are getting for Christmas? No: 59.6%.

Would you like to know whether there is life after death? No: 56.9%.

Assume you bought a blue sapphire for 2,000 euros during your vacation in Sri Lanka. The dealer assured you that the sapphire is genuine. Back home, you can check this, but you have no chance of lodging a complaint or returning the stone. A test would cost 50 euros. Would you have the sapphire tested to be sure whether it is genuine or not? No: 48.6%.

Assume you/your partner is pregnant. The gender of the child can be reliably determined by ultrasound. Would you want to know the gender of your child before birth? No: 40.3%.

The researchers saw this response pattern as showing “widespread deliberate ignorance” for both negative events and for positive events. They thought this inconsistent with the human desire to avoid uncertainty so they went to Spain to see if things were different there. They found the same patterns in Spain.

The researchers conclude it is common for people to choose to remain “deliberately ignorant” to avoid negative news but also to maintain the positive emotions of surprise and suspense surrounding personally important events. Cassandra, in Greek mythology, was unable to make the choice to remain deliberately ignorant. That is not the case for us—as is seen in the choices many of the German and Spanish citizens made to remain deliberately ignorant.

Additionally, the researchers found that the closer in age the participants were to the likelihood of a negative event happening (e.g., divorce, death of a partner, old-age health problems), the more likely they were to choose deliberate ignorance.

There was also an odd (and potentially useful) finding in this study. One of the questions researchers asked was what kind of insurance policies the participants had purchased. What they found was those that had purchased policies that were not mandated by the country or immediate area in which they lived, were slightly more likely to choose deliberate ignorance for future events.

From a litigation advocacy perspective, this is a good point to remember and to educate jurors on in opening statement. There are times we simply do not want to know (whether about something positive or something negative) and so we make a choice. We have all done this and it allows us to be happier before negative things happen and to enjoy the surprise inherent in good things happening. That choice does not mean we have failed to do something, it simply means we are doing what (apparently) the majority of people do and choosing not to know.

Gigerenzer G, & Garcia-Retamero R (2017). Cassandra’s regret: The psychology of not wanting to know. Psychological Review, 124 (2), 179-196 PMID: 28221086

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This is the sort of article that can either amuse or terrify you. It will amuse you if you are charmed by all the ways in which we see ourselves as superior to others. And it will terrify you if you do not want to know that you are always being observed closely by everyone around you. The article even starts off creepily:

“People-watching is an age-old pastime. People notice and observe the people around them all the time—on trains, at cafés, waiting in line, at cocktail parties and office meetings, and beyond. Pretty much anywhere there are other people, we spend a good deal of time watching them, wondering who they are, and assessing what they are like. But despite all the watching people do of others people rarely feel as if they, themselves, are being observed as they go about their daily lives. Indeed, people feel relatively invisible.

Of course it is impossible that people (on average) observe others more than they themselves are observed. Yet this is precisely what we suspect people believe. We call this bias the invisibility cloak illusion. This is an illusion that prevents you from realizing that, whether you are on a plane, in a restaurant, or at a rodeo, when you stop watching people and taking in the social scene—when you turn your attention to whatever else you are doing—the people around you are likely to raise their eyes from whatever they were doing and watch you.”

It is just spooky. We first saw this article over at the BPS Research Digest and they poked fun at it (just a little) and poked special fun at a “particularly cruel experiment” from the year 2000, involving being required to wear a Barry Manilow t-shirt—so we went to read the actual article. (We also have a blog post poking fun at a more recent Barry Manilow reference.) But we digress. Here is what the researchers did in today’s featured research.

First, the researchers verified the existence of the invisibility cloak illusion using online participants. Then, using Yale undergraduate students, they asked two participants of the same gender to sit in a waiting room prior to the experiment beginning. (We all know the experiment had already begun.) After seven minutes (precisely), the two participants were taken to separate rooms and told they were either the “observer” or the “target”. The observer wrote down everything they noticed about the target while the participant assigned to be the target wrote down everything they expected the observer would have noticed about them. Consistent with the invisibility cloak illusion, the observers produced more detailed notes about the target than the target predicted they would. But having read that old Barry Manilow experiment, our fearless researchers were not yet done.

Next, the researchers wanted to see if the spotlight effect (featured in the Barry Manilow t-shirt experiment where people required to wear the t-shirt felt exceptionally self-conscious) could co-exist with the invisibility cloak illusion. So they had half the target-participants wear a t-shirt with the Columbian drug lord Pablo Escobar on it. (We think they should have used a Barry Manilow t-shirt instead but perhaps it was deemed by the Yale Human Subjects Review committee to be unreasonably cruel—hence the Escobar attire.) They repeated the waiting room experiment with the only difference being the drug lord t-shirt foisted on one of the participants. They were left in the waiting room together for five minutes and then sent to separate rooms to once again answer questions as to what they had observed or what they thought had been observed about them. Again, observers listed more behaviors and characteristics than the target thought they would have observed.

An addition to this follow-up experiment was that the observer was asked how much they thought about the target’s shirt as they observed the target prior to the experiment. And here is where it gets even creepier—the target-participants thought the observers would look at their shirt much more when they were wearing the Pablo Escobar shirt supplied by the experimenters rather than their own shirt. The observers, however, “observed, noticed, and thought about the targets’ shirts equally across conditions, regardless of whether the target was wearing a provided shirt”.

From a litigation advocacy perspective, this means it is particularly important that you and your client are always aware you are on-stage at all times when in the courtroom. The most important audience is, naturally, the jury, but this research would say everyone is watching you (although the researchers remind us frequently in the article that observers go to great pains to make it appear they are not watching you). Much like the inaccurate “better than average effect”, the invisibility cloak illusion tells us we are watched even as we watch (and apparently, we are judged even as we judge). Parties and witnesses sometimes believe they are only really being observed when they are giving testimony. Alas, it is so untrue.

The researchers sum it up this way:

“The invisibility cloak illusion consists in people believing they observe others more than others observe them. This belief appears to be pervasive and persistent, despite being logically impossible in the aggregate. It cannot be true that, on average, people are noticing and observing others more than they themselves are noticed and observed. Yet everyday people experience the compelling sensation that social observations flow predominantly in one direction.

People peer out at the social world and yet they feel relatively unseen, as if they are inconspicuous consumers of their social surroundings. However irresistible this sensation may be, it is not to be trusted. The sensation of observing others while remaining relatively unseen is a mirage, obscuring the reality that we are all equally exposed to one another.”

Obviously these researchers have no interest in comforting any of us and this research is not at all comforting. What it does do though is offer an uncomfortable reminder to us—we are never off stage and certainly never off stage in the courtroom or in professional activities. And neither is anyone else.

Boothby EJ, Clark MS, & Bargh JA (2017). The invisibility cloak illusion: People (incorrectly) believe they observe others more than others observe them. Journal of Personality and Social Psychology, 112 (4), 589-606 PMID: 27977221

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Resting Bitch Face’ is, in case you missed it, the condition of having a neutral facial expression that people perceive as sour, unpleasant, and generally bitchy. Long before was RBF was a thing, a woman in my graduate school class told me that professors often thought she was angry because her face carried a flat expression when she was thinking. “It’s just how my face is!” she protested. Years later, allegedly not until 2013 (although it hit the Urban Dictionary in 2011), the phrase went viral.

It is a “real thing” say scientists, is seen in the famous and the not-famous, has caused some to become depressed, is mostly attributed to women but also seen in men, and some say it reflects contemptuousness. There is support for RBF from social media (sort of), it inspires creativity and career advice, and constant social directives to ‘smile’ or ‘be kind’. There have also been multiple (tenure-seeking) scientific studies on first impressions (which includes the impressions made about RBF particularly in women). RBF even resulted in a video parodying all those direct-to-consumer medical ads.

The term has many detractors who do not think it is at all funny (for the most part) and they wonder why women are expected be always smiling and inviting. They say it is a variation on the “Smile honey!catcalls from men congregated in groups as the woman walks by. As the name would suggest, it is a sexist distinction. There are slide shows designed to show multiple other meanings for expressions deemed to be RBF. Detractors also have career advice, decry the constant focus on women expending energy to appear pleasant to everyone, have created posters, have published articles on the costs of RBF at work, and made angry comments about health professionals giving advice on avoiding the RBF expression as you mature.

From a litigation advocacy perspective, we actually rely on first impressions when doing pretrial research with mock jurors and have blogged about the importance of the first impression and strategies for being more likable a lot here. But the concept of RBF is not something we’ve discussed, and frankly, it is a dilemma. Gravity and age give all of us a more RBF facial expression. We need to disconnect the initial negative impression some jurors may have formed due to RBF. Some good advice comes from, of all places, the Business Insider:

“I’ve heard people with resting bitch face sometimes tell me that they’ll contextualize it verbally for other people. That they’ll say, “I’m not unhappy with you. I’m not displeased with the situation. I just look this way.” And that’s a really honest way to talk about this facial expression that they’re giving, because facial expressions are so critical to how we perceive what other people are telling us.”

This is just part of the video transcript on the website (with the author publicizing his new book) and this may be a good way to talk to witnesses, or parties, or yourself (if you have RBF). The message is so similar to what my friend in graduate school said to me as we first met, “That’s just how my face is”. Humanizing the party/witness with the RBF can help jurors (many of whom will have RBF themselves) reshape their first impressions of him or her.

What is instructive is that the speaker on the video has a constant grin on his face (perhaps Resting Happy Face) that makes his spoken message much less empowering than the written transcript provided under the video.

When you are testifying in court, interposing a laugh, or learning to ‘force’ a slight lift to the corners of your mouth can negate the ‘resting’ expression that may look a bit sour or unhappy.

Perhaps the best advice to give to someone who is concerned about being observed (and judged for having RBF) is just this:

So listen to me. You do not have Resting Bitch Face. You just have a face. There’s nothing wrong with it. Don’t let anyone tell you otherwise.

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It’s been all about “fake news” for a while now and here’s a study telling us to just stop talking about it. Well, sort of. What it actually says is even when we have knowledge to the contrary, if we hear something repeated enough—we come to believe it. Hence, our recommendation that we need to all stop repeating fake news—even if our comment is on how ridiculous it may seem. It is as if the false statements morph when repeated enough from outrageous to familiar to having a ring of truth. Merely by repetition.

It’s a bit like the dictum we’ve written before to “change the narrative” and not use the same terms the opposition is using to describe something like “death panels” or figuring out how to debunk faked visual imagery. You don’t want to accidentally reinforce the ideas and images of the opposition but you do need to put forth your own narrative. Today’s research offers insight into just how a listener can know something to be false and yet, after hearing it repeated, accept it may be true after all.

As the researchers remind us, “repeated statements are easier to process, and subsequently perceived to be more truthful, than new statements”. Nazi Joseph Goebbels is often credited with a law of propaganda that would be another way to communicate the same idea as the researchers want us to understand: “Repeat a lie often enough and it becomes the truth”. While we may not believe this would ever happen to us, it definitely does with the researchers ultimately concluding that we have “knowledge neglect” and tend to support the conclusion that is easiest for us to support. It’s just too tiring, apparently, to actually think. Against the tide of fake news, it requires endless vigilance.

In this case, the researchers wanted to see if the “illusion of truth” (i.e., hearing falsehoods repeated) would over-ride “stored knowledge” (i.e., things we know to be true). For example, they offered two statements to participants:

The Atlantic Ocean is the largest ocean on Earth.

The Pacific Ocean is the largest ocean on Earth.

The researchers figured most people would know that the Pacific is the largest ocean on Earth and thus that elementary school factoid would be in the “stored knowledge” of most participants. (We questioned this assumption but we should note the participants in the two experiments were all undergraduates at Duke and thus perhaps more able to remember elementary school factoids than those of us who are slightly older.) Despite being fairly young, most of the participants did not put forth enough effort to ponder their prior knowledge and call up the facts—so, the illusion of truth worked. Sometimes. However, when participants did think about their stored knowledge, they chose the correct answer

The authors explain this finding by saying that we can all apply our stored knowledge to every bit of new information that comes to us, but this takes tremendous effort and energy. It requires us to assess the new information against other things we know or think we know. That requires a commitment to stay focused and costs the individual in terms of both energy and effort. We see this sort of fatigue and energy loss often in our mock jurors who are operating at full capacity to come to a decision on what is right during pre-trial research. They are thinking and want to come to the right decisions.

From a litigation advocacy standpoint, however, we have to realize this energy and effort is a limited resource.The energy and understanding of jurors are prey to the illusion of truth effect because our tendency is to use short-cuts in assessing how plausible something is as we hear it. Sometimes this works and sometimes it doesn’t. You can help jurors by using expert witnesses to teach them that something really is true—and it is a provable fact rather than simply a statement of opinion. How?

Start by having the witness ease them into the area that is key to their testimony, by having them first remind jurors of what they know, establishing that the expert relies on knowledge that they believe in. Give them the experience of “Hey—I know what s/he just said is true!” Then move the focus to increasingly unfamiliar territory, after building the credibility connection.

Have the expert witness cite scientific studies finding whatever statement they are testifying to is supportable by recent research. That broadens the connection from the juror to the research, using the expert as a conduit.

Go further by having that expert witness address what the opposing expert may say and why your expert  knows that to be incorrect (citing other research and scientific consensus rather than mere opinion).

What is most important is that you respect jurors’ ability to think and give them reason to want to expend the effort to evaluate the facts in the case for you and for your client. Don’t make this merely about which party is more likable or attractive (although certainly do what you can to portray your client as both likable and similar in values to the jurors).

While the researchers recommend future research focus on how to get people to rely on their own stored knowledge rather than repetition to ascertain truth—until that research is completed—your best strategy is to help jurors think through the facts and answer the questions that are likely to come up for them as they hear the evidence.

Fazio LK, Brashier NM, Payne BK, & Marsh EJ (2015). Knowledge does not protect against illusory truth. Journal of Experimental Psychology. General, 144 (5), 993-1002 PMID: 26301795

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Those of us who’ve been around for a while have heard this repeatedly. But, lest you think times are changing, here’s some sobering data from a March, 2017 report co-edited by a Michigan State University College of Law Professor.

From the beginning, this is a disturbing report. Here’s how it starts:

African-Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in “group exonerations”.

The report focuses on murder, sexual assault and drug crimes. To stay brief, we will give you highlights only of the murder statistics for Black defendants. Once you see those, we think you will want to review the whole of this very recent document.

Here are the statistics on Black defendants accused of murder.

Judging from exonerations, innocent black people are about seven times more likely to be convicted of murder than innocent white people.

African-American prisoners who are convicted of murder are about 50% more likely to be innocent than other convicted murderers.

The convictions that led to murder exonerations with black defendants were 22% more likely to include misconduct by police officers than those with white defendants.

In addition, on average black murder exonerees spent three years longer in prison before release than white murder exonerees, and those sentenced to death spent four years longer.

Many of the convictions of African-American murder exonerees were affected by a wide range of types of racial discrimination, from unconscious bias and institutional discrimination to explicit racism.

If you represent Black defendants, these are realities you know. The report is not that long and you can read it and see the consistency of how having black skin gives you less of a shot at justice. One day, we’d like to see the report telling us that courtrooms are color blind, but we are nowhere near that goal.

Samuel R. Gross, Maurice Possley, & Klara Stephens (2017). Race and Wrongful Convictions in the United States. UC Irvine: National Registry of Exonerations. 

Available here.

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