ABA Journal Blawg 100!
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Archive for the ‘Witness Preparation’ Category
You never forget your first time– & other things we learned this year
In 2010 we got our first nod from the ABA Blawg 100. After the steady work of researching, writing, and publishing three times every week, we were enormously gratified. Even… thrilled! This year, we were honored again and given a new category: Trial Practice. We smiled. And enjoyed the recognition of hard work on this blog over the past year. It wasn’t like our first time. But you never forget your first time!
Experts might be over-rated
We did so much pre-trial research this year it was a challenge to keep up with the blog! Several times we heard from our mock jurors that they were not that impressed with expert witnesses. We wrote about it once. And we learned that expert witnesses are often necessary in complex cases but that when you can bring in a credible “real person” who interacts with the issue on which you will have expert testimony–jurors will often respond positively and then use expert testimony to bolster their own reactions to the “real person”. So the question often becomes, “how can the expert witness support the experience of ‘real people’?”
Religious affiliation and commitment deserves more attention
The research on how religious belief and/or affiliation relates to decision-making has kept us busy this year! Evidence is mounting that we need to pay close attention to the nuances of this variable as we explore the values and beliefs that are central to jurors being able to “hear” our case. It isn’t so much about “being religious” as about how that designation translates into values, attitudes, and beliefs that frame jurors’ world views. We expect new research in this area will continue to emerge and you’ll see it here as we continue to explore the impact of religion in decision-making.
“Simple Jury Persuasion” is anything but simple.
We began our series some time ago with no prescient cognition that it would become an ongoing (and the most popular) feature of the blog. The research never fails to surprise and delight us! Whether it’s on how to activate the internal prosecutor, how to be seen as truthful by jurors, or when extraverts are a good choice for your jury, this series has become our favorite as well.
And more…
We’ve learned other stuff this year too. It’s part of what we love about this work. We crave new information, and through the blog we have the pleasure of sharing it with you, and hearing your comments. New cases, new facts, new areas to learn about and always the challenge of sorting out what is coincidence and what is a genuine case reaction, with the values and attitudes that attach to it. As we move on to 2012, we hope you will come along with us as we learn more and continue to share it with you.
Don’t confuse me with your ethnicity!
We dislike ambiguity. And most of us don’t like to have to think very hard, either. We’ve written about this as it relates to foreign accents or heavy regional accents with which we are unfamiliar. When we have to work to understand, we assume the speaker is not being truthful. The problem isn’t about us, apparently–it’s about them!
As it happens, many of us seem to have the same irritability about racial confusion. It seems to come down to whether we think it important to see racial categorization as an “either/or” situation. As in “is s/he Black or White or Asian?”. Despite having a Caucasian mother and an African father–Barack Obama is our “first Black President”. Halle Berry is “Black” despite having an African-American father and a Caucasian mother. Tiger Woods coined a novel term (“Cablinasian”) to characterize his Caucasian, Black, American Indian and Asian heritage.
To examine this more carefully, researchers designed a study involving photos of black, white and multiracial people. Participants were asked to identify the racial designation as quickly as they could.
In the first study, they found it took longer for participants to assign a Multiracial label than it did to assign either a Black or White label. They followed up with 5 additional studies with additional factors. All six studies had similar findings: we have a much harder time categorizing the Multiracial than we do in categorizing Black, White or Asian people. They do not conform to our stereotypes. We have to stop and think. And that ‘pause’ can be seen by the Multicultural person as reflecting (sometimes accurately so) intergroup anxiety or prejudice. You don’t fit into any tidy category. And for some people, that’s a problem.
These findings require only a slight variation on long-standing advice we’ve given to many clients. If there are issues that may cause confusion or distract jurors from the key message you’re trying to tell– make sure to answer the question. You naturally do that if the issue is relevant to the trial, but often it isn’t. Race is usually irrelevant, except for what distracting thoughts may be running through the minds of jurors.
Jurors may wonder, for example, about sexual preferences. Their curiosity is distracting and their thoughts wander. So control the story. If your client is multiracial, introduce that into evidence. Resolve the uncertainty and make your witness an intriguing person. Perhaps include this as a part of their introduction, making your client more ‘like’ jurors by discussing family, marriage or children. Of course, it depends on the specifics of your case.
The important thing is that we need to remember race is now a moving target. Most of us grew up with “black or white” designations. If it could possibly be a distraction to a juror–clear it up. Help them focus where they need to focus. On the evidence and the facts of your case.
Chen, J., & Hamilton, D. (2012). Natural ambiguities: Racial categorization of multiracial individuals. Journal of Experimental Social Psychology, 48, 152-164
Expert witness influence: Interrogation tactics and false confessions
The public does not believe the innocent falsely confess even in the face of coercive interrogation tactics. And research shows us that once we have a false confession–a domino effect can occur that results in increasing numbers of evidence errors and sometimes, wrongful convictions. Once a confession is given, under any circumstance or for any reason, jurors fight like crazy to minimize any contradictory evidence. They will insist that “There is no way in the world I would ever admit to a serious crime I didn’t commit. They caught him in a moment of candor, and now he’s trying to wriggle out of it.” Of course, they are skeptical of claims of innocence, but cling tenaciously to admissions against interest.
Is there a way to stop the cascade of flawed conclusions that start with the false confession? Can you help a jury to question the initial confession and thus the flood of flawed evidence following that confession? It’s undoubtedly an uphill battle but new research on the impact of expert witness testimony gives some insight into possible remedies.
Researchers conducted two separate studies. In the first, they explored whether interrogation techniques were perceived as coercive by jurors awaiting service in the Santa Ana branch of the Superior Court of California, (Orange County). Jurors thought harming the suspect or presenting false evidence was coercive but did not see it as likely to elicit false confession in an innocent suspect.
“Participants may believe that even though harming the suspect and presenting false evidence are highly coercive tactics, they can be resisted to some degree by guilty suspects and to a greater extent by innocent suspects.”
In the second study, researchers explored the impact of educating jurors about the potential risks of various interrogation tactics. Jury-eligible participants from a number of metropolitan Los Angeles, California colleges were given a condensed transcript of an actual legal case (People of the State of California v. Catarino Gonzalez, 2001) involving the murder of a police officer. For the study, the main piece of evidence presented was the confession of the defendant (disputed on grounds of coercion during interrogation). A defense expert witness testified about the impact of coercive interrogation on false confessions. This expert testimony focused only on the research and offered no opinion as to the reliability of the confession in question.
Questionnaires were completed by participants after reviewing Part 1 of the experimental documents (an introductory summary and transcripts of the interrogation and relevant evidence) and again after Part 2 (documents containing expert witness testimony on the research surrounding interrogation tactics and false confessions).
Prior to the expert testimony, 89.7% of the jurors found the defendant guilty. Statistical analyses showed the confession was the primary reason for their decision (prior arrests and gang affiliation were not statistically significant reasons for a guilty verdict). Further, despite most of them believing the interrogation process exerted a great deal of pressure on the defendant, most of them believed the interrogation tactics to be “relatively fair”.
After the expert testimony, 76.5% (p < .01) of the jurors found the defendant guilty. Yes– even though a unanimous verdict is required in California, this only improves the Defense case, it doesn’t solve the problem. Further, jurors were more certain (p < .001) of the accuracy of their decision, even though they found five of the eight interrogation tactics to be more coercive (p < .001).
Tactics found to be more coercive after expert witness testimony were: informing suspect of failed polygraph, repeatedly accusing suspect, offering an ultimatum to confess before polygraph, asking suspect to take polygraph, and magnifying the seriousness of the crime.
Finally, researchers looked at 9 aspects of the expert witness testimony to see which were persuasive in juror decisions. They all were.
“Encouragingly, the expert witness testimony seemed to have helped reduce this bias in our study. After the expert testimony, guilty verdicts were reduced and interrogation tactics were perceived as more coercive. As compared to those who did not change their verdicts, those who did, found specific aspects of the expert testimony to be influential in their decisions. This is an important finding because the testimony in this study was framed around the issue of situational factors that may unduly influence suspects’ decisions to confess. As such, the influence of the expert witness was not simply in the form of raising skepticism in the reliability of the confession, but rather it seems to have been in the form of an informational value. Together these results suggest that the expert testimony may help reduce attribution errors by highlighting the influences situational factors can have on behavior. This can lead to a more careful evaluation of confession evidence by jurors.”
In sum, expert witnesses can help educate jurors on the link between psychologically coercive testimony and false confessions. We would caution that the expert witness in this study is widely recognized as an expert in this area. Be sure your own expert is truly “expert” and take a look at this article (and the transcript of the actual trial) to see how extensively the police interrogation was evaluated and what jurors were taught about coercive interrogation tactics. It’s a terrific article with an important message: Given an opportunity to understand how confessions can be unreliable, jurors listen carefully.
Blandón-Gitlin, I., Sperry, K., & Leo, R. (2011). Jurors believe interrogation tactics are not likely to elicit false confessions: will expert witness testimony inform them otherwise? Psychology, Crime & Law, 17 (3), 239-260 DOI: 10.1080/10683160903113699
We made the ABA Blawg 100 list for the second year! Please take a minute to vote for us HERE under the Trial Practice category.
Helping jurors ‘see’ what eye witnesses said they saw
Eye witness identification is notoriously inaccurate and yet jurors rely on it heavily. Those working within the system decry this reliance but there are few remedies proposed. Until now.
Multiple studies have shown jurors are unable to distinguish between eye witnesses testifying at trial were correct in their identifications. Researchers thought juror inability to discriminate between accurate and inaccurate eye witnesses might be due to their assessment of witness confidence on the stand. Since the actual identification is typically made months or years before trial, the eye witness is often just testifying to what they said before, not to what they can say definitively from seeing the defendant in the courtroom. Opinions and memories (be they accurate or false) tend to crystallize over time, say these researchers, so most eye witnesses are going to be confident on the stand. Even if the witness is asked how long it took them to identify the defendant or how long it has been since the incident–jurors must rely on witness recall rather than their own assessment.
So the researchers planned a fairly involved experiment including conducting a mock trial with jurors either viewing courtroom examination of the eye witness only or examination of the witness in court plus viewing the video of the initial identification of the defendant (live lineup or photo lineup). Participants then filled out questionnaires including these questions, among others:
How likely is it that the witness identified the actual perpetrator as opposed to an innocent person?
If this witness’ testimony were the only evidence against the defendant, how likely would you be to convict the defendant?
Please rate the witness’ confidence about the identification.
How sure are you about this [verdict] decision?
Jurors who saw both the courtroom examination and the initial identification video were more accurate in identifying accurate versus inaccurate eye witnesses. Obviously, they found the defendant guilty more often when the eye witness was accurate versus inaccurate. They made fewer overall convictions than jurors who were not shown the video of the original identification. [And in fact, when jurors were only shown the courtroom testimony of the eyewitness there was no discrimination between accurate and inaccurate witnesses and no difference in the number of convictions jurors made based on eyewitness accuracy.]
The researchers recommend that all eyewitness descriptions of the perpetrator and the original identification task (whether lineup or photographs) be video recorded as trial evidence. They believe having videotaped identification will help multiple members of the criminal justice system. It could help police recall details about identification tasks while preparing for trial, could aid prosecutors in making decisions about whether to take cases with weak identification to trial, and could help jurors to assess the credibility of eye witness identifications.
This may well be a promising avenue for further exploration. Although discouraging that, according to the literature review, the videotaping of witness identification of defendants was recommended as early as 1992–the increase in concern about eye witness accuracy over the last decade could help with implementation of this sort of strategy.
Reardon, M., & Fisher, R. (2011). Effect of viewing the interview and identification process on juror perceptions of eyewitness accuracy Applied Cognitive Psychology, 25 (1), 68-77 DOI: 10.1002/acp.1643
Currently, you can see full-text of this article here.
We made the ABA Blawg 100 list for the second year! Please take a minute to vote for us HERE under the Trial Practice category.
Everyone knows you just can’t trust an atheist!
Last year we wrote an article on bias against atheists and how to mitigate those biases in court. It was a really interesting paper to research and write, as the vitriol in the bias against atheists is stunningly powerful and (seems to be) permanent.
This week we saw an article at Miller-McCune on a new research article regarding atheists and had to go take a look. What the researchers say is that we use religiosity as a signal for trustworthiness. If you have no religion, then you are deemed untrustworthy. And, as the researchers say, “trustworthiness is the most valued trait in other people”. This clearly does not bode well for general attitudes about atheists.
The researchers examined the relationship (in the public imagination) between atheism and perceptions of amorality. They did six separate experiments including one in which students read a brief vignette about a man:
“Richard is 31 years old. On his way to work one day, he accidentally backed his car into a parked van. Because pedestrians were watching, he got out of his car. He pretended to write down his insurance information. He then tucked the blank note into the van’s window before getting into his car and driving away.
Later the same day, Richard found a wallet on the sidewalk. Nobody was looking, so he took all of the money out of the wallet. He then threw the wallet in a trash can.”
Then participants were asked if this (amoral) man was more likely to be: a Christian, a Muslim, a rapist, or an atheist. Research subjects chose atheist and rapist as most likely. And they chose atheist in similar numbers to rapist. If you are wondering how in the world anyone would attribute any of these things to the behavior, we sympathize with you. But the research is all about whether a form of amoral or immoral behavior is seen as consistent with antisocial behavior or religious beliefs.
Other experiments included a workplace choice between a religious candidate and an atheist with totally matching credentials. The positions they were considering were a high-trust position (child care) and a low-trust position (waiter). Participants chose the religious candidate for the high-trust (childcare) position and the atheist for the low-trust (waiter) position.
In another study, ‘Richard’ suffered from some pretty gross and visible physical ailments. You guessed it– he was seen as more likely to be an atheist. The results are disturbingly consistent. We just don’t trust atheists.
The authors indicate these are the first studies to look at what exactly underlies anti-atheist prejudices. They found (perhaps not surprisingly) in 5 of the 6 studies that belief in God was a potent predictor of atheist distrust. One of the hypotheses the authors identify is this:
“The perceived norms of atheists might simply be more threatening to religious individuals that those of other groups. This is likely because, although religious people might infer that ethnic out-group members of homosexuals hold norms that differ from their own, atheists might be seen as holding norms that are directly antithetical to their own. Alternatively, atheists may be distrusted because people are unsure exactly what atheists believe. A Christian, for example, might be able to infer some of a Muslim’s norms, but an atheist might be viewed as a wildcard: religious people might distrust atheists not only for the norms they are perceived to follow but also for their perceived lack of norms.”
In other words, the atheist is seem by the public as unpredictable and likely without moral standards. We just don’t know what they might do! Atheism is such an affront to what religious people believe that atheists tend to be dehumanized.
After we wrote our research article on anti-atheist prejudices, we got a number of heartfelt emails saying “thanks” for writing an article that brought to light what was previously a dirty secret. The writers of those emails were touchingly human and clearly not used to be treated as such in writing.
As a trial lawyer, if your client is an atheist, there are steps you need to take to protect them and minimize prejudice against them. We outline those in our article and hope you will educate yourself on the intensity of the anti-atheist bias in this country. It’s pretty astounding.
Gervais WM, Shariff AF, & Norenzayan A (2011). Do you believe in atheists? Distrust is central to anti-atheist prejudice. Journal of Personality and Social Psychology PMID: 22059841
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