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“Glasses can’t hide neck tattoos”
It’s been more than a year since we first wrote about the “nerd defense”. Essentially, this is the practice of sticking eyeglasses on your allegedly dangerous defendant to communicate their innocence to members of the jury. But now, the Washington Post has finally picked up the practice and we thought we’d mention it again.
Here’s how the Post describes the evolving use of the “nerd defense”.
“Attorneys say inmates trade them before hearings, while friends and family sometimes deliver them during jailhouse visits. Some lawyers even supply them themselves.
They often escape notice — as was the case with another murder defendant who wore glasses with thick, black frames during a summer murder trial. Convicted of first-degree murder in August, his glasses never came up in court.
But the eyewear sported during the trial of Carter and his friends, which began its fifth week in D.C. Superior Court on Tuesday, has attracted attention. Court observers say prosecutors seized an opportunity to suggest to jurors that the defendants were dishonest in misrepresenting their appearance.”
Some would say this is simply another example of defendants cleaning up prior to court appearances–they come in dressed in suits and with haircuts–why not eyeglasses? Others say it is going too far–like the furor over the court order to pay for makeup to cover a defendant’s racist face and neck tattoos in Florida.
But there is a flaw in the strategy that is pretty odd to overlook. The entire premise of the ‘nerd defense’ is based on a distortion of the original research (cited below). The research suggests that jurors perceive the glasses-wearer as being smarter and less threatening, but it isn’t likely to have a significant affect on the verdict. When we initially blogged about the study, it was this misunderstanding that we found most interesting.
“Our line of research suggests that the presence of eyeglasses on a defendant may significantly affect verdict outcome. However, this effect is likely to be small and indirect. In both scenarios, the presence of eyeglasses increased ratings of defendants’ intelligence. For the violent crime scenario, this increase was associated with less guilty verdicts. Eyeglasses also decreased ratings of defendants’ as threatening; however, this decrease was not significantly related to verdict. Thus, how intelligent a defendant appeared was a better predictor of verdict outcome than how physically threatening he appeared. Future research should examine if other indicators of intelligence (level of education, vocabulary, etc.) produce the similar effects.” See the full article here.
In other words, the glasses had a small pro-defense effect. No get-out-of-jail-free magic. Yet, trial lore spreads and criminal defense lawyers have defendants in eyewear for court proceedings.
We don’t think jurors are that easily fooled. Instead, we concur with the commenter on the Washington Post article from whom we stole the title of this blog post: “Glasses can’t hide neck tattoos”! [They can’t hide character, either.]
Brown, M. J., Henriquez, E., & Groscup, J. (2008). The effects of eyeglasses and race on juror decisions involving a violent crime. American Journal of Forensic Psychology , 26 (2), 25-43
Should you maybe change your last name so people like you better?
So you may have read about the life-long curse of an unpopular first name. But there’s more. Before you run off to change your first name, you may want to consider your last name as well!
I’ve always liked my last name. It’s unusual and it’s phonetic. Hand. Rich. Simple. I never understood why people mangled it so much. Hendricks. Handrick. Handridge. By the time I completed my Ph.D., I knew I would rarely be Dr. Handrich. Instead, I went by Rita. When I worked in an environment where it was unseemly to be called by your first name, the residents of that facility gratefully called me “Dr. H”.
So seeing this research on how much more people like ‘simple’ and common names doesn’t seem particularly novel to me but then my last name is simple compared to the exemplar used by the researchers: Colquhoun.
We’ve talked about how women with masculine-ish sounding first names [like Jim] are more likely to become judges. But there is a whole lot more. Your first name portends both your income and educational level. Boys with girls’ names are more likely to be suspended from school. (But Johnny Cash told us that one long ago.) The popularity of your first name also predicts whether you will be a juvenile delinquent! Surely that is enough. Well, guess what. The simpler your last name, the more likely you are to advance in a law firm! Seriously? Let’s back up a bit and go through the research.
This research is based on the literature on processing fluency. In short, the same body of research that talks about why we don’t like to listen to people with accents speak English. It’s simply too much work. Researchers conducted five separate experiments to look at the effect of an easy to pronounce last name.
Experiment 1 found that people with easy to pronounce last names were seen as more likable.
Experiment 2 found that political candidates on ballots were more popular when they had easy to pronounce last names.
Experiment 3 found that when political candidates names were embedded in a newspaper story about a local election, the candidate with the easier to pronounce last name was deemed “more suitable” for the position than those with harder to pronounce last names.
Experiment 4 found that when participants rated both in group (a citizen of their own country) and out group (a citizen from another country) surnames, they found the easier to pronounce surname more “likable”.
Experiment 5 gathered a list of 500 US lawyers first and last names from law firm websites.
“To sample randomly but widely, we extracted 50 names from each of ten firms that varied in size from the largest US firm to the 178th largest US firm (using the website: http://www.ilrg.com/nlj250).”
The names were then rated by undergraduate research participants for ease of pronunciation and foreignness. The researchers determined that attorneys with foreign sounding names had likely been employed for shorter periods of time and thus only ran comparisons on those with Anglo-American sounding surnames. You know what they found. The easier to pronounce names were of those lawyers occupying superior positions in company hierarchies.
Wow. This takes that first-impression effect and ramps it up a few notches. All the witness preparation in the world can’t change the impact of your surname. Or can it? We would argue it can. You can diminish the impact of an unusual last name by simply asking the witness about pronunciation and offering a self-deprecating apology for inquiring. Share their understandable difficulty. The witness can then (charmingly) explain the pronunciation of their last name and offer a simplified version for use in court. (“If you prefer, you can simply call me Dr. C.”) If opposing counsel persists in struggling (genuinely or not) with the witness’ surname regardless of the encouragement to use the simpler version, the witness can make eye contact and smile at jurors and the damage is likely reversed. After all, making something difficult when an easy solution is offered starts to sound rude.
The most important thing is that jurors see someone being “different” as unimportant to them while they struggle with issues that really do matter. Jurors only ask that your client or witness communicates with them in a respectful, clear and comprehensible fashion. That’s a lot more important than a difficult to pronounce last name.
And by the way. It’s Hand-rich. But you can call me Rita.
Laham, S., Koval, P., & Alter, A. (2012). The name-pronunciation effect: Why people like Mr. Smith more than Mr. Colquhoun. Journal of Experimental Social Psychology, 48 (3), 752-756 DOI: 10.1016/j.jesp.2011.12.002
Romantic stories on every corner
Romance has no place in trial, right? Emotion is seen as manipulative, and what jurors really want is the facts. We have made the point repeatedly, and we stick by it. Sort of. But our position is nuanced.
Jurors want– even more than facts– to affirm their strongly held values. [I hope regular readers of this blog will find that theme familiar.] And sometimes those values can be viewed as emotional, romantic, or even sappy. I remember during the 1980’s, during a time when drive-by shootings and gang violence was on the news almost daily, a bumper sticker that offered the ironic slogan “Practice random acts of kindness and senseless beauty”. It was surprising, charming, hokey, and idealistic. But it made people smile. CNN’s extremely popular series on American Heroes, documenting everyday people doing extraordinarily generous things, is a blockbuster ratings booster, as well as a real tear-jerker. We like it.
Trial stories that engage jurors’ values and aspirations won’t change the facts. But they will have jurors rooting for the person who they attach to those values, whether it is a witness’ testimony, or a clients position. Modesty is a virtue, but so are generosity, humanitarianism, selflessness, heroism, valor, and courage. Most of us have a few isolated, proud moments that can fit into these categories without too much strain, and sometimes they can color people’s impressions even if it isn’t the dominant feature of the life story.
Everyone was deeply moved by “Schindler’s List”, without thinking about whether Oscar Schindler was a nice man, or a broader assessment of his life (which was not a uniformly flattering picture). What he did for his workers (concentration camp prisoners who were kept alive by his efforts) was extraordinary and admirable. The book and film are breathtaking. But it is also true that he was a member of the Nazi party, a spy for the Abwehr, and an opportunistic businessman. Yet he will be remembered always as hero and protector to 1,000 Jewish laborers kept alive to work in his factories. He did more for them than he needed to, and he became devoted to their survival. The story of Schindler’s List is a very noble chapter in a long, uneven, and complex life.
A witness at your trial can be “the guy who was in the Peace Corps” or “the woman who volunteers at the YMCA”, even though those facts are unrelated to the content of their opinion. The stories can reflect components of jurors’ strivings, even if the virtue is unrelated to the issue at hand.
Imagine a trial in which Oscar Schindler is charged with vehicular manslaughter in a drunk driving tragedy. Or being sued in a contract dispute at his enamelware business. Do you imagine the jury would view him the same way they would any other businessman? Would the deliberations be dominated by the trial issues or the character he displayed through his noble defense of his workers? I can only imagine the discussion being redirected to the facts, only to have jurors saying “Well that’s true, but do you want to punish the guy who also did…”
And sometimes they can sweep across the globe. This blog was actually inspired by a news article I read recently about the Little Free Library (see photo above). Three years ago Todd Bol wanted to create a tribute to his mother, who had been a school teacher. He constructed a weatherproof box, placed it on a post outside his home, and filled it with books. He put a small sign on it, and encouraged passers-by to take a book, and return a book. Neighbors loved it. They offered to build one of their own, and it spread.
It has gone viral. Now Little Free Libraries have found their way into at least 28 states and 6 countries (including Ghana, Australia, and Afghanistan. They are in front of homes, shops, and clinics. For those who are handy, Bol’s website offers suggestions and construction plans. For those who are not, you can buy a pre-built Little Library. If you aren’t handy but can’t afford one, they may be able to help you out. If you want, you can donate money to help the cause.
The take-away here is that this is a story of a modest virtue– honoring his mother– and a selfless spirit that will dominate Todd Bol’s identity for the rest of his life. I hope he is a wonderful person, but even if he isn’t, no jury in the world would ever forget this part of his story.
Feeling good about yourself? Allow us to introduce our mock jurors!
Most of us believe we are able to manage how we come across to others. Especially in a 6 minute time frame. So. It’s a wake-up call to have a group of mock jurors, representing a cross-section of your community– quickly and with eerie accuracy– rip aside the veil.
Recently we conducted a mock trial in which 6-9 minute excerpts from deposition videos were shown to mock jurors. And here is what the jurors said about various witnesses:
Fidgety, lots of “you knows”. Not confident in his delivery. He’s being methodical and accurate in his recollections but his style doesn’t leave overall good impression.
His hair was distracting. He slumped over too much, a bit disheveled.
If he says “you know” one more time, my ears will bleed.
Looks like Newt Gingrich but without a lot of confidence; very flat.
The repetition of use of words such as ‘you know’, ‘um’. It is possible that he felt nervous but seemed likely he was trying to recall a fabricated story.
When someone is telling the full truth, they often say it with more conviction and less hesitation.
Looked like he was chewing gum. Also that he looked to the side as if looking for assurance or guidance.
Shifty. I wouldn’t buy a car from this salesman.
This was not a good witness. He said I don’t recall too much and his body language made him look dishonest.
Doesn’t seem to recall too much or many of specifics. He really doesn’t seem to recall or have total recall of conversations.
Lots of “if” disclaimers. Seemed a bit defensive and foggy in recollections. Lots of pauses, as if trying to decide whether to be truthful.
He was constantly shifting around and moving his eyes like a kid caught by his parents. He did not give helpful information.
Mumbling makes him seem dishonest.
Came across as shady and arrogant.
Our clients (who were described in the comments above) tried to act amused by the criticism, but were clearly were taken aback. Were these jurors the first people to ever think such things about these people? Maybe not. But it was a level of candor that was rare indeed, and one that they absolutely had to hear. Speech patterns, bad habits such as fidgeting/gum chewing/poor posture, hairstyles, character aspersions–nothing was overlooked and no opinion was held back by the mock jurors. The witnesses had come across badly but it wasn’t because they were bad people. They were angry about being asked what they considered stupid questions for what they considered a frivolous lawsuit . They didn’t appreciate how their attitude could be used by the opposition.
The bad news was they were embarrassed and taken aback. The good news is they are ready for witness preparation practice. Their attorneys understand the need for a “back story” to prepare jurors for the reasonable distress that the clients feel about being wrongly accused.
It was difficult to sit through but ultimately very worthwhile. One of our long-time clients says “jurors almost always get it right” and we agree with that sentiment. And when you can give them the complete story without unnecessarily off-putting and distracting behavior, they have an even better chance of getting it right.
The hypercorrection effect: Correcting misinformation and false beliefs
“I know it’s true, I heard about it somewhere…”.
Simple words that strike such fear in the hearts of lawyers monitoring mock jurors from behind the infamous mirrored glass. We’ve all heard it and the absolute certainty in tone that accompanies this dubious but emphatic proclamation. And we’ve also heard that it’s nearly impossible to correct/modify/change those beliefs. Until now. There are many things for which we are grateful to social science researchers, but this development ranks right up there.
What is the hypercorrection effect? It’s pretty simple but flies in the face of what we tend to believe about the persistence of false beliefs. According to the authors, the hypercorrection effect refers to the reality that “errors made with high confidence are more likely to be corrected with feedback“. Unfortunately, “high confidence errors are more likely to be corrected, but they are also more likely to be reproduced if the correct answer is forgotten“. In other words, the corrected versions are easy to forget.
Duke university researchers wanted to see if they could modify firmly held (but inaccurate) information in students. So they had them respond to 120 different questions on basic science information (e.g., “What is stored in a camel’s hump?” or “How many chromosomes do people have?” or “What is the driest area on Earth?”). After each question, the students rated their confidence in that response–high or low–and then were given the correct answer. Some students were retested six minutes later and the others were retested one week later.
Those immediately retested corrected 86% of their errors. They were more likely to correct errors they had made with high confidence in their accuracy. [This is the hyper-correction effect.]
Those retested a week later also showed the hyper-correction effect but it was diminished in strength. These students only corrected 56% of their errors–they had simply forgotten the correct answers they received the week prior.
The researchers suggest that one retrieval of accurate versus false information is not enough to ‘stick’ in memory and suggest repeated practices. Followup research confirms this suggestion. So. What might this mean for litigation advocacy? We are so glad you asked!
There are multiple ways you can use the hypercorrection effect and this is a good thing since it apparently takes multiple corrections to make the effect stick! We will use one of the examples from the paper (camels and their humps) but this strategy can be used for any firmly held belief relevant to your case.
First, introduce the accurate information via expert testimony. “Contrary to popular belief. camels store fat in their humps and not water.”
Then express surprise, “Wait! You said camels store fat in their humps? I always thought it was water.”
And then the expert repeats the correct information.
You raise the correct information again later, “Mr. Jones, do you recall Ms. Simpson’s testimony as to what camels store in their humps?” Whether Mr. Jones says yes or no, have the relevant testimony re-read to reinforce the hypercorrection effect.
And finally, you return to the information again in your closing. “You may have been surprised to hear camels carry fat in their humps and not water. I know I was!”
You may even want to incorporate the correct information into an exhibit that jurors can examine throughout trial and in deliberations. We did a mock trial last weekend in which the mock jurors asked for just that–a three dimensional model of the invention and demonstrative exhibits that illustrated the two processes at issue so they could more easily retain in memory which was which. At trial, the jurors will be provided the tools that the mock jurors wanted. And they will be color coded for easy recall!
The idea is simply to repeat (carefully and not to the point of annoyance among jurors) the factual correction so that jurors recall the truth in deliberations.
Since you are dying to know–here are the correct answers to the science questions listed in this post:
What is stored in a camel’s hump? Answer: Fat.
How many chromosomes do humans have? Answer: 46 (23 pairs).
What is the driest area on Earth? Answer: Antarctica.
Butler, A., Fazio, L., & Marsh, E. (2011). The hypercorrection effect persists over a week, but high-confidence errors return Psychonomic Bulletin & Review, 18 (6), 1238-1244 DOI: 10.3758/s13423-011-0173-y
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