Researchers have studied this phenomena for years. We want to share two ways this concept is studied: attitude alignment between romantic partners and attitude alignment between strangers. The way strangers persuade or influence each other is obviously different than between people who know and trust each other. Or at least we have to hope so.

[Please put up with a bit of psychobabble here.]   It turns out the important variable is that of normative influence versus informational influence. Romantic partners tend to use normative influence—as in applying peer pressure aimed at the partner’s desire to be liked/loved—to obtain the expressed attitude change of their partner. Strangers, on the other hand, rely more on informational influence—focusing on issue-relevant matters and offering stronger arguments in support of their opinions.  Have you ever had your spouse or date annoyed at you for being hyper-rational when what they wanted was for you to be charming and cajoling?  There you go!  Or maybe that was just me…

When we apply this notion to jurors—who are generally strangers to each other—the importance of giving jurors the information to take back to the deliberation room becomes clear. Peer pressure to conform (the exertion of ‘normative pressure’) is less likely to be effective than focusing on relevant matters and offering strong arguments for their differing opinions (the exertion of ‘informational influence’).  For those jurors who are emotionally driven, they need more of the normative influence, but overall the informative is more powerful.

This past year, we heard a fair amount about ‘hold-out jurors’ who would not support a death penalty sentence (for example, here and here). The death penalty is a unique circumstance with strong feelings on either side and deeply held values that may make consensus impossible.

In litigation situations which are not culminating in literal life and death decisions, it helps to give jurors clear evidence and information that they can take back to the jury room.

• Go through the jury charge item by item and talk to jurors about the evidence you have presented that supports your desired finding on each issue.
  • When there are multiple pieces of evidence to support your assertions, remind the jurors of all of them.  Jury instructions may say that the verdict is about the quality of the evidence, not necessarily the quantity of it, but jurors often disagree.  They like piles evidence.
• Memorable visual exhibits and demonstratives can also support your case in the deliberation room. Remind jurors that a specific graphic shows the evidence for this specific issue on the charge.
• In case planning you want to start at the end (with the jury charge) to plan how you will present the case to the jurors. What evidence supports what aspect of the charge? What visuals can help jurors understand the relationships in this part of the charge?

Know what jurors need to know to apply informational influence and achieve true ‘attitude alignment’ in the deliberation room.

Davis, J.L. and Rusbult, C.E. (2001). Attitude alignment in close relationships. Journal of Personality and Social Psychology, 81(1), 65-84.

Related posts:

1. Simple Jury Persuasion: The ‘Scott Peterson Effect’—Displayed remorse and conviction
2. Simple Jury Persuasion: She reminds me of my Grandmother…
3. Simple Jury Persuasion: Beware what the other side will tell you…

• Lie-detection and neurolaw: do brain scans have a place in the courtroom?
• Brain Scan Evidence Rejected by Brooklyn Court
• fMRI lie detection and the Wonder Woman problem
• Can Brain Scans Detect Lying? Exclusive New Details From Court Hearing

Researchers are using brain scans for everything! They’re checking for brain activity in dead fish. They’re even putting people in brain scan machines with snakes which is just nasty.

Thankfully, two law professors are offering pretty straightforward information to help us weed through what makes sense and what doesn’t as more and more information on brain scans and neurolaw comes forward. Both pieces are available at no charge via SSRN:

1. Cherry-Picking Memories: fMRI-Based Lie Detection in the U.S. Courts by Jonathan R.H. Law.

This article discusses fMRI-based research techniques in the context of US federal courts. The fMRI is seen as providing data that is more prejudicial than probative. The authors then propose an approach to the Daubert standard and recommend that US courts wait a while before incorporating fMRI data into evidence.

2. Brain Imaging for Legal Thinkers: A Guide for the Perplexed by Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, and Rene Marois.

This article provides an introduction for legal professionals to brain imaging. It describes the techniques and methods used by fMRIs and then offers a tutorial on reading and understanding a brain-imaging study. Finally, the articles shares information on how to avoid misunderstanding brain images and how to recognize when others are misusing brain images in legal contexts.

And, a third piece has been put out entitled: A Judge’s Guide To Neuroscience: A Concise Introduction with multiple authors. This one is put out by the Law and Neuroscience Project and is written especially for judges. You may find this one the most user-friendly in terms of vocabulary but all three are worth a read if you would like to understand the shifting sands of the neurolaw area a bit better.

Read them. We will too. Then come back for more updates on Neurolaw.

Related posts:

1. On brains, brain damage, pedophilia and other things we don’t like
2. And the jury says: “His brain really DID make him do it!”
3. Neurolaw Update: Who’s in charge here—me or my brain?

Juror empathy: There are times when you want jurors who are high in empathy. Say, for example, you have a plaintiff horribly injured or a defendant who will suffer irrevocable harm if a verdict is awarded for the plaintiff. Rather than inquiring specifically about empathy—just listen. People who talk in a more melodic (or “sing-song”) voice or cadence are higher in empathy.  Sometimes you want them. Sometimes you don’t. Proceed accordingly.

Juror bias against Arabs: This is a tricky one. If your client is Arabic or Muslim, you have an uphill battle. No surprise there.  A recent article in the APA Monitor finds that there seems to be a tendency for religious bias to be involved in trials involving Arab defendants but there is little to no controlled research to examine anti-Muslim biases. What we would say here is this: be very careful. Talk to jurors about implicit bias and how associations made by opposing counsel with terrorist acts can bias them against your client without their conscious awareness. Talk to them about how to minimize this bias within themselves.

There is more we’ve seen lately. This is a sampling to get you started thinking about the novel applications of research findings you see reported in the mass media on a daily basis. What does it potentially mean for voir dire?

Related posts:

1. Inviting jurors to actually ‘speak the truth’ in voir dire (and why they often don’t)
2. Voir Dire: Do you like tall extroverted men?
3. Voir Dire Strategy: Who’s the authoritarian?

The Fortean Times article questions if anthropometrics is about to make a comeback. (Anthropometrics was originally the practice of measuring criminal’s faces to identify criminal facial traits for profiling.) The authors in the Fortean Times piece suggest that perhaps we should make efforts to understand rather than condemn the unattractive. They also admit they think this is unlikely. Commenters on the Fortean Times website mock the idea that the ugly are criminals. This makes it all the more disturbing that somehow, the unattractive are over-represented in our prisons since juries (made up of individual citizens) often have a hand in sending them there.

So how far has the ‘brain craze’ spread? Pretty far, it would seem. We can (sometimes, at least) understand the application to the law. But how about to career counseling?  Neurocritic blog writes about the Johnson O’Connor Research Foundation (JOCRF). As Neurocritic writes:

“The Johnson O’Connor Research Foundation is a nonprofit scientific research and educational organization with two primary commitments: to study human abilities and to provide people with a knowledge of their aptitudes that will help them in making decisions about school and work. Since 1922, hundreds of thousands of people have used our aptitude testing service to learn more about themselves and to derive more satisfaction from their lives.”

And then goes on to describe an ongoing research project the Foundation is involved in looking at aptitudes and brain areas.  Forty participants in the Foundation’s aptitude testing program were also given MRI’s and the volume of gray and white matter in various brain areas was measured. Ultimately, the authors concluded the sample size gave results that were simply too small to interpret meaningfully.

But that isn’t how the media saw it! Neurocritic goes on to point out that multiple websites picked up this project and presented it in such bold terms as “Brain Scans Could Guide Career Choices“.  It didn’t matter what the JOCRF researchers actually said. The information was sensationalized. (And in truth, Neurocritic blog didn’t make it horribly clear that the sensationalizing was done outside the control of the Johnson O’Connor personnel.)

It’s part of what happens when research is done that hits on a hot topic in the world. Right now, anything about the brain and using the brain to predict our criminality; our career choices; our facial features; and more—is hot. And it obviously is interpreted in ways that sell papers or result in website URL clicks.  Our longing for a rational basis for what we want to believe is pretty powerful.

The stronger our longing to find meaning in the data, the more easily we are misled.  When I was in graduate school there was a geeky joke about people so determined to validate their hypothesis that they “drew the curve and then plotted the data”.  In a world dominated by unsubstantiated reports of sensational rumor selling as science, you can’t be too cautious.  Find out what was really said. In the courtroom, when you show jurors what was really said and how it got distorted and confused—they are often able to dismiss all the hyperbole based on an incorrect interpretation of the facts.  If you want to debunk an appealing theory, you might want to discuss with your witness other examples of how headlines distort facts, and provide anecdotes to the jurors.  But to tell that sort of clarifying story, you have to go beyond the sensational headline of ‘ugly criminals’ or ‘career counseling by brain scan’ and allow for what may simply be a false validation of what we would love to see proved.

Related posts:

1. Maybe you better sweat the small stuff…
2. Beauty is only skin deep but the lack of beauty lands you in jail!
3. Predicting case outcomes? Lawyers are pretty dismal at it!

The Boston Globe just published a piece on how our moral judgments may come not from our religious/spiritual beliefs or from our deeply ingrained values but instead from our visceral reactions to what we see and hear.

Here are some examples:

• If you are more easily disgusted by bugs, you are more likely to see both gay marriage and abortion as wrong.
• If the room you are sitting in smells bad, you judge both controversial films and a person who didn’t return a wallet more harshly.
• Washing our hands makes us feel less guilty about our own moral transgressions and making us prone to feel disgust results in us seeing wrongdoing in totally innocuous stories.

The Globe helpfully shares specifics of some initial research on disgust:

“The father of modern disgust research is a psychologist named Paul Rozin. In a series of studies in the 1980s and 1990s that read like hidden-camera pranks, he set out to see how powerful the emotion was, and what exactly it was about disgusting things that repelled us. A professor at the University of Pennsylvania, Rozin served people cups of juice that a sterilized cockroach had been dropped into and offered others chocolate fudge shaped like dog poop. He asked whether subjects would wear a thoroughly laundered sweater that had once belonged to Adolf Hitler. In all those instances, most people refused, even though they knew the cockroach and sweater were clean and that the fudge was in fact fudge. They just felt disgusted.”

And there’s more there if you’d like to read about ‘fart spray’ or ‘eating your pets’—these are tenure track researchers living out adolescent fantasies. It’s gross. Which is pretty much their point.

And our point, is this: if you want jurors to judge innocuous actions harshly or you want to drive home the point about ‘bad’ behavior—use subtly disgusting analogies, metaphors or expressions. You want to tie ‘disgust’ to the other side. Quietly. Subtly. Let jurors think it was their own reaction. Yes. It is disgusting. But isn’t it interesting as well?

Related posts:

1. Got morals?
2. On Hispanic Jurors: Religiosity and Values
3. ‘Getting it’, powerful bias & a terrific closing theme

Rose Bakaysa (who won the $250K as her half of a $500,000 winning ticket she purchased with her 84 year old brother, Joseph) says during that 2004 fight they rescinded their gambling partnership. Her sister Theresa Sokaitis says they did no such thing and Rose is obligated to give Theresa half of the winnings. This fight has made it to the Connecticut Supreme Court and continues to this day. (Although the Connecticut Supremes found in favor of the lucky sister, Rose.)

Concurring Opinions blog posts the complete text of a letter Theresa sent to Rose and we post an excerpt below:

Rose,

I hope you get this letter because I have plenty to say. The most important thing is I am so sick over what is happening with you and I going to court. None of this would have happened if you were not so greedy . . . All I know is we should both be ashamed of ourselves. We are sisters. Going to court is not right. All I know is I am entitled to my share of the money and you know it. [snip]

Take care of yourself. Mom would be sick over all of this. It would never happen if you at least shared some of the money with me. Do you think I would have done that to you? Never . . .

See you in court.

Terry

As the sisters fight on, we point to a common counter-factual in Theresa’s (aka Terry) letter to Rose. “If only you hadn’t been so greedy”…

This line of thinking is a consistent one we see in jurors’ reactions to case narratives. We’ve written about this before in the context of helping jurors to see the frame through which you would like them to view your case. In the case of these sisters, there is the issue of a contract dispute but it’s likely secondary to the family relationship that has been severed.

It’s always sad when family matters end up in litigation. We’ve worked on a fair number of family disputes (usually between members of very wealthy families) and the mock jurors reactions are almost always the same. It has never mattered whether it was a dispute over inheritance, family business income, contractual disputes, or a high-stakes divorce. Mock jurors consistently express the same reactions you likely have in reading about the tale of these two sisters.

“This isn’t right. Blood is thicker than money. [?] They should put this behind them and start again.”

“Let’s throw this case out and direct them to a family counselor to repair the damaged relationships.”

“This is just ridiculous. They aren’t really fighting over the money. They’re fighting over their hurt feelings.”

In Texas (and everywhere else) families are important to jurors.  As  we have noted countless times before, jurors want to fix problems and make the world a better place.  There is no resolution to this dispute that will leave jurors feeling that the special bond between sisters is repaired, and that is, of course, what they want to see. While they are intrigued by the drama, they are ultimately heart-sick at the toxicity and finger-pointing. Jurors don’t feel good about being moral arbiters between family members.

As  an advocate for your client, you have a very fine line to walk.  Like the mothers before King Solomon fighting over the child, they want to see who is more open to higher values, to compromise, and healthy rapprochement instead of naked greed.   Jurors are going to watch you to see if you (and your client) are about grabbing the money or about what is fair and right.

Related posts:

1. “I can look into his eyes and just tell he is lying”

The chicken lives in Brenham, Texas along Highway 290 between the Dairy Queen and Michael’s Taxidermy. Every time I drive to Houston, I pass the chicken (yes, I know it’s really a rooster, but in my mind, it’s a chicken). I always think “I want that chicken” but I never stop. This week I stopped. And the chicken is not for sale until the price of metal in Mexico stabilizes. I want the chicken even more now that I know I can’t have it. They offered a 4-foot chicken and even a 2-foot chicken for a whole lot less than the 8-foot chicken will cost. But it wouldn’t be the same. Sometimes, only the real 8-foot chicken will do.

It’s beyond reason—my chicken fixation. Like the way sometimes attorneys choose to take on cases that really are not good ones. I remember a case we did a focus group on a number of years ago—a motorcyclist not wearing a helmet and ending up with a horrible head injury. His spouse said “he was responsible—he wore a helmet every time, except this time”. The mock jurors thought he knew better and this is what happens. I wonder what made the attorney choose that case?

Or the case of the high school teenager (a very good girl) who met a boy (who was actually a young man pretending to be a high school senior) on a social networking site and secretly met him (knowing her mother would not approve) and she was raped. Her mom thought the social networking site was responsible. Jurors thought the girl had made a bad choice and painful as it was, this was a natural consequence.  What we predicted, and what the focus group told us, was that the jurors were distressed by the failure of parental supervision.  That one was easier to see in terms of attorney investment: a horrible outcome and fears about how social networking sites were playgrounds for predators. But jurors saw it differently.

We’ve seen the newer research on how bad many lawyers are at predicting case outcomes and therefore, on choosing cases. But why is that? The researchers say women are better at it then men and that there are specific case patterns that make it tougher. While those things may be true—perhaps there are also some individual/internal factors at work.

I think sometimes we don’t want to believe we made a really bad decision. Or we are blinded for various reasons in our own history. So I was thinking about why I want this chicken. What are the motivations or early childhood experiences drawing me to an 8-foot chicken? And I thought of Paul Bunyan.

I grew up in Michigan’s Upper Peninsula, close to the border of Canada. We didn’t have 8-foot chickens up there. But we did have a 15-foot tall Paul Bunyan statue near my high school. I considered if the 8-foot chicken was a substitute for a Paul Bunyan. But then I came to my senses. I never, ever, even for a moment, wished for a Paul Bunyan statue in my yard. That would be tacky. But an 8-foot chicken? That’s art.

Related posts:

1. Apology redux: Doing it right (and doing it wrong)
2. When you expect a gorilla you often miss other unexpected things
3. On Hispanic Jurors: Religiosity and Values

Judges like to be listened to and obeyed.  No surprise there.  Part of my hope is that through the panel presentation, the judges were able to understand how society has changed over the last couple of decades, and how technology has become so second-nature to American citizens that many juror rule infractions are unconscious, while most others are well-intended, even if uninformed.  If the goal is to achieve higher compliance among jurors, we will need to do a better job in readying them for their duties.

There are two main categories of violators of judicial admonitions regarding use of technology among jurors.

• The Innocent and Oblivious.  Most who don’t follow the court admonitions don’t realize they are breaking the law.  After spending the evening surfing the internet, they would tell the judge “I didn’t do research!  I haven’t been to the library in years!”

This group needs to be clearly and fundamentally informed of the myriad ways we do research, including “just looking stuff up on the internet”.  Use common language.  Use personal examples.  Explain why it is important, and don’t stop with the issuance of behavioral demands.  Judicial edicts will not help this group obey the rules.

• The Angry and Defiant.  This second group is more problematic.  They include the subset of Americans who are angry and mistrustful of all branches of government, especially Federal.  The judiciary is not immune from their anger, and there is a great deal of suspicion about the validity of the court’s authority, and the rules by which the court plays.  “I hear what you are saying, but I will decide for myself what justice requires!”

To solve the challenge of this group, the court has to conduct, or otherwise allow, meaningful voir dire.  Asking rhetorical questions about whether they will “follow the law as given to them” is not useful, and for the Angry/Defiant jurors it is an example of the problem, not the solution.  If these people can’t feel that following the rules is an extension of their values and their beliefs, they can’t be counted on to abide by the rules or respect the judicial process. Send them home.

Also discussed during the panel discussion were problems with discoverability due to electronic open records, and the challenges associated with the fact that some jurors look up court documents, and some do searches on potential witnesses, parties, attorneys, and judges.  Reference was also made to a chilling article recently published in the New York Times, “The Web Means the End of Forgetting.”

The program was, in many ways, cautionary.  We all spoke as advocates and defenders of jury trials, and out of the conviction that it is not necessary for Web 2.0 to be another nail in the coffin of citizen participation in justice.  The word needs to get out that the jury system is not anachronistic, but some of our traditions (edicts instead of explanations) and assumptions (judges are obeyed) clearly need to be revisited.  If the federal judiciary is listening (and they were!), there is hope.

Related posts:

1. It’s not just jurors who are doing it
2. Twittering jurors and justice
3. Pandora’s Box: The internet, the power of ‘knowledge’, and irrepressible juror curiosity

It isn’t likely a woman who kills (say, a cheating spouse) will get away with it. But, she is more likely to get a shorter sentence than a man convicted under similar circumstances. This research was originally published in the Journal of Social Psychology. While male participants were more likely to opt for the harsher punishment (second-degree murder)—both male and female participants gave heterosexual female defendants significantly shorter length sentences than either heterosexual men or gay men or lesbian women.  Heterosexual women were also seen as “less guilty” and as having been “more provoked”.

While this sort of juror decision-making doesn’t really make sense with the evidence—that is, you should not be punished more just because you are a man—it is what it is. Beliefs about gender (e.g., men shouldn’t hurt women) seem to favor the female heterosexual defendant and a provocation defense could be a good strategy. So would we say “sometimes it’s easy to be a woman”? Maybe not that far. How about “here’s a time when it’s better if you’re a woman”.

Related posts:

1. Redux: Sometimes it’s hard to be a woman (with appreciation to Tammy Wynette, Linda Ronstadt and Anne Reed)
2. Voir Dire: Do you like tall extroverted men?
3. What’s good for the goose….who is that striking man in red?

But the desire to “look good” has certainly not gone away. We say we watch the network news much more often than we apparently actually do. Those who design questionnaires say we can make questionnaires that accidentally result in our encouraging respondents to agree with our questions. Respondents who don’t wish to carefully consider their answers fall victim to ‘satisficing’ by simply giving ‘adequate’ rather than ‘accurate’ answers.

The last thing you want is for a juror to engage in social desirability responding. Except when you do want them to do exactly that.  And there are times you don’t.

• If you want jurors in voir dire to honestly disclose bias, you have to embolden them to admit to attitudes that might seem critical, judgmental, or harsh.
• If you want to inoculate jurors against disqualification, they need to affirm their ability to be open minded until all of the evidence is in, even if they are frankly biased.  [We are reminded of the old story of the juror who, when questioned, assured the defense counsel that he would keep an open mind during the whole trial, and when they sentenced the defendant he could be fair then, too.]
• If you represent the plaintiff (who happens to be African American) in a personal injury case, you want social desirability responding.
  • You want to raise the issue of race overtly and ask jurors if it should make a difference that the plaintiff is African American. You want them to act in an unbiased fashion and you make unbiased responses socially desirable.
• If, on the other hand, you represent the defendant and the plaintiff happens to be African American, you don’t want socially desirable responding—you want bias.
  • So you do not raise the issue of race. And you hope the plaintiff doesn’t either. Because if you don’t, (and they don’t) the award, if any, will be lower and the finding against your client less severe.

It’s sad, really. How you tell the story and how you raise or don’t raise the flag announcing racism can determine the specific version of ‘justice’. We have clear preferences for justice being real and justice being color-blind (and blind to parties attractiveness, gender and education). But it isn’t. So we attempt to share the truth of what we know to be true to help you in your advocacy work.

Related posts:

1. Simple Jury Persuasion: When to talk about racial bias and when to stay quiet
2. Is racial bias fueling anti-Obama rhetoric?
3. It may not (usually) be overt, but it’s still racism