Deliberations

A Good Week For Research

It's only Tuesday, but the news this week is already unusually rich with research of interest to jury folks.  Samples:

--The power of rudeness.  Via BPS Research Digest, the blog of the British Psychological Society:  "Seeing one person be rude to another can stunt a person's creativity, impair their mental performance and make them less likely to be civil themselves. "  The study is Porath and Erez, "Overlooked but not untouched:  How rudeness reduces onlookers’ performance on routine and creative tasks," in the May issue of Organizational Behavior and Human Decision Processes.  Maybe that's why your opponent's style sometimes seems like it's working.

--Alcoholics among us.  From Jane Brody in the New York Times, startling numbers on the alcoholics who "are able to maintain respectable, even high-profile lives, usually with a home, family, job and friends."  It's millions.  And "serve on juries" is something else they can do.

--Holier than thy client.  Also from the Times, a collection of the research showing not only that people "tend to be overly optimistic about their own abilities and fortunes" -- we've "long known" that -- but that "this self-inflating bias may be even stronger when it comes to moral judgment."  If you've watched mock jurors tell each other what they would have done in the crisis the defendant was faced with, this won't come as a surprise.

--Bad mood, good memory?  From the Situationist blog, a study where "subjects were able to remember three times as many items on cold, windy, rainy days when there was sombre classical music playing as they were when conditions were sunny and bright.  Rainy-day shoppers were also less likely to have false memories of objects that weren’t there[.]"  If your case is complicated, the solemn courtroom atmosphere might be a good thing.

Just some things to think about.

(Image by Jim Sher at http://www.flickr.com/photos/blyzz/407850690; license details there.)

Susan Boyle In The Eye Of The Beholder

You've seen it, right?  Tens of millions of people have.  It's the video of plain, middle-aged Susan Boyle, stunning the "Britain's Got Talent" judges and then the world with her lovely voice. 

Exceeding expectations

There are at least two jury lessons in her story.  One is already covered at the Situationist and at Eric Turkewitz's New York Personal Injury Law Blog, so I can be quick with it:  expectations are critical.  If Susan Boyle had been beautiful, beautifully made up and coiffed, and presented to us as a professional opera singer, no one but her family would have watched her YouTube video.  (The Situationist describes an experiment "in which persons listen to acclaimed violinist Joshua Bell–either while he is disguised as a subway peddler or while performing normally at a symphony," and the difference "enormously influences how they regard his music.")  It's what some researchers call the "talking platypus phenomenon" -- the idea that we judge people not on their skill and talent alone, but on their skill and talent as compared to what we expected. 

Eric explains ways to use this knowledge.  It's not only the strategic tool he describes, though; it's also a confidence builder.  If you're, say, a woman, and concerned about the research suggesting that jurors perceive male lawyers as more competent than women, here's your answer.  Exceed expectations -- and if you're good, you will -- and the research suggests you'll actually get a "bump" in jurors' perception.  The same is true for anyone whom jurors might judge harshly at first sight.

The eye of the beholder

The second lesson doesn't have much to do with Susan Boyle -- which is the point.  When everyone is talking about somebody, it's easier to see something we often miss.  Each person is different, and therefore each person's impression of the thing we're describing is different. 

So Susan Boyle changes depending on who's looking at her.  The New York Times notes that she's "become a heroine not only to people dreaming of being catapulted from obscurity to fame but also to those who cheer her triumph over looks-ism and ageism in a world that so values youth and beauty."  Meanwhile to an unromantic Milwaukee Journal/Sentinel business reporter, she's a sales driver; an article there this week describes how her fame has boosted local sheet music sales.  An op-ed piece in the Washington Post collects other reactions. 

My favorite demonstration of the Susan-Boyle-is-what-you-make-her effect was in the roundtable discussion on This Week With George Stephanopoulos on Sunday.  (The Susan Boyle conversation starts with about 2:40 left in the video.)  From four well-known pundits, we got four Susans: 

• To Peggy Noonan, she was about reality television and the way we respond to it.  "Sometimes you know you're being manipulated a little bit; you know it, you watch, and you still burst into tears."

• To George Will, she was all that's great about democratic government.  "It plays to a perennial belief that democracies are bumpy with undiscovered talent, and it happens to be true."

• To Sam Donaldson, she invoked our personal ambitions.  "All of us Clark Kents want to be Superman.  We want more Harry Trumans to be great presidents.  I myself want to sit down and play piano at the Kennedy Center, and play so that Rachmaninoff's ghost turns up his ears."

• To Cokie Roberts, she was about authenticity.  "I couldn't get over the contrast between her and the judges.  . .. They were Barbie and Ken; they were the most fake-looking people I've ever seen.  And there she was, this totally genuine person.  It was so refreshing."

To me, she's about us -- how different we are, and how differently we see things.  One of the biggest mistakes lawyers make in jury trials is to assume that if they like the key witness and think the evidence is strong, the jurors must react the same way.  They won't, because each juror is different.  Call it the Rule of Susan Boyle.

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Related posts here:

• Beauty And The Juror, Parts I and II

• Sometimes It's Hard To Be A Woman

• What We Are Is What We See

(Photomosaic image by Gilberto A. Viciedo at http://www.flickr.com/photos/viciedo/3450613461/; it's amazing at full size, tiny tiles of butterflies, flowers, and birds.  License details on the Flickr page.)

Sleepers

Two jurors who fell asleep have been replaced at an Ohio financial fraud trial heavy in testimony about bookkeeping and check-writing.

That's the opening line from an Associated Press story out of Akron yesterday, but unless you're following that particular trial (of former executives of Evergreen Homes), the main thing that's newsworthy is that these sleeping jurors made the paper while other jurors slept in trials all over America. 

It's been covered here before, but it's worth revisiting.  If you're a trial lawyer, you've seen jurors sleeping.  The key points are:

1.  People are tired.  Really, really tired.  They're holding two jobs, or staying up late with kids, or standing up all day, or all those things.  Put one of those folks in a chair, in a quiet room, with no talking required or even allowed, and it's amazing they stay awake as long as they do.  And like many things, our national fatigue is getting worse, not better.  The National Sleep Foundation's 2009 survey concludes that "The number of people reporting sleep problems has increased 13% since 2001. In the past eight years, the number of Americans who sleep less than six hours a night jumped from 13% to 20%, and those who reported sleeping eight hours or more dropped from 38% to 28%."  (The National Sleep Foundation is funded in large part by mattress and drug companies, but they claim research independence, and even if you discount their numbers, people are tired.)  On top of our other worries, nowadays we're losing sleep over the economy.  "One-third of Americans are losing sleep over the state of the U.S. economy and other personal financial concerns," the NSF said in March. 

2.  Fatigue affects decisionmaking.  Fatigue not only impairs memory and learning generally (Newsweek had an article last week summarizing recent research), but a a 2007 study suggests it specifically impairs moral judgment. 

3.  You can often spot fatigue in voir dire if you remember to look.  Tired jurors often look tired, will say they're tired, and will make you tired when they describe what they have to do in a typical day.  You'll miss it if you're focus only on themes and attitudes in jury selection. 

4.  Sustained sleepiness is reason to dismiss a juror.  In most courts and most states, this is a no-brainer.  A dozing juror can't hear the evidence and thus cannot decide the case on the same evidence as the others.  If a juror who keeps falling asleep isn't dismissed, it's usually because a lawyer forgot to ask, unless the trial has gone on so long and the panel is so small that the dismissal would mean (or threaten) a mistrial.

5.  You might be boring.  As we've noted, people are tired, so if a juror falls asleep while you're talking, it's usually not entirely your fault.  But think about whether it partly is.  The juror was awake earlier, right?  And if one juror slept through your expert's testimony, how many others daydreamed?  Even if your trial is "heavy in testimony about bookkeeping and check-writing," like that Akron fraud trial, you need to figure out how to make it interesting -- preferably before anybody falls asleep.

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Related posts here:

• Are You Sleeping, Brother Juror?

• Sleep And Moral Judgment

(Photo by Tambako the Jaguar at http://www.flickr.com/photos/tambako/853748895/; license details there, and follow the link to see the rest of his animal pictures, which are wonderful.)

The Price Of A Poker Face

It may be the single most frustrating piece of jury advice for young lawyers:  "Watch the jury."  Watch them what?, I used to think.  They're just sitting there!  I felt like I could watch the jury for hours and never see a facial expression.

There are many exceptions, but often, jurors keep very straight faces through even the most disturbing evidence.  A new study suggests this may be harder on them than it is on you, enough so that it might make a difference in your trial.

. . . and now we'll show you -- oh yuck.

This would have been a fun study for ten-year-old boys to plan.  The researchers asked half their subjects to hold a pen between their lips, not telling them the reason for this was to hold their facial muscles still.  Then they showed all the subjects a series of really disgusting images, like a dirty toilet or film of an amputation.  (The press release doesn't say how much they paid the subjects, and I can't find the paper itself.  I hope it was a lot.)

The subjects who couldn't move their facial muscles experienced more negative emotions and held them longer, in what lead researcher Judith Grob called a "negative spiral."  This happened even though the subjects didn't realize that their facial expressions were being blocked by the pen.

The researchers wonder about the implications for Botox®.  I'm wondering about the implications for jurors.  They don't all succeed, but most jurors try very hard not to let their emotions show in court.  When the evidence is difficult, does this effort itself make them react more strongly?  And if so -- or if maybe -- is there something you should do? 

Think about voir dire questions asking not just how jurors feel about disturbing images (you'd ask that anyway, right?), but also how they react, whether they tend to be stone-faced or expressive.  Think too about a sentence in opening statement that gives them permission to react in the moment.  "I know we'll be able to see on your faces how difficult it is to look at those pictures," you might tell them.  For one or two, it might be that momentary "rehearsal" that will let them respond fully when the pictures come. 

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Related posts here:

• A Jungle In There: The Dysfunctional Jury

• When They Look Away

• Jury Notes From Elsewhere (see item one, "Helping jurors with sad facts")

(Photo by Phillie Casablanca at http://www.flickr.com/photos/philliecasablanca/2052720494/; license details there.)

Looks Can Kill

These studies keep coming up, probably because it’s so hard for us to accept what they teach us.  It matters what you look like, and what your client and witnesses look like.  It matters so much that both children and adults can accurately pick the winners of real elections – in countries other than their own where they know nothing about the candidates – just by looking at the candidates’ pictures.

The latest study like this is in the new Science magazine, and came to me via BPS Research Digest, the blog of the British Psychological Society.  (Subscribe here; it’s a great blog.)  From BPS:

John Antonakis and Olaf Dalgas presented photos of pairs of competing candidates in the 2002 French parliamentary elections to hundreds of Swiss undergrads, who had no idea who the politicians were. The students were asked to indicate which candidate in each pair was the most competent, and for about 70 per cent of the pairs, the candidate rated as looking most competent was the candidate who had actually won the election.

They did the same thing with kids, asking the question in kid terms -- which candidate they’d choose to captain their ship from Troy to Ithaca.  The kids picked the election winners to be their ship captains.  (In the picture above, it was the calm-looking engineering type on the right, not the handsome but unpredictable-looking guy on the left.)

She doesn’t look like an engineering professor . . .

There’s a reason why we use the phrase “straight out of central casting.”  When we see someone, we immediately and usually unconsciously judge not just her looks, but her character, building an entire personality based on looks alone.  Thus jurors think they know something about what you’re like before you stand up in voir dire.  They’ve formed a sense of what your client is like long before he takes the stand.  If your client is a criminal defendant who isn’t testifying, they form a sense of what he’s like without ever hearing him speak at all.

The lessons for lawyers in this are the same as always.  Don’t think you’re immune.  Understand the visual impact you and your witnesses make, and if it needs to be changed, change it.  And if your witness looks different from what the jury needs to understand she really is, spend extra time to make sure her real qualities come through.  Looks matter.

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Related posts here: 

• Beauty And The Juror, Parts I and II
• Overweight Jurors Are . . .
• How To Be Better Looking

If It's Difficult, It Must Be Important

 Keep it simple, they say.  Maybe not, or maybe not always.

I’m reluctant to generalize much from this study, but it’s interesting.  University of Chicago psychology professor Aparna A. Labroo and Ph.D candidate Sara Kim wondered how people respond when you make something difficult. 

They assigned each of their research subjects a “goal” – either feeling good or being kind – and then had them watch an ad for something that might help them reach that goal, either chocolate (for the “feeling good” group) or a children's charity (for the “being kind” group).  The difference was that half of each group saw an ad that was clear and easy to read, while the other half’s ad was blurry and hard to read.

Whatever it is, I want it

If the “keep it simple” advice is always right, you’d think the folks who saw the clear, easy ad would respond to it more, right?  That’s not what happened.  The blurry ad for chocolate made subjects want chocolate more than the clear one did.  And the blurry ad for the charity made subjects want to donate more.

Labroo and Kim acknowledge – and provide a useful list of – prior studies finding that the easier something is, the more we like it.  But the reverse is true, they argue, when we’re trying to achieve a goal:  “Perception of high effort arising from subjective difficulty of processing the means makes it appear highly instrumental for goal achievement.”

That feels right, when you think about it.  When we’ve had to really work at something, we naturally think it was important to our success, if only because we’d hate to have to explain why we worked so hard to get it if it wasn’t important. 

Keep it simple anyway

But when the goal in question is a jury’s effort to understand a complex case, don’t think this research means you should blur and obscure your most important points.  After all, if the researchers had blurred their ads even more, at some point the subjects would have given up and stopped trying to understand them.  You don’t know where that point is, and it’s different for each juror.  You’re in trouble if you leave some behind in an effort to challenge the rest.

One lesson you probably can take from a study like this, though, is that you don’t need to oversimplify.  Lawyers are often tempted to skip difficult areas, even if they’re central.  You probably don’t need to do that.  Jurors enjoy learning – and once they’ve gone to the trouble of learning what you’ve taught, this study suggests they may value it even more than if it had been easy.

The paper is “The ‘Instrumentality’ Heuristic: Why Metacognitive Difficulty Is Desirable During Goal Pursuit” (gotta love those social-science titles), in Psychological Science.  At least right now, the paper is on line in full.

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Related posts here: 

• To Persuade Jurors – Confuse Them?
• The Jelly Bean Theory Of Keeping Jurors’ Attention

(Photo by Casey Lehman at http://flickr.com/photos/islandfreedom/2891290813/; license details there.)

Sometimes It's Hard To Be A Woman

"Being a woman is a negative, all other things being equal, but all other things are never equal."

That’s me talking, and I can explain.  I was quoted last month in an article by Nora Tooher in Lawyers USA about challenges women lawyers face in the courtroom.  (The article was inspired by Elizabeth Parks-Stamm’s article in the November issue of The Jury Expert about how female jurors respond to successful women; Nora found me because I wrote a short comment to Ms. Parks-Stamm’s article for TJE.)

It’s a negative

It’s hard for women lawyers to hear, but it’s true.  There are exceptions, but when social science researchers isolate lawyer gender in mock jury experiments, some have found that male lawyers do better.  The main two studies I’m aware of are:

• Hahn, Peter W. and Susan D. Clayton, 1996, “The Effects of Attorney Presentation Style, Attorney Gender, and Juror Gender on Juror Decision,” in Law and Human Behavior.  College student subjects read a written case summary and then saw a videotape of the purported defense lawyer examining a witness.  The defense lawyer they saw was passive or aggressive and male or female, four permutations in all.  Aggressive lawyers did better, and male lawyers did better.
• McGuire, Mary V., & Bermant, Gordon, 1977, “Individual and Group Decisions in Response to a Mock Trial: A Methodological Note,” Journal of Applied Social Psychology.  When the defense attorney in a mock murder trial was a woman, jurors were less likely to vote not guilty.

(I’ve seen one other article cited for the proposition that women struggle in the courtroom, but I don’t have either a copy or the abstract.  It’s Hodgson and Pryor, 1984, “Sex Discrimination in the Courtroom: Attorney’s Gender and Credibility,” in Psychological Reports.)

It’s a positive, sometimes

At least two other studies suggest a different gender effect in the courtroom:  an advantage, in rape cases.  Obviously in these cases the defendant is almost always male, the victim almost always female, and the crime itself sexual.  Gender is practically bouncing off the walls, and the way it all works together is being studied from several directions right now.  The two attorney gender studies are:

• Villemur, Nora K. and Janet Shibley Hyde. 1983. “Effects of Sex of Defense Attorney, Sex of Juror, and Age and Attractiveness of Victim on Mock Juror Decision Making in a Rape Case,” in the journal Sex Roles.  Mock jurors heard audiotape of a rape trial.  Here the women defense lawyers did better to the men; 71% of them got acquittals, while only 49% of the male defense lawyers did. 
• Plourd, Brian J., masters' thesis study, 2007, The Effects of Alcohol and Attorney Gender on Perceptions of Sexual Assault Cases, Central Connecticut State University.  When mock jurors heard that alcohol was involved in a sexual assault, they were more likely to find the defendant guilty – unless the defense lawyer was female.  “[S]ignificantly fewer respondents perceived the defendant as guilty in the alcohol scenario when the defense attorney was female as opposed to male.”

It’s neutral, or might be

Three studies I know of did not find an effect of attorney gender.  In each case, however, the study was testing something else as well as gender, and I’m left wondering what would have been different if they had tested gender alone:

• Cohen, David L. and John L. Peterson, 1981, “Bias in the Courtroom: Race and Sex Effects of Attorneys on Juror Verdicts,” in Social Behavior and Personality.  In a study varying the lawyer’s race and sex, white lawyers did better, but gender had no effect.
• Barge, J. K., Schlueter, D. W., & Pritchard, A. P., 1989, “The effects of nonverbal communication and gender on impression formation in opening statements,” in Southern Speech Communication Journal.  I only have the abstract on this one, which says the conclusion is that “attorney gender may not influence the impression formation process in the courtroom.”
• Janet Sigal et al. 1985, “The Effect of Presentation Style and Sex of Lawyer on Jury Decision-Making Behavior,” in Psychology: A Quarterly Journal of Human Behavior.  This study varied both gender and style -- aggressive, assertive, or passive.  Assertive and aggressive worked better, for both men and women.

Many, many disclaimers are in order here.  A few of them are:

• Many of these studies are quite old.  A lot has changed in gender roles and perceptions since the 1970s and '80s, although I'm not sure we've evolved in a straight line toward equality.
• The subjects in these studies are almost always college students, because they’re handy for the researchers.  Your thoughts about gender have changed as you’ve gotten older, right?  Theirs will too, and these studies don’t say how.
• There is no such thing as a definitive mock trial experiment.  To reach any scientific conclusion, you must isolate the factor you’re looking at; but real trials never isolate any factor. 
• Same point, but from the lawyer’s point of view:  Don’t give up – or, if you’re a man, get confident – over the studies where men did better.  All things are never equal.  I kind of like the way I said it later in the Lawyers USA article, so I’ll just quote myself:  You can gather better evidence, present it more clearly, pay more attention to jurors and understand your particular jury and what might appeal to them better. 

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If you know of other studies that should go on this list, please do let me know. 

Related posts here:

• When Women Judge Women (on a different article by Elizabeth Parks-Stamm)
• Women Lawyers, Juries – And Stress?
• Asking For Forgiveness
• Beauty And The Juror, Parts I and II

(Photo by at http://flickr.com/photos/binaph/571756665/; license details there.)

Women Lawyers, Juries, -- And Stress?

At a litigation low point many years ago, my frustrated client stammered around for awhile and finally sighed, "I can't help wondering if this would be going better if you were wearing pants."  He meant if I were a man; women lawyers wore skirt suits all the time in those days.  I forget my exact response, but I'm pretty sure it wasn't the one that was really in my mind, which was "Sometimes I wonder that too."

In a year when every possible facet of the Gender Issue is being played out in the nightly political headlines, we know the question is still valid.  It's so loudly and omnipresently valid, in fact, that it's easy to tune it out sometimes.  That must be why the article that most recently caught my attention about gender didn't have anything to do with the presidential election.  It was a psychological study about gender in the workplace.   Both male and female employees reported more stress -- more headaches, more fatigue, more "psychological stress" -- when they were supervised by a woman than when they were supervised by a man. 

Women especially

I don't mean to be depressing.  I really don't; there's plenty else to be depressed about these days.    And I'll admit there's a small ray of light in the study's finding that for male employees, the stress difference disappeared when they only had one boss.  But female employees were consistently more stressed when they worked for other women.  Here are the overall findings, from the study's press release:

Scott Schieman and Taralyn McMullen of the University of Toronto reviewed the psychological distress levels and physical symptoms (e.g., headaches, fatigue) of workers who were managed by either two supervisors (one male, one female), one same-sex supervisor or one supervisor of a different sex.

The findings revealed that women working under a lone female supervisor reported more distress and physical symptoms than did women working for a male supervisor. Women who reported to a mixed-gender pair of supervisors indicated a higher level of distress and physical symptoms than their counterparts with one male manager.

The researchers also found that men working under a single supervisor had similar levels of distress regardless of their boss’ gender. When supervised by two managers, one male and one female, men reported lower distress levels and fewer physical symptoms than men who worked for a lone male supervisor.

Do jurors feel the same?

Is this relevant to female trial lawyers?  It sure feels that way.  Although some research goes the other way, there are plenty of studies suggesting that all other things equal, juries respond better to male lawyers than to women.  (See the notes below for links to a few, and note well the caveat in the next paragraph.)  If it's true that people literally experience stress when they take direction from -- or, by analogy, listen to arguments and cross-examination by -- a woman, well, that could explain a lot.

Of course, that doesn't mean that women lawyers are always, or even ever, at a disadvantage in the real courtroom.  Most obviously, all things aren't equal in real trials.  Strength of evidence is by far the strongest factor in predicting jury verdicts, and then there are all the other moving parts:  the lawyer's skill, her personal qualities, the impression her opponent makes, the individual jurors, the issues in the case, and so on.

The contrast effect

In addition, a woman lawyer who performs better than jurors expected her to may actually have an advantage.  The jury consultant Reiko Hasuike explained this "contrast effect" in a 2000 article in The Practical Litigator, "Credibility and Gender in the Courtroom:"  "[I]f a woman advocate is seen as being more competent than expected, she will also be considered more competent than she actually is, because her perceived competence is outside of the expected range."  (I don't think there's a free link to the article, but it's on Westlaw.) 

With the vice-presidential debate scheduled for tomorrow, I don't think I'm the only one thinking about the contrast effect tonight.

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Notes:

1. Just for the record, we did win that trial where the client wished he'd hired a man.
2. Studies suggesting that attorney gender affects jurors' thinking include Nelson, The effect of attorney gender on jury perception and decision-making, 28 Law & Psychology Review 177 (2004) ("A comprehensive review of the literature and studies available indicates that, though the increasing presence of women in the legal profession has decreased the effect of an attorney's gender on his or her success, attorney gender continues to be a pervading factor in jury perception and decision-making."); McGuire & Bermant, Individual and Group Decisions in Response to a Mock Trial: A Methodological Note, 7 Journal of Applied Social Psychology 220 (2006) ("Jurors in the male defense attorney conditions were more likely to vote not guilty following deliberations than were jurors in the female defense attorney conditions."); Hahn & Clayton, The Effects of Attorney Presentation Style, Attorney Gender, and Juror Gender on Juror Decisions, 5 Law & Human Behavior 533 (1996) ("The results [of a controlled mock trial] indicated that, overall, . . . male attorneys were more successful than female attorneys")

Related posts here:  When Women Judge Women; and Beauty And The Juror, Part I and Part II.

(Photo by Clare at http://www.flickr.com/photos/clarice77/2189045806/; license details there.)

 

The City Jury And The Country Jury

Which would you rather have:  twelve jurors who lived in the closest major city to you, or twelve who came from that city's suburbs?

A new study sheds light on this question -- at least in criminal cases and perhaps civil cases with similar facts.  It sheds even more light, though, on two other, related issues:  how difficult it is to apply scientific analysis where juries are concerned, and how risky it is to assume you can predict a juror's verdict from her demographic description.

Are urban juries more lenient?

"Baltimore Juries Less Likely To Convict," said the headlines on this study's release the other day.  The research, done for Baltimore's Abell Foundation by researcher Shawn Flower of Choice Associates, analyzed 293 jury verdicts from juries in the City of Baltimore and in nearby suburban Anne Arundel and Howard Counties.  Flower found that the Baltimore juries were significantly more likely to acquit criminal defendants than their suburban counterparts were:  "On average, Baltimore City juries convict defendants of one or more charges 57% of the time compared to 72% of defendants convicted in [comparison suburban] jurisdictions – a significant difference of 15% (p<.05). Similarly, Baltimore City juries are 29% less likely to find defendants guilty of the most serious offense (p<.01) than the other jurisdictions."

Does this mean that urban juries are soft on crime?  You may see the study cited that way, but as Flowers explains, it's more complicated than that. 

Certainly the "typical" urban and suburban jurors are different from each other in important ways, as the study explains (I've omitted citations, of which there are many):

• Wealth.  "Generally speaking, citizens in the three [suburban] jurisdictions tend to be more advantaged in all respects than those in Baltimore City – they are better educated, are wealthier and are more likely to own their homes."
• Crime's effect on social structures.  "Prospective jurors in Anne Arundel, Howard and Baltimore counties, relative to Baltimore City, are also less likely to suffer from the structural disadvantage and social disorganization which often results in higher incidence of crime, and victimization from crime."
• Criminal offenders in the family, and the neighborhood.  "[I]ndividuals eligible to serve on a jury in Baltimore City are more likely to have a family member, partner, and/or friend that have been involved with the criminal justice system."
• Distrust of police.  "Further, studies of police indicate that members of minority race and ethnic groups express 'much more negative attitudes about the police and having lower trust and confidence in institutions of social control.'"   

Or are urban prosecutions weaker?

But jurors aren't the only variable when you compare urban and suburban juries.  The whole court system is different, and in ways that can change results.  The study sets out some of them:

• Urban prosecutors handle more cases than suburban prosecutors do, so many more that  that their charging decisions almost certainly are different.  "According to court personnel, the number of cases processed in Baltimore City in half a day equal the number of cases processed in the other jurisdictions in a week."
• Voir dire can be different, and in Baltimore it apparently is.  "One informant advised that the voir dire process in Baltimore City Circuit Court is conducted primarily by the judge using formulaic questions chosen by the Defense and State’s Attorneys; it is routine, perhaps standardized. . . .  In contrast, jury selection in other locales may be quite involved." 
• The police in a particular case may be more likely to have earned distrust.  The study cites a 2006 report of a Baltimore grand jury, finding problems with police officers ranging from witness intimidation, perjury, and robbery to simple unfamiliarity with the neighborhoods they patrolled. 

And can we know?

Finally, Flower recites with candor the things he couldn't test.  Did suburban juries hear more eyewitness testimony?  Did defendants testify more often?  Were weapons involved?  Were defendants unemployed, or did they have more prior convictions?  And how strong was the evidence?  All these variables correlate to conviction rates (Flower's source here is the wonderful article by Prof. Dan Devine and his colleagues, "Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups," 7 Psychology, Public Policy & Law 622 (2001)), and none of them were contained in the computer database from which Flower drew his data.

This work raises terrific questions, then, and few answers.  In that way, it's like a great deal of other jury research; the task is just very difficult.  When you study real juries, you can't eliminate dozens of variables.  When you use a mock trial to eliminate variables, you can't study real juries.  And when a lawyer is standing in front of a single real jury box in a single real case, no research can say for sure what that tiny group of individuals will decide.

With all those flaws, though, jury research makes us better lawyers:  it surprises us, it makes us wonder, it makes us think of things we wouldn't have, it makes us aware.  You might have thought urban juries convicted more often.  We think of crimes as more serious downtown, and defendants more "criminal," so it would make sense that suburban defendants had a better shot.  If you thought that, and now you see how the opposite could be true, this study helped you.

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Related posts here: 

• A Helpful Way To Think About Race 
• It's About Race.  It's Not About Race 
• Bringing Unconscious Bias Out Of The Dark 

Others writing about the Baltimore study:

• Paul Mark Sandler at The Art of Advocacy, a blog I somehow failed to find before;
• Thaddeus Hoffmeister, whose Juries blog continues strong;
• And lots of non-law blogs.

(Photo of Baltimore by Michael King at http://www.flickr.com/photos/oslointhesummertime/125498077/; license details there.)

Back To School: Today's Psychology Reading List

You know August is really over when the new Personality And Social Psychology Bulletin lands in the feed reader.   It's the only scholarly journal I see where I regularly want to read everything, no matter how dense the writing is.  (And it's dense.)  Samples from the October issue, with my abstracts of the authors' abstracts:

• I'm Hot, So I'd Say You're Not: The Influence of Objective Physical Attractiveness on Mate Selection, R. Matthew Montoya of the University of North Carolina:  The more attractive you are, the less attractive you think other people are and the more you expect you'll get a date if you ask.  We already know that beauty makes a difference in the courtroom; think about this study as you're deciding whether to strike that great-looking juror.
• Bringing Automatic Stereotyping Under Control: Implementation Intentions as Efficient Means of Thought Control, Brandon D. Stewart of the University of Queensland B. Keith Payne of the University of North Carolina, Chapel Hill:  Subjects who "made an intention to think specific counterstereotypical thoughts whenever they encountered a black individual" in fact did reduce not only conscious stereotyping but "automatic" stereotyping as well.  Add it to a growing list of studies suggesting it might be possible to challenge jurors to find their own openness and compassion.
• Insurance, Risk, and Magical Thinking, Orit E. Tykocinski of the Interdisciplinary Center, Herzliya:  Deep down, we believe that buying insurance policies protects us from harm.   That causation issue in your next trial may not be as simple as you think it is.
• Paying for Someone Else's Mistake: The Effect of Bystander Negligence on Perpetrator Blame, Clayton R. Critcher and David A. Pizarro of Cornell University:  When a bystander's negligence helps make a crime possible, we actually think that makes the criminal more culpable, not less.  Criminal defense lawyers, nobody said it would be easy.
• Narcissism and Social Networking Web Sites, by Laura E. Buffardi and W. Keith Campbell of the University of Georgia:  Heavy users of social networking sites like Facebook are more narcissistic and more self-promoting than the rest of the world.  You're asking jurors whether they're on line, aren't you?

Those are only the first five of the ten articles, so check out the issue.