Deliberations

It's About Race. It's Not About Race.

It's a familiar moment in many mock trials or focus groups where the key players on each side are of different races, but race wasn't explicit in whatever interaction led them to be opposing each other in court.  (Many trials -- employment disputes and criminal prosecutions are two common categories -- answer this description.)  After the jurors have talked through some of the other issues, we ask them:  "What does race have to do with this, if anything?"

Often a white juror's hand goes up first.  "Nothing," the juror says, and explains why things would have been the same regardless of race.  Others give their views, and then a black juror speaks.  Race had everything to do with it, that juror often says.

You can't know from the mock trial alone whether you're seeing a pattern, but you can start keeping an eye out for the deeply different ways that black and white Americans often perceive and explain the world.  This morning, for example, when the Washington Post and ABC News released a new poll on issues shaping the election (article here, poll results here; you may need a free subscription), most readers looked for clues as to who the next president might be.  Jury watchers, though, might have gone straight to these questions:

Having fully absorbed those answers, our jury watchers might then spend some time thinking about how to understand this one:

Race matters.  It even matters to whether someone thinks it matters.

(Photo by Santa Rosa OLD SKOOL at http://www.flickr.com/photos/santarosa/300475023/; license details there.)

When They Look Away

Your expert is on the stand presenting her analysis of lost profits damages, or whether an unintelligible patent claim was infringed.  As she's explaining the most difficult part, you look at the jury, and your heart sinks; no one is looking at her.  They're contemplating the ceiling, studying the floor, looking away.

Don't lose heart.  Maybe they're learning. 

There are many reasons why one person looks away when another is talking, but one of them is learning.  "A number of studies report ways in which adults switch off from environmental stimulation (both live faces and other sorts of visual displays) in order to concentrate on cognitive tasks," writes Dr. Gwyneth Doherty-Sneddon of the University of Stirling in Scotland, in one of many papers she has written on this topic.  Her current project, "Children's Eye Gaze: Associated Cognitive and Physiological States" was funded by the Economic and Social Research Council, where many of her papers are collected, all in full-text .pdf. 

"A positive sign"

The most recent conclusion of her research, explained in a press release this week, is that "gaze aversion" is often associated not simply with concentration, but with the moment of learning itself.  Studying children, she found that subjects averted their eyes more often when material was new, difficult, or complicated.  "That means that gaze aversion is a useful thing for teachers, care[give]rs and parents to know about," Doherty-Sneddon said in the press release.  "A child who is doing it is likely to be developing their understanding," the press release continues.

So maybe you welcome the moment when the evidence gets complicated and jurors look away.  If they never look back, though, you can probably go ahead and worry.

(Photo by Pσrcelαΐηgΐrl° at http://www.flickr.com/photos/pinkspleen/503225564/; license details there.)

Lawyers: So Certain, So Wrong

Watch a few mock trials and you'll start to suspect that lawyers have no clue how to argue to juries.  A new study suggests one reason why.

"I rest my case."

Remarkably often in mock trials, here's what happens.  Lawyers tell me they have an analogy or chart or argument they're sure will conclusively show their case is a slam-dunk win.  They present this to the mock jurors, in a voice full of hard-earned pride.  Then they listen to the jurors deliberate, and they're mortified.  The jurors hate the analogy, trash the chart, use the argument to support the other side.  The lawyer was so sure, and so wrong.

Good news from the world of social science:  it's not just lawyers.  Everybody does it.  We all assume that if we like something, the rest of the world is going to like it too -- and when we assume that, we're usually mistaken.  That's the conclusion of the wonderfully named paper "What’s Not to Like: Preference Asymmetry in the False Consensus Effect," by Andrew D. Gershoff, Ashesh Mukherjee, and Anirban Mukhopadhyay, in the coming June 2008 Journal of Consumer Research.  A good press release is here. 

With walnuts and hot fudge?!

The method used in the study was simple:  ask people what they like and how much they think other people like it, and then ask those other people.  So:

• "Participants in one study were asked to choose a movie they like. They were then asked to guess what percentage of their peers liked the movie as well. On average, people estimated that 51.2 percent of other people also liked the movie, a significant overestimate. They also estimated that only 18.2 percent of people, on average, disliked it – a reflection of the belief that more people agree with us than disagree.   In contrast, when asked to choose a movie they dislike and make the same estimate, participants were less self-centered: they thought people would agree and disagree with their opinion in roughly the same numbers."
• "Another study of ice cream sundaes found that those who liked a certain flavor combination – say, mint ice cream with walnuts and hot fudge – overestimated that people would share their fondness for the sundae by 9.9 percent. Those who disliked it only overestimated that people would share their repulsion by 0.8 percent."

I can't help pointing out that a mock trial is essentially that same research method, minus the statistical precision.  Lawyers bring in arguments they really like, and think other people will like them too.  Then we ask those other people, and often they don't.  Best of all, after the mock jurors are done chuckling at the argument, we listen to them talk about what did convince them, and we watch whether and how they're able to convince each other.

Where you're most certain you're right, then, is where you might be most wrong.  A mock trial is one good way to find that spot, and set yourself straight.

(Photo by Nic McPhee at http://www.flickr.com/photos/nicmcphee/428035441/; license details there.  McPhee's blog is I Am . . . Unhindered By Talent.)

The Brand-Name Brain

My favorite psychology research is the stuff that sounds like it might be an April Fool's joke, but it isn't.  Studies on the phenomenon called "priming" almost always fit the bill. 

Here's a great one, about corporate brand logos.  We see them all the time, and companies spend millions trying to get us to associate them with the specific qualities they want to represent in our minds.  How successful are they?  Very, according to researchers Gavan Fitzsimons and Tanya Chartrand of Duke and Gráinne Fitzsimons of the University of Waterloo.  When we're exposed to a famous logo for even a microsecond, they conclude, we act out the qualities we've learned to associate with that picture.

All of a sudden I'm hungry

Remember learning when you were a kid how the movie theater could slip a split-second frame of steaming, buttery popcorn into the movie, and suddenly everybody would line up for popcorn without knowing why?  These researchers used the same trick.  The subjects watched a screen explaining what they were supposed to do -- but also on the screen, too fast for them to notice, corporate logos flashed momentarily.  When subjects turned to the assigned task, which logo they'd seen made a difference:

• Subjects who saw the Apple logo, symbol of creativity, thought of more possible unusual uses for a brick than did subjects who saw the IBM logo, symbol of corporate sameness.
• Subjects who saw the Disney logo, which we associate with earnestly pure things like Mickey Mouse and Snow White, confessed to more bad behavior (like calling in sick) than did subjects who saw the E! network logo, which we associate with celebrity gossip, honest or not.

What it means in real trials

Can lawyers use this?  I say yes, but maybe not in the way you think. 

There are trial lawyers out there who can use priming to underscore ideas and themes in trial, while still keeping track of where their cross-examination outlines are and whether the client understands what's going on and who's doing the jury instruction argument and whether they brought enough matching socks.  I don't think those lawyers read this blog, though.  They don't need to.

For the rest, here's a message from priming research we can all use.  Jurors make decisions without knowing why.  So don't expect so much from your direct questions to them.  When you ask in voir dire how they'll approach one issue or another, they'll tell you, so far as they know -- but that's not very far.  If you get to interview them after the trial and ask how they reached their verdict, the same is true.  Ask the questions anyway, of course.  But work to develop an intuition that goes beyond the answers.

________________

Source notes: 

1. The paper is "Automatic Effects of Brand Exposure on Motivated Behavior:
   How Apple Makes You 'Think Different'".  The press release says it's to be in the April issue of the Journal of Consumer Research, but it's not in the table of contents.  Luckily, Duke University generously puts its faculty papers on line at their site, so you can read the whole paper here.
2. I've written previously about priming here. 

(Image by Julian Povey at http://www.flickr.com/photos/jpovey/2051196149/; license details there.)

The $1.99 Effect

Which is more, $395,425, or $395,000?

In civil trials, damages evidence is almost never clear to the penny.  Instead, lawyers make judgment calls about the exact amount of damages to ask for.  A new study suggests the decision may make more difference than you thought.

This paper has been out for awhile, but I missed it until it was on NPR this morning.  Researchers from Cornell University's Johnson School of Management report that many of us misunderstand basic quantities because we're fooled by whether the number is "precise," like the $395,425 figure above, or rounded.  And we're fooled in the same way:  we think the precise number is smaller than it really is.  In the example above, a surprising number of people respond that $395,425 is the lower price -- and it isn't.

I'll take that one

And the "precision heuristic" doesn't stop at simple miscalculation.  In an experiment that assigned precise and rounded numbers to hypothetical home prices, the researchers found that subjects were more willing to buy when the price was precise.

Why are we so easily fooled?  The authors considered whether the precise price sent a stronger signal that the seller had taken more care to set the price, or was more willing to bargain, than a rounded price would.  They couldn't rule these possibilities out, but another explanation seemed more likely:  we've learned to think this way.  From the discount store to the gas pump, we're conditioned to think "discount" when we see a precise number.  The experiment itself gave support to this learned-behavior theory; when the researchers primed the subjects with pairs of numbers where the rounded number was lower, the subjects got the hang of the comparision, and stopped making the mistake.

If precise numbers are more acceptable and credible until listeners are taught otherwise, the lesson for lawyers seems clear.  Plaintiffs' lawyers should think about not rounding.  And defense lawyers should teach jurors the fallacy of assuming precise numbers represent real precision. 

_____________

Notes:

1. The Cornell paper is "Do Consumers Perceive Precise Prices to be Lower than Round Prices?" by Manoj Thomas, Daniel H. Simon, and Vrinda Kadiyali.  It can be downloaded here from SSRN. 
2. I've written before here on research showing we can change the way our listeners do math by changing the words we use to express math concepts. 

(Photo by Matt McGee at http://www.flickr.com/photos/pleeker/133232691/; license details there.)

The New Personality And Social Psychology Bulletins Are Here!

My clients and colleagues wouldn't understand if I took a few days off every time the new Personality and Social Psychology Bulletin came out.  But I wish I could.  Every day I troll the new science stories for studies relevant to juries, and then every month clunk, PSPB's RSS feed delivers a whole pile of articles that are right on point. 

You have to work through some pretty dense writing in this journal sometimes, but it's worth it.  Here are a few of the articles in the April issue, released today:

1.  "Attitudinal Ambivalence and Message-Based Persuasion: Motivated Processing of Proattitudinal Information and Avoidance of Counterattitudinal Information," by Jason K. Clark of Indiana University and others.  The abstract says:

Attitudinal ambivalence has been found to increase processing of attitude-relevant information. In this research, the authors suggest that ambivalence can also create the opposite effect: avoidance of thinking about persuasive messages. If processing is intended to reduce experienced ambivalence, then ambivalent people should increase processing of information perceived as proattitudinal (agreeable) and able to decrease ambivalence. However, ambivalence should also lead people to avoid processing of counterattitudinal (disagreeable) information that threatens to increase ambivalence. Three studies provide evidence consistent with this proposal.

Translation:  If you're ambivalent, the feeling is so unpleasant that you can actually start shutting out information that, if you considered it fully, would make you even more ambivalent.  If you've lately been shutting out the latest on Hillary Clinton and Barack Obama, you may be a case study for this one.

2.  "Justice for Whom, Exactly? Beliefs in Justice for the Self and Various Others," by Robbie M. Sutton of the University of Kent and others.  The abstract says: 

The present studies examine why people think the world is more just to themselves than to others generally. Beliefs in justice for the self were uniquely associated with psychological adjustment, consistent with the theoretical motive to believe in justice for the self (Studies 1 and 2). However, this "justice motive" did not appear to affect the relative strength of justice beliefs. Instead, self–other differences in justice beliefs appeared to reflect objective assessments of the justice received by various demographics. Undergraduates believed the world to be more just to themselves than to others but not their undergraduate peers specifically (Study 1). Participants of both genders believed the world to be more just to men, and to themselves, than to women (Study 2). Women did not exempt themselves individually from injustice but believed, similar to men, that undergraduate women receive as much justice as men (Study 3).

Translation (I think):  Most of us think the world is fairer to us than to others, but that doesn't particularly skew our assessment of the treatment others get.

3.  "More Eyes on the Prize: Variability in White Americans' Perceptions of Progress Toward Racial Equality," by Amanda Brodish and two others from the University of Wisconsin-Madison.  The abstract says:

Much recent research suggests that Whites and non-Whites think differently about issues of race in contemporary America. For example, Eibach and Ehrlinger (2006) recently demonstrated that Whites perceive that more progress toward racial equality has been made as compared to non-Whites. The authors of this article sought to extend Eibach and Ehrlinger's analysis. To this end, they found that differences in Whites' and non-Whites' perceptions of racial progress can be explained by the reference points they use for understanding progress toward racial equality (Study 1). Furthermore, they demonstrated that there is variability in White people's perceptions of racial progress that can be explained by self-reported racial prejudice (Studies 1 and 2). Finally, they demonstrated that White people's perceptions of racial progress predict reactions to affirmative action (Study 2). Implications for better understanding intergroup relations and reactions to social policies are discussed.

Translation:  Not surprisingly, white people's assessment of racial progress depends on the prejudice they themselves report -- and in turn, their attitude toward affirmative action turns on their assessment of racial progress.

4.  "What Happens When Groups Say Sorry: The Effect of Intergroup Apologies on Their Recipients," by Catherine R. Philpot and Matthew J. Hornsey of the University of Queensland, Australia.  The abstract says:

Despite the increased incidence of intergroup apology in public life, very little empirical attention has been paid to the questions of whether intergroup apologies work and if so, why. In a series of experiments, Australians read scenarios in which Australian interests had been harmed by an outgroup. Participants were then told that the outgroup had either apologized or had not apologized for the offense. Although the presence of an apology helped promote perceptions that the outgroup was remorseful, and although participants were more satisfied with an apology than with no apology, the presence of the apology failed to promote forgiveness for the offending group. This was the case regardless of whether the effectiveness of apology was measured cross-sectionally (Experiment 1) or longitudinally (Experiment 2). It was also the case when the apology was accompanied by victims advocating forgiveness (Experiment 3) and was independent of the emotionality of the apology (Experiment 4). In contrast, individuals who apologized for intergroup atrocities were personally forgiven more than those who did not apologize (Experiment 4).

Translation:  An apology is nice, but it doesn't really help others forgive you.  A fascinating layer on the forgiveness study I talked about the other day.

Asking For Forgiveness

Many trials, civil and criminal, depend on whether jurors can forgive a defendant.  A recent study suggests that women forgive more easily than men -- but more importantly suggests which arguments might best convince men to forgive.

The article is "Not so Innocent: Does Seeing One's Own Capability for Wrongdoing Predict Forgiveness?" by Case Western Reserve University psychologist Julie Juola Exline, with Florida State's Roy Baumeister and Anne Zell, Arizona State's Amy Kraft,and Hope College's Charlotte Witvliet.   It's in the Journal of Personality and Social Psychology, a journal cited often here.  The press release is good, so I'll let it explain:

Forgiveness can be a powerful means to healing, but it does not come naturally for both sexes. Men have a harder time forgiving than women do, according to Case Western Reserve University psychologist Julie Juola Exline. But that can change if men develop empathy toward an offender by seeing they may also be capable of similar actions. Then the gender gap closes, and men become less vengeful.

In seven forgiveness-related studies Exline conducted between 1998 through 2005 with more than 1,400 college students, gender differences between men and women consistently emerged. When asked to recall offenses they had committed personally, men became less vengeful toward people who had offended them. Women reflecting on personal offenses, and beginning at a lower baseline for vengeance, exhibited no differences in levels of unforgiving. When women had to recall a similar offense in relation to the other's offense, women felt guilty and tended to magnify the other's offense.

"We actually got aggravated"

Many studies confirm the researchers' hypotheses, but not this one.  The press release continues: 

"The gender difference is not anything that we predicted. We actually got aggravated, because we kept getting it over and over again in our studies," said Exline. "We kept trying to explain it away, but it kept repeating in the experiments."

There but for the grace

What transcended gender in the study was whether the subjects could see themselves as capable of doing something like what the offender did -- a reaction the researchers invoked in men by asking subjects to remember their own transgressions, or in the case of political offenses, those of their own government.

The researchers found that people of both genders are more forgiving when they see themselves as capable of committing a similar action to the offender's; it tends to make the offense seem smaller. Seeing capability also increases empathic understanding of the offense and causes people to feel more similar to the offenders. Each of these factors, in turn, predicts more forgiving attitudes.  "Offenses are easier to forgive to the extent that they seem small and understandable and when we see ourselves as similar or close to the offender," [Exline] said.

Exline found this ability to identify with the offender and forgive also happens in intergroup conflicts in a study that she related to forgiveness of the 9/11 terrorists.

"When people could envision their own government committing acts similar to those of the terrorists, they were less vengeful," she stressed. "For example, they were less likely to believe that perpetrators should be killed on the spot or given the death penalty, and they were more supportive of negotiations and economic aid."

Women, on the other hand, were actually more forgiving before they recalled their own transgressions; it was as though they transferred their own guilt to the offender. 

More on forgiveness

Exline's study doesn't address a related and important question:  which men, and which women, are more likely to forgive than others.  For that, you might start with Michael E. McCullough's 2001 paper "Forgiveness: Who Does It and How Do They Do It?", in Current Directions in Psychological Science and available here for a fee.  The abstract says: 

People who are inclined to forgive their transgressors tend to be more agreeable, more emotionally stable, and, some research suggests, more spiritually or religiously inclined than people who do not tend to forgive their transgressors.

(Image by Windy Angels at http://www.flickr.com/photos/windyangels/1571206885/; license details there.)

Taking On False Confessions

False confessions.  Two words that capsulize just how tough a criminal defense lawyer's task can be.

No wonder they talk about it so much.  In the last few days alone, a public defender and Simple Justice have traded thoughts on whether videotaping interrogations prevents false confessions or merely records them, and Grits for Breakfast points to a defendant who falsely confessed to murder after long questioning in which he was threatened with the death penalty if he didn't confess. 

There's a new book that brings evidence and history to these conversations, and to the briefs criminal defense lawyers must file when clients confess under pressure.  It's Police Interrogation And American Justice, by University of San Francisco law professor Richard Leo, published by Harvard University Press.

"A systematic feature of American criminal justice"

Here is what lawyers, judges, and the public need to know, grounded in study after study.  False confessions not only happen, but they happen commonly:

The problem of false confession is not limited to a small number of cases.  These studies reveal that false confessions are therefore not an anomaly but a systematic feature of American criminal justice, despite procedural safeguards such as Miranda rights and a constitutional prohibition against legally coercive interrogation techniques.  . . . Unless police change their procedures for selecting suspects and their interrogation practices, false confessions will continue to occur regularly.

How can this be true in 2008?  Leo explains that the problem isn't that we haven't progressed from the days of bright lights and the third degree.  To the contrary, sadly, the problem is that we have progressed.  Leo narrates the development of increasingly sophisticated techniques of police interrogation, techniques that manage to break down a defendant's psychological defenses and build a detailed and compelling story for the jury at the same time. 

"A dangerous piece of evidence"

And it matters, of course.  You didn't need studies to know that, but Leo gathers the studies all the same.  False confessions mean mistaken convictions:

Taken together these studies demonstrate that a false confession is a dangerous piece of evidence to put before a judge or jury because it profoundly biases their evaluations of the case in favor of conviction -- so much so that they will allow it to outweigh even strong evidence of a suspect's innocence.  . . . Jurors simply do not appropriately discount false-confession evidence, even when the defendant's confession was elicted by coercive methods and the other case evidence strongly supports his innocence.  False-confession  evidence is thus highly, if not inherently, prejudicial to the fate of any innocent defendant in the American criminal justice system.

There are briefs to be written out of this book.  If enough of them win, the reforms Leo proposes in his final chapter might begin to take hold.

_____________________

Note:  As often happens, forensic psychologist Karen Franklin's excellent "In The News" blog was well ahead of me in discussing Leo's book.

Bringing Unconscious Bias Out Of The Dark

Last week I wrote about the troubling study suggesting that "many Americans subconsciously associate blacks with apes."  Commenter Roy Wilson asked for a constructive response:  "Any thoughts about this topic in relation to jury composition as it might affect deliberation?"

I do have a thought -- not an answer, but a thought.  More accurately, Tufts professor Samuel R. Sommers has a thought, explained in his 2006 paper in the Journal of Personality and Social Psychology.  The thought is:  jury diversity.  Prof. Sommers's research suggests that diversity in the jury itself can bring unconscious biases out of the shadows.

Diverse juries, better juries

In the study described in the paper, Prof. Sommers and his colleagues recruited enough people to make up 29 separate six-person juries.  (Unlike many university-based psychological studies, this one used jury-eligible adults from the community, not college students.)  Some of the juries included only white jurors; the rest were composed of four white jurors and two black jurors.  Each jury listened to a Court TV summary of a sexual-assault trial of a black defendant. 

When the groups deliberated about the summarized trial, the diverse groups performed far better.  They raised and discussed more of the evidence they had seen.  They mentioned more "missing" evidence, things they had not seen that they thought would have been helpful.  And they were more willing to mention, and discuss, the possible role of racism in the case.

Discussing what's uncomfortable

Most striking, it wasn't only the black jurors who added to the discussion in the diverse juries.  Instead, the white jurors were more willing to raise and discuss issues when the black jurors were there.  On the topic of racism, for example, Sommers quotes several exchanges from his juries, and concludes: 

Participants in all-White groups seemed surprised at and were made uncomfortable by the mention of racism during deliberations. Perhaps they had given little thought to racial issues to that point in the experiment. True, the defendant was a Black man, but race was not discussed during the trial, nor would a cursory look around the room suggest that such a potentially controversial issue would be brought up during deliberations. Whites in diverse groups, on the other hand, reacted differently. They did not automatically change the topic when racism came up, but rather engaged in substantive conversation about it. Members of diverse groups did disagree while deliberating, at times vociferously, but they devoted time to discussing even polarizing and uncomfortable topics.

It rings true, of course; you've seen it happen yourself.  When you're talking to a person of another race, you're more conscious of racial context, overtones, and issues.  Diversity works like a flashlight.  It may not cure racism, but it can bring racial biases out where we can talk about them.

_____________

Notes:

1. Prof. Sommers has spent the last several years studying race and juries.  I wrote here on his paper on purportedly "race-neutral" peremptory challeges under Batson; his other papers are linked to, in full, on his Tufts bio page.  Thanks to him and Tufts for that.
2. Not surprisingly, diverse juries are also perceived as more fair and legitimate by the public than all-white or all-black juries are.  Northwestern professor Shari Seidman Diamond and Dr. Leslie Ellis (now of TrialGraphix) showed that in their paper "Race, Diversity, and Jury Composition:  Battering and Bolstering Legitimacy," in the Chicago-Kent Law Review in 2003. 
3. So does Batson let you strike white jurors in the name of a diverse jury?  Don't expect a case on point soon, but probably not.  Another obstacle on the Batson collision course.
4. Related posts here:

• Batson, Day To Day
• Another Day, Another Unconscious Bias Study
• A Helpful Way To Think About Race.

(Photo by Dan at http://www.flickr.com/photos/ladnlins/1822774622/; license details there.)

Walk This Way

If you want to get better at persuasion, maybe you should practice imitating other people. 

Anything that increases the common ground and reduces the distance between you and the other person is a good thing.  And the quickest way to accomplish this it so synchronize as many of the other person's aspects as you can -- adopt the same attitude, make the same motions and speak the same way.

There's some good jury learning in self-help books.  That quote is from Nicholas Boothman's How To Make People Like You In 90 Seconds Or Less, and before you unsubscribe to a blogger who would own such a thing, read Benedict Carey's article "You Remind Me Of Me," in the science section of tomorrow's New York Times.  It turns out that research supports this idea:

Psychologists have been studying the art of persuasion for nearly a century, analyzing activities like political propaganda, television campaigns and door-to-door sales. . . . They have found that immediate social bonding between strangers is highly dependent on mimicry, a synchronized and usually unconscious give and take of words and gestures that creates a current of good will between two people.

Toe-tapping their way to higher sales

Mothers unconsciously imitate babies, friends unconsciously imitate friends -- but conscious imitation is powerful too.  Carey describes a number of studies, including this one by Duke researchers Robin Tanner and Tanya Chartrand: 

The team had 37 Duke students try out what was described as a new sports drink, Vigor, and answer a few questions about it. The interviewer mimicked about half the participants using a technique Dr. Chartrand had developed in earlier studies.

The technique involved mirroring a person’s posture and movements, with a one- to two-second delay. If he crosses his legs, then wait two seconds and do the same, with opposite legs. If she touches her face, wait a beat or two and do that. If he drums his fingers or taps a toe, wait again and do something similar. . . .

None of the copied participants picked up on the mimicry. But by the end of the short interview, they were significantly more likely than the others to consume the new drink, to say they would buy it and to predict its success in the market.

"A delicate balance"

But wait, you say.  I won't do it right, and I'll get caught.  It's true; you might, especially if you jump on the other person's gestures too quickly.  The article continues:

Dr. [Jeremy] Bailenson, the Stanford psychologist, has been testing the effects of different forms of mimicry by programming a computer-generated figure, an avatar, to mirror the movements and gestures of people in a study.

He has found that his subjects pick up the mimicry when it is immediate and precise. If the avatar is slightly out of sync, however — waits four seconds, for instance — then the mimicking goes unnoticed, and the usual rules apply. The virtual creating comes across as warm and convincing, as if controlled by another human.

“The point is it’s a delicate balance to get it right, and I suspect that people who are good at this know how to do it intuitively,” Dr. Bailenson said.

Too much to remember

It's all fascinating, but does it mean you should add mimicry to your list of trial skills?  Probably not, unless you're already a natural at it.  Most obviously, whether conscious or unconscious, it's a way that one person relates to another.  It wouldn't make sense to mirror six or twelve people.  And there's far too much else to remember in trial.

A more modest, goal, though, is worth striving for.  Two or three times during your next trial, or next anything, try to notice a gesture or posture that you could mirror.  You'll probably be surprised at how difficult this is.  The thing that keeps us from doing it is the same thing that keeps us from connecting better with jurors:  we're too wrapped up in ourselves.  You'll be planning your next sentence, or thinking about your last meeting, and suddenly you'll realize that for the last several minutes you've hardly known whether the other person's eyes are open.

Anything that makes you notice will make you better -- and this is fun.  Try it.

____________

Note:  What a relief.  For years I thought I'd never remember the punch line that responds to the old line "Walk this way."  Riddle solved; there are more than a dozen, used over decades, and they're catalogued in Wikipedia from "After The Thin Man" to "M*A*S*H" to "Rugrats."

(Image by Jim Crossley at http://www.flickr.com/photos/raindog/10550156/; license details there.)

What You're Up Against

"[M]any Americans subconsciously associate blacks with apes."

I often have fun translating social science research into something lawyers can read, but the press release for "Not Yet Human: Implicit Knowledge, Historical Dehumanization and Contemporary Consequences," in the current issue of the Journal of Personality and Social Psychology, doesn't need translation.  What it needs is courage, a steady calm while you try to absorb what this is telling you.

The researchers -- Stanford's Jennifer Eberhardt, Pennsylvania State's Phillip Atiba Goff, and grad students Matthew Jackson and Melissa Williams, did six separate studies, which this paper compiles.  I don't have the paper itself, so this is from the press release:

--"In a series of studies that subliminally flashed black or white male faces on a screen for a fraction of a second to 'prime' the students, researchers found subjects could identify blurry ape drawings much faster after they were primed with black faces than with white faces."

--"The connection was made only with African American faces; the paper's third study failed to find an ape association with other non-white groups, such as Asians."

--"In the paper's fifth study, the researchers subliminally primed 115 white male undergraduates with words associated with either apes (such as 'monkey,' 'chimp,' 'gorilla') or big cats (such as 'lion,' 'tiger,' 'panther'). The latter was used as a control because both images are associated with violence and Africa, Eberhardt said. The subjects then watched a two-minute video clip, similar to the television program COPS, depicting several police officers violently beating a man of undetermined race. A mugshot of either a white or a black man was shown at the beginning of the clip to indicate who was being beaten, with a description conveying that, although described by his family as 'a loving husband and father,' the suspect had a serious criminal record and may have been high on drugs at the time of his arrest. . . .  The students were then asked to rate how justified the beating was. Participants who believed the suspect was white were no more likely to condone the beating when they were primed with either ape or big cat words, Eberhardt said. But those who thought the suspect was black were more likely to justify the beating if they had been primed with ape words than with big cat words."

--"[T]he paper's sixth study showed that in hundreds of news stories from 1979 to 1999 in the Philadelphia Inquirer, African Americans convicted of capital crimes were about four times more likely than whites convicted of capital crimes to be described with ape-relevant language, such as 'barbaric,' 'beast,' 'brute,' 'savage' and 'wild.' 'Those who are implicitly portrayed as more ape-like in these articles are more likely to be executed by the state than those who are not,' the researchers write."

Voir dire won't help you on this.  We're talking about something jurors wouldn't unearth in years of therapy, much less in a few hours with a judge and a roomful of strangers.  What you need to do instead is to recognize unflinchingly that this level of bias is out there.  There are weapons against it, and many variables affect which weapons you choose.    If you deny the opponent exists, though, there's nothing you can do to fight it.

(Image of 1866 poster from the Library of Congress via PingNews at http://www.flickr.com/photos/pingnews/421405578/; license details there.)

Our Great National Jury Seminar

It's a theme of this blog that you don't have to read books or go to seminars to learn about juries.  All you have to do is look around -- except in an election year, when you don't even have to look.  It's all coming at you.  Your newspaper, television, radio, dinner parties, and office break room are all focused on one question: how people choose which of two competing candidates they will support.

The 2008 election is not only a great reality TV show on its own.  It's also a terrific voir dire workshop. Among the issues this class covers:

1.  What do race and gender really mean?  Most studies of jurors conclude that juror demographics don't directly affect verdicts -- with the important exception that jurors lean toward parties of their own ethnicity.  (That's from Devine et al, Jury Decision Making:  45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000)).  But at the same time, we know that people of different races and genders often have shared experiences.  Since experiences in turn shape attitudes, race and gender matter in ways that go beyond loyalty, but are difficult to define.

Trial lawyers have long wanted to understand this better -- and these days, so does every news organization in America.  One fascinating piece of this is how individual one's group identity can be, as Newsweek explains in an article that's well worth reading in full:

Which candidate a voter identifies with is one of the most important gut-level heuristics, since it is tantamount to deciding that someone is enough like you to "understand the concerns of people like you," as pollsters put it. "If you feel a candidate is like you racially or by gender, you're more likely to believe that that candidate will support what you support," says [Harvard political scientist Pippa] Norris. But with a white woman and a black man vying for the Democratic nomination, where does that leave black women? Whom they most identify with depends on which aspect of their own identity dominates their self-image. For instance, in a study of whether black women believed O. J. Simpson guilty or not of the 1994 murder of his ex-wife and her friend, those whose identity as a woman trumped their sense of themselves as black were significantly more likely to believe Simpson guilty. But black women whose self-image was dominated by their race tended to believe him innocent.

2.  How much do looks matter?  We know they do, and new evidence comes in all the time.  (BPS Research Digest today reports on a study suggesting that a company's profits are related to the CEO's facial appearance.) 

Nearly every variation on this theme has come up in the election.  When Hillary Clinton is photographed looking tired and wrinkled, the world responds.  When this story came out in December, Ann Althouse said, "A picture like this of a male candidate would barely register."  That's probably true, but men's faces matter too.  CNN and others have wondered whether Mitt Romney is too good looking; but when you hear women gushing "He's perfect!" to radio reporters, you have to think his looks are a plus overall.  So is Mike Huckabee's 100-pound weight loss.  And one thing early drop-outs Bill Richardson and Fred Thompson may have had in common was that they didn't measure  up to their opponents on the look-like-a-president scale.

3.  What happens if you cry?  Scooter Libby's lawyer cried in closing argument, and it didn't seem to help.  Few lawyers would plan a teary outburst, but trials are emotional, and it can happen.  Hillary Clinton is helping us figure out exactly where the line is when it comes to tears.  By all accounts a little welling up was the most helpful thing she did in New Hampshire.   When she wiped another tear away the other day, though, she lost some people, like the vehement QuizLaw, while Nicole Black (at her great new blog Women Lawyers - Back on Track) pointed out that we probably have a double standard here too.

4.  Can you attack and still be admired?  On both sides, candidates are struggling to find the line between pointing out an opponent's weaknesses and appearing nasty and mean.  They're finding too that negative messages work better coming from some team members than from others:  Bill Clinton, for example, didn't turn out to be the right guy to go after Barack Obama.

5.  Do polling and focus groups help?  Pre-election polling was highly predictive in New Hampshire -- if you were a Republican.   The uses and limits of polling are a constant theme now, as campaigns and news organizations gear up for each new contest and then find out where and how they were wrong.

6.  How can I improve my presentation style?  It will be four years before you have another chance to see two or three major speeches, given by talented presenters and written by the best speechwriters in the country, every single day.  Watch Barack Obama speak.  Then watch him again.  Watch Hillary Clinton in small groups, where she excels.  If you agree with me that Mike Huckabee is able to strike a more personal note from the podium than either John McCain or Mitt Romney can, see if you can identify what he's doing to accomplish that.

(Photo by Joe Crimmings at http://www.flickr.com/photos/joecrimmings/2096982084/; license details there.)

Catching Up On The News

I've been deep in trial preparation, and thus off line, for the last week or so, and I've missed a lot.  There are over a thousand stories piled up in my feed reader.  Here are some worth stopping over:

• They're frugal in Nashua.  Jim Burke and Dave Eisner of New Hampshire Law Blog point to research done by the Nashua Telegraph in December.  The Telegraph compared verdicts in Nashua County, New Hampshire with those in three nearby counties.  The verdict-crunchers found that, true to their reputation, "Nashua juries tend to be a tad tight-fisted."  The difference was most striking in medical malpractice cases:  "Plaintiffs have won just three of the 23 malpractice cases (13 percent) tried before juries in Nashua in the last 15 years, and the average award was less than $7,000." 
• Decisions as we age.  The New York Times wrote yesterday about a study of decisionmaking in the elderly.  As you might expect -- or might have experienced -- it declines.  In the study, research subjects were asked to draw cards from four different decks.  "Two decks, not to mince words, are for suckers," the Times summarized.  "They give short-term rewards but long-term losses. The other two decks do the opposite."  Elderly subjects kept drawing from the sucker decks, long after younger subjects had tried the other.  The work helps explain how con artists prey on the elderly -- and how elderly jurors might struggle to reach a verdict.
• A jury questionnaire in Milwaukee.  Thanks to the Milwaukee Journal-Sentinel's great law blog Proof and Hearsay for posting the jury questionnaire used by local judge M. Joseph Donald in a child molestation case.  Proof and Hearsay doesn't sound like a fan of the process, noting that the questionnare includes "several heavyweight questions about being victimized by/accused of sex crimes that the randomly-picked people had to answer to comply with their civic duties."   Better in the questionnaire than in open court, is my view, and this sample will appear in Deliberations' library shortly. 
• Taxes on trial, maybe.  Actor Wesley Snipes doesn't believe in paying taxes, and the WSJ Law Blog has a nice review of his trial as it goes to the jury.
• Blue-eyed Humans Have A Single, Common Ancestor.   So says a new study via Science Daily.  Nothing at all to do with juries, but as a blue-eyed human I thought it was pretty interesting.

(Photo by Valerie Everett at http://www.flickr.com/photos/valeriebb/1681924558/; license details there.)

When Women Judge Women

Personal injury plaintiffs' lawyers have often told me they hope for female jurors -- unless the plaintiff is a woman.  Women judge other women harshly, the theory goes.

The demographics of Anita Hill

Ever since the Clarence Thomas hearings, when I was startled at how many of the female staff in my office seemed to despise Anita Hill, I've suspected there might be something to this stereotype -- especially when the woman being judged was successful in business or politics.  But I never saw research to support the idea when it came to juries.  To the contrary, the comprehensive 2001 literature review by Dennis Devine and others, "Jury decision making: 45 years of empirical research on deliberating groups" in Psychology, Public Policy, & Law, says, "It is surprising that defendant gender has been largely overlooked [in studies of juror characteristics]."  Devine and his co-authors found a 1985 study finding juror gender had no effect on verdicts, and a 1972 study suggesting that jurors actually support parties of their own sex.

Zero-sum success

A new paper released today, though, supports my plaintiffs' lawyers' hunch, and offers a reason why it might be true.  In two studies, women were able to judge their own competence more kindly when they judged a successful women harshly. 

The paper is "Motivated to Penalize: Women's Strategic Rejection of Successful Women," by Elizabeth Parks-Stamm and two other researchers from New York University.  It's from my new favorite RSS feed, Personality and Psychology Bulletin.  The abstract (which is all I have) is:

Two studies tested the hypothesis that females penalize women who succeed in male gender-typed jobs to salvage their own self-views regarding competence. The authors proposed that women are motivated to penalize successful women (i.e., characterize them as unlikable and interpersonally hostile) to minimize the self-evaluative consequences of social comparison with a highly successful female target. Results supported the hypothesis. Whereas both male and female participants penalized successful women, blocking this penalization reduced female—but not male—participants' self-ratings of competence (Study 1). Moreover, positive feedback provided to female participants about their potential to succeed (Study 2) weakened negative reactions to successful women without costs to subsequent self-ratings of competence. These results suggest that the interpersonal derogation of successful women by other women functions as a self-protective strategy against threatening upward social comparisons.

That's social-science writing, so you'll probably have to read it twice.  The second time through, be sure to catch this phrase:  "both male and female participants penalized successful women."   That's a different, and equally depressing, post.

(Image by Gisela Giardino at http://www.flickr.com/photos/gi/324724106/; license details there.)

Juries Through The Lens Of Race

A broad survey on almost any topic is of interest to jury watchers, but a broad survey that's actually about juries is rare.  So Deliberations has to stop the presses when  Harris Interactive releases a major poll on juries and jury duty.  The entire poll is interesting, but on Martin Luther King Day, the question you keep coming back to is the one that turns on race.  White Americans trust juries far more than African-Americans do -- a fact as unsurprising as it is sad.

Who comes to jury duty?

There are lots of findings here about who really serves on juries: 

[W]hile two-thirds (65%) of Americans have been called to serve jury duty, two-thirds of that (68%) actually attended, leaving one-third (32%) who did not. Of those who have attended jury duty, just over half (55%) have actually served on a jury. Bringing this back to the population as a whole, a plurality of Americans (44%) has attended jury duty and one-quarter (24%) has actually sat on a jury.

You're more likely to have been summonsed, as they say, if you live on one of the coasts, but more likely to actually serve if you live in the South.  More men show up than women, "most likely due to the 'motherhood exemption' almost all states have," and educated people are less likely to serve.  (Amazingly, Drug and Device Law Blog this very day wished that someone would research whether plaintiffs' lawyers strike educated jurors as a matter of strategy.  Here's a start.)

Are juries fair? 

All that is interesting, and in some trials it might be really helpful to know, but the riveting question here is the one about fairness.  “How often do most people who are on trial have a jury that is fair and impartial?” the researchers asked -- and the answer depended on the race of the person they were talking to.  Sixty-three percent of white respondents said either "all the time" or "most of the time."  Only 37% of black respondents chose one of those answers, and 14% of the rest chose "rarely" or "never."

We all dream of a courtroom where every person confidently expects fairness from an impartial jury.  That dream is not reality yet.

(Drawing by "medium as muse" at http://www.flickr.com/photos/dave_mckeague/362318943/; license details there.)

What Is It About An Underdog?

Given the presence of well-known underdog stories in literature, mythology, and sport, it might seem intuitively obvious that most people sympathize with and support such figures. But why should we be drawn to the Davids, Texans at the Alamo, Greeks at Thermopylae, or Rocky Balboas of the world?

That's the question posed by the University of South Florida's Joseph A. Vandello, Nadav P. Goldschmied and David A. R. Richards in their paper "The Appeal of the Underdog," in the December issue of Personal and Social Psychology Bulletin.  (Because I'm so slow in posting this, the whole article is free on line; download it here.) 

Hustle, effort, heart, and wanting to win

The four experiments described in the paper are fun, and the results predictable:

• When students were told which countries had the most Olympic medals and asked which teams they'd back in various pairings, they rooted for the teams with fewer medals. 
• When students were shown a map of Israel dwarfing the the Palestinian territories, they expressed support for the Palestinians -- but when they were shown a map of Middle Eastern countries dwarfing Israel, they expressed support for Israel.
• Students watching a taped basketball game not only rooted for whichever team they had been told was the underdog, but attributed more "hustle, effort, heart, and wanting to win" to that team.
• Students told that a team was likely to lose and that it had a lot less money than the other team, they rooted for that team.  But when they were told a team was likely to lose and that it had a lot more money than the other team, they didn't much care who won.

Why we do it

So why do we root for the underdog?  The fourth experiment gives a big clue to one of the reasons:  because we want to help compensate for undeserved inequality.  If one contestant is outmatched for reasons that aren't his fault, that's unfair, and our sense of justice reaches out to fix it. 

We might also root for underdogs just because we enjoy drama: 

An alternative, or additional, motivation for supporting underdogs might derive less from abstract moral concerns about fairness and more from self-interested,   rational calculations of one’s own emotions. Because underdog success is by definition unexpected, this may increase the excitement of rooting for an underdog.

And for almost every little guy who wins, there's a big guy who loses, and that makes us happy too:

Rather than being strongly supportive of underdogs, might people instead root against dominant entities (this would be consistent with the sentiment, “my favorite team is whoever is playing the Yankees”)?

Working with it

Many trials can be framed as an underdog against a big dog, and this dynamic is often critical.  Civil personal injury lawyers often use the narrative brilliantly; although defense lawyers in those trials can sometimes turn it around if they show that the plaintiff somehow has earned his "weaker" position.   On the other hand, even though a criminal defendant is usually a heavy underdog, criminal defense lawyers (except Jon Katz) are less successful in using the "underdog" narrative -- often, again, because the government convinces the jury the defendant's life of crime is what put him in the underdog spot.

Let this paper challenge you to think more subtly about the underdog dynamic than you might have before.  Who is the underdog in your next trial?  Is it fair or unfair that she's in that position, and why?  Take a few steps back -- is there a sheer entertainment value in watching how the weaker side might conquer?  How does that affect your client?  Is there a "big dog" that jurors might enjoy taking down, no matter how much the underdog deserves to lose?  What is it that makes that party so easy to root against?  Are you that party?

(Photo -- get it?  Under dog? -- by Dan Bennett at http://www.flickr.com/photos/soggydan/481674998/; license details here.)

The Jelly Bean Theory of Keeping Jurors' Attention

When you need jurors to understand new and complicated facts or concepts, you have a problem:  you need to repeat the material more than once, but when you do, you're punished for it.  A new and seemingly unrelated study suggests a path between the rock and the hard place.

The dilemma is clear.  On the one hand, you know you can't just have a witness recite the material once and consider it learned.  Most people, no matter how smart, learn much more easily when the material is repeated.  On the other hand, jurors think they hate repetition, and judges know they do.  Present the same fact or concept a second time and you'll typically be met with a quick sustained objection or a jury box full of people shifting in their seats and rolling their eyes.

Enter the jelly bean.

Cherry, orange, strawberry, peach, and tangerine

I've been off line for a little while, and I'd prefer you not ask why one of the first news stories I opened on my return was a news release titled "Trying to stay on a strict diet? Focus on the details."  It's January, after all.  But the story turned out to be relevant to more than my New Year's resolutions. 

The researchers gave subjects jelly beans.  Twenty-two jelly beans each, in five flavors:  cherry, orange, strawberry, peach, and tangerine.  (Why twenty-two and not, say, twenty-seven?  The press release doesn't say, and I don't have the whole article.)  The research subjects had the grueling job of eating the jelly beans and rating how much they enjoyed this jelly-bean-eating thing.  When it was over, they had to answer more questions:  "how well they could distinguish the flavors, how much they noticed the different flavors, how repetitive the eating task felt, how similar the jelly beans seemed to each other, and how much variety they perceived."

The subjects were in two groups, and the two groups heard different words about what they were eating.  One group was asked only to eat the "jelly beans."  The other group was asked to eat "cherry jelly beans," "tangerine jelly beans," and so on.  And that difference -- an extra word articulating the obvious fact that the beans were not exactly the same -- changed the subjects' experience.  The folks who were offered another "peach jelly bean," then "strawberry," had a great time, enjoying every bean and ready for more when the 22-bean ration was gone.  But the poor subjects who were offered "jelly bean" after "jelly bean" got bored and didn't want more. 

Cognitive as well as sensory

The amazing thing about this, of course, is that there was no difference in what these people were actually eating.  The ones who thought they had savored a delicious variety had the same pile of jelly beans as the ones who thought they had endured a tedious sugary ordeal. 

The paper's author, Joseph P. Redden of the University of Minnesota, says the magic isn't limited to food:  "Subcategorization [that's the "tangerine" label] reduced satiation for experiences that were more cognitive (e.g., studying) as well as more sensory (e.g., eating snacks)."   And he suggests there may be many uses for this lesson.  Subcategorization should be useful "when facing limited options, developing expertise, or following a repetitive regimen," he says.

Or when sitting through a trial.  In presenting repetitive material, there is almost always a way to group it into segments that are different from each other, and to describe the differences briefly to the jury.  Any good teacher can tell you how to do it -- or, if the teacher is your expert witness, do it for you.  Jurors think in segments anyway, so the simple act of dividing the material up will help them absorb it.  If you label the segments too, they might even start looking forward to the parts of the trial where you're the one standing up. 

The paper is Joseph P. Redden, "Reducing Satiation: The Role of Categorization Level," in the February 2008 Journal of Consumer Research.  I'm not aware of an free copy on line, but the press release is here.

(Photo by Jonathan Assink at http://www.flickr.com/photos/flyingdutchphotos/2063336707/; license details there.)

How To Be Better Looking

Remember that guy you dated in college, whose striking good looks grew less noticeable as you began to see how annoying he was?  Or girl -- you know the one I mean.  New research shows it wasn't just you.  We judge each other's looks not just by hair and cheekbones, but by personality traits.  This is good news if you're facing a jury and your client isn't -- or you're not -- beautiful.

Pretty is as pretty does

The paper is "Personality goes a long way: The malleability of opposite-sex physical attractiveness," by Gary Lewandowski and others, in a journal called Personal Relationships.  There isn't a free copy on line, but you can get the gist from the abstract and the press release. 

The experiment was simple:  take 78 college students, show them pictures of people of the opposite sex, and ask them to rate how attractive the people in the pictures are.  Then wait while they "participate in a distraction task." (I just love social-science writing.)  Later, ask them to rate the pictures again -- but this time, tell them something about the personalities of the people they're looking at.

Just like that guy in school, the people in the pictures got plainer or prettier, in the eyes of the research subjects, depending on what their personalities were supposed to be like.  Honesty and helpfulness looked good; unfairness and rudeness looked bad.  As the abstract puts it, "personality information produced significant changes in ratings of physical attractiveness for attractive, neutral, and unattractive targets." 

More than skin deep

Does this have anything to do with juries?  Absolutely.  Like it or not, physical beauty matters to jurors, as a British study in March most recently showed.  Back then I got to spend one long post on the study itself and another one on what to make of it.  One thing I said was "Remember 'more than skin deep.'  . . . If you have a witness you think may be stereotyped because of the way he looks, there are ways to let the jury see the beauty of his character."  I didn't have a study to cite when I said it, but there is one now.

(Photo by Franco Folini at http://www.flickr.com/photos/livenature/269044687/; license details there.)

The Grim Power Of Grim Evidence

Criminal and personal injury defense lawyers, pencils ready.  Next time you ask a judge to keep gory pictures and other disturbing material out of evidence, cite David Bright.  "Jurors presented with gruesome evidence, such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence," a recent press release about his work says.

The research in question isn't brand new; Mr. Bright's most recent papers are from 2006 and 2004.  But he recently presented a seminar on his work in his native Australia (you can listen to the audio and see a syllabus here) -- and the University of New South Wales, where he is a Ph.D. candidate, used the occasion to issue the press release recapping his recent work.  Be glad they did.  With his colleague Jane Goodman-Delahunty, Mr. Bright has spent the last five years exploring the effect of gruesome evidence on juries.

Pictures or no pictures

The research Mr. Bright describes in his 2006 paper -- "Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-making," in volume 30 of Law and Human Behavior -- is a straight-up comparison.  Just over 100 subjects were assigned to read a summary of the murder trial.  The facts were the same in each summary, but the researchers varied the amount of detail in the description of the victim's wounds.  In addition, some subjects got photographs of the victim's wounds with their summaries, some got "neutral" pictures of the crime scene, and some got no pictures at all.

The photographs had a huge influence.  Only 8.8% of the mock jurors who didn't see pictures voted to convict the defendant, compared to 38.2% of those who saw neutral pictures and 41.2% of those who saw gory pictures.  The level of verbal detail, on the other hand, seemed to have no effect.  Why did the photographs make such a difference?  Another finding suggests the answer:  the jurors who saw gruesome pictures "reported higher levels of anger directed at the defendant" than the others.

Changing the facts

The 2004 study ("The Influence of Gruesome Verbal Evidence on Mock Juror Verdicts," in volume 11 of Psychiatry, Psychology and Law) focused solely on verbal evidence, but it is less striking because the researchers varied the underlying facts.  In the case file they used, a husband was accused of killing his wife -- but some subjects read a summary where the victim was tortured (and her mutilation was described in detail), while others read a summary where the victim was stabbed once in the chest. 

Those who read the torture summary were more likely to convict, but it might not have been the gore that did it.  I'm no expert, but it would seem that jurors might be more willing to believe that a random attacker was guilty of a stabbing, and that an enraged husband was more likely than a stranger to have committed the torture in the gruesome version.  The paper doesn't attempt to rule out this possibility. 

Protecting trials, protecting jurors

Both papers recap other research in the field.  The 2006 paper also suggests another reason courts should consider excluding lurid pictures:  the impact on the jurors themselves.  Bright's mock jurors reported significant levels of disgust, sadness, and fear when they had to see gruesome pictures.  The researchers called these intense reactions "unexpected," but real courtrooms see them often.  The same week Bright's press release came out, an Australian juror vomited after hours of medical evidence including photographs of horrific injuries inflicted on a little girl.

_________________

Notes:

1. Both Corrections Sentencing and EvidenceProf Blog got to this story faster than I did; but California forensic psychologist Karen Franklin saw it first, because she saw it in the Sydney Morning Herald.
2. I dreaded having to find a picture for this.

(Photo by Sara Petagna at http://www.flickr.com/photos/apesara/1542716302/; license details there.)

The Uses Of "Duh" Research

I love The Onion.  This quote is too long, but I couldn't bring myself to make it shorter:

Study Finds Working At Work Improves Productivity

According to a groundbreaking new study by the Department of Labor, working—the physical act of engaging in a productive job-related activity—may greatly increase the amount of work accomplished during the workday, especially when compared with the more common practices of wasting time and not working.

"Our findings are astounding: By simply sitting down and doing work, employees can dramatically increase their output of goods and services," said Deputy Undersecretary of Labor Charlotte Ponticelli, who authored the report. "In fact, 'working' may revolutionize the way people work."

Perhaps even more shocking, the study reveals that not working significantly decreases worker productivity, sometimes even resulting in no work getting done at all. Similar findings were reported in the areas of avoiding work, putting off work, complaining about work instead of actually working, pretending to work, and fucking around.

"Fucking around is in fact detrimental to the work process," the study reads in part.

Guess what effect stress has on sleep?

The joke is not only on workplace diversions, but also on scientific studies with painfully obvious findings.  Like this one, in a November 6 press release: 

Stress and Anxiety Interfere With Sleep

Seven out of ten adults in the United States say they experience stress or anxiety daily, and most say it interferes at least moderately with their lives. About one-third report persistent stress or excessive anxiety daily or that they have had an anxiety or panic attack. Seven out of ten of those adults say they have trouble sleeping.

These are among the findings of the 2007 Stress & Anxiety Disorders Survey, a report examining the effects of anxiety disorders and everyday stress and anxiety on sleep. The survey was commissioned by the Anxiety Disorders Association of America (ADAA), which is sponsoring National Stress Out Week, November 11-17, 2007.

Or this one, from a press release the following day announcing that people respond more fully and honestly to open-ended than closed-ended questions: 

Doctors who ask the right questions in the right way can successfully encourage abused women to reveal that they are victims of domestic violence, even in a hectic emergency department, a team of researchers from the United States and Canada has found.

****

"[Q]uestions were often framed in the negative 'you aren't a victim of domestic abuse, are you?' which elicited a negative or incomplete response," said Richard Frankel, Ph.D., professor of medicine at the Indiana University School of Medicine and a Regenstrief Institute research scientist. . . .  [P]atients were more likely to disclose experiences with abuse when providers used open-ended questions to initiate the topic of domestic abuse and probed for abuse by asking at least one follow-up question.

If it's so obvious, why don't we do it?

Silly as these "duh" studies sound, there's an argument that they're as useful as any other kind.  We all know that open-ended questions work better, but doctors -- and lawyers in voir dire -- keep asking the other kind, so a study reminding us how dumb those questions are may not itself be dumb.  Likewise we know that stress and anxiety ruin sleep, and in turn that lack of sleep makes us think less clearly, but we don't do much to address the problem, either for ourselves or for stressed jurors in tough trials.  If a "duh" study helps make the point, maybe we need more studies of the obvious.

As for the stunning productive effect of working at work, that study was long overdue.

(Photo by visualpanic at http://www.flickr.com/photos/visualpanic/268335565/; license details there.)

Trick Or Treat, If You're Lucky

How much in your life do you take for granted?  The more you understand how precarious your own comfort is, the better you'll understand a lot of things, including -- although perhaps least importantly -- juries.

Today is Halloween, but here in practical Milwaukee we get our trick-or-treating done in the sunshine of Sunday afternoon.  This year it was easy.  It was the first year that the kids in my charge were old enough to go around the neighborhood by themselves -- so I got a long workout in, while my husband manned the front door.

Basic safety

That paragraph sounds mundane, but according to two recent studies, every word of it shows how lucky I am.  Basically the whole day was possible only because I live in a safe neighborhood. 

First of all, if I didn't feel safe, I not only might not have exercised, but I might not exercise very often at all.  In a study released last week, Harvard researchers found that women who did not feel safe in their neighborhoods at night got 20% less physical activity than others did. 

Then there's the trick-or-treating.  My neighborhood is safe enough that our group could go out alone -- but in many neighborhoods, kids aren't going out at all.  A survey released yesterday found that 73% of white respondents and only 56% of minority respondents planned to let their children trick-or-treat.  The numbers corresponded to responses in the same survey about safety and income levels.  The press release said:

Ninety-one percent of whites, compared with 75 percent of minorities, said they felt their kids would be secure when they went out seeking candy in their area.

Similarly, 93 percent of people earning $50,000 or more said their communities are safe for trick-or-treating, compared with 76 percent of those making less than $25,000.

People's lives are different, which makes their experiences different, which makes their attitudes different.  It's not a bad mantra for life.  Because it also makes different people respond differently to your case, it's a great mantra for jury selection.

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Halloween note:  It's a great day for this blog when jurors dress in costumes for court, and today it happened right here in Milwaukee!  Proof and Hearsay reports that the entire jury in Judge Rick Sankovitz's trial walked into court this morning wearing judicial robes.  It's the same trial where he earlier struck a juror who was sending Twitter messages from the courtroom.  They started closing arguments today; it's a shame to see that trial end.

These Are Our Kids On Drugs

If you're like most lawyers, the most powerful thing you can do to better understand juries is to learn more about the lives of people who are not you.  No matter how informed, well-rounded, and naturally empathetic you are, this isn't easy.  Your mind has a way of insisting that your perspective is the only, rather than merely your own.

Snapshot of the day

The only way to do this is slice by slice, snapshot by snapshot.  So here's the snapshot of the day:  the OAS Report (that's the Office of Applied Studies of SAMHSA, the government's Substance Abuse and Mental Health Services Administration) called "A Day in the Life of American Adolescents: Substance Use Facts," released last week.  The web site has a fact sheet with links to the whole study and a press release, and the highlights are:

• "On an average day in 2006, youth used the following substances for the first time: 7,970 drank alcohol for the first time, 4,348 used an illicit drug for the first time, 4,082 smoked cigarettes for the first time, 3,577 used marijuana for the first time, and 2,517 used pain relievers nonmedically for the first time.
• "Youth who used alcohol in the past month drank an average of 4.7 drinks per day on the days they drank and those who smoked cigarettes in the past month smoked an average of 4.6 cigarettes per day on the days they smoked.
• "On a average day in 2005, the number of youth admissions to substance abuse treatment were referred by the following sources: 189 by the criminal justice system; 66 by self-referral or referral from other individuals; 43 by schools; 37 by community organizations; 22 by alcohol or drug treatment providers; and 18 by other health providers.
• "On an average day in 2005, active substance abuse treatment clients under the age of 18 received the following the types of substance abuse treatment: 76,240 were clients in outpatient treatment; 10,313 were clients in non-hospital residential treatment; and 1,058 were clients in hospital inpatient treatment."

As always with statistics like this, take a minute to consider their full impact.  Each of those kids has, or had, two parents.  Four grandparents.  Siblings, cousins, teachers, social workers, friends. 

When you stand up to speak to jurors about young people and substance abuse, there's a strong chance that several of the jurors will know, from experience, what you're talking about.

(Image from Edwart Visser at http://www.flickr.com/photos/flashpro/1441624141/; license details there.)

 

"The Quarter-Second Election"

I kept telling my friends that guy could never be elected president.

Never mind which guy.  In fact, it doesn't matter, because I've said this more than once.  It's my staple line when the dinner conversation turns to lists of candidates:  he's too short, too skinny, too funny-looking.  My friends never listened, secure (and correct) in the knowledge that they all know more about politics than I do.  But I do know a little about the power of people's visual judgments.  He'll never win, I said.

Now here comes Princeton professor Alexander Todorov to say I was right.  His paper, "The Quarter-Second Election" will be in the October 22 issue of Proceedings of the National Academy of Sciences.  Unlike a lot of schools, Princeton writes readable press releases on social science research, so I have the luxury of letting them describe the experiment:

A split-second glance at two candidates' faces is often enough to determine which one will win an election, according to a Princeton University study.

Princeton psychologist Alexander Todorov has demonstrated that quick facial judgments can accurately predict real-world election returns. Todorov has taken some of his previous research that showed that people unconsciously judge the competence of an unfamiliar face within a tenth of a second, and he has moved it to the political arena. His lab tests show that a rapid appraisal of the relative competence of two candidates' faces was sufficient to predict the winner in about 70 percent of the races for U.S. senator and state governor in the 2006 elections.

"We never told our test subjects they were looking at candidates for political office -- we only asked them to make a gut reaction response as to which unfamiliar face appeared more competent," said Todorov, an assistant professor of psychology and public affairs. "The findings suggest that fast, unreflective judgments based on a candidate's face can affect voting decisions."

Todorov and Charles Ballew, an undergraduate psychology major who graduated from Princeton in 2006, conducted three experiments in which several dozen participants had to make snap judgments about faces. Participants were shown a series of photos, each containing a pair of faces, and asked to choose, based purely on gut feeling, which face they felt displayed more competence. The differences among the experiments largely concerned the amounts of time an observer was allowed to view the faces – as brief as a tenth of a second or longer -- and to pass judgment afterward.

What was unknown to the participants in the third experiment was that the image pairs were actually the photographs of the two frontrunner candidates for a major election being held somewhere in the United States during the time of the experiment in late 2006. The races were either for state governor or for a seat in the U.S. Senate. In cases where an observer recognized either of the two faces, the researchers removed the selection from the data.

Two weeks later elections were held, and the researchers compared the competency judgments with the election results. They found that the judgments predicted the winners in 72.4 percent of the senatorial races and 68.6 percent of the gubernatorial races.

"This means that with a quick look at two photos, you have a great chance of predicting who will win," Todorov said. "Voters are not that rational, after all. So maybe we have to consider that when we elect our politicians."

[Read the rest here.]

This doesn't mean jurors make up their minds at the sight of your face, or your client's.  Your interaction with jurors is more personal than a candidate's interaction with voters, for one thing.  You have many more chances to get your evidence, your arguments, and your authentic personality across.

But this research does mean that physical appearance is a powerful force in shaping opinions and reactions, far more powerful than most people think it is.  It's an issue that has come up before, and it's not going to go away.

(Photo by Daniel Lobo at http://www.flickr.com/photos/daquellamanera/73686445/; license details there.)

If You Could Have Only One News Source . . .

At least half the challenge in learning about juries is replacing your stereotypes, projections, and assumptions about people with real awareness. If I had to face that challenge with just one news source, it might be the Gallup Poll.

Actually it's a handful of news sources, because Gallup has different feed "channels" in which they report research results on different topics. I subscribe to all of them: business and economy, government and politics, health and healthcare, religion and social trends, and education and youth. They send me a handful of reports a week, most of which are eye-opening in some way.

Here are a few recent stories from Gallup that challenged what I thought I knew, or highlighted something I hadn't thought about:

• "Public Not That Worried About Mortgage Crisis Affecting Own Finances": "Americans appear to be far more apprehensive about the impact of the subprime mortgage crisis on the national economy than on their own financial situations."
• "The Divide Between Public School Parents and Private School Parents": "Parents with children who attend private, parochial, or who are home schooled are much more positive than parents with children in public school about the quality of education their children receive, and are less likely to report concerns for their children's physical safety."
• "Americans Put Obesity On Par With Smoking in Terms of Harmful Effects": "More than one-quarter of Americans report that obesity has been a cause of serious health problems in their family. Americans are more than three times as likely to say they are sympathetic to those who are significantly overweight as to say they are unsympathetic."
• "Most Americans Approve of Interracial Marriages": "The vast majority of whites and an even larger majority of blacks approve of interracial marriages. Older Americans -- regardless of race or ethnicity -- are less inclined to support interracial marriages than are younger Americans, but still, older Americans show majority support."
• "Sixty Percent of Americans Approve of Labor Unions": "60% of Americans say they approve of labor unions, while 32% disapprove. The public's approval rating of labor unions has not shown much significant change in the past four years." But more people approve than belong: "Only about 1 in 10 Americans say they personally belong to a labor union."

(Photo by Kate Mereand at http://www.flickr.com/photos/katmere/63785117/; license details there.)

To Persuade Jurors . . . Confuse Them?

If you want to persuade jurors, you must be clear, right?  Maybe not.  New research shows that a sales pitch is more persuasive when it confuses the customer. 

At least at first.  If you confuse them and stop there, they're just confused.  But if you confuse listeners and then resolve their confusion, scholars who study the "disrupt-then-reframe" technique contend, you'll persuade them more often than you would have if you had been clear from the start.

The latest paper on this topic was announced in a press release yesterday.  It's called "The Role of the Need for Cognitive Closure in the Effectiveness of the Disrupt-the-Reframe Influence Technique," by Frank R. Kardes, Bob M. Fennis and three co-authors, and it's being published in the October issue of the Journal of Consumer Research.  The article is subscription only, but the press release gets it across.

300 pennies

"Disrupt-then-reframe" -- DTR for short -- is what you do to your listener's understanding when you use what the authors call this "relatively new technique."  "In the seminal investigation of the DTR effect," the authors explain, scholars in 1999

used a subtle disruption in which the price of a product was indicated in pennies: “The price of these note cards is 300 pennies.” This disruption was followed by the reframing: “That’s $3. It’s a bargain.”

That moment of confusion, immediately explained, doesn't sound like much.  But it made a big difference.  In that 1999 study, people who got the price in confusing pennies and then clear dollars agreed to buy 65-90% of the time, while those who got only the confusing or only the clear explanation bought only 25-50% of the time.  "The DTR technique has been shown to increase  sales of Christmas cards, note cards, and cookies in door-to-  door sales campaigns for various nonprofit organizations  . . . and also to increase sales of  lottery tickets and to increase students’ acceptance of a tuition  increase," the authors tell us. 

The "need for cognitive closure"

Why does the technique work?  "Disruption has been thought to reduce counterarguing and to increase susceptibility to the reframing or rewording of the message," the authors explain, and the new study explores this area.  The confusing message creates a "need for cognitive closure," as the authors call it -- a need for answers.  In these experiments, subjects were measured not only for their reactions to the sales pitches, but also for how much they were just the kind of people who needed cognitive closure in life.  Not surprisingly, the results suggested that the more uncomfortable you are with uncertainty, the more strongly you respond to the disrupt-then-reframe technique.

Joining the confusing club

This theory probably contradicts most of what you've been taught about trial presentation.  But when you think about it, it makes sense.  People want to solve mysteries.  "Survivor" and "American Idol" wouldn't have lasted a year if the first episodes told us who survived and who won.  If you watch even for a few hours, you'll see that the world is full of people who get your attention by momentarily confusing you -- advertisers, headline writers (I tried it in the headline of this post), screenwriters, joke writers, your children. 

Everyone, it seems, except trial lawyers.  We keep plodding along -- clear as a bell, if we're lucky and good, but dull as dirt.  Maybe we need a little confusion, well timed and quickly resolved.

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Note:  Guy Kawasaki, the marketing giant who shares my birthday, wrote about this paper today from the marketing point of view. 

(Image by Tall Chris at http://www.flickr.com/photos/tallchris/14288097/; license details there.)