Deliberations

CONNECTING WITH JURORS? Just Look to Kindergarten (and Neuroscience)

 I want to begin this blog by saying that this piece is not a hatchet job on juries or attorneys.  Both are the backbone of our justice system and a very important part of putting takeout food on my table and a roof over my three dogs’ heads.  That being said, many of us have seen a rift growing between jurors and litigators.  Jurors are frustrated with the legal process while attorneys complain about jurors’ inability to understand case arguments, basic premises of law, and instructions. 

Unfortunately, this disconnect has spawned sayings like “The only people on juries are those who were not smart enough to avoid jury duty.”  However, I believe that this confusion (often thought to be a lack of intellect) is often due to poor communication.  Jury duty is tough.  Jurors must face complex legal issues, sit like silent sponges without interaction, delay deliberation, and proceed with little guidance.

Imagine if 12 attorneys were brought to a conference of astrophysicists to judge who had the correct theory about the size of the universe.  Let’s suppose that the lawyers were told to sit and watch days (even weeks) of presentations by top physicists, were not allowed to ask real-time questions, and were not allowed to deliberate until the very end.  What would physicists say about the attorneys who could not understand such basic premises: The Planck epoch, relativity, and the cosmological constant?  My guess is that it would not be complimentary.

The problem, as with many of the world’s ills, is one of common language.  So, I suggest we go back to the basics and look to the rules of Kindergarten to find our answers.

(BTW, as a shout-out to Science Daily's hard work, the following links all go to their articles.)

The Golden Rule:  In 1992, Bill Clinton famously uttered the phrase, “I feel your pain.”  New research suggests that this may have been more than rhetoric.  A study published in Cell Press found that our brains show similar patterns of activity both when we feel pain and when we see familiar pain in someone else.  However, the study suggests that it is much more difficult for us to process unfamiliar pain.  This impediment can have big implications on both jury selection (looking for those who have common pain) and the need for metaphors and similes to bridge the gaps (speaking to those without common pain).

Say Thank You (or at least think it):  Researchers from the field of management consulting have discovered that thinking about worse case scenarios connects us more strongly to our actual (if imperfect) reality.  Their study found that employees (concerned about the economy) who were asked to think about potential pitfalls that their company had survived, were more likely to have greater attachment and positivity towards their employer.  For example, FedEx employees felt better about the company after focusing on the thought of what would have happened if the founder (Fred Smith) had not chosen to make his desperate 1973 flight to Las Vegas to help his company meet payroll. In other words, counting our blessings both makes us appreciative of what we have and tends to mitigate negativity about the present.

More Pictures:  Researchers at North Carolina State University have discovered that the saying “less is more” does not necessarily apply to charts and graphs.  They found that rectangular bar charts were actually processed more quickly with a circular (filled with circles) background than with a blank/white background.  They posited that contrast was the key to identifying important information, not simplicity.  Throw out the boring demonstratives, complex ones can actually increase retention and attention.

Nap Time: While I know it’s unconventional (yet unintentionally partaken by many), I end this blog with a plea for a national “nap time” to be inserted into the trial day.  In support of my call, I point to research out of Beth Isreal Deaconess Medical Center that shows dreaming about a complex task (doing a maze) during a nap increased performance by 10 times over those who did not nap.  Don’t we want our jurors maximizing their retention and processing?  Support the national call for nap time, Winston Churchill did: “Don’t think you will be doing less work because you sleep during the day. That’s a foolish notion held by people who have no imagination.”

Blogger: Matt McCusker

THE ART OF PSYCHIC MIND CONTROL (In Three Easy Steps)

 Let’s face it, we have all been in the position where we wanted to use psychic mind control to influence the actions of someone around us (spouse, child, neighbor, juror, etc.).  Unfortunately, no matter how well we explain our position, sometimes the other person just doesn’t “get it.” Well, argue no more.  Now, for the price of a free cup of coffee, you too can utilize your brain to its maximum potential and psychically control your family, friends, and even perfect strangers! 

(DISCLAIMER: Brain maximum potentials may vary.  Consult your doctor before participating in any brain maximization exercises. Deliberations is not responsible for any injuries resulting from brain overuse or unfortunate consequences associated with psychic mind control.)

How is this possible?  It’s easy! Just follow these three basic steps and watch everyone do whatever you say:

1)     Assess the Subject

2)    Identify the Narrative Goal

3)    Manipulate Your Presentation

Or, as I like to say: “Tune up your brain and A.I.M.”

Step One: Assess the Subject

Research has shown that we all have the ability to read minds.  At last year’s American Society of Trial Consultants Conference in Atlanta, Dr. David Matsumoto of Humintell taught us how microexpressions are universal indicators that humans from Fiji to Finland display regularly.  Amazingly, I found that after two hours of video training, I increased my accuracy at correctly identifying these brief emotional indicators from around 40% of the time to over 80%. 

We can even read minds “remotely” through photos.  A blog by Katie Moisse at the Scientific American outlines research that suggests people can predict a person’s political party affiliation (Republican or Democrat) based on facial photos.  This study utilized black and white pictures of U.S. Senate candidates and college year book photos of voters to test whether people could accurately predict which party they aligned with. The results showed significant success (although generalized and imperfect) based on stereotypes about Republicans and Democrats. (Which begs the question: Should covers actually be used to judge books?)

For attorneys, step one would entail making an honest assessment of the community and jurors involved in their case.  This could include: Thinking about the attitudes of the area, doing pre-trial research, designing strong voir dire or juror questionnaires, and most importantly, paying close attention to the responses. 

Step Two: Identify the Narrative Goal

While it would seem easiest to simply tell someone what you want them to do, psychic mind control requires more finesse.  Rather than dragging them along, it’s better to decide on a finish line and offer signposts to help your audience arrive where you want them to.  The most basic method of accomplishing this is by engaging in the art of storytelling.

Whether it be through religion or culture, the most lasting stories of human history are those that impart some sense of morality or learning experience.  The Bible; The Koran; The Torah; Buddhist Sutras; all of these impart morals that highlight the benefits of being a good member of society (and the potential downfalls of not).  Theories of sociocultural evolution suggest that we have a predisposition to attach to these stories of morality because, as humans, we need the group to survive.  Ted Kaczynski types aside, we are a very social species and naturally attach to themes that engage this premise.

Some of the best examples of lasting stories come from a Greek slave named Aesop.  His fables became so imprinted in the cultural lexicon that we now only need to speak a few words to impart the entire story: “Sour grapes”, “cried wolf”, “the Tortoise and the Hare.”  One of the best methods of accomplishing psychic mind control is to create a story that taps into this internal need for social justice (honesty, hard work, selflessness, etc.).

Step Three: Manipulate Your Presentation

You have measured your listener(s) and catered your goals, the final step of psychic mind control is to change your message transmission; this means altering your language.

Research has suggested that something as simple as word choice can have dramatic surprising psychological and physical effects to the state of the listener.  One method of utilizing this phenomenon is to build themes on common turns of phrase and imagery (“taking a step back”, “unclean thoughts”, “that’s heavy”, etc.).

The Association for Psychological Sciences published an article (The Body of Knowledge) which outlines a variety of studies exploring the field of embodied cognition.  This area is based on the premise that many common sayings actually provide cognitive/neurological reactions from the recipient.  For example, one study found that subjects who were asked to think about a time they were rejected by someone, assessed the temperature of the experiment room as significantly colder than those who were asked to think about a time they were accepted by someone (“out in the cold” versus “warmly received”.)

By choosing your words carefully, your listeners will both hear and feel the power of your story. Thus, rendering them helpless to your metaphysical manipulations. It’s as easy as 1, 2, 3.  Just (1) know your audience; (2) craft a good story; and (3) use powerful imagery through language; then you too can be an expert in the Art of Psychic Mind Control.

Blogger: Matt McCusker

What do Homer Simpson, Fonzie, MacGyver, and Batman have in common?: THE MIND OF A HOLDOUT JUROR

 I begin this post not with Henry Fonda (12 Angry Men), but with a few lesser-known (yet still famous) references to holdout jurors.

Some will remember that Homer Simpson was a holdout juror who argued a man’s innocence in the name of a free hotel room, free food, and free HBO. He noted, “Marge, it was horrible. Everyone was against me in that jury room. But I stood by the courage of my convictions and I prevailed… And that's why we had Chinese food for lunch.”

Both Fonzie (Happy Days) and MacGyver (MacGyver) also held out in the name of justice for the innocent.  Fonzie utilized his knowledge of motorcycles during the deliberation to prove a man not guilty (actually “Not Guiltyamundo”), while MacGyver … well …  pulled a MacGyver.

Despite being sequestered, MacGyver used two soda cans and a coin to distract the guard and sneak out of his hotel room.  He then conducted his own investigation of the crime scene, eventually nabbing the real attacker. (Before you think Hollywood is unrealistic, the judge did admonish MacGyver for these crazy antics… but then thanked him for finding the truth.)

However, my favorite holdout juror comes from the comedy 3rd Rock from the Sun. Putting a nice twist on the 12 Angry Men plot, Dick tries to defend a very obviously guilty man and sway the jury to set him free.  Here is an example of his case theory: “Well, Foster SAID he didn't do it.  Are you calling him ... AND his attorney ... LIARS?"

If you recall, I began this blog series on hung juries and holdouts, talking about the 20% of French faux-reality show contestants who refused to shock a man (actually an actor) into unconsciousness.  I was curious to know what type of people stand up to the group and refuse to comply with the wishes of a badgering game show host and vocal studio audience. 

While this is by no means an exhaustive list, and choices depend greatly on the case at hand, here are a few things to look for when thinking about jurors who are aversive to compromise or don’t play well with others:

1)      Watch the Talkers:  A study on interaction rates amongst members of split juries showed that the smaller the size of the minority faction, the more they talked.  It is easy to sit quietly when supporting the majority in a deliberation.  The holdouts are often required to argue and explain why they won’t go along with the group.  During voir dire, make a note of the people who like to talk.

2)     Strong Houses Rest on Solid Foundations:  Frequently, those who indicate “very strong” opinions about issues of ethics and morals are likely to be unwilling to shift to a position that would be in contradiction with these beliefs.  Those schooled in cognitive dissonance know that often, the stronger the belief, the more extreme the need to stay in line with it (even if it means wild theories with little support).

3)     Agree to Disagree:  There are some people who just like to argue.  They will often place the thrill of debate in front of the search for justice.  Anecdotally, I offer a few potential giveaways for these conflict-magnetic individuals during voir dire:

a.      Debating with attorneys or other jurors during Q&A;

b.      Whispering jokes in the back of the courtroom;

c.       Angrily staring at you with the “evil eye”; and

d.      Giving curt answers that are obviously intended to send you a message.

4)     Step One - Read Instructions:  A study by the American Bar Foundation showed that juries were twice as likely to hang if they began their deliberations focused on votes instead of evidence.  While this is usually out of attorneys’ control, asking judges to give jurors guidance about evidence-based deliberations could go a long way towards finding unanimous verdicts.

*A Caveat:  Those who have read the first two parts of the series already know that research suggests that holdouts are born from a split group that has different interpretations of the strength of the evidence and testimony.  The holdouts seldom begin the deliberation as 11 against 1 , but arrive there after a string of minority defections to the majority.

I end this post as it began, with another reference to a famous holdout juror.  Believe it or not, Bruce Wayne served on the jury of a man whom he captured as Batman.  In this scenario, (possibly due to the lack of evidence associated with “arrest by superhero”) Bruce had to convince the jury that the man was actually GUILTY!  Before you complain about juror deception, you should know that during voir dire, the Caped Crusader openly admitted in court that he would be a poor  juror because he was, in fact, Batman.  As would be expected, everyone laughed but him, the holdout. 

Blogger: Matt McCusker

(BTW, feel free to post comments with other famous juror holdouts.)

 

“CAN’T WE ALL JUST GET ALONG?”: How Juries Get Hung

 When creating the story of a hero, three things are generally needed:

1)      A righteous cause that we can get behind;

2)     An individual who is facing seemingly insurmountable odds; and

3)     A hard-fought struggle, that may or may not end with success.

This formula is imbedded in the human consciousness and can be traced back to the times of Homer and Plato.  Once you start looking for it, a familiar story structure begins to appear everywhere (from Spartacus to Serpico to Twelve Angry Men).  It’s no wonder that when we think of a hung jury, many of us assume that there was one person who heroically refused to abandon their convictions and submit to the will of the collective.  (This is an especially common caricature in death penalty cases with hung juries.)

Certainly, a brief review of the media reports about deliberation deadlocks supports this gut feeling.  While not always portrayed as heroes, the jury holdouts are often painted as victims of the group.  Some examples include:

    One Juror Between Terrorist and Death

Holdout Jurors Can Put Legal System to the Test

Save the Holdout Juror from the Internet

However, jury research suggests that “a Holdout” is often less of “a Lone Hero” and more of “a Captain going down with the ship.”  I cited the National Center for State Courts project in Part One of this series because it is a fantastic resource on hung juries.  While it’s true that the project depended on an amalgam of sporadic studies over the last 50 years, its research corroborates the suggestion that hung juries often begin with a split group that is whittled down to one or two holdouts. 

Kalven and Zeisel (The American Jury) performed extensive research on splits during their historic work in 1960s and 70s. They discovered that hung juries typically give much weaker ratings to the “power of the evidence” and the “clarity of the law” than unanimous juries.  When calculating rating strength, the jurors’ scores were set to a baseline of comparison with ratings provided by the judges and attorneys involved the case.  In other words, juries were more likely to be hung when they started out unsure and when there was one person in the group who refused to move off of their initial (often weak) position.

Additionally, hung juries are more common in deliberations that begin with a “verdict-driven” approach as opposed to an “evidence-driven” approach (see Inside the Jury).  It is important to note that if individuals avoid locking into a position early, the group is more likely to find consensus.  I find it a sobering thought that something as simple as instructing jurors not to start off with a verdict polling could have such dramatic effects on group cohesion.

Not surprisingly, the story of “the Holdout” becomes less compelling when it is framed as one stubborn goat who can’t concede to a verdict that everyone else has agreed on.  With apologies to all you “rebels” out there, research shows that a group of people is often better at decision-making than an individual.  Blinder and Morgan demonstrated this in Are Two Heads Better Than One?  For every Einstein or Copernicus out there who is ready to prove us wrong and shift our paradigm, there are a thousand crazies who are adamant that aluminum foil is the best defense against mind control. (Everyone knows this is an urban legend, anything less than a titanium alloy is useless.)

The research suggests that holdouts typically thrive in confusion.  However, these obstinate individuals are made far less powerful when a case presentation is able to arm more rational jurors with the themes necessary for a fruitful deliberation.   

In the next installment, I will examine the mind of the holdout and methods of spotting them.

Blogger: Matt McCusker

PART 1: HOW THE FRENCH’S SHOCKING BEHAVIOR RELATES TO JURY DYNAMICS