Science often disbelieved, study finds

How many times have you found yourself in court, being challenged on basic information that is virtually undisputed and noncontroversial among scientists? As it turns out, no matter how knowledgeable you are, or how great your credentials, judges or jurors may disbelieve the scientific evidence you are presenting if it does not match their social values.

That's no big surprise, given decades of social psychology research into cognitive dissonance. But a study funded by the National Science Foundation and scheduled for publication in the Journal of Risk Research sheds new light on why "scientific consensus" fails to persuade.

Study participants were much more likely to see a scientist with elite credentials as an "expert" on such culturally contested issues as global warming, gun control, and the risks of nuclear waste disposal if the expert's position matched the participant's own political leanings.

"These are all matters on which the National Academy of Sciences has issued 'expert consensus' reports," said lead author Dan Kahan, a law professor at Yale University. "Using the reports as a benchmark, no cultural group in our study was more likely than any other to be 'getting it right,' i.e., correctly identifying scientific consensus on these issues. They were all just as likely to report that 'most' scientists favor the position rejected by the National Academy of Sciences expert consensus report if the report reached a conclusion contrary to their own cultural predispositions."

The findings suggest that mere education alone will not increase people's willingness to accept scientific consensus as accurate, said co-author Donald Braman, a law professor at George Washington University. "To make sure people form unbiased perceptions of what scientists are discovering, it is necessary to use communication strategies that reduce the likelihood that citizens of diverse values will find scientific findings threatening to their cultural commitments."

Information sources more atomized

Unfortunately, trends in public consumption of news may make this task increasingly difficult. Although people are spending at least as much time as ever on the news, they are less likely to read the daily newspaper and more likely to get their information from television and online sources including, most recently, their telephones, according to an informative new survey by the Pew Research Center for the People and the Press. This decreases our common knowledge base and makes it easier for ideologically slanted information sources to influence public opinion.

Indeed, the Pew researchers found ideology inextricably linked with people's choices of news sources. For example, here in the United States, Republicans, conservatives, and so-called "Tea Party" enthusiasts were much more likely than the general public to watch Fox News and listen to Rush Limbaugh. In contrast, the researchers found, supporters of gay rights make up large shares of regular readers of the New York Times and listeners at National Public Radio.

In an interesting analysis of the mainstreaming of extremism, alternative journalist Arun Gupta points out the ease with which political pundits for whom facts are irrelevant can indoctrinate the uninformed. A respondent committed to rational scientific inquiry becomes like a dog chasing its tail: In the time it takes to deconstruct one fraudulent news story, the pundits have concocted five more.

Top myths of popular psychology

For a great myth-busting tool, I recommend Scott Lilienfeld's latest, 50 great Myths of Popular Psychology. Lilienfeld and co-authors Steven Jay Lynn, John Ruscio, and the late Barry Beyerstein provide dozens of examples of entrenched popular beliefs that have been debunked by high-quality research, many relevant to forensic practice. A few examples:

• Human memory works like a tape recorder or video camera, and accurately records the events we have experienced

• Abstinence is the only effective treatment for problem drinking

• Criminal profiling helps solve crimes
  

(You'll remember that last one from my most recent post.)

Given the public's increasingly atomized sources of information, it behooves us to be knowledgeable about both ideological influences and common myths. What an expert witness might naively regard as established science may, after all, be subject to disbelief.

A blogger responds:

"Science, Believing Is Believing," Scott H. Greenfield, Esq. at Simple Justice

The featured research:

• "Cultural cognition of scientific consensus," by Dan M. Kahan, Hank Jenkins-Smith and Donald Braman, forthcoming in the Journal of Risk Research.

• Ideological news sources: Who watches and why, Pew Research Center for the People and the Press, September 12, 2010, full report available online and highly recommended
  

Can implicit religious bias affect jury verdicts?

Homaidan Al-Turki, a Saudi Arabian citizen pursuing his doctoral degree in Colorado, was on trial in Colorado for assaulting his housekeeper. As the jury was sworn in, one juror indicated he might believe a Muslim would more likely break the law under certain circumstances. Al-Turki's lawyer asked if he could probe further, but the judge said no. During the trial, the prosecutor showed the jury a mannequin dressed in "Muslim women’s clothing." Allusions were made to Osama bin Laden, Ramadan, and 9/11. The jury convicted and Al-Turki was sentenced to 28 years in prison.

Al-Turki blamed his conviction on anti-Muslim sentiment, and the case sparked international controversy. But the conviction was upheld on appeal, and earlier this year the U.S. Supreme Court declined to hear the case.

What does psychology have to offer about the potential effect of jurors' religious bias on verdicts, and how implicit cues might activate such bias?

This month's Judicial Notebook, a regular column in the Monitor magazine published by the American Psychological Association, addresses this timely issue. Note authors Marc Pearce and Samantha Schwartz of the University of Nebraska-Lincoln:

Research indicates that information associating Muslims with negative attributes (such as terrorism) can create implicit biases that are difficult to detect with explicit measures… [T]he prosecution’s use of negative associations during a trial might foster an implicit bias against a Muslim defendant.

The full column is online HERE.

Related blog post:

• Prominent expert testifies about implicit bias (April 15, 2008)

Race salience and juries: It’s complicated

Samuel R. Sommers of Tufts University is one of the leading experts on "race salience," or the study of under what conditions defendant race influences white jurors. In the decade since he and colleague Phoebe Ellsworth first published on this topic, their research has garnered widespread interest both among researchers and in the courts. In the current issue of The Jury Expert, he clarifies some misconceptions about the theory, including:

• Misconception #1: "Race salient" means simply informing mock jurors of the defendant's race.

• Misconception #2: White juror bias cannot occur when racial issues are salient at trial.

• Misconception #3: Salient racial issues at trial always lead to White juror leniency.

• Misconception #4: All race-salience manipulations have equal impact.

Related blog posts:

• Colorful juries more competent (January 3, 2008)
• Are juries fair? Beliefs race-dependent, poll finds (January 22, 2008)
• On police, profiling, and Henry Gates (guest essay by Sam Sommers, July 28, 2009)
• Not this time, high court rules in Snyder v. Louisiana (March 21, 2008)

Other interesting articles in this issue of The Jury Expert:

• Persuading with Probability: The Prosecution of O.J. Simpson by statistician Daniel J. Denis
• The Convoluted Spectrum of White Guilt Reactions: A Review of Emerging Literature by Alexis A. Robinson
• The Reptile Brain, Mammal Heart and (Sometimes Perplexing) Mind of the Juror: Toward a Triune Trial Strategy by Jill Holmquist
• Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials (aka Generation Y) by Douglas L. Keene, Rita R. Handrich
• Presumed Prejudice, Actual Prejudice, No Prejudice: Skilling v. U.S. by Thaddeus Hoffmeister
• Emotions in the courtroom: "Need for affect" in juror decision-making by Desiree Adams Griffin, Emily Patty

Of related interest:

Sam Sommer's excellent blog, The Science of Small Talk

Race, class, and self defense

Berkeley fraternity case spotlighted

Remember the "Killing and Culpability" reader participation exercise I presented in April, featuring the case of a young man in Berkeley, California, who stabbed a fraternity man during a street brawl? If so, you may recall that Andrew Hoeft-Edenfield was found guilty of second-degree murder and sentenced to 16 years in prison. Now, I am gratified to see that the troubling case is getting national play as part of renewed debate over what constitutes self defense.

"Had Hoeft-Edenfield been tried in Florida, things might have turned out differently," asserts Brooklyn-based freelance writer Lisa Riordan Seville in a column first published at Crime Report and now reposted at Salon.com. That's because Florida eliminated the "duty to retreat" requirement for self defense that played a role in Hoeft-Edenfield's conviction. Unlike California, Florida and 29 other states now have "stand your ground" laws that allow people to "meet force with force" anywhere they have a “legal right to be."

The essay is pegged to the U.S. Supreme Court's 5-4 ruling in McDonald v. City of Chicago, reaffirming gun ownership as a Constitutional right. Although that case did not pertain to self defense, legal analysts say it may ultimately help to "reshape the boundaries of the kind of force individuals can use to defend themselves," Seville notes.

Race, class, and social status in self defense claims

My local news is reporting on a bizarre rally in the overwhelmingly white San Francisco suburb of Walnut Creek. The protesters were there to support Johannes Mehserle, the transit cop who shot African American train passenger Oscar Grant to death in Oakland, California. Yes, that's right. To support the maligned killer. You will recall that Mehserle was convicted of only involuntary manslaughter, based on his claim that he had meant to fire his taser. (He is currently awaiting sentencing.) Counter-protesters lay face down in the street with their hands behind their backs to show Grant's position when he was shot in the back of the head. It reminded me of the quip going around Twitter just after the verdict highlighting race and relative social rank as factors in jury verdicts: "Hey, if Oscar Grant had shot a cop in the back, do you think he could have gotten off by saying, 'Oops, I thought I was texting on my cell phone'?"

One of my goals in the reader participation exercise was to showcase how implicit values and relative social status influence contested claims of self defense. Thus, I was intrigued by Seville's discussion of race and class in self defense claims. This was the focus of Justice Clarence Thomas's concurring opinion in the McDonald case. Thomas pointed out the importance of firearm ownership for black citizens in the South in the post-Reconstruction era, during which African Americans were "tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process."

Massad Ayoob, a police captain and firearms trainer in New Hampshire, also acknowledged the role of race, class, and other circumstances in the outcomes self-defense claims:

He pointed to the case of Ronnie Barlow, a young black man from Arizona who was in 1990 convicted of second-degree murder for what he said was a self-defense shooting. He said he was attacked by 21-year-old Robert Lockwood, a white man with a long criminal history and the son of a local judge, but the jury didn’t buy it. The judge, however, saw it differently and reduced the jury verdict to manslaughter. Two years later, Barlow was released."

What would the "reasonable person" have done?

Subtle social and moral values quickly slip into jury deliberations because of the supposedly objective question of what the "reasonable person" would have done in the defendant's situation. Writes Seville:

The "reasonable man" -- or, now, "reasonable person" -- doctrine is the cornerstone of a self-defense case, explains Cynthia Lee, a law professor at George Washington University. Juries must decide if the sequence of events was reasonable not only in the defendant’s mind but also from an outside perspective.

"The reasonableness requirement is imposed to lend an air of objectivity to the defense," says Lee, the author of Murder and the Reasonable Man, a study of how beliefs and social norms play out in criminal cases, including self-defense trials. "The problem is of course that reasonableness is in the eye of the beholder," she says. "What’s reasonable to one person is not reasonable to another.”

Battered person’s syndrome

Seville goes on to discuss the role of the battered women's defense in broadening conceptions of self defense in the courtroom:

In recent years, the courts and state legislatures have opened up more room for questions about what constitutes an "imminent" threat and whether a reasonable person must try to flee before using force.

Increased legal acceptance of the "battered person’s syndrome" in the early 1990s allowed juries to hear how an abused person -- often, a woman -- might feel she had no choice but to kill to save her life. This challenged the long-standing notion that the threat to one's life had to be imminent. A battered person may, some believe, kill because the abuse is perceived to be life-threatening even if it isn't happening right then.

Like "stand your ground laws," battered-person defenses show that societal views can come into play in the long-standing right to self-defense, but nothing may indicate that better than the juries themselves.

Self-defense cases offer juries a lot of leeway to decide what they believe is reasonable and just, regardless of the law. "What the law on the books requires and what happens in action may be two different things,” Lee says. "Prosecutors, cops, jury members. We’re all people -- and stereotypes about certain groups affect us all."

The McDonald decision means that courts throughout the country will grapple for years with interpretations of the Second Amendment and the right of self-defense. But when the cases make it in to court, justice may depend less on the letter of state law than on the state of mind of the 12 people seated in that jury box.

Related blog posts:

• Killing and culpability: A reader participation exercise (April 14, 2010)
• "Killing and culpability" sentences handed down (June 16, 2010)

Photo credits: (1) family photo of Andrew Hoeft-Edenfield, credit The Crime Report
(2) Mehserle counter-protesters, credit Brant Ward, San Francisco Chronicle
(3) "The Second Amendment," credit ianturton (Creative Commons license)

APA 2010: Exciting forensic programming

I was vacillating about whether to attend the upcoming American Psychological Association convention in San Diego, but browsing through the schedule sold me. The American Psychology-Law Society (Division 41) is sponsoring almost two dozen top-notch sessions featuring timely topics and appearances by many forensic psychology luminaries. Especially timely is the focus on juvenile justice issues. Here's a sampling of the great offerings:

Juvenile justice track

• "Life Without Parole for Juvenile Offenders: Current Legal, Developmental, and Psychological Issues" features Thomas Grisso, Bryan Stevenson, Barry Feld, and Chrisopher Slobogin, dissecting the recent Sullivan and Graham cases and discussing the role of forensic examiners.

• Judicial Panel on Reducing Racial and Ethnic Disproportionality, hosted by forensic psychology scholar Richard Wiener, features three juvenile court judges and an attorney from the National Council of Juvenile and Family Court Judges

• "Juvenile Offenders Are Ineligible for Civil Commitment As Sexual Predators," looks to be a great presentation on a topic I have blogged about recently, that of predicting sex offender recidivism among kids; moderated by Richard Wollert, the panel includes Michael Caldwell telling us "Why Evaluators Can't Identify Sexual Recidivists When They Assess Juveniles."

• "The Construct of Empathy in the Treatment of Adolescents in the Juvenile Justice System," moderated by Lois Condie of Harvard Medical School, will include a presentation by forensic psychologist and professor Frank DiCataldo, whose outstanding book The Perversion of Youth I reviewed here.

Other Div. 41 hot picks

• "Forensic Assessment": Scholars Daniel Murrie, Richard Rogers, and others will discuss the reliability of forensic evaluations in sanity evaluations, misassumptions regarding Miranda waivers, evaluating the competence of violence risk assessors, and other timely forensic assessment issues.

• "Mental Health Courts -- The MacArthur Research" features stalwarts John Monahan, Hank Steadman, and others.

• "Long-Term Solitary Confinement's Impact on Psychological Well-Being -- The Colorado Study" looks to be an especially powerful panel including presentations by Stuart Grassian, an early scholar of segregation psychosis, AP-LS fellow Joel Dvoskin, and Jamie Fellner, an attorney with Human Rights Watch, talking about "Supermax Confinement and the Mind."

• "Juror Decision Making": Margaret Bull Kovera and other scholars will present recent empirical findings in jury research.

• "Social Cognition in Court -- Understanding Laypersons' Interrogation Schemas and Prototypes" features false confession scholars Saul Kassin, Solomon M. Fulero, and others.

Early registration ends Wednesday (after which the price goes up), so register now if you plan to attend. Now that you know which panels I am attending, I hope to see many of y'all down in sunny San Diego in just a couple of months.

"CSI Effect": Fact or fiction?

Since introduced by Time magazine in 2002, the "CSI Effect" has become a cultural staple, imbued with the imprimatur of fact. The judicial system and media discuss it as a grave problem; the FBI has even produced a video warning of its impact. Just last week, the Economist of London issued an uncritical report asserting the reality of the effect, based on an upcoming article in Forensic Science International.

However, as Mind Hacks pointed out, both the Economist story and the underlying FSI article rely mainly on anecdotal evidence. The scientific verdict is not yet in.

Indeed, when I last discussed the phenomenon here, two years ago, a study by Michigan Judge Donald Shelton was raising doubts. Judge Shelton found scant evidence to support claims by prosecutors that jurors' unrealistic demands for hard scientific evidence were causing unjustified acquittals. As the debate continues, I thought it time for an update.

I find it ironic that a phenomenon being blamed for injecting a biased expectation of science into the courtroom has not in itself been subjected to much scientific scrutiny. After all, anecdotes are not science; they can be used to prove almost anything.

As it turns out, some legal scholars are putting the CSI Effect to empirical scrutiny, and -- guess what -- a measurable effect in the predicted direction is hard to prove. In fact, if Crime Scene Investigation and other enormously popular forensic TV shows are having any effect, it may be in the opposite direction -- toward making juries more conviction-prone.

Mind Hacks provided links two excellent scholarly analyses, both available online and well worth reading. The first, by Simon Cole, a Criminology, Law and Society professor at UC Irvine, and doctoral student Rachel Dioso-Villa, was published last April in the Stanford Law Review. The second, by media law professor Kimberlianne Podlas of the University of North Carolina, was published in October in the Loyola of Los Angeles Entertainment Law Review.

Podlas initially devised a creative plan: She would ask prosecutors to give her details of cases in which they believed an acquittal was due to the CSI Effect; then she would have defense attorneys review the case files for alternate explanations. But, she found, 19 of the 20 cases provided to her by prosecutors had actually resulted in convictions, thereby disproving the effect.

Lacking any "real" CSI cases to analyze, she devised a mock jury case in which she manipulated the strength of the scientific evidence. She found no evidence of a difference in outcome between heavy and light viewers of the TV show Crimes Scene Investigation. As she wrote:

"What is labeled a CSI Effect may more accurately be described as a rationalization embraced by members of law enforcement who find themselves on the losing side of a prosecution. By attributing a loss to CSI's wrongful influence, a prosecutor can obtain an explanation yet maintain a belief that an acquittal was misguided. Although this cognitive rationalization is understandable, it should not be mistaken for empirical proof that the CSI Effect operates anywhere other than in the minds of those proposing it."

In their excellent critical overview, Cole and Dioso-Villa go further, suggesting a propaganda parallel between the CSI Effect and the "litigation explosion" myth promulgated in the 1970s through a well-funded insurance industry campaign against civil plaintiff's attorneys. As in that instance, popular belief persisted even after social scientists thoroughly debunked the claimed explosion in litigation:

"Tort reformers' narratives captured a much greater share of media attention than did those of scholars…. Indeed, in the wake of media claims about the litigation explosion, socio-legal scholars documented that media coverage of civil law overwhelmingly emphasized plaintiff victories and high punitive damage awards. Thus, the supposed existence of a litigation explosion became educated common sense among jurors and even judges."

Remember the McDonald's coffee spill and the microwaved poodle, urban legends still infamous today? These tales, Cole and Dioso-Villa argue, are akin to the "horror story" anecdotes of the CSI Effect, such as the supposed case in which a jury acquitted a rapist despite incriminating DNA evidence, just because soil found in the victim's cervix was not tested:

"Echoing the litigation explosion, CSI effect discourse is widely disseminating through the American public the belief that television drama is disadvantaging criminal prosecutions. And yet, the available evidence does not support this claim. Indeed, the available evidence suggests that the opposite may just as easily be the case: forensic-themed police procedural dramas may actually advantage the prosecution in criminal cases."

Cole and Dioso-Villa: Investigating the ‘CSI Effect’ Effect

As shown in the above table, Cole and Dioso-Villa's analysis of several hundred media reports since 2002 revealed not one, but six claimed effects of forensic television shows on popular culture, depending upon the constituency doing the talking. The most dominant of these, the "strong prosecutor's effect," maintains that watching crime dramas makes jurors more likely to acquit guilty defendants. But, the scholars argue, the available evidence suggests an opposite effect:

"Jurors who are consumers of the popular media might believe that prosecutors are typically disadvantaged in criminal trials; that high expectations for forensic evidence are 'unreasonable'; and that criminal convictions are becoming increasingly rare and difficult to achieve. Jurors who believe these things might be more sympathetic to prosecutors out of sympathy for the perceived underdog or in attempt to correct for the perceived excesses of antecedent juries. Claiming to be disadvantaged is a familiar trope in trial advocacy, especially in opening and closing arguments; prosecutors frequently point out that they bear the burden of proof, whereas defense attorneys often refer to their lack of resources or to the awesome power of the state."

This is a similar conclusion to that of Podlas, who wrote:

"If there is a CSI Effect, narrative theory and common sense suggest that it will benefit law enforcement. CSI features the fantastical world of forensics and smart police work. …This story may cultivate the notion that forensic scientists and their methods are legitimate and reliable, thus bolstering the prosecution’s case…. Indeed, scientific evidence is very seductive to jurors, and they tend to overvalue its probity and overestimate its infallibility."

Although the CSI Effect pertains to criminal court while the Litigation Explosion myth targeted the civil realm, they share a similar distrust of jurors, that is, of the ability of common citizens to be fair and find the truth. This lack of faith, from my experience as a court observer over several decades, is misplaced.

Hat tip: Mind Hacks

Everything you ever wanted to know about professional jury preparation

• Does having a trial consultant help prepare a witness affect the witness's credibility in the minds of jurors?

• What can opposing counsel ask the witness about their trial preparation?

• Is a trial consultant's advice confidential, or must attorneys turn it over to the other side during discovery?

• What guidelines exist to make sure trial consultants practice ethically?

With attorneys increasingly using professional trial consultants to prepare witnesses for court, the latest issue of the Jury Expert (a publication of the American Society of Trial Consultants) tackles these questions head-on. The article, "Out and Proud: Ethical and Legal Considerations in Retaining a Trial Consultant to Assist with Witness Preparation," by David A. Perrott and Daniel Wolfe, summarizes existing laws, ethics, and practice guidelines. It’s available online HERE.

Other current articles of potential interest to my blog readers (all available online) include:

Colorism: The Often Un-discussed "-ism" in America's Workforce
Matthew S. Harrison discusses the issue of skin color bias ("colorism") in the context of workplace research. Three experienced trial consultants then apply this research to what we know about the courtroom and offer their ideas on what we need to pay attention to as we pursue litigation advocacy.

Law on Display
Neal Feigenson and Christina Spiesel, the authors of a new book on visual display of evidence in the courtroom, share their ideas on the impact of technology in trial. Two experienced trial graphics consultants respond and share their own perspectives.

16 Simple Rules for Jury Selection
Criminal defense attorney Mark Bennett offers up his 16 Simple Rules for Better Jury Selection. From the Nike rule to the Shrek rule to the Undertow--reading these will bring your jury selection skills up and leave you thinking about the process in a different way. Four experienced trial consultants offer their perspectives (and one new rule each!) on the ideas contained herein.

Book Review: Principles and Practice of Trial Consultation
Kevin Boully reviews Stanley Brodsky’s new book on trial consulting.

Of anthropomorphism, armed citizens, and hate crimes

The Jury Expert wants you to stop and think about all manner of things, from hate crimes to the effects of gory photos. They want to teach attorneys how to identify a jury foreperson even before that person has been seated as a juror. High-quality articles on a range of issues is earning the American Society of Trial Consultant's online publication accolades and awards in legal circles.

Among current offerings worth checking out:

Identifying Leaders

An experienced jury consultant discusses how jurors pick presiding jurors and how attorneys can identify their most likely picks during voir dire and jury selection.

The impact of graphic injury photos on liability verdicts and damage awards

Over the years, the use of graphic, and at times gruesome, visual imagery in the courtroom has become commonplace. Although the use of such imagery has become the norm, the prejudicial nature of this evidence continues to be a contested issue in courtrooms across America. This paper focuses on the impact of graphic injury photographs in a civil dispute where the evidence favors a defense verdict.

Anthropomorphism in technical presentations

How can dry technical information be explained in a way that is understandable to a lay jury? An experienced graphic designer and trial consultant suggests anthropomorphism and other strategies to help jurors emotionally connect with technical data.

Will it hurt me in court? Weapons issues and fears of the legally armed citizen

An examination of how gender of juror, gender of shooter and type of weapon used interact to modify verdict and sentencing, with responses from two experienced trial consultants.

Hate crimes and revealing motivation through racial slurs

I must admit, I found the implications of this article by jury consultants Gregory S. Parks and Shayne Jones a little troubling. The authors deconstruct the 'hip-hop culture' defense used by Nicholas "Fat Nick" Minucci, a white man who used the word "nigger" during a 2005 baseball-bat assault on a black man. Charged with a hate crime, Minucci called two expert witnesses, music producer Gary Jenkins and Rhodes scholar and Harvard Law School professor Randall Kennedy, author of Nigger: The Strange Career of a Troublesome Word.

Parks and Jones take issue with the expert witnesses' testimony that the term "nigger" is a nuanced word that can no longer be assumed to be driven by racial animus. Minucci is something of a straw man, as he was fairly obviously a racist vigilante. (He was convicted of the hate crime charge and sentenced to 15 years in prison.)

What troubled me was how the authors used Harvard scholar Mahzarin Banaji's work on implicit bias. Banaji's research suggests that, as racism becomes less acceptable, it is going underground; many white people hold racist attitudes that they are not even aware of. (As I blogged about last year, Banaji has testified as an expert witness, on the topic of unconscious racial bias among jurors.) The implication of their argument is that it is appropriate to impose additional punishment via hate crimes enhancements even if the defendant is not consciously acting due to a biased motivation. When I conducted research on the motivations of hate crime offenders, I came to understand that assailants' motivations are often more complex and multifaceted than a simple sound byte like "hate crime" can convey. The idea of using biases that people are not even aware of as evidence against them is a little too Orwellian for me. It's an interesting article, nonetheless.

For a nice essay on the Minucci case, see law professor Patricia Williams' Borrowed Bodies: Diary of a mad law professor, in the Nation magazine.

Experts must be effective teachers

In my years as a legal affairs reporter, I developed a lasting respect for jurors and their decision-making process. People who take the time and energy to perform their civic duty are earnest in wanting to do the right thing. Increasingly, they are sophisticated and educated consumers who are innately curious about the topics at hand. Frequently, however, they are turned off by expert witnesses, who may resemble one of the following:

1. Ivory Tower: arrogant and condescending
2. Swordsman: combative, defensive, hostile, nitpicky
3. Waffler: uncertain and inconsistent
4. Automaton: stiff, robotic, confusing, unintelligible
5. Salesman: slick and overzealous

"Under all of these negative terms," advises trial consultant Richard Gabriel, "lies one fundamental problem: the lawyer and the witness did not have the intention of truly communicating with today’s jury."

The solution? Understand jurors’ innate skepticism and boredom, and become an effective teacher, "the translator for the jury in their journey into a foreign land." Writing in the current issue of The Jury Expert, Gabriel says the expert witness must be both understandable and relevant. How?

• Good teachers break down complex topics into understandable language, without being condescending.

• Good teachers anticipate questions. They "make sure they answer those questions, no matter how basic or obvious they seem."

• Good teachers understand that students have different learning styles, and they use "a mixture of tools to convey their information."

• Good teachers display passion. "Aside from a purely professional or academic interest, experts who resonate with jurors seem to have a personal connection that drives them to a particular level of excellence in their chosen field."

• Good teachers narrate stories. They "know that even the driest subjects can be made interesting by highlighting the conflict, the characters, the action, or the environment within the story."

The full article, "Redefining Credibility: Turning Expert Witnesses into Teachers," which includes a lot of practical tips, is online HERE. Author Richard Gabriel is president of Decision Analysis trial consulting firm and co-author of Jury Selection: Strategy and Science.

Photo credit: Xin Le 88's portrait of her tutor (Creative Commons license)

Blogging jurors

Blogs take on a direction of their own. I have written far more about the DSM-V and sex offender issues than I ever thought I would when I started this blog 19 months ago. There's just a lot to say on those fronts.

Similarly, when jury consultant and trial lawyer Anne Reed started her excellent jury blog, Deliberations, she did not envision how many posts she would write about jurors who blog. But she has. And when she is quoted, interviewed, or asked to speak, social networking is the number one topic of interest.

I have a long list of topics that I never get around to, and blogging jurors is one that keeps going to the back burner. Since I haven't gotten around to writing about it yet, I've decided to point my readers to Anne Reed and let her tell you all about this interesting topic that trial lawyers in particular need to pay more attention to:

So here come two more online jurors this week, frightening lawyers everywhere. There's the Facebook juror in England who put a poll on Facebook to help her decide guilt or innocence. And there's the blogging juror here who knows she can't write about the case, but thinks that "doesn't mean I can't give people a a glimpse of the people I am dealing with," and so gives a great sketch of each person in the courtroom. ("The lead defense lawyer. When he is trying to make a point when questioning a witness he beats his hand on the jury box. "So you *wham* are telling me *wham* that blah blah blah blah blah BLAH! *WHAM*" ) The Facebook juror was dismissed; the word-sketch artist is still sitting, as far as we know.

Reed's advice to attorneys?

This is going to happen to you. It's going to happen to you. It's going to happen to you.

Four things to add to your trial task list:

1. Ask. Ask jurors in voir dire whether they write on line and if so where. If you get a "yes" to that question, you have several tools: (1) the judge can strongly impress on that particular witness that she is to write nothing about the trial, not even character sketches; (2) the lawyers can keep an eye on the juror's site during the trial; and (3) if there's time, you can jump on the juror's site before the jury is chosen to see if it contains anything of concern.

2. Look. Simply running searches by jurors' names -- before the jury is seated if possible, after if not -- you can find non-anonymous blogs, of which there are many.

3. Watch. Even if you've asked and looked, you can still have jurors writing about your trial that you didn't know about, on anonymous sites they did not disclose. If you have enough people, assign someone to set up standing searches to try to catch these, using terms the juror might choose -- the location of the court, and the type of case it is. It also makes sense to check on-line comments to news stories about the case, where you have the staffing to do it.

4. Relax. It's possible that none of these techniques will find the Facebook juror or the sketch artist on your trial. Does that mean we're in a frightening new world with intolerable new rules? I don't think so. Remember that in the old days, both jurors probably would have had talked about the case in the same way, but in conversations with their friends, not on line -- and you wouldn't have found out about those either. If anything, it's easier, not harder, to find chatty jurors than it was when they simply talked.

Click here to see her full post, with links to an entire series on blogging jurors and to her very practical Trial Lawyer's Guide To Social Networking Sites, which does the work for you inquisitive types by linking to all of the major (and many of the minor) social networking sites.

I hope all of you have a nice Thanksgiving holiday!

Photo credit: VintFalken (Creative Commons license)

The Jury Expert

The new issue of The Jury Expert (a publication of the American Society of Trial Consultants) is now online. Articles include:

Just world jurors: A research review
How can just-world beliefs impact jurors?

Cross-examining the narcissistic witness
A follow-up to a previous Jury Expert article on preparing the narcissist to testify, this article focuses on how to cross-examine narcissistic witnesses.

Conceptual persuasion
A primer on the impact of graphics.

Juror reactions to successful women
Mitigating negative judgments by jurors about successful women attorneys, plaintiffs, defendants (or expert witnesses?)

Do liberals and conservatives punish differently?
Of course they do. This article explains the different themes of interest to jurors of different political persuasions.

The full issue is available here.

Of child molestation and crystal balls

How much can a forensic psychologist really tell?

Defense attorneys regularly telephone me seeking an expert to testify that their client does not "fit the profile" of a child molester.

"What profile?" I want to ask. Men who molest children have no special profile. They come in all shapes and sizes.

After explaining this, I always pass on such cases.

Some forensic psychologists disagree. They think there is a profile, or that we can reliably determine the veracity of children who say they were abused.

Forensic psychologist excluded

In Louisiana, after the courthouse reopened following Hurricane Gustav, one such expert was slated to testify in the high-profile trial of church pastor Louis D. Lamonica.

The defense planned to call the forensic psychologist to tell jurors how to judge the veracity of abuse allegations made by children. No can do, ruled Judge Zoey Waguespack; the children's veracity is up to the jury to decide. Prosecutors had cited Supreme Court precedents to support that position.

The jury began deliberating yesterday. They must decide whether Lamonica molested his two young sons or falsely confessed, as the defense maintains, because he was being controlled by a self-proclaimed prophet who had tortured him, deprived him of sleep, and forced him to wear a dress and two rubber snakes.

The jurors' job won't be easy. Lamonica's sons - both now adults - testified that they were never abused. They, too, allege their confessions were the result of control by self-proclaimed prophet Lois Mowbray, who was arrested but never charged in the case. The boys testified that Mowbray controlled their mother and had her coerce the boys into accusing their father.

The bizarre case harkens back to the largely discredited satanic ritual abuse hysteria of the 1980s. In his tape-recorded confession, which was played for jurors, Lamonica talked about a child-sex ring at his Hosanna Church that practiced satanic cult rituals. Former church members also testified that the church had devolved from an established church into a Christian cult where worshippers publicly confessed and vomited to cast out the demons of sin. The allegations rocked the small town of Ponchatoula, about 40 miles northwest of New Orleans.

Ironically, the case broke when Lamonica himself walked into the local sheriff's station back in 2005 and began babbling about having molested children, taught them to have sex with each other and with a dog, and poured cat blood over the bodies of his young victims. At his trial, Lamonica testified that was all lies.

Unfortunately, the jurors won't have much in the way of science to guide them in choosing which of Lamonica's two diametrically opposed stories to believe.

But wait! High-tech mind reading in the works

While not in time to help Lamonica's jurors, scientists are feverishly working on new technologies to enable us to differentiate truth from lies. The science holds promise, they say, for identifying pedophiles based on their mental attitudes toward children.

Researchers tout the Implicit Association Test (IAT), developed by Harvard scholars to measure unconscious racism, as having the potential to sniff out pedophiles and even psychopathic murderers. (See Gray et al, 2003 and 2005.) A modified IAT called the Timed Antagonistic Response Alethiometer (TARA) can classify responders as liars or truth tellers based on the speed at which they classify sentences and "manipulate response incongruities," they claim. (See Gregg, 2007.) Other researchers have been working to adapt functional magnetic resonance imaging (fMRI) into a lie-detection tool, with mixed results. (See Ganis et al, 2003, and Iacono & Lykken, 1999.)

The current issue of Psychological Science presents an article summarizing this research and offering a new tweak, the autobiographical IAT (aIAT), which researchers boast "outperforms currently available lie-detection techniques."

The authors concede that this and other emergent technologies do "leave important neuroethical issues unresolved." (See Wolpe et al 2005.)

You don't say.

In the forensic realm, it seems particularly problematic to equate attitudes with behavior. After all, many more men lust after children and teens than go on to commit illegal sex acts against them.

The Psychological Science article is: "How to Accurately Detect Autobiographical Events," by Giuseppe Sartori, Sara Agosta, Cristina Zogmaister, Santo Davide Ferrara, & Umberto Castiello. The abstract is available online, and the full article can be requested from the first author.

The Lamonica story, from the Advocate in Baton Rouge, Louisiana, is here. You can search the newspaper's database using the keyword Lamonica for additional case coverage. A New York Times article on the original arrests is here. The Rick A. Ross Institute, which bills itself as a repository for information on cults, has much more on the Hosanna Church here.

A few of my prior related blog posts are:

• Why the next civil rights battle will be over the mind

• Forensic brain scanning: Online resources

• Using lie detectors to monitor sex offenders

• The evidence does not lie – or does it?
  

Scholarly articles referenced in this post are:

Ganis, G., Kosslyn, S.M., Stose, S., Thompson, W.L., & Yurgelun-Todd, D.A. (2003). Neural correlates of different types of deception. Cerebral Cortex, 13, 830–836.

Gray, N.S., Brown, A.S., MacCulloch, M.J., Smith, J., & Snowden, R.J. (2005). An implicit test of the associations between children and sex in pedophiles. Journal of Abnormal Psychology, 114, 304–308.

Gray, N.S., MacCulloch, M.J., Smith, J., Morris, M., & Snowden, R.J. (2003). Violence viewed by psychopathic murderers. Nature, 423, 497–498.

Gregg, A.I. (2007). When vying reveals lying: The Timed Antagonistic Response Alethiometer. Applied Cognitive Psychology, 21, 621–647.

Iacono, W.G., & Lykken, D.T. (1999). Update: The scientific status of research on polygraph techniques: The case against polygraph tests. In D.L. Faigman, D.H. Kaye, M.J. Saks, & J. Sanders (Eds.), Modern scientific evidence: The law and science of expert testimony (pp. 174–184). St. Paul, MN: West Publishing.

Wolpe, P.R., Foster, K.R., & Langleben, D.D. (2005). Emerging neurotechnologies for lie-detection: Promises and perils. The American Journal of Bioethics, 5 (2), 39–49.

Photo credits: ora mia and Josh Bancroft (Creative Commons license)

Opposing expert no safeguard against junk science

That's the conclusion of an interesting study in the current (August) issue of Law & Human Behavior. The researchers, criminology professor Lora Levett from the University of Florida and Margaret Bull Kovera, a prominent social psychologist and expert on eyewitness identification, found the following:

We tested whether an opposing expert is an effective method of educating jurors about scientific validity by manipulating the methodological quality of defense expert testimony and the type of opposing prosecution expert testimony (none, standard, addresses the other expert’s methodology) within the context of a written trial transcript. The presence of opposing expert testimony caused jurors to be skeptical of all expert testimony rather than sensitizing them to flaws in the other expert’s testimony. Jurors rendered more guilty verdicts when they heard opposing expert testimony than when opposing expert testimony was absent, regardless of whether the opposing testimony addressed the methodology of the original expert or the validity of the original expert’s testimony. Thus, contrary to the assumptions in the Supreme Court’s decision in Daubert, opposing expert testimony may not be an effective safeguard against junk science in the courtroom.

More guilty verdicts, hmm? That hasn't been my experience in the cases I've been involved in, but it's an interesting finding nonetheless.

The article is restricted to subscribers and purchasers, but you can get the abstract and a “free preview” (the first page) here.

Two new journals

Just what we all need – more journals!

Psychological Injury and Law

The first issue of Psychological Injury and Law has hit the news stands.

Well, not exactly. But it's hit the web, and articles in the premiere issue are available for free downloads without a subscription.

The journal bills itself as "a multidisciplinary forum for the dissemination of research articles and scholarly exchanges about issues pertaining to the interface of psychology and law in the area of trauma, injury, and their psychological impact."

Spearheading the new journal - and an associated new organization, the Association for Scientific Advancement in Psychological Injury and Law - is Gerald Young, a psychology professor at York University in Ontario and co-author of the text, Causality of Psychological Injury: Presenting Evidence in Court and similar texts.

Young and colleagues hope to promote research, guide the application of that research in forensic cases, and improve cross-disciplinary communication.

Topics of focus will include PTSD, chronic pain, traumatic brain injury, and malingering.

Articles in the first issue, available here for free download, include:

• Expert Testimony on Psychological Injury: Procedural and Evidentiary Issues

• Forensic Psychology, Psychological Injuries and the Law

• Psychological Injury and Law: Assumptions and Foundations, Controversies and Myths, Needed Directions

• Posttraumatic Stress Disorder: Current Concepts and Controversies

That final article, by Steven Taylor and Gordon Asmundson, provides a concise summary of PTSD research, with a focus on malingering in the forensic context.

Happy downloading!

The Jury Expert

Also new online is the American Society of Trial Consultants' The Jury Expert. Now in its second issue, the e-journal "features articles by academics, researchers, popular writers and speakers, and trial consultants. The focus is on practical tips for litigators and
on the accurate interpretation and translation of social sciences
theory into litigation practice."

The current issue includes articles on case themes, witness preparation, an overview of eyewitness research, tips for using RSS feeds, a new form of forensic animation, and the use of religion research in legal cases.

The Jury Expert will publish six times per year and - best of all - subscriptions are free.

Check it out here.

Prominent expert testifies about juror bias

In the United States, African Americans are strongly associated with criminality. Research is accumulating to suggest that this largely unconscious association has a profound effect on criminal justice policies and practices, including jury decision-making.

A few months ago, I posted about research showing that making jurors aware of unconscious bias can increase their open-mindedness and thoughtfulness during deliberations. Now, attorneys in a New Hampshire death penalty case are going a step further, calling one of the nation's best-known social psychologists to testify about unconscious prejudice against African Americans.

Mahzarin R. Banaji, a brilliant and elegant speaker, testified for the first time in her life yesterday at a pretrial hearing for Michael Addison, a black man charged in the killing of white police officer Michael Briggs. Banaji, an authority on the well-known Implicit Association Test, testified as though giving one of her lectures to Harvard psychology students, standing in the witness box and using a laser pointer to highlight her data.

The question on the judge's mind is whether a Black defendant can get a fair trial in New Hampshire, given the state's largely white population.

Banaji's answer: "The likelihood of a fair trial here is abysmally low based on social science."

Defense attorneys are hoping the judge accepts Banaji's evidence and strikes the death penalty against Addison, whose trial is set to start this fall.

But using the Implicit Association Test as evidence of racial bias is controversial, with critics charging that there is insufficient research into the test's accuracy or precisely what it measures. The point-counterpoint controversy is featured in today's Chronicle of Higher Education (unfortunately, I think the article is available only via subscription).

Whatever the outcome of this week's hearing, the topic of unconscious racial animus will likely get more play in court in upcoming months and years. Indeed, scholars associated with a new MacArthur Foundation-funded project on law and neuroscience are looking into doing some proactive training, to teach jurors how bias works and how to counter it in their deliberations.

The Concord Monitor has coverage of the Addison case. TV station WMUR-9 in New Hampshire has a series of online videos of court hearings. Stanford scholar Jennifer Eberhardt's research on race and crime is available here. The Implicit Association Test can be taken online. See my related posts, here and here, or browse through my "race" or "juries" topics, for more information and links.

Does CSI Effect really lead to more acquittals?

Crime dramas saturate network television. Most focus on science and technology, blending reality and fiction to give viewers unrealistic beliefs about evidence in real-life cases. For the past few years, prosecutors have been lamenting this so-called CSI Effect, stating that jurors are making impossible demands for scientific evidence in order to convict.

But does the expectation of scientific evidence really translate into increased acquittals? And, if so, are viewers of TV crime shows more susceptible to this effect?

Those were the questions that a Michigan judge and two other researchers set out to answer, through a survey of more than 1,000 randomly selected jurors.

Judge Donald Shelton and colleagues found that almost half of the prospective jurors surveyed expected to see scientific evidence in every case, with 22 percent expecting DNA evidence – a highly unrealistic expectation. Not surprisingly, this expectation was stronger for regular viewers of CSI, who were also more likely to believe that their favorite TV crime dramas were realistic.

However, the jurors' expectations did not necessarily translate into an automatic tendency to acquit. Rather, jurors said they would only demand scientific evidence if the prosecutor did not call the victims or others as witnesses. In rape cases, however, CSI viewers were less likely than other jurors to say they would convict a suspect in the absence of DNA evidence (which often is not available in real-life sexual assault cases).

Increased expectations of law enforcement are not necessarily a bad thing, Judge Shelton argued in an essay published in this month’s National Institute of Justice journal (available online here). Perhaps, he wrote, police should make more of an effort to get the scientific evidence that the public seeks. And, when such evidence is not available, attorneys and judges need to learn how to explain this reality to the jury.

"Most importantly," wrote Shelton, who has written extensively on the impact of technology on the law, "prosecutors, defense lawyers, and judges should understand, anticipate, and address the fact that jurors enter the courtroom with a lot of information about the criminal justice system and the availability of scientific evidence."