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)

Essential reading on sex offender civil commitment

Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State
by Eric S. Janus, William Mitchell College of Law

I just got around to reading this insightful book, and I wanted to recommend it to all of my blog readers. Law professor Eric Janus cogently explains why sexual predator legislation, despite its allure of zero tolerance for sexual violence, makes for very bad public policy.

Predator laws will never work, he argues, because they target only a tiny fraction of sexual violence. An empty "cleansing ritual," they require no fundamental societal change. But they are far from harmless. They siphon vast sums of money away from other programs that could do more good for more people. And they reinforce a distorted notion of sexual assailants as mainly stranger rapists with abnormal psychological makeups.

On a potentially more dangerous level, they provide a template for the resurrection of preventive laws on a massive scale. Janus reminds us of the historical struggle that went into dismantling earlier preventive detention laws that locked up outsiders for what they might (or might not) do. These included slave laws, the internment of Japanese-Americans during World War II, and eugenic programs to forcibly sterilize and incapacitate "mental defectives." Sexual predator civil commitment laws are especially dangerous because we can all unite around hating the archetypal sexual bogeyman, and the "science" of risk prediction has a scientific and naturalized veneer that makes preventive detention seem more palatable.

One of Janus' most interesting arguments is that -- perhaps accidentally-- the sexual predator laws have become a powerful force for the politically conservative agenda of dismantling hard-fought feminist rape reforms. The "tabloid model of gender violence" epitomized in these laws favors biological and psychological explanations over sociocultural ones, and supports the patriarchal rape myth that rapists "lack control" over their sexual impulses.

My review continues HERE. (As always, I appreciate "Yes" votes at Amazon, as they help with my ratings and the placement of my book reviews.)

Excerpts from the book are online HERE.

Can 'gatekeeper effect' bolster weak opinions?

The much ballyhooed Daubert decision of 1993 was intended to minimize the effect of so-called "junk science" in the courtroom. ("Junk science," by the way, was a term popularized by the book Galileo's Revenge, part of an orchestrated corporate attack on class action litigation, but that's a story for another day.) But Daubert may be having a paradoxical effect instead, of lending greater credibility to expert witness opinions.

That is the premise of the lead article in Psychology, Public Policy and Law, by Nick Schweitzer and Michael J. Saks of the Law and Social Psychology Research Group at Arizona State University.

The "gatekeeper effect" is the label being given to this phenomenon, of jurors giving extra weight to scientific evidence just because it has been vetted by judges.

Remember that formal rules of evidence are aimed at excluding improper evidence from jurors' consideration. And under the U.S. Supreme Court's ruling in Daubert, judges have become more and more responsible for filtering evidence prior to its admission.

Two experiments tested whether mock jurors (as usual, university undergrads rather than real-life jurors or eligible jurors) were more persuaded by evidence when they thought a judge had filtered it. The findings: A key predictor of how much stock the jurors put in scientific evidence was whether they thought a judge had deemed it acceptable.

Why is this potentially problematic? Judges, as many of us know, are not always well prepared to serve as filterers of scientific evidence. Some of them do not do it well. Also, in many jurisdictions, Daubert is not the law, so jurors may be assuming incorrectly that the evidence they hear has passed through a filtering system.

Concludes the article, "When judges allow expert testimony to reach the jury, they are implicitly lending credence to the testimony, increasing its persuasiveness. This tips the scales toward the party offering the expert witness, perhaps affecting the jury's verdict. Ironically, a landmark Supreme Court decision motivated in large part by a desire to shield jurors from 'junk science' could serve to heighten the impact of false or misleading scientific evidence when judges allow it through the courtroom gates."

I find it a bit troubling that jurors may be persuaded by expert testimony that is false, misleading, or scientifically weak, based on incorrect assumptions about the process. I don't, however, find it too terribly surprising.

The article, "The gatekeeper effect: The impact of judges' admissibility decisions on the persuasiveness of expert testimony," is available upon request from lead author N.J. Schweitzer.

Embitterment disorder: The latest from DSM-V

My regular readers know all about the DSM-V revision controversies (click HERE for more), and the efforts of some psychiatrists to make the manual ever-more-expansive, until just about nearly every human condition becomes a formal pathology.

But, really, folks. Post-traumatic embitterment disorder? Isn't that going a bit far?

The L.A. Times' Shari Roan has the story of how some psychiatrists want to create a formal label for embittered people bent on revenge. We all know them; now we'll have a handy-dandy acronym -- PTED -- by which to refer to them.

The article is part of Ms. Roan's ongoing coverage of the heated DSM debates at the American Psychiatric Convention in San Francisco. Today's coverage is here.

MORE DSM NEWS: A letter in the current New England Journal of Medicine on the pharmaceutical influence over the DSM-V development process, and the resultant "crisis of credibility" in psychiatry, is online HERE. The authors are Lisa Cosgrove, Ph.D., of the University of Massachusetts; Harold J. Bursztajn, M.D., of Harvard Medical School; and Sheldon Krimsky, Ph.D., of Tufts University.

Oops! Another accidental deportation

Getting arrested, even on a minor charge, can be hazardous in unexpected ways. Especially if you are mentally impaired and have brown skin and/or a Latino surname.

Remember Pedro Guzman, the cognitively handicapped Los Angeles man who was arrested on a minor trespassing charge and accidentally deported to Mexico, where he disappeared for months?

Now, it's happened again.

This time, a North Carolina native who speaks not a word of Spanish ended up on a cross-national odyssey after ICE scooped him up from a local county jail and shipped him off to Mexico. Perhaps fortunately, what with the swine flu and all, Mexico quickly deported him to the Honduras, which deported him to Guatemala. In all, Mark Lyttle bounced among Latin American prisons and homeless shelters for four months before the U.S. Embassy in Guatemala finally confirmed his U.S. citizenship.

Lyttle is mentally retarded and mentally ill. Although his surname does not hint at a Mexican nationality, he has dark skin, thanks to the Puerto Rican ancestry of his birth father. ICE claims Lyttle falsely identified himself as a native of Mexico, a claim Lyttle adamantly denies.

And just as Lyttle was finally making his way home again, you'll never guess what happened: immigration officials at the Atlanta airport tried to deport him yet again!

The Raleigh News & Observer has the story HERE. My blog posts on the 2007 case of Pedro Guzman are HERE.

NCIC critiques actuarial risk tools

The promise of violence risk prediction in corrections has "trumped actual performance," warns a report from the National Council on Crime and Delinquency.

Indeed, in its pell-mell rush to implement defensible, "evidence-based practice," the criminal justice field has abandoned clarity and parsimony in favor of a confusing hodge-podge of practices that lack proven reliability and validity, asserts the report, A Question of Evidence.

The report is authored by Christopher Blair, executive vice president of the NCCD, which is the oldest criminal justice research organization in the United States and a pioneer in evidence-based classification schemes in child protection and foster care.

The report critiques the sloppy use of buzzwords such as "criminogenic needs" and "protective factors." "These are important concepts, but ones that require a significantly deeper level of assessment than many risk models currently provide. As such, they can raise false expectations and lead to inappropriate case plans and services."

The NCIC is advocating that juvenile and adult corrections administrators step back and take a critical look at the actuarial tools, lest flawed instruments, approaches, and terminologies become so entrenched that they are impossible to change.

The report is available HERE.