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Archive for the ‘Bias’ Category

A new study by economists tells us it depends on whether you yourself are male or female. To examine the question of whether own-gender juries (i.e., jurors who are the same gender as you, the defendant) vary in conviction rates, the researchers looked at “detailed administrative data on the juror selection process and trial proceedings for two large counties [Palm Beach and Hillsborough Counties] in Florida”.?

The researchers report their data included “all felony and misdemeanor trials over a two-year period, and contain detailed information on defendant characteristics as well as case characteristics”. The information gathered also included demographic information on the jurors and so the researchers were able to calculate “the expected proportion of women on each jury” based on the variations each panel reflected in terms of gender. Some of you know that Florida seats both 6 person and 12 person juries, and the researchers took that into consideration.?

Here is what they found:

Own-gender juries result in “significantly lower conviction rates on drug charges” although not on other charges [like “driving, property, or violent crime offenses”].?

Even as small an amount as 10% above the expected gender-match on your jury results in an 18% reduction in conviction on drug charges.?

Own-gender juries also reflect differences in sentencing decisions with own-gender juries issuing lower sentences. In the case of sentencing, a 10% point change in expected gender composition of the jury will result in a 13% reduction in “the likelihood of being sentenced to at least some jail time”. These shorter sentence differences remain even when juries only issue a guilty or not guilty verdict and a judge determines the sentence!?

It is important to note that because they were attempting to identify the effect of own-gender juries, the researchers “excluded cases linked to charges in which fewer than 10% of the defendants were female. The researchers explain their reasoning for excluding certain types of cases this way:?

“Consequently, we only consider cases that involve a drug, driving, property, or violent crime. In addition, we limit violent crimes to domestic crimes assaults, and robberies. This is due to the low number of female defendants in other violent crime categories, such as sexual assault and murder, which gives us very little variation in defendant gender.”?

The researchers believe that randomly drawing a higher proportion of female jurors for a male defendant can result in unfair and “significant long-run costs”. They cite literature on variations in sentencing by gender of juror, as well as the literature on fairness in conviction and sentencing based on factors other than evidence presented at trial. In addition, they mention the literature on the presence of “one black juror” making a difference in conviction rates.?

Another intriguing aspect to this study is the researchers report that over 58% of their sample was charged with “possession of drugs or drug paraphernalia without intent to distribute”. The researchers suggest that when jurors who do not agree with sentencing rules for non-violent drug offenses (which, they point out, is a significant portion of Americans), they may engage in jury nullification and find the defendant not guilty.?

Specifically, they say it this way: “jurors fairly enforce the laws with which they mostly agree, but disproportionately favor own-group defendants when deciding whether to enforce laws with which they might not agree”.?

From a litigation advocacy perspective, if you are representing defendants accused of non-violent drug offenses, all other things being equal you should consider a same-gender jury. If, on the other hand, you are prosecuting, you will want other-gender jurors to achieve your goals.?

Hoekstra, M & Street, B. 2018. The effect of own-gender juries on conviction rates. National Bureau of Economic Research.


Comments Off on Do you want more men or more women on your? criminal jury??

A new survey has come out that is the first to show us what cisgender kids think of their transgender peers.?

First a reminder of what cisgender is: it is simply the term used to describe someone who identifies with the sex to which they were assigned at birth.?

What do cisgender kids think about their transgender peers?

The survey was published in the Journal of Cognition and Development and explored “5- to 10-year-old children’s (N=113) preferences for transgender versus gender-“typical” peers who either shared their gender identity or did not”. The authors describe their results this way:?

“Children preferred cisgender peers over transgender peers; however, they also liked peers of their own gender rather than the other gender (e.g., female participants preferred girls over boys), demonstrating that the oft-documented own-gender bias plays an important role even when children are reasoning about transgender peers.”

A second interesting finding is that cisgender children who tended to categorize transgender children by their natal sex (that is, the gender assigned at birth) tended to like those children less. This finding mirrors the findings found in studies with adults and tells us children learn even subtle attitudes from adults around them.?

How many transgender kids are out there anyway?

An article recently uploaded in JAMA Pediatrics journal, tells us that about 1% of 9 or 10-year-old children self-identify as gay, bisexual, or transgender. And this was neither a small nor short-term study. The researchers used a two-year subset [2016-2017] of the Adolescent Brain Cognitive Development Study dataset which was collected over a 10 year period at multiple locations.?

A particularly unique aspect of this data set was that parents were also questioned on the sexual identity of their children. Nearly 7% of the parents thought their child might be gay and 1.2% said their child might be transgender.?

This is an unusually young age to have data from both children and their parents on sexual identity. The researchers are hoping they will learn (over time, by studying these children) how to help mitigate the higher levels of physical and mental health issues experienced by current-day gender and sexual minorities.?

And a voir dire tip: “What is your best guess of how many Americans are gay or lesbian?”

While Americans have grown more accepting of homosexuality in the past few decades, there are some odd quirks in that (seemingly) increased tolerance. One of them may be useful for us to consider during voir dire (and to test out during pretrial research). As it turns out, some Americans greatly over-estimate the percentage of the population that identifies as gay, lesbian, or bisexual. As examples, in 1977, the average guess was between 10% and 19%. By 2013, the “best guess” had increased to about 23%.?

In 2018, Gallup reported 4.5% of the population self-identified as gay, lesbian, or bisexual.?

Here’s what makes it really interesting:?

Those who overestimate the proportion of gay/lesbian/bisexual Americans are also more likely to hold false beliefs about homosexuality and less likely to support gay-rights policies like employment protection, child adoption, and same-sex marriage.?

And these tendencies are strengthening with the politicization of this simple question: “What is your best guess of how many Americans are gay or lesbian?”

It’s a curious thing and somewhat counter-intuitive. Attitudes are more tolerant towards homosexuality in general—except when they are not. Could this be related to attitudes positive or negative for your case? We know one way to find out before trial.?

Selin Gülg?z, Eric M. Gomez, Madeleine R. DeMeules & Kristina R. Olson (2018). Children’s Evaluation and Categorization of Transgender Children. Journal of Cognition and Development, Volume 19(4).?

Jerel P.?Calzo,?PhD, MPH1; Aaron J.?Blashill,?PhD2 (2018). Research Letter: Child Sexual Orientation and Gender Identity in the Adolescent Brain Cognitive Development Cohort Study. JAMA Pediatrics,

Donald P. Haider-Markel , PhD & Mark R. Joslyn , PhD (2018). Not Threat, But Threatening: Potential Causes and Consequences of Gay Innumeracy. Journal of Homosexuality, Volume 65(11).?


Comments Off on A survey on gay and transgender kids— & a? voir dire tip that might surprise you

Pew Research Center continually puts out well-researched and well-written reports on data generated by their surveys of the American public. They have a newer report out on how generational status is related to views of racial discrimination. Pew comments on the report this way:?

“Generational differences have long been a factor in U.S. politics. These divisions are now as wide as they have been in decades, with the potential to shape politics well into the future.

From immigration and race to foreign policy and the scope of government, two younger generations, Millennials and Gen Xers, stand apart from the two older cohorts, Baby Boomers and Silents. And on many issues, Millennials continue to have a distinct – and increasingly liberal – outlook.”

Reading these reports regularly is a good way to maintain awareness of shifting attitudes of your potential jurors. Pew thinks that, if Millennials and GenXers vote, they will influence politics “well into the future”. For some of us, this report will be reassuring and for others it will not.?

The report itself is full of information on the many issues American generations disagree on with younger Americans more supportive of immigration, more liberal, less religiously affiliated, more likely to be Democrat by self-report, more likely to prefer “bigger” government, more supportive of universal healthcare, and more supportive of social services for the needy. Yet, they are no more likely to be trusting of the government than other generations.?

If you choose juries, appear in court for trials, or need to keep up on changing norms—this report is a must-read piece.?

The Generation Gap in American Politics: Wide and growing divides in views of racial discrimination. Pew Research. March 1, 2018. ?

Image from report itself

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We’ve all seen this finding before: men who communicate their ideas forcefully are seen as assertive and as having leadership qualities. Women who communicate their ideas forcefully are judged more harshly and negatively. What about hate speech on social media? Are women judged more harshly than men there??

Please. You really have to ask? Of course women are judged more harshly for hate speech on social media!?

And it doesn’t matter if you are a woman speaking hate or speaking what is called “counter [hate] speech” You are going to get blasted either way. This new article was published in the journal Sex Roles and is available open access here. The researchers asked male and female participants to read hate speech attributed to male and female authors and to identify which comments they would individually ‘flag’ to alert the moderators of an inappropriate comment in the online arena.?

Here is what the authors say about what participants in the research did when they encountered hate speech said to be written by women:

In the specific case of comments [women wrote that were] directed against women and sexual minorities, hate comments by female authors are perceived as an act of double deviance [since women are expected to be kind] and are therefore sanctioned more strictly than such hate comments by men.?

The researchers also found that women were equally critical of other women as were men (which we see often during litigation and in pretrial research—with women sometimes being even more critical of other women).?

And, as you might expect, when the researchers asked participants in their study what hate speech comments they would ‘flag’ to alert the moderators—both men and women would flag women’s hateful comments at a higher rate than they would flag similar hateful comments by men.?

However, both sexes equally judged hate comments by women and men differently resulting in a backlash effect against women indicated by higher scores of flagging a comment made by a woman than flagging a comment made by a man.?

As the authors review their findings they comment that gender shapes morality. They explain that conclusion by saying that women are more concerned about fairness and avoiding harm to others than men are (at least in online forums where both genders flag offensive comments). Deviant and agentic online behavior by women is judged more strictly than such behavior by men (and judged more strictly by both men and woman).?

The authors conclude with this intriguing comment that we would all do well to remember:?

Gender not only shapes people’s morality but, and even more relevant to our study, pre-determines what is seen as socially deviant and what is not. Regardless of the gender of the one evaluating the comment, intentions to flag hate speech and counter-speech comments increase if the commenter is a woman.

We work to identify bias and stereotypes wherever we can and it is always a part of litigation advocacy. From a litigation advocacy perspective, this study teaches an invaluable lesson:

Sometimes, it is easy to fail to recall that for women, racial or ethnic minorities, members of the LGBTQ community, and all others who are “different” for one reason or another—just being who they are elicits automatic bias and differential treatment.?

The task for the litigation advocate is to figure out how to make the out-group member more understood, and mitigate that automatic bias.?

Gendered Morality and Backlash Effects in Online Discussions: An Experimental Study on How Users Respond to Hate Speech Comments Against Women and Sexual Minorities by Claudia Wilhelm and Sven Joeckel in Sex Roles. Published May 7 2018.


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We often find things we want to pass along but about which we do not wish to write an entire blog post. Here’s another installment of things you really (maybe, kind of) want to know.?

So, who is trusted more? Scientists or the government??

You have probably heard about research on “nudges” (which is the idea that if people are given small informational “nudges” they are likely to modify their behavior). If you read the popular news telling us scientists are in so much credibility trouble—you will be surprised by this one. Scientists are seen as more credible than the government even when their “news” is outlandish. This research came out of large-scale samples in both the US and the UK.

Keep in mind that people have actually been convinced that this is accurate information. Go figure! Here’s a quote:

“The nudges were introduced either by a group of leading scientific experts or a government working group consisting of special interest groups and policy makers.

Some of the nudges were real and had been implemented, such as using catchy pictures in stairwells to encourage people to take the stairs, while others were fictitious and actually implausible like stirring coffee anti-clockwise for two minutes to avoid any cancerous effects.”

Being a good leader

Forbes has a nice article on how to be a good leader. It is an edited and condensed interview with Elizabeth W. Smith, the new president and CEO of the Central Park Conservancy. It’s a quick read and filled with insights you can use in your own office/practice. This is a continuation of an earlier talk with her and the story links back to the earlier discussion if you want to learn more.?

Remember the “nerd defense”? Apparently it works with salary offers too

The Economist is a serious publication that often has very intriguing (and well written) social science articles. Here they tell us in all seriousness that people who wear eyeglasses earn more money.?

The use of the death penalty in the United States

Here’s a recent report from Pew Research on how often the death penalty is actually used in those states that still have a death penalty law. Here’s a quote from that brief report:?

Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not [snip]. But 11 of the states that allow executions – along with the federal government and the U.S. military – haven’t had one in at least a decade.

Yes, it’s especially hard to be accepted as a woman when you are also an attorney

The Atlantic often has pithy, well-written, informative articles on a variety of topics. This time, they took a look at the uphill challenges faced by female attorneys (and guess what, it’s written by a female attorney). This is likely a story you should not read first thing on a Monday morning. Here’s an excerpt from near the end:?

In 1820, Henry Brougham, a lawyer tasked with defending Queen Caroline before the House of Lords against allegations by her husband, King George IV, that she had committed adultery and should be stripped of her crown, explained his role this way: “An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty.”

I’ve always loved that definition of a lawyer’s work and its description of the sacrifices we make for our clients. But in the courtroom, whether as an attorney or as an instructor, I’m constantly reminded that women lawyers don’t have access to the same “means and expedients” that men do. So I tell my female students the truth: that their body and demeanor will be under relentless scrutiny from every corner of the courtroom. That they will have to pay close attention to what they wear and how they speak and move. That they will have to find a way to metabolize these realities, because adhering to biased expectations and letting slights roll off their back may be the most effective way to advance the interests of their clients in courtrooms that so faithfully reflect the sexism of our society.


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