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Archive for the ‘Visual Evidence’ Category

Not long ago we wrote a post questioning whether Americans really distrust scientists as much as the media says we distrust them. The short answer was “probably not” and we offered some strategies for enhancing trust. So today, we have two separate reports on things that result in decreased trust in scientists, science news, or science experts. Hint: You will want to pay attention to these issues in preparing your expert witnesses.?

Poor sound quality makes us react negatively

Researchers from the US and Australia recently published an article on how sound quality influences our evaluations of believability and credibility. Essentially, they say, when you make it harder for people to process information, the credibility of the information itself suffers in the opinion of the listener. The researchers (Norbert Schwarz and Eryn Newman) say that “mental stumbles” create distrust in the listener. The researchers cite studies that show people are more suspicious of eBay sellers with “difficult to pronounce” names, and a rating of exercise manual plans as “easier to do” when the font is in Arial rather than a more unusual and difficult to read font like Brush or Mistral.?

Takeaway: Make sure the sound quality of any video is excellent. Watch your visual evidence graphics for ease of reading and understanding. Don’t leave a “hard to hear or read but really important” fact in for jurors to stumble over. They won’t like it.?

Sticks and stones may break credibility of science researchers?

Another report focuses on the importance of your science expert (and the researchers whose work they present) having pretty impeccable character). We may all agree that questioning how evidence is interpreted is a legitimate way to challenge the credibility of your opposition’s expert witness. We may have less agreement on whether it is okay to allege weakness of character or competence on the opposition expert. New research tells us that some types of “mud throwing” are more effective than others.?

What some of us call “slinging mud”, others call “ad hominem attacks” (aka attacks on the person that may or may not be relevant to salient case facts). Researchers examined whether ad hominem attacks were effective (and unfortunately, they were) and then compared different styles of ad hominem attacks to see what would be most effective.?

Here’s what they found:?

Calling the researcher or his or her peers “sloppy” was not effective. That is, it was “as effective” as when the research findings were simply presented without criticism.?

However, allegations (i.e., unproven fact) of “vested interest or past misconduct” were just as harmful as hearing the researcher had been investigated and charged with “falsifying the research about which s/he was testifying”.?

In other words, being “sloppy” was presumably okay but rousing observer suspicion (even without proof) about motives and integrity was problematic.?

Takeaway: Ad hominem attacks can be effective. Make sure you know if your expert witness or research they present has been challenged for authenticity.?

Eryn J. Newman, Norbert Schwarz 2018. Good Sound, Good Research: How Audio Quality Influences Perceptions of the Research and Researcher. Science Communication, 40(2).?

Ralph M. Barnes, Heather M. Johnston, Noah MacKenzie, Stephanie J. Tobin, Chelsea M. Taglang. 2018. The effect of ad hominem attacks on the evaluation of claims promoted by scientists. PLOSOne.


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It’s been a while since we updated the neurolaw area of the blog so we’re doing a combination post to alert you to a number of things we’ve seen coming across our desks. Think of these as things you can use to show colleagues how incredibly well-read and erudite you are while simultaneously dazzling them with your brilliance.

Did your brain make you do it?

Originally, this area of inquiry was frightening as some wondered if the new neuroscience defenses would dazzle jurors into excusing bad behavior because the defendant’s brain “made him do it”. As excitement over the pretty pictures of brain scans cooled, what we’ve found is that neither judges nor juries are particularly swayed by genetics. While an exciting possibility upon which to build a defense, it just hasn’t been persuasive in court. But now we have a new wrinkle in the making.

If you are a football fan, you may have heard of the issues with the NFL and the high rate of CTE (chronic traumatic encephalopathy) among former players. CTE is a degenerative brain disease that often looks much like ALS and now, attention is being focused on repeated concussions as related to the development of CTE. ESPN recently carried a story on the plight of the women married to former NFLers who struggle with the burden of medical costs and caregiving related to CTE. And also, even if you are not a football fan, you may have heard of former New England Patriots tight end Aaron Hernandez who was convicted of murder and then hung himself in prison. His autopsy revealed this young man had “stage 3 of 4 of the disease and also had early brain atrophy and large perforations in a central membrane”. His family is suing the NFL and the suit is being referred to as “the CTE defense”. We’ll see where this one goes.

The MacArthur Foundation (home of the genius grants) has published a G2i knowledge brief

And what is that, you may wonder? G2i refers to “the challenge of reasoning from group data to make decisions about individuals”. [Read: Group to Individual.] Neuroscientific experts will often offer evidence from group data on how adolescents are less cognitively mature. Psychologists will offer factors contributing to eyewitness misidentification or to estimates of “future dangerousness”. All these kinds of testimonies are based on generalizing from group data to an individual person.

This brief helps you to understand the differences between group data and conclusions drawn about individuals. It is a must read document and, fortunately, it is written clearly and well so you don’t really have to be a genius to understand it.

Can fMRI’s tell if someone is lying about having chronic pain?

No. A recent international task force has released recommendations that “advise against” using brain imaging to test for whether someone is experiencing chronic pain. So how can you know if someone has pain? “The only way to truly know if someone is in pain is if they tell you because pain is subjective and it is a complex experience. No brain scan can do that.” The researchers say they continue to search for biological markers of pain but they have not yet reached that point.

When ‘not guilty’ is a life sentence

This is a very well-written article from the New York Times Magazine on what happens when someone is adjudicated “not guilty by reason of insanity”. It is a really nice example of long-form journalism that tells a story of just how hard it is to be released when you’ve been found NGRI.

In fact, despite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist. A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial. At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals. If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury.

This article is part education on the system works and part story of how sad and frustrating it can be for a person who was mentally ill and committed a crime but is now treated and no longer dangerous. Yet, how do you convince a judge (or even the facility staff) that you are safe to release back into the community?

Recidivism for N.G.R.I.s is relatively low. Whereas, nationally, recidivism for released prisoners is above 60 percent, “people who are found N.G.R.I. tend to go back out into the community, and they tend to do really, really well,” Fitch says. The arrest rate for people in Maryland on conditional release, a kind of mental-health parole from the hospital, is less than half the arrest rate of the general population in the state. “If you provide treatment of illness and provide the supports they need, then they don’t reoffend,” Fitch says. As a 2016 study of N.G.R.I. recidivism in Connecticut — which has a post-release supervision program, too — also concluded: “The vast majority of individuals are not rearrested.”

It’s a sad and frightening story of a man caught in the system and the inconsistencies in the process for release. It is a good human interest story and a potentially good use of your pro bono time to help NGRI defendants return to the community after “sentences” to psychiatric hospitals that are typically much longer than the prison sentences they would have served.



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While you may think most of the things we write about here are on litigation advocacy (and you would be correct) we also care about you, dear reader.

We have written often about smartphones and their ubiquitous presence in our lives. This is a post to update you on the increasingly cruel reality of the role smartphones play in our emotional experiences, how they accentuate our personality traits, and the ways they affect our work lives.

Excessive smart phone use leads to emotional problems

This finding stems from research at SUNY Binghamton where they found smartphone use could result in “depression, social isolation, social anxiety, shyness, impulsivity and low self-esteem. Females were most likely to exhibit susceptibility to addiction.” The researchers surveyed 182 undergraduate students by asking them questions about their smartphone use on a typical day. They then categorized the respondents based on their answers into the following categories: Thoughtful, Regular, Highly Engaged, Fanatic and Addict.

If you wonder how they developed these categories and why the labels sound judgmental—the researchers answer that question this way: “building on the analysis of 15 in-depth interviews and 182 exploratory open-ended surveys collected from smartphone users, we apply the concept of liability to addiction in the IT use context and propose a typological theory of user liability to IT addiction. Our typology reveals ?ve ideal types; each can be associated to a user pro?le (ADDICT, FANATIC, HIGHLY ENGAGED, REGULAR AND THOUGHTFUL).”

[Essentially, what this means is they made it up. And as to why some of the labels seem judgmental—we will leave that for you to ponder.]

The reported findings will not surprise you if you own a smartphone. “Seven percent [of the participants were] identified [by the researchers] as “addicts” and 12 percent [were labeled by the researchers] as “fanatics.” Both groups [based on the researchers qualitative analysis] experience personal, social and workplace problems due to a compulsive need to be on their smartphones.”

You may also want to check out a brief list of “problem signs” in smartphone use which (the researchers say) may mean you need to consult “a professional”.

In addition to the emotional issues above, there is also concern about whether smartphones are (in combination with increased overall “screen time” reducing our social skills and causing increased shyness. The short answer, at least from these authors, is that we remain simultaneously shy and sociable and our smartphones allow new ways for us express that juxtaposition. [It is possible, based on the other entries in this post, that the authors with this pleasant explanation on shyness actually works for the smartphone industry.]

Smart phones are sneakily changing our morals

How you respond to an ethical dilemma requiring a quick decision (on something in either your work or home life where the stakes are high but the time frame for response is short) seems to depend on whether you are communicating your response on a smartphone or on a computer with a traditional keyboard. [This is so not good.] This study is out of London and was published in the journal Computers in Human Behavior. Tom Jacobs (an always excellent writer over at PSMag) brought this article to our attention and he quotes the authors and then offers his own interpretation of their work:

“in general, more hurried or time-pressured responses are thought to be aligned with more emotional/gut feeling decisions.”

In other words, when we’re rushed, we tend to rely on our intuitive responses, which—in the case of moral questions—means falling back onto a set of basic rules we learned in childhood. But, oddly, Barque-Duran and his colleagues found that is not the case when the troubling information is conveyed via smartphone.

Instead, what the researchers found when the information was conveyed via smartphone screens, was that rather than falling back on our playground values, the small screen somehow encourages us to psychologically distance and to make practical or utilitarian decisions rather than emotional and intuitive ones. The researchers say the small screen seems to result in psychological distance and thus decisions are less emotionally based.

Regardless of how it works, we clearly need more research on how the ever-present small screens interact with how we make decisions.

There is some good news though!

The interruptibility model: Researchers are looking into ways to help us teach our smartphones when to interrupt us with notifications so we can actually get some work done. New research findings which shockingly report that “inappropriate or untimely smartphone interruptions annoy users, decrease productivity and affect emotions” is being presented this month at the “premier international conference on human-computer interactions”. The researchers refer to it as an “interruptibility model” and you can view their graphical representation here. Hopefully, it will not take them long to disseminate their results to the rest of us!

Lessons from research: There are also ways we can decrease our addictive (aka constant, obsessive, ritualistic) use of smartphones and you can see those results here. Be forewarned: the recommendations involve suggestions like keeping your phone out of reach, turning off the sound, and classifying your apps as good or evil.

Older adults are adopting technology: Finally! A record share (42%) of senior citizens (65+) now own smartphones. While this may mean Grandma may not look at you but instead, text her friends furiously and update her Facebook status constantly, it also means, older Americans are likely to develop the same ambivalence with which many of us view our smartphones.

Barque-Duran, A., Pothos, E., Hampton, J., & Yearsley, J. (2017). Contemporary morality: Moral judgments in digital contexts. Computers in Human Behavior, 75, 184-193 DOI: 10.1016/j.chb.2017.05.020


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We love Pew Research and their work on cataloguing how society here in the United States changes slowly or quickly (as the case may be) over time. A review of their hard work gives you a sense of what changes are underway in our now constantly changing “new normal”. They have published a lot in 2016 to help us understand how our potential jurors are changing. Take a look at just a few of the sixteen stories they deem “striking” from 2016. We’re telling the Pew story with their own pictures. Go to the site itself to read the details. [The spacing on this post is beyond us so please scroll…thanks!]

Significant demographic changes in America have reshaped our major political parties—our political parties look very different now than they did during the George W. Bush presidency.? ?


And voters are divided on where the country is headed as well as whether that direction is better or worse.?



















Millennials are now the largest generation of living Americans (bigger than Boomers)















And more of the Millennials live with their parents than ever seen with young people before (although it should be noted that this trend has been growing for years now and it is not a Millennial “thing”). ?








Along with generational shifts, we are also seeing increased racial tensions with about four-in-ten blacks (43%) being skeptical that America will ever make the changes needed for blacks?to achieve equal rights with whites.?













And we are wary of what new technologies will mean for our lives. ?













The Pew summary of the 16 most striking findings in their surveys published in 2016 is fascinating reading if you want to know (as most of us do) how the country is changing and what that may mean for our potential jurors. There is more division and demographic change than we’ve seen in some time and it will most likely play a significant role in how your case is heard by jurors.

Take a look at Pew’s end of year summary and update yourself on how things stand now on a wide variety of subjects that may be part of your own up coming case narratives.

Images taken from Pew site

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As Editor of The Jury Expert since 2008, I’m happy to share the table of contents of our new Winter 2016 issue!?As always, The Jury Expert is brought to you free of charge by the excellent trial consultants who write for us and by the academic researchers who take their time to summarize their research and share it so we can use it in our day-to-day work for litigation advocacy.

Trial Consultants, TV Law, and a Load of Bull

Richard Gabriel takes a close look at the new television show ‘Bull’ and muses about how the show does and does not?represent reality as well as how it may affect perceptions of the justice system by potential jurors (who do watch TV).

What Television Can Teach Us about Trial Narrative

Stepping back, Richard Gabriel teaches us how television shows (like ‘Bull’ but certainly not limited to ‘Bull’) can help us craft more effective courtroom narratives.

Juries, Witnesses, and Persuasion: A Brief Overview of the Science of Persuasion and Its Applications for Expert Witness Testimony

Rebecca Valez, Tess M.S. Neal, and Margaret Bull Kovera team up to offer a primer on persuasion. What modes of persuasion will work best in the testimony of your expert witness? Then we have trial consultant responses from Jennifer Cox and Stan Brodsky, John Gilleland, and Elaine Lewis and a final reply from the authors.

Graphics Double Comprehension

Jason Barnes succinctly tells us how graphics can result in your words telling a much more effective story–even doubling comprehension of the listener.

Making It Moral: How Morality Can Harden Attitudes and Make Them More Influential

Andrew Luttrell offers this intriguing strategy (based on his research) to make attitudes stronger and more influential. Trial consultants Sonia Chopra and Charli Morris react to his work with commentary on how they would use this research in day-to-day litigation advocacy.

The Hidden Lives of Court Reporters

They are always present and always silent. But what is going on in the minds of those dutiful court reporters as they type everything said in?cases ranging from the?mundane to the traumatizing? Claire E. Moore, Stanley L. Brodsky, and David?Sams talk to court reporters and share their perspectives and coping strategies.

More Techniques for Uncovering Juror Bias before It’s Too Late

Mykol Hamilton and Kate Zephyrhawke share how to uncover bias in change of venue surveys in criminal cases by using alternate wording for time-honored?questions that result in very different answers (and higher bias).

Image is The Jury Expert logo

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