Grant Rost: THE LIBERATING PROPERTIES OF WEAKER EVIDENCE

Jules Epstein: VIKINGS AND ASSUMPTIONS

Grant Rost: AND NOW FOR SOMETHING COMPLETELY DIFFERENT PART II

Jules Epstein: WHAT WERE (WEREN’T) THEY THINKING

Grant Rost: And Now For Something New

Jules Epstein: REPEAT AFTER ME

Grant Rost: The Virology of Authentic Anger

Jules Epstein: FUNDAMENTAL ATTRIBUTION ERROR

Grant Rost: Will Our Robot Overlords be Good Storytellers?

Jules Epstein: RAP AS EVIDENCE

Grant Rost: THE WORDS IN A SENTENCE OF GUILT

Jules Epstein: ORDER AS A FORM OF PERSUASION

Grant Rost: MATERIAL & METAPHOR

Jules Epstein: FLAG THIS

Grant Rost: LOVE CHOCOLATE AND STORYTELLING

Grant Rost: THE PERSUASIVE POWER OF UP

Jules Epstein: IS A PICTURE INDEED WORTH THE PROVERBIAL THOUSAND WORDS?

By Grant Rost

It’s finally starting to get cooler and October is upon us. I think instantly of Keats’s poem, Ode to Autumn, in which he lovingly describes how the season itself conspires with the sun to produce fruit, and imagines the season, personified, sitting patiently by a cider-press to watch “the last oozings hours by hours.” I’m not nearly so winsome about the season. I am conspiring with my stomach to consume as many new pumpkin-spice flavored sweets as I can. My level of commitment to this annual task is quite real. In fact, last autumn, I found myself involved in a deep and meaningful conversation with one of Liz Lippy’s mock trialers over the wonders of pumpkin-spice flavored Frosted Mini-Wheats. By Christmas, I was oozing myself into jeans that weren’t nearly as loose as they were on October1^st. A few weeks after Christmas I asked myself a New Year’s question: “Will you exercise?” Of course I will. “I will exercise!” I shouted into the void. I was wrong—about a great many things, actually. 

In voir dire we might, often because of the pressure of a ticking clock, ask our jurors questions such as “Will you fairly consider the defenses we will raise against the claims here?” or “Will you presume throughout the trial that Dr. Jonathan Crane is innocent of the charges?” As it turns out, clock or no clock, science suggests we could be wrong about trying to secure commitments that way and there might be a better way—a brain way—to try to produce the fairness or presumptions we want. 

Way back in 1980, a clever researcher by the name of Steven Sherman decided to run some interesting experiments on the citizens of Bloomington, Indiana.¹ In one experiment, he had a researcher call up random numbers from the phone book. The people surveyed were asked  one of two things. The first group was told that a survey was being conducted by the university because the researcher heard the American Cancer Society (ACS) was calling people asking for help. The researcher then asked, “If they called you, would you volunteer 3 hours to help them with their cancer research funding drive?” Three days later, the same people were called by a researcher posing as a solicitor from the ACS and asked if they actually would commit the three hours. None of those surveyed knew the two calls were related in any way. The second group, however, was called just by the presumed ACS solicitor and asked, “Will you help us by giving three available hours to our cancer research funding drive?”² 

Of those in the latter group—asked immediately to volunteer—only 4% volunteered. However, those in the first group who were first asked to predict their later behavior…well, nearly half of everyone in that group predicted they would volunteer if asked. When they were ultimately asked to volunteer, 31% of everyone in this “make-a-prediction” group actually did volunteer. More importantly, 92% of those people who actually did volunteer on the second call  were people who predicted they would volunteer!³ A rather startling number when one considers that only 4% of test subjects volunteered immediately without first making a prediction about their future behavior. The author attributes the high-percentage prediction of one’s later volunteerism to human beings following a kind of internal, moral script or “stereotyped response sequence” in which we humans will tend to over-predict our own moral goodness. If you’re saying to yourself, “Well, shoot, I recognize all this behavioral stuff as the self-fulfilling prophecy!” then you’re doing much better than Steven Sherman who decided 41 yearsago to call  it “the self-erasing nature of errors of prediction.” 

Now here is the fun part. Sherman is perhaps more whimsical than his hyper-technical word choice suggests. He conducted another experiment similar to that above. Here, one test group was asked to predict whether they would sing the Star-Spangled Banner over the telephone  if they were later asked to do so on a different phone call. The second group was just asked to belt it out on the spot—no prediction. In the first experimental group, 44% predicted they would sing it and 40% of the group ultimately sang it when asked a few days later. However,a full 72% of those directly asked to sing it gave proof through the call that they were up to the musical task asked of them! I am sure you spotted a bit of a difference in singing as opposed to volunteering for cancer research: Those predicting whether they would volunteer for cancer fundraising were predicting their own moral behavior. Those predicting their willingness to sing  were not following any similar moral “script.” By now, we can see the potential applications tothe formatting of questions on voir dire, so I need not spell it out for the trial lawyers in the room. 

I must, however, and for the sake of my future autumn-involved, pumpkin-spice- consuming self, mention one related study. As you might imagine, marketers have seized on this self-fulfilling prophecy phenomena. A marketing professor at Washington State University conducted an experiment on people who had a gym membership but hadn’t attended their gym in  at least a month.⁵ The first subject group in the experiment was asked if they expected (read: “predicted”) they would use the gym in the next 7 days. Like Sherman’s experiments above, the second experimental group was simply asked if they were members of a health club and not asked to predict anything. Researchers then tracked the gym attendance for both groups over the    following week and then for 6 months afterward. 60% of those asked to predict their attendance said they thought they would attend the gym during that week. However, only 7% of those not asked to predict their attendance actually did attend the gym that week. Sherman’s study above helps us understand that over-estimated prediction of future good behavior. But here’s the whip cream on that slice of pumpkin pie: Over the next six months, those who were asked to predict their usage ended up using the gym twice as much as those who made no prediction at all!6

Yes, there is something wonderful and fascinating about autumn. The intermittent, trundling parade of Monarchs flying south, guided by some mysterious and magnetic pull. The brassy chimes of dry leaves stirred by northern winds. The last, sweet oozings from the cider press. Pumpkins.Spices for pumpkins. I am just going to say that I predict this fall will be no different from the last—andI will be full-filled.

Notes

1. Steven J. Sherman, On the Self-Erasing Nature of Errorsof Prediction, 39 J. PERSONALITY & SOC. PSYCHOL. 211 (1980). 
2. See Id. at 217.  I am really summarizing the spirit of the questions asked and not directly quoting the questions posed. Even Sherman doesn’t provide the words used for the questions posed to each group. I use “would you” and “will you” here to draw the distinction between being asked to predict and being asked to commit. 
3.   Id. 
4. Id. at 218.
5. Eric Spangenberg, Increasing HealthClub Attendance ThroughSelf-Prophecy, 8 MKTG.LETTERS 23 (1997).
6. Id. at 27.

Jules Epstein

Eyewitness error, the product of inadequate perception and/or failed or altered memory, is generally the ‘stuff’ of criminal procedure courses.  “The vagaries of eyewitness identification testimony” language dates back to Justice Frankfurter, and courses on wrongful conviction remind students that in the DNA exoneration cases 70% or more involved the mistaken claim of “that’s the person.”  But the lessons of eyewitness error are not limited to the practice of criminal law; and indeed are not limited to testimony in civil and criminal cases where a person is being identified.  Rather, the lessons are those of the limits of memory in general, and as such need to be drawn upon when training our students (and ourselves) in better client and witness interviewing techniques (and in understanding why a courtroom account of an event may be a far cry from what actually happened months or years earlier). 

Take a look at the below image.  It was made famous nearly 70 years ago by the Austrian philosopher Ludwig Wittgenstein in his posthumous Philosophical Investigations (1953) to explain “aspect perception,” but was first used in 1899 by American psychologist Joseph Jastrow.  When used in trainings for lawyers and investigators handling eyewitness-based cases, a blank screen is shown and the following instructions are provided: “I am going to show you an image for 3-4 seconds.  Please make note of what you see.”  The presentation advances to the next slide where the image appears, and after 3-4 seconds the screen goes blank.  When the audience is asked “what did you see,” some see a duck but others a rabbit.  

The lesson in eyewitness cases is easy – people see some details and miss others, and an identical object can have different meanings and appearances depending on the viewer’s predilections and orientation. 

But wait.  The title of this article is not “make note of what you see” but instead is “do you see the duck?”  That adds a confounding problem, one that leads to better interviewing techniques.  The problem here is simple – by suggesting what the observer will see, it creates an expectation.  And when interviewers suggest what the witness recalls, it can do precisely that – creates a new memory. 

This second point is supported by now-legendary research by Elizabeth Loftus.  Participants viewed a brief video of a car-on-car accident and then were asked one question: About how fast were the cars going when they (smashed / collided / bumped / hit / contacted) each other?”  Different participants had different verbs.  The results were stark – the more potent the verb, the faster the speed estimate: 

The problem did not end there.  A follow-up interview conducted one week after the film was shown asked whether there was any broken glass.  There was none in the film.  A significant number of those who had been asked whether the cars “smashed” recalled broken glass. 

https://www.simplypsychology.org/loftus-palmer.html (last visited July 15, 2021). 

What are the lessons, then, for students when they study interviewing (and when they weigh how reliable deposition or trial testimony actually is when offered months or years after an event)?  First come the general principles of memory science – perception is often inaccurate or incomplete to begin with, and even if a witness will never forget the gist of an event (who will ever forget September 11, 2001) that person loses detail memory within hours and then progressively over time (think 9/11 – which tower was hit first, and what airlines were involved). 

With that fragility of memory comes the need for better modes of eliciting accurate memory.  The rule is simple – don’t ask “do you see the rabbit” or “how fast were the cars going when they smashed?”  Words trigger beliefs or affect perception.  Instead, turn to more accurate modes of interviewing [note  “interviewing,” not “interrogating”].  And this is where eyewitness research again offers tools for all forensic investigations – the cognitive interview. 

Developed in the 1980 and 90s, the cognitive interview has various iterations but in its basic formulation has a series of stages: 

• Establish rapport with the witness 
• Let the witness first set the scene/environment (sometimes accomplished by asking the witness about general activities and feelings from the day at issue) 
• Making an open-ended request for a narrative, letting the witness speak and later going back for details and follow-up 
• Suggesting that the witness recount the events from more than one perspective, describing what they think someone else at the scene or even the perpetrator saw 
• Asking the witness to tell the story backwards, from the ending to the beginning 
• Instructing the witness to share all details, no matter how trivial 

Is this actually better?  In one study, test subjects observed a video of an event and then were questioned 48 hours later in one of three ways – a standard police interview, under hypnosis, or with the cognitive interview.  In terms of the number of facts that were recalled accurately, the results were stark: on average, those with the cognitive interview recalled 41.2 facts, those under hypnosis 38, and those questioned in the typical police format 29.4. 

Teaching about eyewitness error is critical as we explain the limits of trials and the weaknesses inherent in the criminal investigation process; but lessons from eyewitness research are memory lessons and should inform our teaching of witness interviewing and the limits of witness [or client] accuracy. 

Special thanks to Temple Law Professor Ken Jacobsen, who teaches Interviewing and Negotiation; and University of Pittsburgh psychology Professor Jonathan Vallano, an expert in eyewitness memory and cognitive interviewing, for their critical input. 

Resources: 

For the latest book on the science of memory, see REMEMBER by Lisa Genova (https://www2.law.temple.edu/aer/can-we-trust-memory/)  

 For the original duck-rabbit research, see https://en.wikisource.org/wiki/Popular_Science_Monthly/Volume_54/January_1899/The_Mind%27s_Eye 

For “aspect perception” see https://qrius.com/what-is-aspect-perception/ 

For the basics of cognitive interviewing see https://www.simplypsychology.org/cognitive-interview.html 

For how many details we forget, see Hirst et al, Long-Term Memory for the Terrorist Attack of September 11: Flashbulb Memories, Event Memories, and the Factors That Influence Their Retention, Journal of Experimental Psychology 2009, Vol. 138, No. 2, 161–176 https://psycnet.apa.org/buy/2009-05547-001