BRAIN LESSONS: THE POWER OF STORY-TELLING

by Jules Epstein

After 300+ exonerations, and the attraction to forensics engendered by television series, one might think that the recovery of DNA at a crime scene – DNA that does *not* match the defendant – would quickly lead to acquittal. The contrary has occurred, however, particularly where a ‘good story’ to ‘explain’ the foreign DNA is told.

In NOTE: THE “ELASTICITY” OF DNA EVIDENCE? WHEN PROSECUTORIAL STORYTELLING GOES TOO FAR, 28 S. Cal. Rev. L. & Social Justice 138 (April, 2019), the following is reported:

In the recent psychological study, When Self-Report Trumps Science: Effects
of Confessions, DNA, and Prosecutorial Theories on Perceptions of Guilt,
Sara C. Appleby and Saul M. Kassin analyzed people’s perceptions of guilt
when presented with the following: a defendant who had confessed to a
crime, DNA evidence exculpating that defendant, and a prosecutor’s theory
explaining the contradictory evidence. Although the study confirms that
people are more persuaded by DNA than by confessions, participants in the
study were three times more likely to convict when a prosecutor offered an
explanation of why the exculpatory DNA conflicted with the confession than
when no explanation was presented.

*Id.*, 139-140.

The NOTE goes on to show that this occurs not just in the psychology lab but in the courtroom.

The Center on Wrongful Convictions has reported 19 known cases in which a
defendant confessed and was convicted despite exculpatory DNA, with
additional cases having been reported since then. In rape-murder cases, a
common prosecutorial theory used to override exculpatory DNA in the form of
semen is known pejoratively as “the unindicted co-ejaculator” theory. The
story advanced by prosecutors in these cases is that the victim had prior
consensual sex with an unknown male; afterward, the defendant raped her,
failed to ejaculate, and killed her. Prosecutors have also argued
necrophilia, conspiracy, and other questionable theories in order to
discount exculpatory DNA.

*Id.,* 148.

The proof of the potency of story-telling is in the guilty verdicts – the story triumphed over the science.

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BRAIN LESSONS: THE PERSUASIVE VOICE

by Grant Rost

I [Grant] have been teaching again in my Advanced Trial Advocacy class on Patsy Rodenburg’s book, The Second Circle, and decided this month that I would dovetail a bit with Jules’s excellent post last month on how the voice persuades.[1]  While this month’s post isn’t necessarily about new research, my hope is that you find it “new-to-you” and of some use to you as you as a professor, coach, or advocate.

For some background, Patsy Rodenburg, a rather famous acting coach, proposed the idea that people work, speak, breathe, teach, persuade, and live in one of what she calls the “three circles of energy.”  The first circle of energy is an energy that “falls back into you” and never really leaves your orbit.  Patsy Rodenburg, The Second Circle 16 (2nd ed. 2017).  First circle energy can be sullen, contemplative, indifferent, subdued, or selfish.  By contrast, the third circle of energy is an energy that pushes out from you and into, or even right through, others.  It can be aggressive, arrogant, controlling, overly enthusiastic, or falsely positive.  It’s energy that leaves your orbit and is pushed out of you, propelled by your will.  The second circle of energy, however, is the energy of presence.  It’s defined by a mutual exchange of energy between you and another, or you and a group, or even you and an object—like an instrument you’re playing—in which you’re devoting your energy to the living moment and receiving energy back from that person or thing in the moment with you.  Each circle of energy has its place, but it’s the second circle where we give the most to life and receive the most from it.  Id. at xiv.

In her book, Rodenburg writes extensively about the voice, how it reveals which circle it’s emanating from, and that recalls to my mind last month’s post about how the voice persuades.  If you hear a first circle voice, one that sounds indifferent, sullen or detached, do you find yourself moved by it or do you find it saps your energy? By contrast, a third circle voice projects energy out like a steamroller.  Have you really felt moved by a speaker who—with his shoulders pulled back and head high—tried to persuade you to think a certain way using ear-splitting volume and the insistence of his demands on you?  He might actually hold your attention, but are you really interacting with his ideas or just riding along on his wave?

If last month’s post was about how the brain responds to things like timbre, volume, pitch, etc., then this month’s post is simply to frame the personal context for why a persuasive voice moves us.  For Rodenburg, it’s this: a second circle voice is the voice of intimacy, equality, and connection, and our brain likes those things. See Id. at 79-82. When we see a student glued to her notes on opening statement, we inevitably hear a first circle voice.  When you have a student shouting into the wall behind his jury, demanding a conviction, you hear a third circle voice.  But if you’ve had a conversation with a student or colleague where the exchange of ideas and energy was equal, you likely still remember it.  You can recall the feelings you had in those moments.  You remember feeling engaged and feeling as though you were also engaging.  That is the second circle.  For the students we have who crawl inside their notes or bully their way through a closing argument, Rodenburg encourages us to reveal to them their most persuasive self—who they are when they are actually present with their audience and speaking in second circle energy.

[1] I want to give credit here to Rafe Foreman, attorney and instructor at Gerry Spence’s Trial Lawyer’s College, for turning me on to Patsy Rodenburg’s work and writing.

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BRAIN LESSONS: NEGOTIATING ERRORS: WHEN THE “ADVERSARIAL MINDSET” HURTS MORE THAN HELPS

by Jules Epstein

Too often, the mindset in negotiating is completely adversarial – we are good, they are bad; we are right, they are wrong; we are just and they are unjust; and, perhaps most perniciously, we are reasonable and they are not and will not be so.

Even Ronald Reagan didn’t posture in this way – his famous cry was “trust but verify.”  New research suggests a modification of that principle when conducting negotiations.

The American Psychological Association’s Psychology, Public Policy and Law is publishing  “The Adversarial Mindset” by Simon, Ahn, Stenstrom and Read (2020).  The authors begin by surveying the literature on negotiating and identify three controlling principles:

  • The “myside bias,” the tendency to view a case and a position not objectively but through a more-favorable-than-justified lens. [In the world of trials, we sometimes call this “trial psychosis,” a delusional belief that the case is a winner despite devastating adverse proof.]  What comes with this is what the authors describe as an “unfavorable perception of one’s counterpart.”
  • The “otherside bias,” the assumption we make that our counterpart will not see things objectively but will construe the evidence and justness of the cause in a skewed manner. Accompanying this is the belief that your opponent begins from a point where they view you negatively.
  • “Conflict and escalation.” Where myside and otherside bias prevail, parties may tend to escalate conflict due to inaccurate perceptions rather than tend toward “de-escation through cooperative behavior.”

To test these propositions, the authors conducted a series of tests, with individuals assigned to be an advocate on one or the other side in a dispute or to be the neutral third party advisor, a person directed to present the decisionmaker/arbitrator with a fair rendering of the facts that “do justice to both parties.”  All three roles received the same factual background, facts intended to be decidedly circumstantial and ambiguous.  The dispute was over whether an employee had stolen money.

Each participant ultimately rated the strength of the facts and judged how the opponent would likely view them.  Role mattered – those assigned to the employee’s side viewed the facts more favorably than those assigned to represent the employer, with the neutral advisor coming down somewhere in the middle.

This is not all that was shown.  Each adversary was asked to estimate how the opposing advocate viewed the evidence and over-estimated how badly the opponent would view the case.  Put more simply, if one party represented the employee, that person over-estimated how the other side [the employer’s representative] would view the proof supporting guilt.

This was but one of the two studies the authors did, with the second largely confirming the first.  The concern they identify is that when we view our opponents as more judgmental and less objective, escalatory tendencies emerge.

This summary just skims the surface.  The details of each experiment are revealing; and the authors frame this as proving “coherence based reasoning,’ i.e., that the otherside and myside biases cohere to impact  the judgments each adversary made.  At the same time, there was some awareness of the likelihood that the ‘impartial’ mediator would more fairly assess the case’s strengths and weaknesses, taken by the authors as proof that there might be some self-awareness of the biases that afflict the adversaries’ judgment.

What are some of the upshots?  The authors note the important role of mediators in asking each side to list the weaknesses in its position, a first step toward tempering views and avoiding escalation.  They also found some reason to be optimistic:

Notwithstanding the wide and deep spreading of bias throughout the participants’ mental model of the case, our participants were considerably less biased when asked to assess how a neutral authority figure would view the case. In other words, our participants were cognizant of the fact that not everyone would share their view of the situation. It follows that they were to some degree aware that they were operating under the influence of bias.  This partial awareness could provide an opening to bring adversaries to transcend their biased views, question their escalatory impulses, and seek cooperative solutions.

For those of us who teach negotiating and mediation, this and similar research is critical as it shows the need to educate our students to look at the case through the other party’s eye and needs, and not start from a position of absolute distrust.

The Adversarial Mindset will be published this year in Psychology, Public Policy and Lawhttps://psycnet.apa.org/PsycARTICLES/journal/law/26/1   It can also be found at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3573099

Thanks go to author Dan Simon for his presentation on this research at a faculty colloquium at Temple Beasley School of Law.   For related research, see the March 27, 2020 New York Times article “In Negotiations, Givers Are Smarter Than Takers,” explaining how giving the opposing side something that it needs may lead to more successful negotiations.  https://www.nytimes.com/2020/03/27/smarter-living/negotiation-tips-giver-taker.html?referringSource=articleShare

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BRAIN LESSONS: FRIENDS, STUDENTS, JURORS, LEND ME YOUR EYES

by Grant Rost

We are in a new world, aren’t we?  I am starting to get this strange feeling that the vocational “me” is really just a hologram—merely an image of me that others interact with.  I see him too.  He’s there in the lower corner of my screen, and he can’t even make eye contact with me!  Perhaps, he feels as estranged from me as I do from him.  This is our new world for a moment, let’s hope.  It makes me wonder where to look.  Surely, I’m not alone in this.  Each of you has wondered the same thing: look at the camera, look at your materials, or look at the people on your screen.  And if we teach advocates, how should we advise them in this new medium?  This month, I’m reviewing a recent study on how a presenter’s gaze and body position affects learning on the other side of the screen.[1]

The study was fairly simple.  Participants watched one of six different presentations teaching the same subject.  In each of the six presentations, the presenter’s eye gaze and body position changed.  Participants were then tested on the subject taught and those results were matched to the presenter’s eye gaze and body position.  There were three eye positions employed.  In the first, the presenter appeared to “look” at the material next to her on the screen—like a weather forecaster.  The courtroom equivalent is a lawyer next to a white board or demonstrative.  In the second, she looked directly at the camera.  In the third, she looked away from the material and the camera, as if speaking to an in-person group to her left.  There were three body positions tested as well: torso turned toward the material, toward the camera, or away from the material and the camera.  The presenter only ever appears from the waist up.

Before I share the results, it’s worth noting that the authors cite to a host of other materials which have revealed the importance of looking directly at one’s camera while communicating or teaching digitally.  If you are the type who looks at the people on your screen instead of the camera, don’t fret too much.  There is good data that people watching you sense that you’re trying to making eye contact with them and still feel a level of connection to you, even if you appear to them to be looking downward and not staring into their soul.[2]

The study revealed that the body position of the presenter simply didn’t matter.[3]  Eye tracking data from participants showed they rarely looked at the presenter’s body and her body position didn’t affect learning or retention.[4]  Second, the study showed that the participants who viewed the presenter “looking” at the material she was presenting—referred to as “guided gaze”—scored highest on a subsequent test.  The participants who saw her looking right at them—referred to as “direct gaze”—scored a little lower.  Finally, those who saw her teach with her head turned from the material and the camera scored the lowest.[5]

Though there is no good argument for the averted gaze, the data reveals that the guided gaze, where material is co-apparent with the presenter, and the camera-staring direct gaze, where it isn’t, are essential tools for our new world of computer teaching and persuasion.

[1] Zhongling Pi et al., Instructor Presence in Video Lectures: Eye Gaze Matters, but Not Body Orientation, 144 Computers & Educ. 1 (2020), https://doi.org/10.1016/j.compedu.2019.103713.

[2] See generally David M. Grayson & Andrew F. Monk, Are You Looking at Me? Eye Contact and Desktop Video Conferencing, 10 ACM Transactions on Computer-Hum. Interaction 221, [PINCITE] (2003).

[3] Pi et al., supra note 1, at 5.

[4] Id.

[5] Id. at 5-6.

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Race and the Law of Evidence

by Jules Epstein

We live in a time where every action we take, every premise we rely on, warrants scrutiny through the prisms of race and implicit bias.  This reckoning, long overdue for too many individuals and institutions, was brought about by the murder by police of George Floyd and the consequent outpouring of grief, rage and commitment.  The application of the Rules of Evidence require that same scrutiny.

The suggestion is not novel.  A pioneering work in this field is that of Professor Jasmine B. Gonzalez Rose, Toward a Critical Race Theory of Evidence, Minnesota Law Review, Vol. 101, p. 2243, (2017).  Another essential source for those who teach evidence is Guerilla Guides to Law Teaching No. 5 – Evidence (https://guerrillaguides.wordpress.com/2017/09/05/no-5-evidence/ ).  And there are more articles that confront race, implicit bias, and Evidence Law.[1]

Nonetheless, the immediate response might be one of doubt.  The word “race” is absent from the Federal Rules of Evidence, and the hearsay rules, for example, are arguably color-blind – a present sense impression is a present sense impression, with its admissibility in no way dependent upon the race of the declarant or the perceiver.

But in truth nothing is neutral.  Evidence rules were crafted over centuries, with the authors predominantly white males.  And their drafting occurred without consideration of whether they reflect the experience(s) of or in some way disproportionately impact people of color – be they parties or witnesses – either in restricting their ability to testify or making it harder to deem them credible.  If that is correct, race must be contemplated when evidentiary rulings are made.

Here are four examples of where race and racism belong in the Evidence calculus.

Admissions by Silence:

The doctrine of tacit admissions – admissions by silence and failure to deny or object – is a normative rule.  It presumes that the ‘average’ person would speak up in the face of an accusation.  But that average or reasonable person expectation may be derived from the experience of a white male; in other cultures, silence is not acquiescence, and in today’s world, silence in the face of power is certainly not agreement.  The proper inquiry when confronted with a claim of adoption by silence must be to expand the test from that posited in the Notes of the Advisory by adding the bolded language:

When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior including issues of race, ethnicity and cultural and the power relationship between the speaker and the person who remains silent.

This requires no rewriting of the Rules of Evidence; instead, all that is required is abandonment of a white male norm for assessing expectations.  Whether a judge can do that, or will need some sort of expert assistance, is an open question.

Impeachment With Prior Convictions

Federal Rule of Evidence 609 mandates admission against all witnesses except persons accused of crime, subject to a Rule 403 analysis, of “a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year…”  Aggravated assaults, petty thefts, drug offenses, drunk driving  and more – all proving little or nothing about whether the witness is likely to be truthful in court and under oath – come in.

This part of Rule 609 has many critics, not least because of the disconnect between the crime of conviction and the likelihood of bearing false witness.  See, e.g., Rice, RESTORING JUSTICE: PURGING EVIL FROM FEDERAL RULE OF EVIDENCE 609, 89 Temp. L. Rev. 683, 690-693 (Summer, 2017).  But what has yet to be imported into the 403 calculus is the impact of race.

There is ample documentation that police discretion in who to arrest and what charge to recommend is often informed by the race of the suspect.  A 2011 analysis concluded that “[o]n average, the chances of a minority suspect being arrested were found to be 30 percent greater than a White suspect”).  Tammy Rinehart Kochel et al., EFFECT OF SUSPECT RACE ON OFFICERS’ ARREST DECISIONS, 49 CRIMINOLOGY 473, 498 (2011).  A subsequent study of retail theft arrests in Texas showed that race impacted the level of charge initiated by the police – black women in particular were found to be charged with a more serious level of theft than white women in the same or similar circumstances.  Braun, Rosenthal and Therrian, POLICE DISCRETION AND RACIAL DISPARITY IN ORGANIZED RETAIL THEFT ARRESTS: EVIDENCE FROM TEXAS, 15 J. Empirical Legal Stud. 916, 937 (December, 2018).  And once in the system, prosecutorial discretion in charging has a further disproportionate effect.  A recent study found that in one state – Wisconsin – “White defendants are twenty-five percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge…”   Berdejo, CRIMINALIZING RACE: RACIAL DISPARITIES IN PLEA-BARGAINING, 59 B.C. L. Rev. 1187, 1191 (2018).

As a result, criminal convictions – whether being convicted at all or the severity of the charge – may be a product of race rather than character.  This skewing of the process requires an enhanced 403 assessment – before allowing a witness to be impeached by a conviction that does not inherently involve deception and thus conveys little about testimonial accuracy and honesty, race must be accounted for; otherwise, the credibility of African-American witnesses will be devalued not because of their character but because their criminal record is a consequence of disparate treatment.  This same calculus may be needed where other minorities are subject to dissimilar arrest and charging decisions.

Impeachment by Prior Inconsistent Statements

This staple of trials – cross-examining a witness to prove that the story has changed – may seem race-neutral, but that judgment is dependent in part on the accuracy of the recording of the initial statement.  Where the speaker is Black, accuracy of transcription is a serious concern.  As reported in the New York Times,

court reporters in Philadelphia regularly made errors in transcribing sentences that were spoken in a dialect that linguists term African-American English…On average, the reporters made errors in two out of every five sentences, according to the study.

Speaking Black Dialect in Courtrooms Can Have Striking Consequences, January 25, 2019 https://www.nytimes.com/2019/01/25/us/black-dialect-courtrooms.html (last visited June 12, 2020).  Impeachment with an inaccurately transcribed statement, especially one taken under oath and thus admissible for its truth, undercuts the credibility of witnesses of color and diminishes the prospect of accurate adjudications.  Before impeachment is permitted, the risk of an inaccurate transcription must be weighed. [The same may be true

‘Unmasking’ Witnesses

On occasion, Judges have required witnesses who wear the niqab to remove it as a condition of testifying in court to permit an evaluation of demeanor.  The claim is that without the ability to see the person’s face, demeanor cannot properly be assessed.   See. e.g., COMMENT: MICHIGAN RULE OF EVIDENCE 611(B) AND THE NIQAB: A VIOLATION OF FREE EXERCISE OF RELIGION, 27 T.M. Cooley L. Rev. 611 (2010).  The science is clear that demeanor is rarely a guide to ascertaining deception, and in some cases a focus on demeanor – and with it stereotypes on which behavior correlates with lying – actually detracts from determining accuracy.

Mandating removal of a religious garment can only have two deleterious effects – for some, it will dissuade them from giving testimony; and for those who comply, it may lead to ‘demeanor’ such as looking down or away from the questioner or the factfinder that feeds into the stereotypes of how a dishonest witness acts.  Neither impact enhances the function of a trial.  While this issue goes beyond race and is particularly directed at women, it clearly impacts persons of color who also belong to particular religions.

There are more instances where race needs to be in the Evidence calculus.  When analyzing proof of flight from police, race and the fraught relations between minority communities and the police affect its probativeness but are almost never weighed by courts; when admitting eyewitness testimony, some courts are still reluctant to instruct on (let alone preclude) cross-racial identifications with their diminished reliability; and lay opinion testimony as to what conduct appeared to be or implied may be informed (or mis-informed) by race.

Rule 102 of the Federal Rules of Evidence declares that “[t]hese rules should be construed so as to administer every proceeding fairly…to the end of ascertaining the truth and securing a just determination.”  As these examples demonstrate, without considering the effects of systemic racism, those goals cannot be achieved.


[1]           See, e.g., Jane Aiken, Teaching The Rules of Truth, Georgetown Law (2006); Mikah Thompson, Bias on Trial – https://digitalcommons.law.msu.edu/lr/vol2018/iss5/3/; Mikah Thompson, A Culture of Silence: Exploring the Impact of the Historically Contentious Relationship between African-Americans and the Police, 85 UMKC L. REV. _ (2017) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001054 ); Mikah Thompson, Blackness as Character Evidence , 20.2 MICH. J. RACE & L. 321 (2015);    Bennett Capers, Evidence Without Rules, 94 Notre Dame Law Review 867 (2018): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3155477;  Julia Simon-Kerr, Credibility by Proxy,  85 George Wash. L. Rev. 152 (2017): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790989;  Montre’ Carodine:  “The Mis-Characterization of the Negro”:  A Race Critique of the Prior Conviction Impeachment Rule, 84 Indiana Law Journal 521 (2009); Montre’ Carodine:  Keeping it Real:  Reforming the “Untried Conviction” Impeachment Rule, 69 Maryland Law Review 501 (2010);  Montre’ Carodine:  “Street Cred,” 46 U.C. Davis Law Review 1583 (2013); Montre’ Carodine:  Race is Evidence: (Mis)Characterizing Blackness in the American Civil Rights Story,  main book chapter in Civil Rights in the American Story (Austin Sarat, ed., Cambridge University Press, 2013); Montre’ Carodine:  Contemporary Issues in Critical Race Theory:  Race as Character Evidence in High Profile Cases, 75 Pittsburgh Law Review 679 (2014)​; Tamara F. Lawson, Powerless Against Police Brutality:  A Felon’s Story, 25 St. Thomas Law Review 218 (2013).

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Peremptories and Personality Traits

by Grant Rost

In every basic trial advocacy class I teach, I always read my students a snippet of jury selection advice from the renowned Clarence Darrow.  At the time he authored this advice, it was “state-of-the-art.”  However, as soon as I start reading it to them, my students will scoff, laugh, or gape in shock. Says Darrow,  “The Englishman is not so good as an Irishman…The German is not so keen about individual rights except where they concern his own way of life…Beware of the Lutherans, especially the Scandinavians…”[1] Darrow goes on and on like that, fumbling over all kinds of ethnic and religious stereotypes.  It gives me the chance to remind my students how far we have come in ensuring the right to a trial by a jury of one’s peers, and to stop and think for a moment about where we need to go.

Thankfully, our laws continue to adjust against such prejudices in jury selection.  Unlike Darrow’s time at the bar, modern jury selection tactics are increasingly backed by experimental science.  Which brings me to an article Jules sent me recently which undertakes an experimental question on jury selection and a normative question about using peremptory strikes based on personality traits the attorney perceives.[2]  There is a lot of information in this article as it deals with the ethical, technical, and experimental.  For brevity’s sake, I’ll confine this post to the latter—an age-old voir dire question of introverted jurors versus extraverted jurors, narrowly positioned around receptivity to expert opinions.  The experiments here are quite detailed, so I’ll do my best to summarize them in such a short space.

The authors sought to discover what persuasive affects an expert with high or low credibility and high or low confidence had on introverted and extraverted jurors.  The practical question should be clear here:  If my case hangs on an expert or two, should I use peremptory strikes to craft a pool of introverted or extraverted jurors who tend to find an expert like mine more persuasive?  Before we get to how the introverts and extraverts fared, it’s worth talking a bit about expert credibility and expert testimonial confidence as those terms are pregnant with meaning in these experiments and recur frequently below.

An expert can seem more or less credible for any number of reasons ranging from dress, to demeanor, to diplomas.  As to their opinions, an expert can display varying degrees of caution or confidence.  It is within these two categorical ranges that the experiments took place. The authors conducted two experiments.  In the first, the authors did not change the projected testimonial confidence levels of the experts but they did in the second experiment, creating three categories of expert confidence: low, medium, and high.   Participants watched an expert in psychology testify about the violence risk of a defendant convicted of capital murder then made a sentencing decision based on the expert’s recommendation.[3]

Both introverts and extraverts were largely unmoved by low-credibility experts, even if the expert displayed high confidence.  On the opposite side of the credibility spectrum, both introverts and extraverts were more likely to vote for the death penalty if the expert was high credibility and high confidence.  None of that probably seems all that surprising to you.  Here is where it gets interesting: Introverts were significantly more likely to vote for the death penalty with a high-credibility, low-confidence expert, whereas the high-credibility, low-confidence experts barely moved the needle for the extraverts.[4]  For the extraverts, a high-credibility, low-confidence expert was hardly more persuasive to them than the low-credibility experts who couldn’t seem to generate voting enthusiasm in either group.[5] If an extravert thought an expert lacked confidence, they were more likely to also indicate that that expert lacked credibility.[6]  In fact, for the most extraverted jurors, a high-confidence, high-credibility expert produced a “multiplicative effect” on the chance of a death penalty vote.[7]  For the introverts, however, as long as the expert’s credibility was high, it did not matter if the expert’s testimonial confidence was low, medium, or high—they were more likely to vote for the death penalty and were even more likely to vote for it than their extraverted peers who saw their expert as both high credibility and high confidence.[8]

You might want to read that last paragraph again.  Speaking for myself, the repetitious terminology took a few swallows for me to properly digest.  I don’t recommend spending any time at all in Darrow’s essay from 1936.  You won’t even get it across your palate.

I have to give special thanks again to Nathan Wilson, a rising 3L at UNC and the Publications Editor of their law review, who has helped out three times now with my Bluebook citation formatting for this blog.  I just hate doing them and Nathan has been such a cheerful helper, even though he isn’t my student. 


[1] Clarence Darrow, Attorney for the Defense, Esquire, May, 1936 at 36 reprinted in James W. Jeans, Sr., Trial Advocacy 277-278 (2d ed. 1993).

[2] Erik J. Girvan et al., The Propriety of Peremptory Challenges for Perceived Personality Traits, 37 L. & Pysch. Rev. 49 (2013).

[3] I am simplifying the experimental procedures here for space.  The authors employed a number of experimental devices and necessary controls, such as controlling for a participant’s opinion about the death penalty.  Obviously, in order to determine a participant’s introversion or extraversion, each participant was tested and then categorized based on scientifically accepted criteria.   See Id. at 63-65.

[4] Id. at 66.

[5] Id.

[6] Id. at 66-67.

[7] Id. at 69.

[8] Id. at 70.

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Demeanor and Masked Witnesses

by Jules Epstein

Do mask-wearing witnesses deprive criminal defendants of their right of Confrontation?  Does impairing the ability of jurors and lawyers to fully assess ‘demeanor’ result in less reliable trials?  Can jury selection be fair of prospective jurors’ faces are covered?   Or is this all a Shakespearean “much ado about nothing” because we – the great majority of lawyers and judges – can’t detect deception with any degree of reliability and often no better than chance?

To answer this we first need to distinguish between demeanor as a general ‘early warning system,’ a tool for discerning that a particular question has hit the witness or prospective juror emotionally and thus warrants some follow-up; and the more discrete claim that facial gestures and responses can reveal deception. Rarely does that distinction come through in the law; and rarer still are the lawyers who grasp the difference.

Historically, with no basis in science, it was believed that seeing the speaker was and is critical to judging veracity.  125 years ago, the Court explained that it is essential that “the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”  Mattox v. United States, 156 U.S. 237, 242-243 U.S. 1895).

That view persisted in the canons on Evidence.

Wigmore notes that, in addition to cross-examination — “the essential purpose of confrontation” — there is a “secondary and dispensable element [of the right:] . . . the presence of the witness before the tribunal so that his demeanor while testifying may furnish such evidence of his credibility as can be gathered therefrom. . . . [This principle] is satisfied if the witness, throughout the material part of his testimony, is before the tribunal where his demeanor can be adequately observed.”

Coy v. Iowa, 487 U.S. 1012, 1029 (U.S.  1988)(dissenting opinion).

Jurors are so instructed.  Typical is the Third Circuit instruction on judging credibility, which tells jurors to

“decide whether to believe a witness based on his or her behavior and manner of testifying, the explanations the witness gave, and all the other evidence in the case, just as you would in any important matter where you are trying to decide if a person is truthful, straightforward, and accurate in his or her recollection…

In deciding what to believe, you may consider a number of factors:

(3) The witness’ appearance, behavior, and manner while testifying;

Yet examining a witness’ face is not the legal essential it appears to be, a point made first by those cases that approve the seating of blind jurors.  As one court explained, “[w]ith respect to the prospective juror challenged as visually impaired, although we recognize that sight is a factor in testing the credibility of a witness we reject the defendant’s contention that the juror would be unable to properly evaluate the credibility of the witnesses.”   People v. Pagan, 191 A.D.2d 651, 651, 595 N.Y.S.2d 486, 487, 1993 N.Y. App. Div. LEXIS 2652, *3 (N.Y. App. Div. 2d Dep’t March 22, 1993).

And what of science?  Myths about detecting lies persist.  As one 2017 article in Psychology Today professed

we can be aware of certain behaviors and characteristics that tell us that others may be lying, such as:

  • Changes in vocal pitch.
  • Unusual blinking or fidgeting.
  • The use of fewer first-person words such as “I.”
  • A decreased tendency to use emotional words, such as hurt or angry.
  • Difficulty making eye contact when speaking, or shifty eyes.
  • The use of self-soothing techniques such as ear tugging, neck touching, collar pulling, or mouth covering.
  • Inconsistent gestures or facial expressions that contrast with message content.

Raab, 7 Signs That Someone’s Lying to You (June 2017) https://www.psychologytoday.com/us/blog/the-empowerment-diary/201706/7-signs-someones-lying-you (last visited July 14, 2020).  Raab offers no citation/sourcing for this list.

That absence of supporting authority should not be surprising.  As reported in 2018, a review of research studies showed that “people can distinguish a lie from the truth about 54 percent of the time, just slightly better than if they had guessed.”  Schaarschmidt, The Art of Lying, Scientific American (July 11, 2018) https://www.scientificamerican.com/article/the-art-of-lying/ (last visited July 14, 2020).

Why?  As one article explains

In the courtroom, stereotypes can be hazardous for lawyers and their clients. Some common myths about nonverbal behavior produce misleading clues and lead juries to think witnesses are lying when they’re not. These clues include avoiding eye contact and movements such as scratching, picking, crossing one’s arms, or tapping the foot. Most people believe lack of eye contact or shifting eyes is a clue to deceit. It is unreliable.

Cynthia Cohen, Demeanor, Deception and Credibility in Witnesses (ABA presentation 2013) http://pgil.pk/wp-content/uploads/2014/04/33_demeanor_deception.authcheckdam.pdf (last visited July 18, 2020).

Joe Navarro, a former FBI agent in the Bureau’s Behavioral Analysis Program, wrote in 2018 that “we need to stop associating behaviors indicative of psychological discomfort with deception and acknowledge them purely for what they are: signs of stress, anxiety, apprehension, despair, suspicion, tension, concern, nervousness, etc., but not deception.”  Navarro, The End of Detecting Deception, Psychology Today (July 2018) https://www.psychologytoday.com/us/blog/spycatcher/201807/the-end-detecting-deception (last visited July 18, 2020).

One of the principal researches on lying and deception is Professor Paul Ekman.  In the2001 edition of his book TELLING LIES (Norton 2001) he explains that while it might be possible to detect deception by spending hours studying a speaker’s facial movements, “people who view the videotapes just once [in the experiment where ground truth is known]…do little better than chance in identifying who is lying or telling the truth.” TELLING LIES, 331.

Ekman does promote trainings in discerning and understanding “micro-expressions,” expressions that flit across the face and disappear within a fraction of a second.  He maintains that these fleeting signs may show “two messages- what the liar wants to show and what the liar wants to conceal.”  https://www.paulekman.com/deception/deception-detection/ (last visited July 18, 2020).  Yet even with the study of micro-expressions he is cautious, noting the need to have a baseline of the person’s emotions to know when there is a deviation; “a single micro expression or flash of leakage does not offer conclusive proof of lying[;]” and “it is impossible for anyone to perfect the art of lie detection. Instead, he advocates that with more skills and data we can make determinations with greater certainty, though it’s important to remember that we can never know with 100% accuracy whether or not someone is lying.”  Id.

If masks impede anything, it is in catching reactions – a juror’s grimace or smile may reveal that a specific item of proof or argument landed well, poorly or otherwise raises concerns.  One approach might be to provide clear face shields or transparent face masks for jurors; but again that is not to detect deception but to ‘take the juror’s temperature.’

So what does this mean if witnesses or prospective jurors are masked?  While there may be support in the law for a challenge to the practice, particularly in criminal cases, there is little science to back it up.  And some research suggests that having faces covered might increase deception detection.

In her new and important article Unmasking Demeanor (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3610460&download=yes , Professor Julia Simon-Kerr debunks the demeanor-as-deception-tool argument and demonstrates how it is racially and culturally normed and biased.  She then reports on the 2016 experiments detailed in Leach et alLess is more? Detecting lies in veiled witnessesLaw and Human Behavior, 40(4), 401–410 (2016).  The study showed that “participants were more accurate when witnesses wore niqabs than when witnesses did not wear veils; observers were more accurate at detecting deception in witnesses who wore niqabs or hijabs than those who did not veil. Discrimination between lie- and truth-tellers was no better than guessing in the latter group, replicating previous finding.”  Id., at 407.  Recognition of this research may also have the salutary purpose of confirming the right of Muslim women to testify veiled – by realizing that the veil does not inhibit a fair determination of credibility, it permits a class of witnesses to testify in religious garb that leaves them more comfortable rather than unveiled and as a result ill-at-ease, a condition that might make the witnesses appear to be deceptive when they are not.

Simon-Kerr concludes with this observation: “mask(s)…may direct our attention to the more tangible and demonstrably useful factual information on offer at a trial or hearing.”  Unmasking Demeanor, 18.  Public health and the ‘search for the truth’ are not incompatible.

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The Mechanics of Strong but False Memories

by Grant Rost

In the time-bending blockbuster Inception, Leonardo DiCaprio’s character devises an elaborate method of mental manipulation: implanting an idea in another person’s head so that the recipient actually believes the idea is his own.[1]  The reality of implanted ideas is nearly as strange as this movie.  I would guess that lawyers are generally suspicious of witnesses’ memories—and rightly so—but perhaps most lawyers aren’t aware of just how easily memories can be manipulated.  Could a person, for instance, be made to believe she had committed a significant crime?  An assault?  How about assault with a weapon?

An article I read recently neatly summarizes the work of some of the noted researchers in this area of memory manipulation.[2]  Through interviews, these researchers have convinced regular, healthy-minded people that they had committed a criminal assault, among other crimes.[3] None of this is likely to surprise the criminal defense lawyers in the room.  However, I don’t want them to leave now thinking we’re going to rehash what should be fairly common knowledge in the bar, so we’ll dive deeper.  The theoretical brain mechanics behind this sort of manipulation is the subject of this month’s blog.

A false memory, as it turns out, has its own locus in the brain.  When scientists watch a false memory light up an fMRI, they see blood flowing strongly in the frontoparietal region of the brain—the area scientists associate with our sense of familiarity.  Real memory, however, lights up the hippocampus.[4]  It’s this strength of the familiar with the actual that makes false memories so easy to come by.  Researchers call this close link the Deese-Roediger-McDermott paradigm.  The DRM paradigm is easy to explain.  Suppose I gave you a list of words to memorize and all the words had a theme:  bat, ball, glove, pitch, base, dugout, catcher, etc.  The paradigm suggests that there’s a good chance you’ll recall, with some confidence, that the words hit or strike were on the list.[5]  They clearly were not.  Memories of events are also thematic.

To explain the DRM paradigm, researchers have proposed a system of memory called “fuzzy trace theory.”  Within “fuzzy trace theory” is the proposal that human beings have two kinds of memory: verbatim and gist.  Verbatim is quick, easily recalled detail.  I can clearly remember the name “Jules Epstein” as matching the bright, smiling fellow who helms Temple’s advocacy program and the listserv that delivered this blog post.  Having seen him recently, I can describe, with detail, what he looks like.  Where I get “fuzzy” is in the gist memory of how, precisely, we came upon the idea of this blog—apart from the fact that Jules said to me something akin to, “Let’s write a blog!”  I have some ideas of how our conversation about this blog went and I could probably spin you a yarn on how it all transpired.  Gist memory, says the researchers, has a “much more powerful influence after a delay” and, thus, we rely more on gist memory as we age.[6]  All isn’t a total loss with age, however.  We become “meaning makers” and work in these familiar associations of memories.  Though we are likely to insert words into a list that weren’t there, we are, with age, more likely to remember the whole list—so our accuracy suffers, but we’re at least still in the game.[7]

And, so, with the spark of a refreshed memory, I now remember how Jules and I came upon the idea for this blog.  He struck up a brief conversation with me on an overseas plane flight headed to Los Angeles.  Our flight attendant in first class had poured me a glass of water.  Feeling rather tired after just a few sips, I dozed off and had a very long, hard sleep with vivid dreams that my father had one last wish for me…


[1] Inception (Warner Bros. Pictures 2010).

[2] Lindsay Dodgson, Our Brains Sometimes Create ‘False Memories’ – But Science Suggests We Could Be Better Off This Way, BUSINESS INSIDER INDIA (Dec. 19, 2017, 2:06 PM), https://www.businessinsider.in/our-brains-sometimes-create-false-memories-but-science-suggests-we-could-be-better-off-this-way/articleshow/62132822.cms.

[3] E.g., Julia Shaw & Stephen Porter, Constructing Rich False Memories of Committing Crime, 26 Psychological Science Mar. 1, 2015, at 291.

[4] Dodgson, supra note 2.

[5] Id.

[6] Id.

[7] Id.

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SELECTIVELY APPLYING SCIENCE

by Jules Epstein

Given that the Rules of Evidence were developed without regard to, or prior to the development of, principles of cognitive science, one might expect courts to use scientific research to mediate those rules and, especially, to inform the exercise of discretion.  But as two divergent lines of cases show, although each involves how a visual occurrence in the courtroom might impact jury decision-making, the turn to science is selective if not random.

Let us start with shackling criminal defendants.  This act has been condemned as a matter of constitutional law since 1970, in part because “it [is] possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant…”  Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 1061 (U.S. 1970).  That tentative statement became an affirmative assessment by 2005.  “Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process…” Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013 (U.S. 2005).

The science behind the assertion made in Deck was recently relied on came in a federal habeas proceeding where the issue was whether the defendant was injured by being shackled, i.e., whether seeing a murder defendant in chains “had a substantial and injurious effect or influence in determining the jury’s verdict[,]”  the Brecht standard for post-conviction relief.  The appellate court’s assessment here had to be made in light of post-conviction protestations of there being no impact coming from testimony of the actual jurors.

Several jurors recalled at the evidentiary hearing that they had thought Davenport might be dangerous when they saw him in shackles. Another juror recalled that she was sitting closest to Davenport when he testified and a fellow juror had asked her if that made her nervous. She also recalled that there were more guards when Davenport testified because he was not in shackles. But the jurors who testified that they saw Davenport’s shackles also all said that they believed shackling was routine practice given that he was on trial for murder or because he was in pre-trial incarceration. Every juror asked also testified that Davenport’s shackling did not affect their deliberations.

Davenport v. MacLaren, 964 F.3d 448, 453 6th Cir. 2020)(emphasis added)

Rejecting the jurors’ self-professed impartiality, the majority in Davenport first turned to a generalized repudiation of the ‘trust me’ testimony.

If a practice “‘involves such a probability that prejudice will result that it is deemed inherently lacking in due process,’” like shackling a defendant without case-specific reasons, “little stock need be placed in jurors’ claims to the contrary. Even though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.”

964 F.3d at 466 (citation omitted).  Importantly for this article, the majority then turned to what it called “voluminous” social science to support this determination, concluding that “[t]his research suggests that the shackling of Davenport, a 6’5″ tall black man weighing approximately 300 pounds, would tend to “prime” racialized presumptions of dangerousness and guilt.”  Id., at 466 n.13.  Because the jury decision at issue -whether the crime was first or second degree murder- was not a slam dunk,’ one, the prejudice could not be ignored.

Intriguingly, the research cited by the majority was not shackling-specific, but instead dealt with the general problem of associating race with criminality, what the majority summarized as “implicit associations between Black and Guilty.”  Id., at 466 n.13.  Yet when confronted with a type of proof where research has shown a clear biasing effect, courts have uniformly ignored the social science.  The is the case with the use of slow-motion video replay.

First, the research.  Repeated studies have shown that slowing down a video when it is played to a decision-maker – be it a juror or, as in one study, experienced soccer referees – increases the perceiver’s assessment that conduct was intentional.

A main characteristic of slow motion is that it affects the impressions of the duration over which real-time events unfold. As suggested by Caruso et al., the temporal modulation of the dynamics creates the perception that the offender has much more time to contemplate his action than he actually does. Therefore, physical contacts and violent actions might be perceived more intentionally and seriously. Indeed, we hypothesized that slow-motion replays could disrupt normal perception of causality, which in turn could influence the perceived duration of the event.

Spitz, J., Moors, P., Wagemans, J. et al. The impact of video speed on the decision-making process of sports officials. Cogn. Research 3, 16 (2018). https://doi.org/10.1186/s41235-018-0105-8 (last visited September 4, 2020).  An additional concern arises if the video is played in slow motion more than once.  “If viewers’ perceptions adjust such that slow motion appears normal to them after extended viewing, then it is possible that viewers’ perceptions of the amount of time that subjects in video had to act and their evaluations of how intentional the subject’s actions were would also intensify with repeat viewings.”  NOTE: THE NOISY “SILENT WITNESS”: THE MISPERCEPTION AND MISUSE OF CRIMINAL VIDEO EVIDENCE, 94 Ind. L.J. 1651, 1675 (2019).

The impact of repeated viewing is not cured by reminding jurors that they are watching an altered version of the events.

[P]articipants reported similar results even when they were informed, by way of a timer in the video, exactly how much the video had been slowed. And, perhaps most surprising of all, viewers who watched a slowmotion video continued to report a higher degree of intent even after they watched the regular speed video: “allowing viewers to see both regular speed and slow motion replay mitigates the bias, but does not eliminate it.”

Stoughton, POLICE BODY-WORN CAMERAS , 96 N.C.L. Rev. 1363, 1413 (June, 2018).

Yet how have courts responded?  Uniformly by rejecting challenges to slow-motion replay.  A LEXIS search of “slow w/2 motion w/3 video w/12 intent! or prejudic!” (last run September 4, 2020) produced eleven decisions at both the state and federal level.  Of those addressing admissibility, none found an abuse of discretion; and disconcertingly not one cited to or otherwise acknolwedged the research on the distorting impact slow-motion replay generates.

Some of these decisions may be proper, especially where slow motion was necessary to permit a better view of the perpetrator’s face and therefore allow the jury to determine the identity of the perpetrator or otherwise assess whether certain conduct actually occurred such as whether a knife was used in a stabbing rather than slashing fashion.  But time and again the courts also talk of the need to prove intentionality, and then add reasoning that is a- or anti-scientific.  Such sentiments include the following:

  • we find that the probative value of the slow motion footage outweighed any potential for prejudice, particularly given that: the jury was first shown the scenes at normal speed, which allowed it to see the true timing of the events as they transpired; the slow motion footage was clearly marked as such; and the trial court specifically instructed the jury regarding both the purposes for which it was to consider the video footage and the fact that it should not allow the video to inflame their passions against Appellant.Commonwealth v. Cash, 635 Pa. 451, 478, 137 A.3d 1262, 1277 (Pa. 2016)(emphasis added)
  • “As for the prejudicial effect of admitting the slow motion video, the court noted that [t]he jury obviously understood the tape was being played in slow motion rather than in real time,” given that they “saw the tape played at regular speed, twice…”Jones v. Fisher, 2013 U.S. Dist. LEXIS 184948, *29-30 (E.D. Pa. 2013)(internal quotation marks omitted)
  • We have previously approved of a district court’s decision to send tape recordings and a tape player into the jury room during deliberations, and in that situation jurors could replay the tapes as often—or as slowly—as they likedUnited States v. Plato, 629 F.3d 646, 652 (7th 2010)

These may be well-intentioned jurists, but these are ipsi dixit statements of how jurors will be impacted.

What is to be made of these disparate treatments of psychological research?  There is no clear answer.  The problem in the slow-motion cases may have been that of counsel who failed to brief the relevant research, or the need for clarity on issues such as facial identification may have dwarfed any concern over the risks in assessing intentionality.  And is the shackling decision a  product of its time, coming in an era of great concern over racism and implicit bias, concerns not necessarily or as manifestly implicated in the slow-motion cases?

Whatever the reason, the lesson is the same. On a variety of issues of courtroom conduct and evidence, cognitive psychology and social science research should give judges pause before determining how a trial will proceed.  The failure of advocates to proffer such findings and the absence of discussion of them in judicial opinions raises concerns over the reliability of adjudications and whether evidentiary rulings are really just gut-checks based on old tropes.

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Friends, Students, Jurors, Lend Me Your Eyes

by Grant Rost

We are in a new world, aren’t we?  I am starting to get this strange feeling that the vocational “me” is really just a hologram—merely an image of me that others interact with.  I see him too.  He’s there in the lower corner of my screen, and he can’t even make eye contact with me!  Perhaps, he feels as estranged from me as I do from him.  This is our new world for a moment, let’s hope.  It makes me wonder where to look.  Surely, I’m not alone in this.  Each of you has wondered the same thing: look at the camera, look at your materials, or look at the people on your screen.  And if we teach advocates, how should we advise them in this new medium?  This month, I’m reviewing a recent study on how a presenter’s gaze and body position affects learning on the other side of the screen.[1]

The study was fairly simple.  Participants watched one of six different presentations teaching the same subject.  In each of the six presentations, the presenter’s eye gaze and body position changed.  Participants were then tested on the subject taught and those results were matched to the presenter’s eye gaze and body position.  There were three eye positions employed.  In the first, the presenter appeared to “look” at the material next to her on the screen—like a weather forecaster.  The courtroom equivalent is a lawyer next to a white board or demonstrative.  In the second, she looked directly at the camera.  In the third, she looked away from the material and the camera, as if speaking to an in-person group to her left.  There were three body positions tested as well: torso turned toward the material, toward the camera, or away from the material and the camera.  The presenter only ever appears from the waist up.

Before I share the results, it’s worth noting that the authors cite to a host of other materials which have revealed the importance of looking directly at one’s camera while communicating or teaching digitally.  If you are the type who looks at the people on your screen instead of the camera, don’t fret too much.  There is good data that people watching you sense that you’re trying to making eye contact with them and still feel a level of connection to you, even if you appear to them to be looking downward and not staring into their soul.[2]

The study revealed that the body position of the presenter simply didn’t matter.[3]  Eye tracking data from participants showed they rarely looked at the presenter’s body and her body position didn’t affect learning or retention.[4]  Second, the study showed that the participants who viewed the presenter “looking” at the material she was presenting—referred to as “guided gaze”—scored highest on a subsequent test.  The participants who saw her looking right at them—referred to as “direct gaze”—scored a little lower.  Finally, those who saw her teach with her head turned from the material and the camera scored the lowest.[5]

Though there is no good argument for the averted gaze, the data reveals that the guided gaze, where material is co-apparent with the presenter, and the camera-staring direct gaze, where it isn’t, are essential tools for our new world of computer teaching and persuasion.

[1] Zhongling Pi et al., Instructor Presence in Video Lectures: Eye Gaze Matters, but Not Body Orientation, 144 Computers & Educ. 1 (2020), https://doi.org/10.1016/j.compedu.2019.103713.

[2] See generally David M. Grayson & Andrew F. Monk, Are You Looking at Me? Eye Contact and Desktop Video Conferencing, 10 ACM Transactions on Computer-Hum. Interaction 221, [PINCITE] (2003).

[3] Pi et al., supra note 1, at 5.

[4] Id.

[5] Id. at 5-6.

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PERSUADED OR CONVINCED

by Grant Rost

Consider an argument you made to your jury just before they deliberate and hand you your hard-fought victory.  Did you persuade them or did you convince them?  Perhaps you just dissuaded them from finding for the other side.  However, if you dissuaded them, why can’t you also say that you dis-convinced them?  Or disvinced them?  Don’t try “deconvincing” either as that, too, is a dead end.

So, what gives?  Why can you persuade and dissuade but you cannot both convince and dis-convince?  It’s likely the case that you have never considered that while “dissuade” is the antonym of persuade there is no such lexicological opposite to the word “convince.”   According to Professor Adelino Cattani there is a very good reason for this—and it’s not simply a trick of the tricky English language. This missing antonym is missing from other languages too and, for the advocate, it’s worth thinking about whether persuading and convincing are really the same thing. [i]

Persuading and convincing, suggests Cattani, largely employ two different methods and seek different aims.  Persuading largely employs the powers of rhetoric, which can be both artful but largely manipulative, whereas convincing employs the powers of logic and sets of rules but can be spoiled by fallacious argument.[ii]  The dialogue of persuasion “aims at modifying people’s opinions and behaviours” which is why persuasion and dissuasion can work as opposites and produce actions or omissions in the receiver.[iii]  The dialogue of conviction, however, seems to refer “to the realm of thinking, not that of doing; it does not serve to induce someone to act, but to gain intellectual agreement or assent” and is, thus, more focused on the addressee than what the addressee can do.[iv]  Persuading is more like a gaming process, artful but still manipulative to gain its advantage.  Convincing, however, is more like a demonstration of one’s proofs—showing, rather than telling.[v]  One can begin to see why “convince” has no antonym.

I see two quick points to ponder for the trial advocate reading this blog post:  The first is that it might be worth considering which things one must persuade upon and which things one must convince one’s jury about.  A closing argument can gain more structure and become more purposeful with a little meditation on these two ideas.  Second, there seems to me to be a real difference in the rhetorical power of the two words in the minds of jurors and judges who will largely regard them as interchangeable.  It might just be me, so let me take the two terms for a test drive in a hypothetical courtroom:  It seems quite a bit more powerful to ask a jury if the state has convinced them that the defendant is the man who committed the crime than to ask them if the state has persuaded them to that fact.  What do you think?  Have I persuaded you or are you convinced?

* I have to give special thanks to Nathan Wilson, a rising 3L at UNC, who has helped me twice now with my Bluebook citation formatting for this blog—a task I loathe.  Nathan is the kind of student I wish I could clone and hand out to other law schools.

[i] Adelino Cattani, Persuading and Convincing, U. Windsor (June 4, 2020) https://scholar.uwindsor.ca/cgi/viewcontent.cgi?article=2528&context=ossaarchive&fbclid=IwAR3LxAMt0MnRGpsVk1pIo3RK87C8x0gdBkriIiIgHNinoM7luHdEst8rrcI.

[ii] Id. at 2-3.

[iii] See Id. at 2.

[iv] Id. at 3-4.

[v] See Id. generally.

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EXPERTS ARE NOT IMMUNE FROM COGNITIVE BIASES

by Jules Epstein

It may be silly but bears repeating – experts are people too, subject to a variety of influences that may distort their thinking, approach and conclusions without realizing this is occurring. This understanding of expert non-neutrality is nothing new – the 2009 report STRENGTHENING FORENSIC SCIENCE – A PATH FORWARD emphasized this.

Some initial and striking research has uncovered the effects of some biases in forensic science procedures, but much more must be done to understand the sources of bias and to develop countermeasures…The traps created by such biases can be very subtle, and typically one is not aware that his or her judgment is being affected…Decisions regarding what analyses need to be performed and in what order also can be influenced by bias and ultimately have the potential to skew results.

Id., 184-185.  And the audience for expert testimony – often, the courts – is sometime oblivious to this as well.  This arises from the perception of neutrality and objectivity that understandably comes along with the entry of science into the courtroom.

A new article offers a comprehensive paradigm for grasping and potentially responding to expert bias. “Cognitive and Human Factors in Expert Decision Making: Six Fallacies and the Eight Sources of Bias” (Anal. Chem. 2020, 92, 7998−8004, available at  https://pubs.acs.org/doi/10.1021/acs.analchem.0c00704 ) is among the latest from researcher and cognitive psychologist Dr. Itiel Dror.

Dror begins with his list of prevalent fallacies, ones he has identified in years of studying and training experts and the consumers of expert knowledge – judges and lawyers:

  • Bias is a problem only with “corrupt and unscrupulous individuals” and thus is a matter of personal integrity.
  • Bias occurs only among the “bad apples” of the community, people who have yet or do not care to learn “how to do their job properly.”
  • There is no bias as experts are immune as long as they perform competently and with integrity.
  • When forensic analysis is based on the use of technology, instrumentation or other non-human machinery there can be no bias.
  • The “blind spot” phenomenon of seeing other experts as being biased but not oneself.
  • What Dror calls “Illusion of Control: ‘I am aware that bias impacts me, and therefore, I can control and counter its affect. I can overcome bias by mere willpower.’”

The list is not just anecdotal; for each, Dror identifies confirming sources.

Why is understanding of the fallacies essential?  Without having them as a starting point, experts will be blinded to their own limitations, and those who retain, rely on or challenge experts will be unable to critically assess their work.

Dror offers more.  Having identified the fallacies that impede fair assessment of whether a particular expert’s approach or conclusion was hindered by biases, he then identifies eight forms of bias to test for.  This is his illustration.

The article walks the reader through how each level has a risk of biasing the examination and/or the resulting decision.

  • The case specific circumstances, such as the data/material being examined, the reference material [e.g. a “target suspect” whose features can affect what is being looked for in a crime scene sample or a latent print], and contextual domain irrelevant information.
  • Environment, culture and  experience include base rate [e.g. what the ‘normal’ conclusion is when finding certain features], organizational factors such as “allegiance effect” and “myside bias,’ and education and training that may predispose an examiner to look at evidence from only one or limited perspectives.
  • Human nature is the last confounding source of bias, ranging from the purely individualistic motivation and belief system to the general aspects of decision-making such as top-down thinking.

To keep these from merely being labels, Dror provides illustrations.  How might reference materials bias?  “[T]his source of bias is not limited to circumstances that have a “target” suspect per se, but can also arise from pre-existing templates and patterns, such as in the interpretation of blood pattern analysis or a crime scene. It can even impact what color is observed.”

Contextual information can have its own ramifications.

In toxicology, for example, contextual information can bias testing strategies. Consider, for instance, when a post-mortem case is provided with contextual informant, such as “drug overdose” or/and that “the deceased was a known to have a history of heroin use.” Such information can impact the established testing strategies, such as to go straight to the confirmation and quantification of a limited range of opiate-type drugs (morphine, codeine, 6-monoacetylmorphine, and other heroin markers), without running the other standard testing, such as an immunoassay or looking for other opioids that may have been present (e.g., fentanyl). Hence, the contextual information caused a confirmation bias approach and deviation from the standard testing and screening protocols.

So, too, can “base rate,” illustrated by an example from forensic pathology.  If there is a hanging that results in cerebral hypoxia, that correlates primarily with suicide; and if there is strangulation resulting in the same condition it correlate highly with homicide.  But occasionally there can be homicides by hanging; and failure to consider this can skew not only the ultimate determination but “other stages of the analysis, even the sampling and data collection, as well as detection of relevant marks, items, or signals, or even verification.”

Are there solutions or at least mitigating steps to take?  Some are clear – preventing exposure to domain irrelevant material, using “linear sequential unmasking”  – and others are ore difficult, as they involve overcoming defensiveness on the part of examiners that bias is not a problem for them.  But without a fundamental understanding of bias and its sources and a corresponding system for checking and correcting for bias, the risk of error in core forensic analysis will persist.

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A Couples-Only Dance

By Grant Rost

We have all seen it.  We have all seen the lawyer or the student so involved with her notes or his script that they seem to have uncoupled from the courtroom itself.  I take that moment to study the faces of the jury.  What are they doing while the scribe at the podium has a private waltz with his scribblings?  In most instances, I see that the jury has also uncoupled.  Cognitive science has shown that the advocate here has not simply made a misstep with her dancing partner, but has missed the opportunity for the most amazing kind of dance: a cognitive coupling.[1]  A brain waltz taking place between two or more people.

The brain science behind “cognitive coupling” has been around for more than a decade, but the phenomenon might be new to you and is almost certain to be new to your students or the other trial warriors you work with.  Cognitive coupling is an electrical waltz between the brains of a speaker and listener—a fascinating Rogers and Astaire unison of brain activity shared when two people are truly involved in that phenomenon we so dismissively call “communication.”  Let us break down the science a little more from just one important study on the subject.

To study brain activity in both a speaker and listener, researchers recorded a subject telling a story that was personal to her and told without direction.[2]  While her voice was recorded, researchers also recorded her brain activity by fMRI.  This recorded story was then played for other subjects while their brains were being scanned by fMRI for processing activity.  As a control, they had someone tell a story in Russian and played that story for English speakers who knew no Russian at all.  I have spoiled the ending already, haven’t I?  The brain activity seen in the speaker, after a short processing delay, was mirrored in the listener.  When non-Russian speakers listened to the Russian storyteller, there was none of this mirrored coupling at all.  To tie up the loose ends that could account for the mirrored brain activity, the researchers had enough data to conclude that the speaker’s brain activity was not the result of hearing herself speak her own story.[3]

It gets better though.  The easier the communication was to understand, the delay between the speaker and listener’s mirrored brain activity shortened toward synchronicity.  Even better: When the listener could predict where the speaker was going, the listener’s brain activity would “predict” the brain activity of the speaker.  The speaker’s brain would then mirror the activity of the listener’s “prediction.”  Researchers next compared the brain activities of the various listeners in the study against one another and found that those, too, synced up in a marvelous dance.[4]

So, why should this matter to trial lawyers or trial advocacy professors and students?  It is the difference, as I see it, between communicating and communion.  I can communicate and yet completely fail at communion—the latter being quite simply defined as “sharing.”  In fact, the researchers concluded that the stronger the cognitive coupling activity between speaker and listener, “the better the understanding” of the story being told.[5]  How beautiful!  I often share the science of cognitive coupling with my students to refocus their goals in trial.  It cannot all be about the words on the paper.  It cannot be all about conveying the content we are certain will make or break our proof.  Our goal should be a connection at the electrical level, where jury and advocate swing, and mirror, and move, and predict, and dance the dance—all while opposing counsel sits and broods on the bleachers at the side of the gymnasium, wondering how he might cut in.

[1] Also referred to as neural coupling or brain synchronization, among other similar names.

[2] Greg J. Stephens et al., Speaker-Listener Neural Coupling Underlies Successful Communication, 107 Proceedings Of The National Academy Of Sciences Of The United States Of America, no. 32, 2010, at 14425, https://doi.org/10.1073/pnas.1008662107

[3] Id. at 14427

[4] Id. at 14426

[5] Id. at 14427

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