Friday, May 18, 2012

The Science of Persuasion

Aesop might have made a good lawyer if he had been born in a different century. In fact, he was probably a better lawyer than most present-day lawyers are.

Lawyers are sometimes identified as people who argue really well - or at least a lot. No one likes that type of lawyer, though I might be one. When I was a kid, people told me I'd make a good lawyer because I loved to argue. I wonder why I wasn't very popular in high school?

Anyway, arguing is not the same thing as persuading. An arguer might make excellent logical debate points, but debaters don't convince many people to change the way they act or think. People who are persuasive can change other's minds.

It is very difficult for people to change their own minds. When people are forced to confront new information that challenges their existing ideas, beliefs, or values they experience discomfort. Psychologists call that discomfort "cognitive dissonance." People are driven to reduce the discomfort and resolve the dissonance. One of the ways people reduce dissonance and make themselves feel better is by simply changing either the new information or the old information. They lie to themselves without realizing it and become so convinced of the lie that they don't remember that changed the truth.

One of Aesop's most famous fables illustrates the way people resolve cognitive dissonance. In the story of the fox and the grapes, a fox comes upon some delicious grapes.

"ONE hot summer’s day a Fox was strolling through an orchard till he came to a bunch of Grapes just ripening on a vine which had been trained over a lofty branch. 'Just the things to quench my thirst,' quoth he. Drawing back a few paces, he took a run and a jump, and just missed the bunch. Turning round again with a One, Two, Three, he jumped up, but with no greater success. Again and again he tried after the tempting morsel, but at last had to give it up, and walked away with his nose in the air, saying: 'I am sure they are sour.'"
This is where the expression "sour grapes" comes from. At the beginning of the story, the fox thinks the grapes are "Just the thing to quench my thirst." But when he cannot have them, he has to confront contradictory ideas: he wants them, but he cannot have them. Rather than living with this dissonance, he changes the first idea. He never wanted them in the first place because they were probably sour. Of course, the grapes never changed. He lied to himself without realizing it.

Everyone does this. Even four-year olds and monkeys lie to themselves to construct a more consonant reality. It is easy to see when someone else does this, but we can rarely see when we are doing it to ourselves.

Because they are people, juries and prosecutors and judges must lie to themselves to reduce cognitive dissonance. They don't like cognitive dissonance any better than the rest of us.

Which is why Aesop would have been a good lawyer. Aesop didn't argue directly. If he had, his stories wouldn't continue to be as popular as they are. His stories are powerful because they help us accept new ideas by minimizing the cognitive dissonance we feel when we hear them. He persuaded people.

Rather than saying explicitly, "Sometimes you act like you don't want something because you can't have it," he told a simple little story about a fox. Who would ever feel defensive about a fox? Aesop isn't saying that you sometimes lie to yourself to resolve cognitive dissonance. No. He is saying the evil foxes lie to themselves sometimes. But then I see other people acting like the fox. And then someone accuses me of "sour grapes." Maybe I am persuaded because I accepted the idea of sour grapes in concept before I was accused of it personally.

Stories are powerful. They can persuade us of things we would never accept in the abstract. Lawyers who can advocate for their clients with powerful stories are more likely to be successful than the ones who just argue logical points all day.

If you are looking for a lawyer, look for one who can tell good stories. And if you are a lawyer, be sneaky. Use your stories like trojan horses to get past your opponent's defenses.

Thursday, May 17, 2012

DUI Cop Lisa Steed and the Culture of Corruption

I literally just got off the phone for a DUI driver license hearing for one of my clients where disgraced Utah Highway Patrol trooper Lisa Steed was the arresting officer. For those of you that don't know, a DUI driver license hearing is an administrative hearing where the Driver License Division determines whether to suspend someone's license that has received a DUI.

I knew Lisa Steed had been taken off of patrol. I knew she had lied under oath and a felony drug case was dismissed. I knew the Salt Lake County District Attorney was/is dismissing her DUI cases left and right, and that Davis County has started dismissing them and refusing to file on new ones. The issue is, obviously, she was under oath and did not tell the truth.

Well, I went in armed with this information ready to tear holes in her testimony. She got to testify first about what occurred during the DUI. Then it was my turn to ask her questions.

My first question was, "Isn't true you're not on a patrol anymore?" Before the first question was out of my mouth, the DLD hearing officer yelled that I could not ask her about her credibility. I stated that this whole case was about her credibility to which was responded that this case was about what my client did.

The fact is, the only evidence in the case is the evidence Lisa Steed provided. If she is not credible, the evidence is not credible, but the Driver License Division does not want to acknowledge this.

It is exactly this kind of protectionism that created Lisa Steed in the first place. This video from ABC 4 discusses her tasing someone that was still sitting in their car, arresting people on motorized bikes, lying on the witness stand under oath, and violating UHP policy in the investigation of DUI's. And what was UHP's response? That she's a good trooper and still out on the streets.

Criminal defense attorneys have a bad rap. Many people feel we help criminals get away with crimes. The truth is, we have very little power. The most I can do is convince a jury that a man should not be punished. The most a corrupt cop can do is ruin dozens, even hundreds, of lives.

And yet the government's response, at least from UHP and the Driver License Division, seems to be that even if she is corrupt, even if she is violating policy, violating people's lives, and even assaulting them, we are going to protect her.

The fact that we can't trust our government to protect us from people like Lisa Steed is the truly frightening thing. To be honest, attacking her in defense of my clients is one of the proudest moments I've ever had as a defense attorney. And since I'm appealing this driver license hearing to the district court and subpoenaing Lisa Steed to the stand, I'm expecting I'll have more proud moments like this one.

Monday, May 7, 2012

A gorilla on a basketball court? You'd think you'd notice.

My friend, Brian Joyce, the Ute Gorilla at a Utah football
game. (Photo used without permission).

Our criminal justice system is based largely on eyewitnesses. CSI-type crime shows might make it seem like there is DNA evidence in every case that definitively links one person to every crime, most cases actually revolve around people who saw things.

Unfortunately, there is growing evidence that people can’t see or recall things as well as they think. Take this example: Suppose you were watching a video of two basketball teams passing basketballs back and forth on a basketball court. While they are doing this, a woman in a gorilla suit, walks out onto the court, thumps her chest, and then walks off. You’d notice that, right? And if you didn’t see it, you’d be pretty sure that it didn’t happen while you were watching.

Not necessarily, according to research conducted at Harvard University. Those researchers asked study participants to watch a short video. They were to count the number of passes made by one team and ignore the passes made by the other. While they were focused on this task, the gorilla came out, thumped her chest, and walked away. Half of the participants didn’t see the gorilla. When asked about it, most of them were sure that there was no gorilla in the video. The gorilla was invisible to them because they were temporarily blind to certain things and they didn’t even realize it.

Christopher Chabris and David Simons believe that the subjects were so focused on the relatively difficult tasks of counting the passes made by one team and on ignoring the passes made by the other team that they became blind to information that didn’t relate to those tasks. That finding is interesting, but not totally surprising. We know that when we are focused on one thing we might pay less attention to other things. That is the definition of focus.

The scary thing about the study is that the participants were sure that the gorilla wasn’t on the court during the video. You can imagine these people coming into court and swearing that there was no gorilla. In a criminal case where a defendant might be sent to prison for years, or even put to death, it is frightening to think that we are dealing with such limited perception. They didn’t even know that they were blind.

Barry Scheck’s Innocence Project has shed a lot of light on the errors that can creep into criminal trials. 75% of the wrongful convictions that they have had overturned using DNA evidence depended at least partly on faulty eyewitness testimony. This research by Chabris and Simons gives an explanation of why all those cases got the wrong result. The witnesses might not have been lying. They might have missed the gorilla in the room and not even realized it.

Here is the video that they showed. Can you believe that they missed the gorilla?

Friday, May 4, 2012

Do honest people cheat?

I'm a victim of life's circumstances
I was raised around barrooms,
Friday night dances
Singin' them old country songs
Half the time endin' up someplace I don't belong

- Delbert McClinton, "Victim of Life's Circumstances"

In criminal law, we punish people because we believe that they made a bad choice. They could have chosen something good, but instead they chose something wrong or forbidden. Similarly, one of the principal purposes of the criminal justice system is rehabilitation. Rehabilitative systems try to teach people to make better choices in the future. They try to change the criminal's character and reform her criminal tendencies.

But what if criminality (or honesty) is not a result of a certain type of character? What if people we would normally consider to be "honest people" would commit crimes under the right circumstances? Is there really such a thing as an "honest person?"

There is some disturbing psychological research that indicates that a person's basic character doesn't affect their behavior as much as their circumstances.

In 1928, researchers at Columbia University administered a number of different types of tests to thousands of children. One test was an aptitude test given in two parts. On the first day the students were not given enough time to complete all the answers and were immediately graded. On the second day, the students were given a very similar test with different questions. But they were provided with an answer key and instructed to grade their own tests. As you might expect, a lot of the students cheated.

The surprising result, though, was that some students who cheated on the aptitude tests never cheated on the physical tests. Or they cheated when they had the answer key, but didn't cheat when they did a take-home test. Even more surprising, some students would cheat on a math test, but not on a spelling test. The researchers concluded that most children "will deceive in certain situations but not in others."

Another study by Ann Tenbrunsel, a professor of business at Notre Dame, shows that a person's mind frame as they prepare for a test profoundly influences whether they will cheat. Tenbrunsel administered a test to two sets of subjects and provided them with an opportunity to cheat. But before she gave the test, she asked one group to think about a business decision and the other group to think about an ethical decision. Each group was to make a mental checklist to address the problem. Then, she administered the test with the cheating opportunity. The group that thought about the business decision was much more likely to cheat than the group that thought about the ethical decision. The subjects' moral upbringing did not effect their decision to cheat.

What does this research mean? For one thing, it means that we probably underestimate the effect our environment has on our behavior. Choosing our environment might be one of the most important decisions we can make.

On the other hand, these studies don't necessarily mean that people completely lack the ability to decide for themselves. A significant group of kids didn't cheat in the 1928 study even when they had the opportunity. And a significant group in the Notre Dame study didn't cheat even though they had been primed to think from a business frame of mind.

If we used to think that individual character accounted for 80% or 90% of the good or bad decisions we make, this research might make us lower that percentage. However much our character affects our decisions, it is an important factor. If we are presented with difficult decisions where we can't control our circumstances, we'll be forced to rely on our character. So, while the criminal justice system needs to acknowledge the impact of environment and circumstance on decision-making, it doesn't make sense to throw free-will out the window. It is still an important factor in what we do.

Tuesday, May 1, 2012

Changing a Culture of Crime

Police are not very good at preventing crime. That doesn't mean they aren't important. When police patrols drop to zero during police strikes, the National Institute of Justice (NIJ) points to scientific studies that show that "all hell breaks out." But the same NIJ report admits that "The strength of police effects on crime is generally moderate rather than substantial." Traditional police efforts help to prevent crime, but they don't have enough of an impact to transform a crime-ridden neighborhood into one that is safe and functional.

The problem is that police are generally reactive. They respond to reports of crime. That prevents some crime because potential criminals are afraid of being caught, but there are not nearly enough police to force everyone to obey the law or to catch every criminal. Police might also reduce the amount of crime committed in their immediate presence, but again, we don't have nearly enough police to be watching every street corner.

So, how do you transform a neighborhood that is a hot-bed of crime into a safe, law-abiding neighborhood? An even better question might be, "Why do some people who know they won't be caught by the police choose to obey the law?" If we could figure out why most people obey the law most of the time, it might help us find ways to create that same culture in crime-ridden neighborhoods.

Malcolm Gladwell encourages us to look at crime the way we look at epidemics. Epidemics progress in a non-linear way. That means that small changes might have big results and big efforts might yield only small results. In his 1996 article and his 2002 book, both titled The Tipping Point, he points out small differences that can lead to huge changes in the rates of violent crime. 

For example, a Stanford professor placed two similar cars in two different neighborhoods - one was a ghetto and the other was affluent. In each case, the license plates were removed and the hood was propped open. The car in the ghetto was the subject of 23 separate vandalism episodes and was completely stripped within three days. The car in the affluent neighborhood was untouched after a week. But, once the professor broke one of the car's windows in the affluent neighborhood with a sledgehammer, the car in that affluent neighborhood was quickly destroyed. The broken window in the car was the tipping point - a small change that had a huge effect on the crime that the people in the neighborhood would commit.

The police in New York applied this "Broken Window" theory to graffiti and turnstile jumping in the subways. By focusing on these relatively minor violations they dramatically decreased the number of violent crimes on the subways. By removing these signs of disorder, they reached a tipping point in the signals of disorder that gave people permission to break the law.

Clayton Christensen identifies another cultural tipping point: religion. He relates a conversation he had with a scholar from China who came to the United States to study democracy and capitalism. He pointed out a necessary condition for democracy and capitalism to function properly: "Democracy works because most people most of the time voluntarily obey your laws. . . . Capitalism works only when nearly all people voluntarily keep their promises." How do you teach people to voluntarily keep their promises and obey the law?

The Chinese scholar echoed Alexis de Toqueville when he said, "I had no idea how critical religion is to the functioning of democracy  and capitalism.” Americans, traditionally, learned to be honest in church. They learned that even if the police did not catch them breaking the law, God would catch them. "Some of these teachings have become a part of our culture." But Christensen believes that religion is much better at teaching those values. "[I]s culture a stalwart, active protector of democracy’s enabling values? I don’t think so."

I believe that there is hope to prevent the breakdown of neighborhoods and communities. Little things like graffiti and broken windows can have a bigger effect than we might intuitively think. On the other hand, society has to teach people that they should voluntarily be honest and obey the law. Religion is by no means the only way to teach those principles, but it is very good at it. As our society becomes increasingly secular, we need to be sure that we are finding ways to preserve and teach our foundational values. We also need to be careful not to completely discount the value of religion in public discourse.