Trial Tactics (wk 11)

Question 1

The court is a ready-made environment to study…

Answer 1

different forms of social influence

Question 2

Who in the courtroom is being influenced

Answer 2

-“Triers of fact” = the decision makers (more typically the jurors, sometimes the judge)

-Witnesses= on stand, lawyer try and influence what they say so it best supports their argument

Question 3

Forms of social influence

Answer 3

• Persuasion – lawyers try to persuade jurors to agree with their version of events.
• Compliance – lawyers may bypass persuasion and directly attempt to make jurors comply to their assumptions and adhere with their wishes.
• Dissuasion – Lawyers may try to dissuade jury members from being persuaded by the opposing lawyer.

Question 4

How do persuasion and compliance differ?

Answer 4

In persuasion agreement is the goal in compliance you are simply just trying to get the juror to do what you want: don’t have to internally agree

Question 5

What is persuasion with regards to attitudes? Further, what is an attitude?

Answer 5

-Persuasion can be seen as an attempt to change someone’s attitudes.

-Attitude = a psychological orientation towards a particular stimulus (attitude object).

-Attitudes can manifest in different ways i.e. thoughts/ cognitions, affect, behaviour

Question 6

What is an attitude object?

Answer 6

-Attitude object= the thing you have an attitude about

-Can be broad or specific

-Specific tends to be more temporary and changeable. In the court room tend to be focusing on the specific e.g. trying to convince a juror that a specific person is guilty not change their broad/ less specific attitudes.

Question 7

The Elaboration Likelihood Model (ELM)

Answer 7

People can be persuaded by one of two routes:

• Central Route – involves a high degree of thought and scrutiny (process information, compare to world knowledge, elaborate, make inferences)
• Peripheral Route – less cognitively effortful (e.g., “I like this lawyer’s suit better”)

Route of processing depends on:

• Motivation (lack of motivation leads the juror to travel down the peripheral route out of choice)
• Ability (lack of ability leads the juror to travel down the peripheral route out of necessity i.e. you have a no choice)

Question 8

Implications of the ELM for lawyers

Answer 8

• Encourage central processing when evidence is good (central processing is superior because individuals are more likely to remember the evidence and use it in their decision making if have thought more deeply about it)
• Encourage peripheral processing when evidence is flawed (if they used the central processing route they would think too deeply and discover the evidence flaws)
• Always ensure that peripheral cues are in your favour, just in case ability factors prevent central processing.

Question 9

How might a lawyer increase use of central processing?

Answer 9

-Remember would only want to do this if have good evidence.

Two ways:
-Increase motivation by making the argument relevant to the person, or the evidence interesting

-Increase ability to understand by making the presentation as simple as possible. Otherwise information will have to be processes peripherally out of necessity.

Question 10

Peripheral cues: what are they + examples?

Answer 10

-Simply put: The things that would persuade you in a trial if the sound was turned off

-Always have these cues in favour as there will always be people who don’t process centrally.

Examples:
-How the lawyers are dressed like (well-dressed= more trustworthy)

-Number of arguments. ‘The appearance of winning’ Lawyer could ask the witness really trivially questions they will say yes to: such as is it true you live here? Is it true that is your name? This gives the appearance of winning, like they know what they are talking about.

-Graphic details (e.g. David Bain case: possibility of shooting himself with the gun-not the evidence itself but the way they presented it- lawyer got the specific type of gun and pointed it at his own head)

-Experts= even if jurors don’t process centrally what the experts says simply the label of them as an ‘expert’, white coat, being an old guy etc. gives the impression that they know what they are talking about

-Confidence as a lawyer goes a long way

Question 11

Dissuasion? Techniques of Dissuasion (list)?

Answer 11

Dissuasion: Lawyer attempts to stop the jurors from being persuaded by the opposing lawyer

Techniques:
-Forewarning
-Inoculation
-Stealing Thunder
-Credibility Challenges
-Reactance

Question 12

Forewarning

Answer 12

Foreshadowing what the opposing lawyer will say, then the other lawyer looks predictable

Question 13

Inoculation

Answer 13

Give you a weak version of the other team’s argument : jurors judge as stupid…. And then when the stronger argument comes along jurors are ready to fight it off

Question 14

Stealing thunder. Difference to forewarning?

Answer 14

-Reveal something damaging about case before the other team has a chance, rather than just hoping that it doesn’t come out. Giving the impression it doesn’t worry you much e.g. my client has been in jail before.

-Similar to forewarning: difference is that the information is damaging

Question 15

Credibility changes

Answer 15

Make the witness look not credible e.g. in cross examination

Question 16

Reactance

Answer 16

Basically reverse psychology. Telling people what you don’t want you to do so they don’t. People like to maintain their freedom and often will go against attempts to undermine this.

Question 17

What is the prominent technique used for influence a witness?

Answer 17

Cross-Examination: Witness is questioned by the opposing lawyer

Question 18

From a justice perspective what is the purpose of cross-examination? Difference to how it used in practise?

Answer 18

-Cross-examination aims to uncover inaccuracies in a witness’s evidence and/or draw out the truth.

-“…the greatest legal engine ever invented for the discovery of truth” Wigmore (1974)

-In practice, cross-examination is often used with the aim of discrediting the witness, regardless of accuracy.

Question 19

Reason for concern when it comes to cross-examination

Answer 19

-Cross-examination is, simply put, a “how not to” guide to investigative interviewing.

-Utilizes many dodgy techniques:
Leading Questions
Complex or Confusing Questions
Confrontational Questions
Long delays (it takes a long time from witnessing an event for it to get to the court stage)

-These factors are likely to be especially problematic for children.

Question 20

What could be two reasons for confusing/ complicated questions used by lawyers in cross-examination?

Answer 20

-During cross examination lawyers deliberately try to confuse witnesses

Or…

-Cross-examination is tricky: you can’t really prepare and so lawyers are often going of the cuff making confusion/ complex questions more likely

Question 21

How do children respond to cross-examination?
Zajac, Gross & Hayne (2003)

Answer 21

In response to cross-examination, children showed:

– High rates of compliance with leading questions
– Low rates of clarification seeking
– Misunderstandings

During cross-examination, 75% of children made at least one change to their earlier testimony.

Limitation= we don’t know that cross-examination had a negative effect perhaps the changes children made resulted in greater accuracy.

Question 22

Cross-examination in lab (Zajac & Hayne, 2003)?

Answer 22

-It is hard to study cross-examination in a way that is applicable to the real world and in which we know the ground truth

-In this study they tried to mimic real trial proceedings as much as possible. There was a staged event (obviously cannot be traumatic or abusive for ethical reasons), a videotaped direct examination interview and then a trial 8 months later (to mimic average delay period) where the direct examination videotape was played and a cross-examination interview occurred.

-The cross-examination interview involved trying to talk children out of each of FOUR direct examination responses, regardless of accuracy. This was done
using questioning techniques commonly used in courtroom cross examinations, such as casting doubt on children’s memories, referring to what
other witnesses might say, etc.

-85% of children made at least one change to their earlier testimony during the cross-examination interview (33% changed ALL of their earlier responses!)

-These response changes were made irrespective of accuracy i.e. children were just as likely to change a correct response as they were an incorrect response

-Overall, cross-examination significantly decreased children’s accuracy, even for children who started out 100% accurate (accuracy went down to only just above chance after cross-examination was used).

Question 23

Is the effect of cross-examination on decreasing children’s accuracy just due to the delay?

Answer 23

No it does not appear so, more recent findings have found that cross-examination style questioning decreases children’s accuracy even when it takes place very soon after the event

Question 24

Do children appear to believe the changes that they make during cross-examination style questioning?

Answer 24

No, compliance

Question 25

A critique with Zajac & Hayne, 2003 is that we don’t know if the laboratory findings would generalize to real events- what is a more recent finding regarding this?

Answer 25

Cross-examination style questioning also decreases the accuracy of children’s reports about forensically relevant events

Question 26

Are certain children more prone to the negative effects of cross-examination i.e. decreasing accuracy?

Answer 26

-Children who are more likely to be targets for abuse may also be more likely to fare poorly during cross-examination.

-Characteristics of these children: low assertiveness, self-esteem issues

Question 27

Can you train/ intervene so children do better when cross examined?

Answer 27

-Brief verbal warnings appear to have no effect on accuracy during cross-examination.

-Comprehensive preparation shows promise as a means of reducing the negative effect of cross examination on accuracy

-Note: cannot ‘coach kids’ before a trial. So training has to be done with an unrelated scenario e.g. get them to watch a video, co-exam them on it and then go back and give feedback about where things went wrong/ what they changed.