The Artful Dodger

"Don’t answer the question you were asked. Answer the question you wish you were asked." —Robert McNamara, describing the lessons he learned during his time as Secretary of Defense during the Vietnam War (Morris, Williams, & Ahlberg, 2004)

The strategy above, often employed by politicians, can be disastrous when used by a witness on the stand. Juries can tell right away when someone is being evasive. But how exactly does people’s evasion detection work, and what triggers it?

A recent article in the Journal of Experimental Psychology gives some insight as to what kind of responses are considered “dodges.” Typically, people’s dodge detection is not “set on high”; meaning that people don’t notice a dodge unless they are specifically looking for one or the respondent fumbles the answer. People will also notice a dodge when the question answered is vastly different from the one that was asked.

Most people don’t notice small dodges though. Evidence from the experiments shows that most people will ignore the dodge as long as the answer is cohesive and on a somewhat similar subject to the question. One way to crank-up people’s natural dodge detection is to have them pay special attention to the content of the question, for example bny showing them the text of the question on a screen.

In modern courtrooms, displaying the text of questions and answers on a screen for the jury to see has become de rigueur. Therefore, when a deposition is video is played, or some testimony is being read back, the witnesses evasiveness will become magnified if the scrolling text is shown along with the testimony on the screen.



The artful dodger: Answering the wrong question the right way.
Rogers, Todd; Norton, Michael I.
Journal of Experimental Psychology: Applied, Vol 17(2), Jun 2011, 139-147. doi: 10.1037/a0023439
http://psycnet.apa.org/journals/xap/17/2/139/

Article in Science Daily about the research:

http://www.sciencedaily.com/releases/2011/05/110505111945.htm

Googling Up A Verdict

fig 1. A chart showing results of the experiment for the proportion of facts recalled. The red bar on the right represents the largest group of participants, who remember nothing.

Why bother remembering anything when you can just look it up later? That seems to be a common belief based on a recently published study from researchers at Harvard and Columbia Universities. They postulate that the internet with all its googling and searching had changed the way people remember information. The research was done to test a phenomenon known as transactive memory, where people outsource some memory functions to machines, the environment, or groups. When assured that information currently being presented will be saved somewhere, most participants remember nothing, or only partial aspects of the information.

The study consisted of several experiments that repeatedly tested recall among participants who were sometimes told that the information being presented would be permanently saved, and sometimes told the experience was fleeting. In every case, simply the knowledge that something was going to be available later caused the participants to tune-out and stop actively trying to remember. In cases where participants were told that information would be available later, they were sometimes able to remember either the information, or where it was saved, but not both.

In the courtroom, evidence is presented quickly and without much repetition. Juries are often reminded, however, that the exhibits will be available for their perusal later. Could the knowledge that evidence will be available later cause juries to stop paying attention to the presentation of the facts at hand? The results of this study seem to suggest so.

For more information:

Wikkipedia article on transactive memory:

http://en.wikipedia.org/wiki/Transactive_memory

Link to the abstract
http://dx.doi.org/10.1126/science.1207745

Ars Technica article on the subject:

http://arstechnica.com/science/news/2011/07/study-why-bother-to-remember-when-you-can-just-use-google.ars

What the Judge Ate for Breakfast

A recent study published in the Proceedings of the National Academy of Sciences shows how judges’ rulings are different at different times of day. Specifically, judges are much more lenient with parolees immediately after a food break. In a study of 1000 parole decisions, judges granted parole 65% of the time immediately after a food break. At the end of the session, the rate dropped to 0% and then promptly returned to 65% after the next break. The pattern repeated throughout the day and was virtually identical from judge to judge with not a single outlier.

The effect may be an example of a phenomenon called Ego Depletion; the idea that willpower gets used-up over time causing decision-making to become more difficult. The authors of the paper posit that the judges in the study, when mentally depleted, lapse into making the easy decision of maintaining the status quo, i.e. denying parole. Research into Ego Depletion has shown that the effect can be minimised through the use of a positive stimulus, like a break or a small reward. After receiving the positive stimulus some of the lost decision-making ability is regained. In this case the food break may be just what the judge needs to get back into shape and make the tough decision of letting a criminal return to society.

This effect can be taken into account when preparing trial presentations in a number of ways. In a bench trial, simply knowing that after a long day on the bench the judge is more likely to rule for the status quo can be a valuable asset. Presentations shown late in the day can be structured to represent one side’s position as the “no brainier.” When a jury is being asked to make difficult decisions, it would be wise to keep the sessions short and ask for recesses often. For example, prior to playing a long deposition, a beak may be needed to load the video, thus giving jurors a chance to get a cup of coffee and come back focused.


PNAS<, 2010. DOI: 10.1073/pnas.1018033108

http://www.wired.com/wiredscience/2011/04/judges-mental-fatigue/

http://en.wikipedia.org/wiki/Ego_depletion