And so the case continues. In this update we will explore recently revealed clues germane to the case, revisit evidence that continues to bewilder, and assess the ongoing changing tide of public perception in the attribution of blame in the death of Philando Castile. We will also assess the impact of a subsequent racially charged police shooting in South Florida, which was also captured on videotape. What ramifications does the South Florida videotape have if any, on the Castile case? How do the new facts influence how the public views what is captured on the videotapes? Does new evidence alter the way the videotape in the Castile case is perceived? If so, how does it do so and will it be important to the ultimate outcome of the case?
Blog News and Views
The Curious Case of Philando Castile: A Trial Consultant’s Perspective
And so it begins again. Come with me on a journey, winding through the curious case of Philando Castileviewed through the eyes of a Trial Consultant. How will this case meander its way through the court system? We will be updating and discussing the twists and turns of the case and invite you to join us. You can help us predict how the case will evolve and eventually be resolved. We want to hear your thoughts and feelings about what has transpired and what your take is on new facts as they come to light in the coming weeks, months and years. Ultimately we want to know if this goes to trial, who wins?
Yet another shooting of a black man, this time in Minnesota, Philando Castile, 32, who was pulled over either because he had a ”wide-set nose” and ostensibly resembled a robbery suspect, or because his tail light was out, or some combination of both. Mr. Castile was carrying a properly licensed concealed weapon. The policeman who shot Mr. Castile said that Castile was reaching for that weapon, while Mr. Castile’s fiancé who was sitting in the front passenger seat is adamant that he was simply reaching for his wallet to get his license and registration. What are the game-changing facts that will sway potential juror to formulate an opinion of the case, one way or the other?
What adds to the intrigue of this particular case is that we have an after-the fact viral video which was live streamed on Facebook immediately after the shooting, videotaped by Castile’s girlfriend, Lavish Reynolds.
What factors will ultimately influence a juror’s decision-making process in determining whether or not this shooting was justified? Visual and auditory evidence is often what captivates the minds of the public and is a powerful tool in shaping juror opinions about a case. What makes the Castile case fascinating is that we have the after-the-fact video. Remember the audiotape in the George Zimmerman case? Who can forget that? People could stand around the water cooler dissecting the audiotape and the map of the parking lot until kingdom come. The interest in the Castile case is similarly made more compelling by the captivationpeople have with the Facebook video.
The difference is that Zimmerman’s audiotape tape was recorded before the shooting. Will it in fact be admissible? If we rely on the ruling that was used in the Casey Anthonycase (the myriad pictures of her partying after her daughter died, and what the majority of the public thought was the most damning piece of evidence) then it should be admissible.
I am a defender of the constitution. A person is innocent until proven guilty. My question to you is what issues/ questions do you have to determine whether or not the prosecution will meet their burden of proof? What evidence will be important to you?
We have several intriguing factors here, including the voice of a distraught man who is heard screaming, “Fuck,” I told him not to reach for it!” Who said that? Does it matter?What exactly does that voice tell us/mean in the video?
There will be forensic experts that will tell us (based on the physical evidence) how far away the officer was standing from Mr. Castile. Does that matter? The angle of the blood/wound will tell us how far back Mr. Castile’s arm was when he received the first bullet? Does that matter?
There was more than one shot, and the first shot was to the arm. Why shoot him two to three more times? What does that tell us if anything? Which bullet killed him, the first, the last a combination?
There is also the perception of the evidence (which is the trial consultant’s job). There was a four year old child in theback seat of the car. Does it matter that a child’s life was potentially put in danger? Was it prudent of the officer to fire 3-4 shots? If the policeman was that close to Mr. Castile, why shoot him multiple times?
Were first responders called? The video basically shows a man dying in front of us for six minutes. Was an ambulance called? After six minutes we see a scene swarming withback up that was called. What does that tell you?
We see an officer holding a gun on a mortally woundedman, who is in no condition to reach for anything. Does that tell us anything about the officer’s ”state of mind?” We have a woman recording what she says happened. The officer, (sounding hysterical to me, but that is just me) disagreeing with her version of events. She says Castile told the officer he had a licensed gun and was reaching for his wallet. This makes sense that he would be reaching for his wallet. It makes sense that most men carry their wallet in their back pocket. What do you believe, that a man would reach for his gun with a four year old child in the car with an officer who already has his hands on his gun? The next time you get stopped, for a traffic violation, look at where the officer’s hands are when asking for your license and registration. Does that influence you? Does the fact that they put the fiancé in handcuffs influence you? If so, how?
What do you think happened? What other clues did you see that influence your opinion? As I always ask in all of the cases I have had the privilege of working on: most importantly, what questions do you have that would help you decide whether the officer is guilty of excessive force?
January 13, 2016
By Amy Singer, Ph.D., and Kemberlee Bonnet, M.A.
Have you ever conducted a Decision Navigation® research study? It’s an excellent tool that allows researchers to plan a very detailed decision tree for successful litigation strategy. Think of it as a “reverse engineering of the verdict form.” Rather than the attorney questioning the surrogate jurors, these surrogate jurors interrogate the attorney. When the surrogate jurors conclude questioning, they deliberate and reach a verdict. In this type of focus group, surrogate jurors help provide us with the ideas for themes, pivotal points, and “keys” to the case.
We receive startling questions from surrogate jurors that attorneys were not expecting that we found, were in fact, to be important. For example, many years ago I had the privilege of working with Edward Bennett Williams on a tax evasion case. Naturally, our focus was on accounting, appraisals and evaluation. However that was not the focus from our research panels! What did they continuously ask about? The only answers they wanted pertained to the “cast of characters” within and between organizations and the defendant’s physical proximity to people who made the financial decisions. The defendant was “off the hook” because if he was not in “the same office” or did not have any communication with the financial folks, he could not be guilty of tax evasion. The case was about “distancing,” not “accounting.”
We used this data to analyze reactions and decision-making processes in order to brainstorm creative solutions to the problem areas identified. As a result, we scientifically constructed successful trial strategies and voir dire techniques.
Reasons the Decision Navigation® technique works:
1. Unlike traditional “mock trials” the Decision Navigation® data reveal to us what jurors want to know and the order in which they want to know it. This is the most important component of the Decision Navigation® research findings, as it allows us to analyze the trajectory of jurors’ cognitive “mapping” and information processing, thus enabling you, for example, to create your visual aids and series-of-events diagrams at an exceedingly effective level.
For example, we found out just how important “order of information” was in a complex commercial case. We were working for the defense. Surrogate jurors were hopelessly lost and overloaded with information. We switched the order of our presentation of certain facts.
Nothing helped. We turned to the demonstrative evidence folks to explain simple concepts (to us). Nothing worked. Was it too complicated for a jury trial? In our last attempt, we did a reverse engineering of the verdict form to get an idea of “what they wanted to know and when they wanted to know it.” We based our presentation on the order of the questions our surrogate jurors asked. We decided to tell the story from each plaintiff’s point of view. We told the story in this order: who was each plaintiff? What happened to each plaintiff? What did the plaintiffs know and not know? The graphics team went to work based on our revised strategy and we got a defense verdict.
2. Decision Navigation® informs us how jurors will perceive the facts of the case. Perception is of utmost importance, as people operate based on what they already know, grounded in their own experiences. It is vital to make sure that jurors are on the same page. Once we understand surrogate jurors’ perceptions, we can successfully build a strategy for the actual jurors on your panel that best guides them through the evidence, presenting it with an anchor- a life experience in which they can relate.
We worked on a case where the plaintiff was viewed as stoic and had horrible injuries. It was one of the “lucky to be alive” cases. My client, the plaintiff’s attorney, was concerned that folds would not understand the extent of his client’s injuries. The client himself was in denial. Obviously, we relied on the doctor’s testimony to get the seriousness of his injuries to the jury. What did we do? We video streamed “mock” cross examination of the plaintiff to a group of people who could respond anonymously (we know the people in the group, but did not know who was texting what). The technique is known as Simultaneous Reaction to Stimulus (SRS). The simultaneous reactions to the witness from our line SRS group revealed to us that as long as the plaintiff spoke about his high pain tolerance level, we would win over the jurors. Many of the subjects in our online group kept saying, “I have a high pain tolerance level, but I wouldn’t do that.” That was the perception we needed, and gave us some important clues for voir dire.
3. Decision Navigation® is enormously effective in the identification areas of confusion. By identifying areas in which surrogate jurors are confused, you can create effective analogies and metaphors, as we have found these to be the best way to ensure clarity in the trial setting. The analogy and/or metaphor will explain things to jurors in a way that it will make sense and aid in the understanding of a concept of which was initially confusing. When jurors relate to your analogies and the metaphors, they will truly understand your discourse.
We were working on a defective products case where we are alleging manufacturing as opposed to design defect. We needed an analogy. Maybe you already have a great analogy, but we didn’t. My client, Ervin Gonzalez, after interaction with our live Decision Navigation® group, came up with a great analogy. The analogy was to a hamburger. “There was nothing wrong with the recipe, but that particular hamburger was made incorrectly.” The analogy worked.
4. Decision Navigation® methodology allows us to identify what is irrelevant to surrogate jurors in their decision-making process. You do not want to increase jurors’ “cognitive load” with information that they do not need- this will impose unnecessary mental effort. The cognitive load can be reduced by quickly identifying the relevant stimuli so that you can methodically organize it into meaningful subsets.
It will come as no surprise to my personal injury defense attorneys that causation is king. While plaintiff attorneys focus on negligence, the defense bar focuses on cause. Here’s the trick question: what is relevant when raising a causation defense? My client and I decided to work chronologically to show there was no causation in a medical malpractice case.
The damages were horrific in this psychiatric malpractice case. Leading with our best punch, we did not want to work backwards from the consequential to the antecedent even. It didn’t work. Nothing worked. Angry about falling below the standard of care and the sympathy of slaughtering many innocent people were “killing us.” We even had some surrogate jurors tell us afterwards that they would never participate in another one of these exercises again.
An even trickier question: what would be relevant in raising a causation defense in this particular high-publicity case? We conducted 10 Decision Navigation® studies focusing solely on causation. Surrogate jurors were told up front what the negligence and damages were, just to make things more difficult form my client. We kept focusing on the plaintiff and defense experts who testified exactly as you would expect. What we didn’t expect is that our surrogate jurors could not care less about what these experts had to say about the plaintiff- it was the type of mental illness he had and the odds of stopping him once he was hell-bent on his homicidal/suicidal spree.
What they were least interested in was what other psychiatrists’ success rates would be if our client followed the standard of care and treatment plan. There was only one thing our research groups focused on: the decedent’s family. Without hearing any evidence, everyone agreed that if this lunatic could be stopped, he could only be stopped by certain actions of his family. We studied what actions jurors would expect and the likelihood of those actions stopping the decedent. We relayed our intel to the demonstrative evidence department and once surrogate jurors saw the exhibits, they could not be convinced that the psychiatrist caused the injuries. I bet you haven’t heard about his case. You would have heard about it if the plaintiffs won.
5. Decision Navigation® data allows us to identify the best way to present (channel) the testimony and evidence (perception). The methodology shows us how to identify the best technique to anchor jurors’ existing attitudes into a different or similar direction, rather than trying to create new attitudes (change attitudes that are not value-based).
Decision Navigation® methodology enables us to identify factors that will enhance learning and memory. After identifying the important evidence and word associations through the Decision Navigation® study, you can use the appropriate psychological tool to facilitate and solidify learning. This includes the use of repetition to expedite memory and call attention to selective stimuli and also foster elaboration on those stimuli for memory enhancement.
One of my clients, Chris Searcy, had an auto case in which he had a computer animation of what happened according to the accident reconstruction experts. In our Decision Navigation® study, we learned that sometimes things are better left to the imagination. Just like the book is usually better than the movie, we discovered that Chris’ storytelling ability was better than the animation to maximize jurors’ perception, learning and memory of how the collision occurred.
The case was bifurcated between liability and damages. At trial the first jury found 93% liability on the solvent defendant, a construction company, 7% on the uninsured defendant driver, and 0% on the plaintiff. The second jury resulted in a verdict totaling $256 million dollars ($145 million for the plaintiff quadriplegic child, $66 million for the plaintiff hemiplegic child, and $50 million for the wrongful death of 6 year-old). A true testament to Chris and his ability to draw pictures with words.
6. Decision Navigation® methodology enables us to identify factors that will enhance learning and memory. After identifying the important evidence and word association through the Decision Navigation® study, you can use those to facilitate and solidify learning. This includes the use of repetition to expedite memory and call attention to selective stimuli and also foster elaboration on those stimuli for memory enhancement.
As you can see from the aforementioned examples, the Decision Navigation® has worked time and again. This methodology and design is based on scientifically-acceptable principles that have proved to hold up in court. This technique is unique, and our scientific jury research delivers reliable and valid direction; finding the most powerful and persuasive arguments while testing for and eliminating problem areas. When there is zero room for error, our jury-driven, psychologically-based testing provides a platform for creativity and effective construction of your paradigm.
November 9, 2015
By Amy Singer, Ph.D. and Kemberlee Bonnet
Social media is allowing researchers the chance to study human behavior in a new context, as users are freely revealing more and more information about themselves at both the individual and community levels. Researchers can analyze interactions that a person has with another individual or their announcements or “rants” at the public level. The information is given to us without restrictions, allowing researchers to collect data unobtrusively.
In data collection in the context of litigation psychology, it is important to consider that jurors bring with them their own life experiences, attitudes and outlooks that ultimately guide the decision-making process at trial. As trial consultants, we explore potential jurors’ thoughts, feelings, prior knowledge and experiences on a given topic as part of our analyses in that decision-making process. It is remarkable that this information can be discovered, not only in live voir dire, but through social media, and can be explained by psychological theory and phenomena.
Mining social media has its potential to extract valuable data patterns that can be beneficial researchers. We have put together some of the interesting psychological phenomena and theory applied to social media participation and a glimpse of how they guide attorneys in trial strategy.
One of the most fascinating and unusual phenomenon that manifests in the use of social media, is the transparency in personal expression. Researchers are using this information to their benefit and are now collecting data via online focus groups, discussion boards and social networking sites, as this raw and unfiltered data is like gold to a social scientist. In litigation, this phenomenon enables attorneys to obtain case-specific information via data mining or online focus groups, expressive information of which is direct and less censored. As trial consultants, we advise attorneys to take advantage of the unfiltered opinions and outlooks on the given issue that individuals would not provide in a live focus group or voir dire. The data is used to scientifically create successful trial strategies and voir dire techniques, specifically, to de-select jurors from a panel.
Another psychological theory pertinent in social media participation is Social Influence Theory. Social influence typically occurs when one’s emotions, opinions, decisions or behaviors are affected by others, and can be seen in conformity and leadership, for example. Most social influence studies have been traditionally conducted in laboratory settings, but research through social media is giving us a more generalizable and up-to-date context.
Social influence takes on many forms. One way in which the theory reveals itself is via “influencers”. An influencer on a jury panel is seen by the rest of the panel as an “expert” on a given case-specific topic and this individual has typically had similar life experiences that are critical to deciding the case. He or she will most likely express that familiarity with the experience and their opinions and views regarding those experiences.
Social media research and online focus groups enables us to identify influencers before a trial begins. For example, via online focus groups and discussion boards we have successfully identified the type of data that an influencer provides and ways in which to spot and steer clear of them if they are in favor of the opposition. Influencers are extremely important, as they help sway the group decision one way or another. We analyze cognitions, affect and life experience to help identify these, importantly, negative influencers and de-select the ones that will most likely yield the least favorable outcome (negative influencers), while keeping positive influencers under the radar to opposing counsel so that they can remain on the panel.
In Social Psychology, attitudes are considered to be the fundamental orientation to evaluate people, situations and ideas. Attitudes are not always consciously accessible, but nevertheless guide decision making. Importantly, attitudes can foster identification with social groups.
Attitudes are difficult to measure via self-report and that form of data collection is less reliable, due to social desirability effects. This can be combatted, however, in measuring attitudes via social media. On social media, it is fascinating that implicit attitudes become apparent, via the transparency effect.
For example, stereotypes associated with a defendant can have a significant impact on a jury’s verdict. Jurors on a live face-to-face face panel might go out of their way to suppress prejudicial attitudes. Nevertheless their attitudes, however implicit, still remain. In social media participation, those attitudes tend to manifest themselves, thanks to the transparency effect. Social media focus group research can tap into those attitudes because these participants are less likely to go out of their way to filter their responses. Such information is valuable to litigators whose case may involve, for example, a racially-charged crime.
Transparency and greater external validity leveraging social media is all well and good. However, many of my clients ask: “what does this really mean”? As Sigmund Freud once said, “once we name a thing by its rightful name, we begin to alter its power”. The research questions become: What are we identifying? How do we analyze this phenomenon? How do we interpret this data? What is our criteria for measurement? Fortunately, today’s litigators can use computer programs, such as Wizpor® to provide text analysis, sentiment analysis and channel analysis for predictive mined data.
The prevalent use of social media has produced extraordinary amounts of social data, as social media provides easily an accessible platform information sharing. Social media is beneficial in that you can collect real-time data, as peoples’ posts reveal the most-recent events, opinions and attitudes. If you are looking to find out about what a potential juror might think about your case, online interaction will help you obtain the valuable information from your target population in our society; information that would otherwise be nearly impossible to obtain at the face-to-face level.
The best way to tap in to all of these constructs is to work closely with a litigation psychologist well versed in applied research. These experts are skilled at the analysis of psychological constructs using the societal trajectory of interaction.
November 3, 2015
By Amy Singer, Ph.D. and Kemberlee Bonnet
In our prior article we discussed the sacred attribute of Chokmah, which translates to “wisdom” (Applied Kabbalah: 10 sacred attributes to integrate into litigation – Part three: Wisdom, June 17, 2015), and that the attributes of knowledge and understanding must be appropriately combined to form wisdom. Knowledge, understanding and wisdom are considered the three “intellect” attributes. Without the jury having knowledge, understanding and wisdom of your testimony, evidence and arguments: you lose.
Now we will move to the remaining seven attributes that deal with the emotional aspects of your case. The first emotional attribute in the Sephroit is Chesed, which translates to “kindness.” Chokmah and Chesed are connected, as wisdom provides us with the capacity to connect with our emotions intelligently, not making decisions on some arbitrary whim. This is how the Sephroit works- the attributes are not exclusive; rather, they work as a system.
Jurors are instructed to make decisions based on fact, but as humans, it is difficult to leave one’s emotions behind. We all have emotions, but in actuality, they have us. Although emotions are considered irrational when it comes to making a decision, they are useful in getting us in tune to a situation, but only if we are intelligent with them. Too much of any Sephroit attribute is not good- although it might sound odd to say there can be too much kindness, it is not. Imagine if a juror feels more kindness towards one side versus the other? In order for there to be justice, there must be kindness; kindness towards both sides equally.
So what is kindness? Kindness (Chesed) is a core ethical virtue.[i] It is much more than being pleasant and wishing someone well, it is associated with action, a pro-active virtue.[ii] The difference between kindness and “being nice” or empathetic is that kindness is associated with action. Chesed is properly described as an act that has no “cause”- it is a gift in which the receiver owes nothing in return.[iii] For example, you run out of gas and someone has a gas can and helps you. If it is truly a Chesed act, they will expect nothing in return for letting you use their gas can.
Kindness is different from compassion. In kindness, a person may feel sorry for someone but will not reflect the suffering person’s feelings.[iv] Compassion is a deeper and stronger feeling, as compared to kindness. An act of compassion would involve, for example, talking to a person and understanding their emotions and problems, delving much deeper into the situation at hand at a more personal level. This, of course would be impossible for a juror to do from the jury panel. Kindness is not sympathy. Litigators do not want sympathy, they want kindness in judgment. Justice can never be based on sympathy.
Kindness Must be Equally Felt Among the Parties
A juror must separate the head from the heart and follow the law. There is an expectation that the law be followed. It sounds contradictory to Chesed, where nothing is to be expected from one’s actions; however, justice is always expected- but to get to justice one must be impartial. One cannot expect a certain turnout because of his or her own beliefs, values or morals. So in order to dispense justice you truly have to expect nothing of benefit for yourself but the truth. To do otherwise would be unfair or unkind to one side of the law either to the state, the victim or even the defendant.
I consulted on a case where a young drunk driver killed an elderly woman. Obviously those individuals who felt sorry for one side more so than the other were excused for cause. The other jurors were kind in their judgments to both sides. They had the intellectual attributes of knowledge, understanding and wisdom for both sides. They understood the tragedy for both sides. In their minds, justice was awarding exactly what the plaintiff asked for in compensatory damages. Furthermore, they awarded exactly as much as the defense wanted in punitive damages. The verdict was not appealed. Both sides felt that justice was served.
Even a positive trait such as Chesed has undesirable spin-offs if it is not applied correctly. One should not want to have Chesed at the expense of another. Further, if a person does not have well-defined boundaries then he may find it difficult to avoid misrepresentation because honesty requires the ability to follow the boundaries of truth.[v] A juror might have the natural propensity for Chesed, but he cannot allow his natural dispositions to lead him instinctively. Rather, he must balance his Chesed when necessary.
In our most recent article we discussed the sacred attribute of Binah, (Applied Kabbalah: 10 sacred attributes to integrate into litigation - Part two: Understanding, May 5, 2015) which translates to “understanding.” We specifically discussed the importance of unifying a juror with a case-specific situation that they cannot personally identify with initially, because they have never experienced that situation themselves. We have also previously discussed the sacred attribute of Da’at, which translates to “knowledge,” and the importance of not simply providing information to jurors, but connecting them with case-specific facts. Now we will discuss the third attribute of Kabbalah, Chokmah, which translates to “wisdom.”
The two attributes of “knowledge” and “understanding” are intellectual, and must appropriately combine to become “wisdom” in order to be useful, as intellect and analysis work up until a certain point. Once you know what to do with the information that you have, you are essentially entrusted with the wisdom to carry it out.
What is Wisdom?
By Amy Singer, Ph.D., Diana Greninger and Kemberlee Bonnet
In our previous article we discussed Da’at, (Applied Kabbalah: 10 sacred attributes to integrate into litigation, March 12, 2015) which translates to “knowledge” and we discussed the importance of connecting knowledge to the juror and their insight in a given issue. Having formed a relationship with knowledge on a personal level, the sensitivity of a given concept was gained through life experience.
However, sometimes we cannot unify ourselves to a situation initially, because we have never experienced the situation ourselves. This is where the attribute of Binah facilitates understanding of the given issue, and takes the original idea presented and expands and develops it into understanding.
By Amy Singer, Ph.D., Diana Greninger and Kemberlee Bonnet
The Kabbalah is an ancient, complex and respected Jewish study of how the universe and life work; it increases awareness and it is a way of connecting various aspects of life.. In modern times, the study of Kabbalah is less esoteric, as many individuals from all backgrounds study and apply its teachings to their everyday lives. There are 10 attributes (Sephirot) characteristic to the Kabbalah, which together result in “truth.” One of these attributes, the topic for this article, is referred to as DA’AT, which translates to “knowledge.” Kabbalah is concerned with “receiving,” therefore the DA’AT component of Kabbalah means receiving knowledge.
By Amy Singer, Ph.D., Diana Greninger and Kemberlee Bonnet
It is not uncommon in personal injury cases for the injured individual to delay seeking medical treatment after an incident. Why is that? The fact is that injured persons often do not experience symptoms of injury at the time of an incident, however much later, an injury related to the incident emerges. We refer to such injuries as “latent” injuries, an injury in which the onset of symptoms is delayed. As an attorney you must be able to recognize that jurors will most likely have an uninformed response, most likely negative, to the concept of latent injuries.