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Post No.: 0720testimonies

 

Furrywisepuppy says:

 

During criminal or civil trials, expert witnesses with specialised knowledge within their realms of expertise might be brought in to help in areas that are beyond the scope of the average person’s knowledge, where the truth of the matter may be counterintuitive, or where they can provide the jury some educational background on a particular subject.

 

These experts are sometimes brought in as ‘friends of the court’ (amicus curiae) and at other times brought into an adversarial setting where each side may present their own experts.

 

Some research reveals that jurors do tend to think through such expert opinions or testimonies carefully and thoroughly when trying to reach a verdict. However, these particular studies rely on jurors self-reporting that they’ve understood and made proper sense of these opinions or testimonies, and these beliefs can of course be tarnished by biases.

 

And research that doesn’t depend on self-reports shows that, under some conditions, jurors don’t just rely on the content of expert evidence – when information becomes too complex and difficult for us to evaluate systematically, we tend to rely on mental heuristics, or shortcuts, instead, and this is when problems can occur.

 

Jurors have a tendency to follow experts more if they are perceived to have strong compared to weak credentials, but only if the contents of their testimonies are perceived to be complex. If a testimony is or appears simple then they are influenced by what the expert says rather than their credentials. This suggests that jurors use the expert’s credentials as a cue when they cannot understand the language and/or content of a testimony itself in order to assess the content properly. This means that an expert with strong credentials must back it up by giving a complex testimony, whilst an expert with weak credentials must give a simple rather than complex testimony, for a jury to increase their trust in their testimony.

 

This is the ‘substitution’ heuristic in action – when a testimony is too complex for us to evaluate directly, we fall onto using mental shortcuts (like evaluating the expert’s background in this case) in order to evaluate that testimony i.e. when we find it difficult to answer the question ‘is what the expert saying making sense?’ – we substitute that question with a much easier one that we have less trouble answering, which is ‘shall I just follow the expert’s own opinion based on his/her credentials?’ And we use the answer we get for the easier question to answer the more difficult question we really wanted to answer. But if a testimony is simple then we can evaluate and make a decision based on that testimony directly, which might or mightn’t be an answer that accords with the expert’s own opinion.

 

As a rule, expert witnesses should use the simplest and plainest language possible. But as above, highly complex and technically incomprehensible testimonies from experts with strong credentials tend to command the most trust of all – suggesting that people will give a huge benefit of the doubt to someone with strong credentials. The expert’s own opinion will less likely be questioned (although not all jurisdictions or judges will allow the questioning of expert witnesses anyway). This also suggests that most people won’t even ask for clarification if they don’t truly understand something – and part of the reason why might be jury members not wishing to appear like they’re clueless in front of each other!

 

This is like what frequently happens in school – a pupil who doesn’t quite understand something might assume, because everyone else in the class isn’t asking the teacher for clarification either, that everyone else understands the material. And because this pupil doesn’t want to appear ‘thick’ amongst his/her peers, he/she keeps quiet about not fully grasping the material by keeping his/her hand down. But if a pupil is brave (and smart) enough to inquire, what usually happens is that other pupils will also admit that they didn’t truly understand the information either, but they all made the assumption that they were uniquely slow to understand it and thus all kept quiet. It’s all about managing one’s reputation amongst one’s peers, which often means trying to maintain an image or illusion of one’s intelligence and other desirable traits. But we should all feel secure in ourselves and wise enough to admit to not understanding something that we don’t understand, for we will then gain a furry opportunity to learn and understand it!

 

In the context of juries – most jury members probably don’t want to appear clueless amongst their group because they believe that this will make others listen to them less during discussions in the deliberation room. This also teaches us that we shouldn’t just listen to those who are loud, domineering in discussions, or sound the most confident in their own knowledge because they like to give more opinions than ask questions.

 

We are also routinely swayed by how an expert looks (e.g. their physical attractiveness, due to the ‘halo effect’) and even their gender – males tend to be trusted more for male-stereotyped domains, and females for female-stereotyped domains. It’s not just what they say but how they say it that affects believability too – in our present culture, we expect men to use more complex language than women when we’re under cognitive load, when we shouldn’t do; and the confidence of delivery matters too, when it shouldn’t.

 

The ‘hired gun effect’ is when an expert appears less persuasive if they testify as an expert witness in court frequently and also gets paid for doing so, because it’s perceived that they’re just in it for the money; but again only if the testimony is too complex to directly evaluate.

 

This all means that complex testimonies are problematic because they cannot be evaluated by laypeople – laypeople will use another method to make a verdict (i.e. mental shortcuts such as preconceptions, gender stereotypes and substitution heuristics) when the going gets cognitively tough. This all usually happens automatically and rapidly in our minds, typically without our conscious awareness or deliberate intention, too.

 

Juries are influenced by present emotional factors. To persuade juries, shrewd attorneys know that it helps to not just state facts plainly but to tell emotional stories with (a touch of) theatre. This all leads to unwarranted variance (noise) in verdicts, and inconsistent damage awards in civil lawsuits, for similar cases.

 

Laypeople are particularly poor at understanding (the contexts of) statistics and probabilities (e.g. base rates). The net result is that they generally over-favour the defence. How statistical evidence is presented matters greatly too – the cognitive availability of ‘coincidental match exemplars’ means that if we can easily think of examples of other people who might, say, match a DNA sample by chance, then we will deem the defendant less likely to be guilty.

 

Statistics can be manipulated by simply changing the framing of the information. For instance, by simply stating a ‘0.1% likelihood that the defendant matches the sample just by pure chance’ (so focusing on a match in relation to a single specific person/the defendant) instead of stating ‘1 in every 1,000 people in the city matches this sample by pure chance’ (so presenting the match in relation to multiple potential people who could fit by chance), we can increase the chance of a guilty verdict. (If the figure is in the order of a ‘0.0001% match just by coincidence’ though, it wouldn’t matter if you used that wording or ‘1 in every 1,000,000 would match’, because it then becomes hard to imagine other people who would also match the DNA sample purely by chance.)

 

How the media portrays expert forensic testimonies could influence jurors in their perception of expert testimonies too – the so-called ‘CSI effect’ relates to how watching CSI-type (i.e. crime) TV dramas increases the public’s interest in forensic science but creates unreasonable expectations about forensic evidence on the part of jurors, thus making a conviction less likely. Conversely, it raises the credibility of scientific evidence so that it’s seen as almost infallible, thus making a conviction more likely.

 

Watching CSI-type shows may have an indirect effect through raising expectations about receiving scientific evidence for ‘circumstantial evidence’, which is evidence that relies on an inference to connect it to a conclusion of fact (e.g. a fingerprint at the scene of a crime). (‘Direct evidence’, in contrast, supports the truth of an assertion directly i.e. without need for any additional evidence or inference.)

 

Forensic procedures are made to look quick, easy and flawless in dramas. Things like increasing the detail in an incredibly pixelated or noisy image is made to look simple and foolproof. Things like computer hacking or creating complex gadgets from scrap parts are also made to look quicker and easier than in reality. Video games are sometimes at fault too. (Life definitely isn’t as easy as ‘pressing x’ and things get done(!) I wish I could just press a button and the bed would be made every morning. Oh wait, a dog’s bed is always ready – woof!)

 

Post No.: 0635 discussed how the media shapes the stereotypes we hold about murderers too. But we should know that dramas and video games are for entertainment more than for education, or if there are any educational elements then things that merely serve as MacGuffins will be abbreviated by the director so that the story can concentrate on moving along (and that’s why we don’t see or hear of characters taking number ones or twos – unless it’s somehow crucially important to the story or character arc!)

 

Having said all that, the empirical evidence for this CSI effect on skewing resultant conviction and acquittal decisions is inconclusive. Jurors overall don’t seem to be too badly misled by the media portrayal of forensic evidence once real-life forensic science is properly explained by an expert.

 

…All in all, in any context, it’d be arrogant to not carefully listen to experts, but not because they’re considered experts but because they should be able to present compelling opinions or testimonies that they can back. Experts can get things wrong at times so should never just be blindly trusted and unquestioned. Well experts can disagree with other experts in the same fields – a classic situation is that two artists making facial reconstructions from skulls can come up with very different results despite starting with the same skull, which is obviously problematic. (This kind of problem is echoed when trying to reconstruct what dinosaurs used to look like based on their fossilised skeletons. By applying the same ‘shrink-wrapping’ assumptions – many modern animals would be unrecognisable if they were reconstructed from just their bones! This is on top of assumptions about the colours, hairiness, feathers and other details of dinosaurs.)

 

Handwriting, footprint, fingerprint, ballistics and other ‘observational’ analyses (where experts use their own eyes and experiences to judge matches) frequently result in noise or unwanted variation between different experts i.e. some will perceive something as a match while others will say it’s inconclusive. But too many laypeople tend to think that something being ‘scientific’ – or at least something that’s perceived as so because it’s a scientist’s judgement – means ‘100% black-or-white’ rather than coming with different levels of certainty.

 

During a trial, expert testimonies may be rebutted by testimonies from other experts or by other evidence or facts. Opinion versus opinion, an expert’s opinion carries more weight than a layperson’s opinion, but opinions never override facts. So don’t forget the direct evidence and established facts themselves. Do question experts, because if they are truly experts in their fields, they’ll be able to provide reasoned answers and back them up.

 

Woof. Not all experts are the same (some try to serve their own personal agendas first) and sometimes we can expect too much from them (as if they ought to only ever make perfect predictions). If you’d like to share your views on experts then feel free via the tweet linked to the Twitter comment button just below.

 

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