DUI Trial Techniques (Voir Dire)
If you see me trip over a crack in the sidewalk, you would consider me to be clumsy or uncoordinated. If, however, you trip over a crack in the sidewalk you are much more likely to blame the crack. The same is true for most people. This discrepancy is called the actor–observer bias.
In social psychology, the fundamental attribution error (also known as correspondence bias or attribution effect) describes the tendency to over-value dispositional or personality-based explanations for the observed behaviors of others while under-valuing situational explanations for those behaviors. The fundamental attribution error is most visible when people explain the behavior of others. It does not explain interpretations of one’s own behavior—where situational factors are often taken into consideration.
This bias can be devastating in a DUI trial when jurors are asked to consider the performance of your client when performing field sobriety tests. They will view the actions with a “bias” that they do not know they have. Furthermore, they use this error to exclude factors of vital importance to both the scientific validity of the tests and the factual innocence of your client. For instance, jurors may under-value situational factors such as anxiety, lack of sleep, inherent lack of coordination, passing cars, environmental factors etc. When we look at some of the underlying assumptions of the fundamental attribution error, we see some scary stuff that we, as advocates, must point out and overcome. Here are several hypotheses of the causes of the error:
Just-world phenomenon. The belief that people get what they deserve and deserve what they get, which was first theorized by Melvin Lerner in 1977. Lerner, M.J. & Miller, D.T. (1977). Just-world research and the attribution process: Looking back and ahead. Psychological Bulletin, 85, 1030-1051. Attributing failures to dispositional causes rather than situational causes, which are unchangeable and uncontrollable, satisfies our need to believe that the world is fair and we have control over our life. We are motivated to see a just world because this reduces our perceived threats,Burger, J.M. (1981). Motivational biases in the attribution of responsibility for an accident: A meta-analysis of the defensive-attribution hypothesis. Psychological Bulletin, 90, 496-512, Walster, E. (1966). Assignment of responsibility for an accident. Journal of Personality and Social, 31, 73-79, gives us a sense of security, helps us find meaning in difficult and unsettling circumstances, and benefits us psychologically. Gilbert, D.T., & Malone, P.S. (1995). The correspondence bias. Psychological Bulletin, 117, 21–38.
Unfortunately, the just-world hypothesis also results in a tendency for people to blame and disparage victims of a tragedy or an accident, such as victims of rape (See Abrams, D., Viki, G.T., Masser, B., & Bohner, G. (2003). Perceptions of stranger and acquaintance rape: The role of benevolent and hostile sexism in victim blame and rape proclivity. Journal of Personality and Social Psychology, 84, 111-125;Bell, S.T., Kuriloff, P.J., & Lottes, I. (1994). Understanding attributions of blame in stranger-rape and date-rape situations: An examinations of gender, race, identification, and students’ social perceptions of rape victims. Journal of Applied Social Psychology, 24, 1719-1734) and domestic abuse (See Summers, G., & Feldman, N.S. (1984). Blaming the victim versus blaming the perpetrator: An attributional analysis of spouse abuse. Journal of Applied Social and Clinical Psychology, 2, 339-347) to reassure themselves of their insusceptibility to such events. People may even go to such extremes as the victim’s faults in “past life” to pursue justification for their bad outcome.(Woogler, R.J. (1988). Other lives, other selves: A Jungian psychotherapist discovers past lives. New York: Bantam.)
Salience of the actor. We tend to attribute an observed effect to potential causes that capture our attention. When we observe other people, the person is the primary reference point while the situation is overlooked as if it is nothing but mere background. So, attributions for others’ behavior are more likely to focus on the person we see, not the situational forces acting upon that person that we may not be aware of. (See Lassiter, F.D., Geers, A.L., Munhall, P.J., Ploutz-Snyder, R.J., & Breitenbecher, D.L. (2002). Illusory causation: Why it occurs. Psychological Sciences, 13, 299-305; Robinson, J., & McArthur, L.Z. (1982). Impact of salient vocal qualities on causal attribution for a speaker’s behavior. Journal of Personality and Social Psychology, 43, 236-247. Smith, E.R., & Miller, F.D. (1979). Salience and the cognitive appraisal in emotion. Journal of Personality and Social Psychology, 48, 813-838. (When we observe ourselves, we are more aware of the forces acting upon us. Such a differential inward vs. outward orientation accounts for the actor-observer bias.) Storms, M.D. (1973). Videotape and the attribution process: Reversing actors’ and observers’ points of view. Journal of Personality and Social Psychology, 27, 165-175.
Lack of effortful adjustment. Sometimes, even though we are aware that the person’s behavior is constrained by situational factors, we still commit the fundamental attribution error. (Jones, E.E. & Harris, V.A. (1967). The attribution of attitudes. Journal of Experimental Social Psychology, 3, 1–24) This is because we do not take into account behavioral and situational information simultaneously to characterize the dispositions of the actor. (Gilbert, D.T. (2002). Inferential correction. In T. Gilovich, D.W. Griffin, & D. Kahneman (Eds.), Heuristics and biases: The psychology of intuitive judgment. New York: Cambridge University Press) Initially, we use the observed behavior to characterize the person by automaticity. (Carlston, D.E., & Skowronski, J.J. (1994). Savings in the relearning of trait information as evidence for spontaneous inference generation. Journal of Personality and Social Psychology, 66, 840-880; Moskowitz, G.B. (1993). Individual differences in social categorization: The influence of personal need for structure on spontaneous trait inferences. Journal of Personality and Social Psychology, 65, 132-142; Newman, L.S. (1993). How individuals interpret behavior: Idiocentrism and spontaneous trait inference. Social Cognition, 11, 243-269; Uleman, J.S. (1987). Consciousness and control: The case of spontaneous trait inferences. Personality and Social Psychology)
We need to make deliberate and conscious effort to adjust our inference by considering the situational constraints. Therefore, when situational information is not sufficiently taken into account for adjustment, the uncorrected dispositional inference creates the fundamental attribution error. It also explains that people commit to fundamental attribution error more when they have no motivation or energy (i.e. under cognitive load) to process the situational information. (See Gilbert, D.T. (1989). Thinking lightly about others: Automatic components of the social inference process. In J.S. Uleman & J.A. Bargh (Eds.), Unintended thought (pp. 189–211). New York: Guilford Press).
For the DUI trial attorney, many of these biases can be diminished or eliminated by taking them on in voir dire. We can also overcome their devastating effects by doing a comprehensive direct of our client if we choose to put them on the stand to testify. Here, I am envisioning a Gerry Spence/psychodrama type approach which puts the jurors in your client’s shoes. If our client does not testify, some good work can be done on cross examination of the arresting officer. The cross examination would be more effective if the jurors are made aware of the bias and the officer completely denies it when testifying. I could see this working well in DISCONNECT DEFENSE type cases or in cases where you are attempting to show that the officer had his mind made up as soon as he or she pulled your client over.
Dayton/Springfield DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver. He has the credentials and the experience to win your case and has made himself Dayton’s choice for DUI defense. Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500. Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui. You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.
The research set forth in this article was taken from the journals site, free use internet resources and hard-won experience.
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