Defendant's Behavior Research Articles

Understanding the Corporate Identity Effect: An Examination of How Legal Standards are Applied to the Behavior of Corporate versus Individual Defendants in a Civil Lawsuit Scenario

Despite the ongoing struggle to achieve a consistent definition of corporate personhood in jurisprudence, the doctrine is applied in brief and unequivocal terms in the realm of jury decision making. And yet the few empirical studies on jurors' perceptions of corporate litigants suggest that jurors do not treat individuals and corporations as functional equivalents under the law. Rather, prior studies suggest that a “corporate identity effect” renders corporate defendants more liable, more negligent, and owing higher damages than individual defendants sued for identical claims. In light of the many questions regarding the underpinnings of the “corporate identity effect” (and our interest in further examining the roles of anti-corporate bias and emotions in producing the effect), the present study aimed to examine how jurors’ perceptions of defendants shape their verdict decisions and their applications of strictly defined legal standards for behavior. Although our manipulation of corporate identity did not produce reliable effects on the dependent measures of interest, there were interesting hints that a “faceless corporate defendant” suffered greater damage awards than those assessed against individual defendants, and that the subjective standard at which behavior was judged negligent tended to be somewhat lower for a corporation than for an individual. Moreover, the Anti-Corporate Bias Scale (developed by the consulting firm Persuasion Strategies) proved to be a significant, reliable predictor of plaintiff verdicts.

Evidence of Discrimination

AbstractThis paper develops a decision-theoretic model of evidence production in the context of a discrimination trial. Producing evidence is assumed to be costly, and the cost can vary depending on what type of defendant behavior (and plaintiff characteristics) the evidence bears upon. The goal of the trial is to uncover a possible behavioral bias in the defendant (intent to discriminate). I then ask how a social planner would structure the production of evidence in a trial in order to best achieve this objective, taking into account the cost of evidence production. I show that it is sometimes efficient to sequence the production of different kinds of evidence (burden shifting) or even to allow a decision based on limited evidence (for example, disparate impact alone, as a proxy for intent to discriminate). A key variable is the availability of evidence concerning the productivity of the plaintiff.

Influence of psychological and social factors on bystanders’ roles in school bullying among Korean-American students in the United States

This study investigated the associations of psychological and social variables with the likelihood of exhibiting three different behaviors as a bystander in a bullying situation. The sample comprised 238 Korean-American and Korean students, from the 3rd to 12th grades, studying in the USA. Students receiving classmate support showed a lower probability of exhibiting outsider behaviors in a bullying situation as compared to non-involvers, whereas those receiving teacher support showed less likelihood of exhibiting assistant, outsider, and defender behaviors as compared to non-involvers. Furthermore, students showing higher responsibility exhibited a lower probability of being a defender group as compared to the non-involvers, while those showing higher empathy demonstrated a greater probability of being in the defender group over non-involvers. The current study discusses the implications for bullying preventive interventions in school settings.

Rural court sentencing as a predictor of re-arrest rates for domestic-violence offenders.

Domestic violence represents the single largest category of calls received by police, accounting for between 18 to 50% of all police calls and accounting for 1 in 10 violent crime victimizations (Friday, Lord, Exum, and Hartman, 2006; Durose, Harlow, Langan, Motivans, Rantala, and Smith, 2005). Approximately 5.3 million incidents of intimate partner violence occur each year. Complicating this problem is a disturbing finding that domestic violence offenders are more likely than non-domestic violent offenders to commit a new violent act, and commit it against their original victim (Olson and Stalans, 2001). Nationally, domestic violence data indicated that about 40% of domestic-violence convicted inmates were under restraining or protection order at the time of their conviction for domestic violence. An estimated 75% of local inmates convicted of domestic violence had prior convictions, with most having a history of convictions for violence (Greenfield, Rand, Craven, Klaus, Perkins, et al., 1998). However, most of the existing research focused on urban areas only, and few studies have examined rural domestic violence (Johnson, 2000). Thus little is known about rural domestic violence. Studies of urban courts which have dominated the literature may not be appropriate with cases of domestic violence in rural communities. One of the strongest arguments against the applicability of urban techniques to rural settings is the lack of anonymity between judges and defendants found in rural communities, where judges and court personnel find it almost impossible to put aside their knowledge of the parties involved in domestic violence (National Center for State Courts, 2008). In addition, in many urban areas domestic violence courts have been established which shifted the court focus to a problem solving models that operate under the premise that the defendant's criminal behavior stems from underlying problems that treatment or services can resolve. Notwithstanding all the attention given to the study of domestic violence, one area stands out as lacking sufficient study: the treatment of domestic violence in rural courts. Thus, using a sample of DV offenders in a rural setting, the following hypotheses were tested: 1) domestic violence offenders who receive counseling treatment are at lower risk for re-arrest; 2) domestic violence offenders who are assessed a fine are at lower risk for re-arrest; 3) domestic violence offenders who pay their fine in full are at lower risk for re arrest; 4) domestic violence offenders who receive a jail sentence are at lower risk for re-arrest. Language: en

The Problem of Measuring Legal Change, with Application to Bell Atlantic v. Twombly

Measuring legal change - i.e., change in the way that judges decide cases - presents a vexing problem. In response to a change in the behavior of courts, plaintiffs and defendants will change their patterns of filing and settling cases. Priest and Klein's (1984) selection model predicts that no matter how favorable or unfavorable the legal standard is to plaintiffs, the rate at which plaintiffs prevail in litigation will not predictably change; thus, legal change cannot be measured with data on court outcomes. In this paper, I extend the selection model to develop a methodology for measuring legal change, even in the presence of selection effects. I apply this methodology to a recent, high profile Supreme Court case, Bell Atlantic Corp. v. Twombly. My model generates novel predictions, which are confirmed in the data, and I find that Twombly caused no legal change, even after accounting for possible selection effects.

Active Defending and Passive Bystanding Behavior in Bullying: The Role of Personal Characteristics and Perceived Peer Pressure

This study examined the role of pro-victim attitudes, personal responsibility, coping responses to observations of bullying, and perceived peer normative pressure in explaining defending the victim and passive bystanding behavior in bullying. A total of 462 Italian early adolescents (mean age = 13.4 years, SD = 9 months) participated in the study. The behaviors were measured through two informants: each individual student and the teachers. The findings of a series of hierarchical regressions showed that, regardless of the informant, problem solving coping strategies and perceived peer normative pressure for intervention were positively associated with active help towards a bullied peer and negatively related to passivity. In contrast, distancing strategies were positively associated with passive bystanding, whereas they were negatively associated with teacher-reported defending behavior. Moreover, self-reported defending behavior was positively associated with personal responsibility for intervention, but only under conditions of low perceived peer pressure. Finally, the perception of peer pressure for intervention buffered the negative influence of distancing on passive bystanding tendencies. Future directions are discussed.

Law & Psychiatry: Deception, Coercion, and the Limits of Interrogation

This column discusses the recent case of U.S. v. Boskic to highlight issues related to voluntariness--in particular, the voluntariness of a confession. At a meeting with U.S. government agents, Boskic, a Croat from Bosnia living in the United States, confessed to involvement in the 1995 Srebrenica massacre. The agents had deceived him about the meeting's purpose and did not disclose that they had a warrant for his arrest. The courts were asked to decide whether the confession was involuntary, and thus not admissible as evidence, on the basis of whether the deception was coercive.

Court Compliance as a Predictor of Postadjudication Recidivism for Domestic Violence Offenders

This study evaluated pre- and postadjudication behavior of 220 male defendants convicted of a domestic violence-related offense using court records and police department data. Our goal was the identification of possible predictors for continued criminal behavior that could pose a risk of further harm to victims. Factors identified as significant predictors of defendant recidivism were having two or more court reports of noncompliance with domestic violence treatment, two or more warrants issued by the court for noncompliance, and two or more reports to law enforcement of new criminal activity involving the defendant. Law enforcement reports were the strongest predictor of recidivism, with an odds ratio of 7.7 and confidence interval of 3.0-19.7. These results illustrate the importance of monitoring multiple dimensions of defendant behavior while under court supervision and of communicating information on noncompliance with victims and advocates to assist in safety planning efforts.

Wilfulness vs. Expectation: A Promisor-Based Defense of Wilful Breach Doctrine

Conventional wisdom is that the default remedy for breach of contract is and ought to be expectation damages, which are designed to put the injured promisee in the position she would have been in had the contract been performed. At the same time, the cases often refer to wilful breach, by which courts seem to mean especially bad, deliberate promisor conduct. Almost by definition, however, the wilfulness of a breach can have little to do with the promisee's expectation interest: that interest should only be measured with reference to the harm suffered by the injured promisee. Whatever the promisor did or failed to do to cause the harm would seem to be of no relevance in calculating the promisee's expectation. Commentators have typically sought to explain this tension by suggesting that expectation can often be measured or interpreted in many ways, and that what courts do when they deem a breach wilful is to use the defendant's bad behavior to pick the most generous definition of the plaintiff's expectation. We offer an alternative understanding that is cleaner and, we think, more compelling. Wilfulness matters not because it screens for a more generous expectation measure, but because it identifies those breaches that should be prevented or deterred. When wilfulness, so understood, is present, courts rightly award remedies that serve to deprive the promisor of any incentive to breach and thus to assure the promisee of getting full expectation.

Effect of Japanese lesser sparrowhawks Accipiter gularis on the nest site selection of azure‐winged magpies Cyanopica cyana through their nest defending behavior

The frequency of azure‐winged magpies Cyanopica cyana that nest in association with breeding Japanese lesser sparrowhawks Accipiter gularis was compared between the 1990s and 2000s. During 1990–1994 azure‐winged magpies nested within 50 m of their nests in all of the hawk nest sites studied. During 2005–2006, however, the magpies nested in only two of nine hawk nest sites. During the 1990s Japanese lesser sparrowhawks chased jungle crows away when they intruded within 50 m of their nest. During the 2000s, on the other hand, the hawks attempted to expel few crows at a distance of more than 10 m from their nest. As a result of it, the predation rate of simulated magpie nests located in the hawk nest sites was significantly higher during the 2000s. This suggests that the magpies have the ability to assess the defending behavior of the hawks and judge whether they can rely on their defense. Most azure‐winged magpies may stop nesting in association with breeding Japanese lesser sparrowhawks because of the reduced defending range of their nest sites.

State Supreme Court Responses to Atkins v. Virginia: Adaptive Functioning Assessment in Light of Purposeful Planning, Premeditation, and the Behavioral Context of the Homicide

ABSTRACT In 2002, the U.S. Supreme Court heard Atkins v. Virginia and held that it was unconstitutional to execute a mentally retarded individual in violation of the Eighth Amendment. Since then, state supreme courts are entertaining arguments concerning adaptive functioning assessment in the context of the defendant's criminal history and role in the homicide. This article will outline the reasoning in some of these post-Atkins state supreme court cases, and briefly address the antisocial personality disorder/mental retardation distinction pursuant specifically to adaptive functioning abilities in light of the defendant's behavior within the context of the homicide. Although this debate leaves an argument that may not be able to be answered by forensic mental health professional experts in Atkins type claims, a recent U.S. Supreme Court case (Tennard v. Dretke, 2004) may shed some light and offer direction to attorney arguments in this area. This case will be briefly discussed, which addressed in part the issue of whether a jury should consider if a capital defendant committed a homicide deliberately with a reasonable expectation that death would ensue and whether the U.S. Supreme Court's prohibition of executing the mentally retarded in Atkins applies if the crime cannot be attributed to mental retardation.

Restoring accountability in pretrial release: the Philadelphia pretrial release supervision experiments

As drug arrests and jail overcrowding added pressure to increase pretrial release in localities during the 1980s and 1990s, the need to manage a larger and higher-risk pretrial population of defendants awaiting adjudication in the community became a high priority for justice agencies. In the late 1990s Philadelphia officials sought to discover the ingredients of a successful supervision strategy through four interlinked field experiments to provide an empirical basis for a major reform of the pretrial release system. The results of the linked randomized experiments question common assumptions about “supervision,” its impact and effectiveness, about the underlying nature of the noncompliant defendant, and deterrence implications. The study emphasizes the importance of interpreting the findings in the context of implementation of the policy reform. Findings suggest that facilitative notification strategies wield little influence on defendant behavior and that deterrent aims are undermined by the system's failure to deliver consequences for defendant noncompliance during pretrial release. The most significant contribution of the article is its illustration of a major evidence-based policy reform undertaken by a major court system.

Scope of Liability: The Vanishing Distinction between Negligence and Strict Liability

Duty of care cannot be used anymore as the touchstone to differentiate negligence from strict liability, because the scope of liability (traditionally called proximate causation) requirement replicates many of the former features. Indeed, under a negligence rule the marginal Hand formula is applied twice: First to assess whether the defendant did breach his or her duty of care, and, second, to delimit whether defendant's behavior was a proximate cause of the harm suffered by the victim. But under a strict liability rule, the Hand formula question is applied only once when the proximate causation question is raised. Traditional law and economics analysis has almost always taken normative questions raised by the causation requirement as given, which is a major flaw of mainstream models, because the centrality of the scope of liability or proximate causation requirement in real legal practice is disregarded if not simply expelled from the analysis. Then, defining the subjective scope of liability, that is to say, the boundaries of the pool of potential defendants, is the basic policy decision in each an every liability rule. In the model presented in this paper, the government first chooses efficient scope of liability, and, second, given the scope of liability, the government decides liability rule and damages that guarantee efficient precaution. In the final part of the article, most known scope of liability doctrines developed by both common law and civil law systems are described in order to show how large the common ground between negligene and strict liability can be.

The defense of extreme emotional disturbance: A qualitative analysis of cases in New York County.

The cases of all defendants pleading the partial, mitigating defense of extreme emotional disturbance (EED) to charges of intentional murder or attempted intentional murder in New York County over a 10-year period (1988–1997) were analyzed to determine what factors, if any, distinguished the cases that resulted in a verdict or accepted plea of manslaughter or attempted manslaughter (the “successful” cases) from those cases in which the defendant was found guilty of, or ultimately pleaded guilty to, the ultimate charge of murder or attempted murder (the “unsuccessful” cases). The major finding was that jurors, judges, and prosecutors were much more likely to accept a defense of EED when the defendant's homicidal behavior was motivated significantly by an understandable fear that he or a loved one would be physically harmed by the victim than when the defendant acted out of anger without fear of physical harm. This finding among others, and New York case law regarding the EED defense, are discussed with regard to recent criticisms of the EED defense in the scholarly legal literature.

Rethinking Forum Shopping in Cyberspace

A game-theoretic analysis of forum shopping reveals how opportunities for strategic choices can influence the behavior of plaintiffs and defendants. If neither party has the opportunity to make strategic choices about participation or forum choices, we should expect no adverse selection or moral hazard problems. By contrast, if only one of the parties can control both the participation and forum selection choices, then we could expect pervasive adverse selection and moral hazard problems. In this paper we build on this simple game-theoretic framework, to analyze Dreyfuss and Ginsburg's (2001) Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters. We suggest that if the parties are faced with a bilateral strategic problem (i.e., if one party has control over one strategic choice and the other party has control over the other strategic choice), the extent of opportunistic behavior by either party, and the resulting deadweight losses, are likely to be minimized. In this respect, the Dreyfuss-Ginsburg proposal sensibly minimizes the strategic problems of forum shopping and creates an enforcement scheme which leaves intact the innovation incentives underlying intellectual property rights.

Human Factors Issues in Fatal Shootings: An Analysis of Four Cases

Four cases are summarized in which the defendant was charged with first-degree murder, but where the evidence supports a high likelihood of an accidental shooting when analyzed from a human factors perspective. Empirically based knowledge of human behavior in high stress situations is used to understand what likely happened in terms of the defendant's behavior. The handgun involved in one case is evaluated in terms of its ergonomic design deficiencies, and how those deficiencies contributed to a probable accidental shooting is explained. The need for human factors professionals to become involved in serving as expert witnesses in these types of cases is emphasized.

Attack and defense in conspecific fighting in tree shrews (Tupaia belangeri)

AbstractPrinciples of conspecific defense have been analyzed for rodents, in which specific target sites for biting by attackers on defenders serve as an important determinant of the actions involved in both attacker and defender behavior. In an effort to determine the generality of these principles, attack and defensive behaviors and target sites for biting attack were evaluated in a nonrodent species, the tree shrew (Tupaia belangeri). Brief daily and repeated conspecific dyadic encounters between adult, socially experienced males (dominants, attackers), and adult, socially naive males (subordinates, defenders) that had been transferred into the territory of the dominants, produced a polarization of attack and defense. The dominant males showed chase, chase attack, jump attack, and biting behaviors, while the subordinates displayed flight and freezing. The vast majority of bites, as well as wounds and bruises, were on the subordinates’ backs. These patterns are very similar to those previously found in rats and mice and suggest that the organization of fighting, with targets of biting (or other painful) attack serving as an important determinant of both attacker (dominant) and defender (subordinate) behavior, may show considerable generality across nonrodent as well as rodent species. Although relatively few wounds were found after 28 days of repeated and daily encounters, the subordinate tree shrews show a variety of behavioral, neuroendocrine, and central nervous changes, indicating that they are stressed by these encounters per se. Aggr. Behav. 27:139–148, 2001. © 2001 Wiley‐Liss, Inc.

Punishing Protestations Of Innocence: Denying Responsibility And Its Consequences

Trials are costly, particularly to the defendants who receive them. Under the Federal Sentencing Guidelines, the defendant who goes to trial forgoes a discount in his sentence for The defendant who goes to trial and testifies unsuccessfully as to his innocence can receive an increase over the putative sentencing range for obstructing justice. These penalties add up. For a number of crimes, the response to the defendant's post-offense behavior is more punitive than the response to the crime itself. Assuming no significant criminal history, a defendant charged with stealing $20,000 who pleads guilty will receive, with the discount for accepting responsibility, a sentence of 0 to 6 months in jail. The same defendant who insists upon trial and testifies unsuccessfully as to his innocence must be sentenced to 10 to 16 months in jail if the judge concludes that the defendant did not accept responsibility and perjured himself. Denying responsibility converts the possibility of probation into the certainty of jail time. The defendant's post-conviction behavior deserves as much jail time as the crime of stealing $100,000. We punish those who protest their innocence. This is not the official view. Under the Guidelines, the sentences imposed in the more than 90% of the cases in which a defendant pleads guilty are the exception and the sentences in the fewer than 10% of the cases in which the defendant goes to trial are the rule. Defendants who insist upon trial are not being punished for insisting upon their innocence but are only denied the benefit that accrues to those who are willing to accept responsibility. This approach obfuscates sentencing reality in violation of the spirit of the Guidelines. Particularly when combined with the penalty for unsuccessfully testifying to one's innocence, it creates powerful incentives for the innocent as well as the guilty to plead. It lacks support in the theory of punishment embraced by the Guidelines. The policy makes most sense if viewed as punishment for the anti-social behavior of resisting the state's accusations. This article explores whether one might approach the apparent problem of a defendant insisting upon his innocence through explicit regulation of the defendant's Sixth Amendment rights. It concludes that the penalty for testifying in one's own behalf lacks justification and should be rejected. With respect to the penalty for insisting upon trial, the ideal rule would be one that encourages the guilty to plead and the innocent to go to trial. The current system of permitting the parties to trade trials rights for years of incarceration does not achieve this result because the innocent who are prosecuted have no guarantee that they will be acquitted and considerable assurance that if convicted they will be punished because they refused to plead. By definition, their insistence on their own innocence establishes that they have not accepted responsibility for their criminal conduct. The article tentatively concludes that, with all of its many difficulties, an approach which permitted the trial court to punish those defendants whose insistence upon trial is frivolous is preferable to the current approach of punishing virtually everyone who insists upon trial while denying that we are punishing anyone.

Federal Sentencing Guidelines and Mandatory Minimum Sentences: Do Defendants Bargain in the Shadow of the Judge?

Abstract The 1987 sentencing reforms were expected to change profoundly the environment in which plea bargaining takes place by increasing the average length of sentences for serious crimes and by eliminating the variation in sentences imposed by different judges. Using cases initiated and resolved between 1981 and 1995 in two federal district courts of New York, we examine whether the variation in sentences attributable to individual judges has been eliminated, and we investigate whether the plea‐bargaining behavior of defendants has changed. Surprisingly, we find that the amount of variation attributable to the judge for trial sentences increases post‐reforms. Consistent with this result, defendants continue to bargain in the shadow of the judge post‐reforms, particularly for crimes involving minimum sentences. Further, sentences may not have increased as much as expected: although the average prison term for trial sentences increases post‐reforms, there is no systematic increase in the average length o...

AN ATTRIBUTIONAL ANALYSIS OF JURORS' JUDGMENTS IN A CRIMINAL CASE: A PRELIMINARY INVESTIGATION

A study was conducted to determine the extent to which attributional complexity influences juror decision-making. Using Fletcher's (1986) attributional complexity scale, mock jurors (N=186), who were shown a videotape of a simulated armed robbery, then rendered individual judgments on the case. The results showed that attributionally-simple subjects found the defendant guilty more often both before and after presentation of the evidence, reported more confidence in their final decision, and attributed more personal causes to the defendant's behavior. Attributionally-complex subjects, while not excluding the role of internal causes, were more likely to consider external causes as possible influences on the defendant's behavior. The findings demonstrate the existence of clear individual differences in attributional style and the potential importance of this variable for jury selection.