With Valentine’s Day less than a week away, I am again trying to become a better, more romantic version of myself. It is the season for it. It started me thinking about poetry and, specifically, Shakespearean sonnets and the works of Lord Byron. The most famous poems from the two authors both start with the beauty of their respective muses. Shakespeare asks, “shall I compare thee to a summer’s day? Thou art more lovely and more temperate…” Byron, perhaps finding the beauty of a summer’s day too small, likens the beauty of his love to the whole doggone universe. He says, “She walks in beauty, like the night / Of cloudless climes and starry skies, / And all that’s best of dark and bright /Meet in her aspect and her eyes; / Thus mellowed to that tender light / Which heaven to gaudy day denies.” So long as attractiveness has existed, we’ve been enamored with it—written poems and songs about it. It should come as little surprise then just how obsessed our brains are with human appearances in general and beauty in particular. But, oh! It doth ensnare. The silk we find in skin. The call of raven hair! Unfortunately, there is very little that is romantic or poetic about how the unconscious brain processes human
With a more objective eye, I wanted to take another look this month at our old friend the “halo effect.” As part of our blog series, I’ve written about the halo effect before; in particular, how mock jurors placed inordinate amounts of trust in drug-sniffing dogs and the effects of
attractiveness on sentencing. As a refresher, the halo effect is a cognitive short-cut in which a particular characteristic—usually a positive trait, but not always—is irrelevantly extended to other judgments one makes about the person “wearing” the halo. This time around, my purpose is a
little different. While I will touch on some research about how human beings process physical appearance, I wish this month to pose some larger questions on which to meditate.
Let me begin with a confession. Shortly before I was to represent a criminal defendant accused of imposing himself on one of his employees, I made him cut his hair. To be precise, I made him cut off the tail of his mullet. You see, that longer tail of hair, when coupled with his curly salt-and-pepper locks, made him look a little too much like Joey Buttafuoco. For our younger readers, you may have to Google that one. At the time of the trial, however, I didn’t want to risk any association with the notorious philanderer. We have all done this, haven’t we? We have all
altered the appearance of at least one of our clients before trial. The prosecutor in the above case was apparently reading from the same script. My client’s accuser appeared in court dressed in white and only two of the more than dozen piercings she had in her nose, eyebrows, lips, and ears
remained. At that point, I had not read any research on how appearance affects opinions, judgments, and verdicts. I wonder now whether the prosecutor was studied up on the subject. It is worth noting here just a few findings from this vast body of research.
One study found that people generally hold to a set of stereotypical physical traits which they believe attach to criminals: tall, thin, male, dark hair, dark clothes, and beady eyes. In
another, participants sorting faces based upon a hypothetical “more-criminal” or “less-criminal” measure were surprisingly in sync with their estimations on what criminals and non-criminals look like. In a different study, participants assigning sentences to white defendants
punished them more severely than black defendants for white-collar crimes and punished black defendants more severely than white defendants for violent crimes. In a non-legal but related study, voters were found to infer the personality traits of a candidate based on the
candidate’s physical appearance and the *inferred* traits actually influenced later voting decisions.
As a teacher of advocates, I am constantly stressing to my students how important authenticity is. I tell them not to try to create a courtroom persona that is different from the person they are outside of the courtroom. I encourage them to banish from their voice boxes the sounds of
the Telepromptered speechmaker and the cajoling lilt of the car salesman. Yet in what seems a stunning bit of hypocrisy on my part, I’ve essentially said to my clients whom I asked to change, “The real, authentic me! But not for thee!” I’m not the least bit kidding when I say I still feel torn
about these choices. There is, naturally, the larger part of me that believes I *should* try to overcome whatever irrelevancy jurors will irrelevantly and prejudicially use against my client because of their own unconscious biases. And it is from this internal rift that springs the
real questions that I wish to pose, rhetorically, in this blog: what should we teach our students about this sort of client “prep” and how do we prepare our students for the unconscious minds of their clients’ jurors? What, if anything, is the limiting principle we teach our students on
whether they alter their client’s appearance or not?
In Sonnet 148, Shakespeare elegantly poses questions about whether his eyes see what is true about another or if his judgment “censures falsely what [my eyes] see aright?” To the extent he landed on unconscious bias in the late 1500’s, he must be the sage we often find him to be. If it is proper or traditional to makes wishes on Valentine’s Day, and I hope it is, then I have this one to share with you: My wish, dear friends and readers, is that we may get to gather in person
again soon to discuss these questions and the host of the others we think upon as teachers and zealous advocates.
 William Shakespeare, Sonnet 18, in William Shakespeare: Complete Poems 133 (1993).
 Lord George Byron, She Walks in Beauty, in The Book of Living Verse 251 (Louis Untermeyer ed., 1945).
 See generally, D. J. Devine & D. E. Caughlin, Do They Matter? A Meta-Analytic Investigation of Individual Characteristics and Guilt Judgments, 20 Psych. Pub. Pol’y & L. 109 (2014).
 See generally, Alvin G. Goldstein et al., Facial Stereotypes of Good Guys and Bad Guys: A Replication and Extension, 22 Bull. Psychonomic Soc’y 549 (1984).
 See generally, Randall A. Gordon et al., Perceptions of Blue-Collar and White-Collar Crime: The Effect of Defendant Race on Simulated Juror Decisions, 128 J. Soc. Psych. 191 (1988).
 See generally, Christopher Y. Olivola & Alexander Todorov, Elected in 100 milliseconds: Appearance-Based Trait Inferences and Voting, 34 J. Nonverbal Behav. 83 (2010).
 William Shakespeare, Sonnet 148, in William Shakespeare: Complete Poems 198 (1993).