By Dr. Ken Broda Bahm:
Fairy tales may not come true, but they may become the subject of withering cross-examination. In one of many “strange but true” moments during the Phoenix trial of Jodi Arias in the 2008 killing of her boyfriend Travis Alexander, prosecutor Juan Martinez and defense expert Alyce LaViolette sparred for over twenty minutes last Friday on the details of the story of Snow White and the Seven Dwarfs. You see, LaViolette, a psychotherapist was testifying in support of the defense theory that Arias was in an abusive relationship with Alexander and acted in self-defense, and the expert had also presented a 2010 conference paper entitled “Is Snow White a Battered Woman?” The prosecutor chose to aggressively pick apart LaViolette’s use of the tale in order to question the foundation of the expert’s testimony on Arias’ alleged abuse. “What this shows,” Martinez suggested, “is that even if its a myth…all made up…you can still come up with the opinion that the person is a victim of domestic violence.” In other words, if the expert’s assessment is based on lies told by Jodi Arias, then the assessment is just as credible as the fairy tale.
That is a worthy goal for the prosecutor to pursue, even a brilliant one. But the question is whether it was lost on the jury. In the court of public opinion at least, a court we know can be more superficial and fragmented than the actual jury, the point seems to have been lost. The prosecutor’s approach was called “bizarre,” “surreal,” and “incredibly unclear.” Dr. Drew even broke into the live coverage in order to explain, “You are in fact listening to testimony about Snow White and the Seven Dwarfs.” Some might react to a situation like this by saying “See, this is the problem with analogies!” But really, this is the problem of being swallowed up by the analogy when you forget its representative purpose and let the larger point get lost. Analogies are powerful tools of communication, but they can also be a powerful distraction if you’re not leading with your purpose. This post comments on an abbreviated transcript of the prosecutor’s examination and shares some thoughts on keeping your objective always in mind and in view.
Based on my read, the prosecutor’s cross-examination of the expert breaks down into a few chapters. These chapters don’t likely apply to all or more analogies, but they could be — dare I say it — analogous to many common analogy challenges. Let’s take a look at the transcript (from Dr. Drew on Call.), noting that a great many “relevance” objections have been left out:
Chapter One: The Setup
Prosecutor: Well, are you familiar, back in 2010, … putting on a seminar and indicating that Snow White was a battered woman? Do you remember talking about that?
Expert:No, that’s, if you would like show the entire YouTube video, I would be happy for the, anybody to see that, because I’m not talking — the title was “Is Snow White a Battered Woman” because it was catchy.
Prosecutor: So it does say, “Is Snow White a battered woman?” right? That is the title of it, correct?
Expert:It is…
Prosecutor: And one of the things that we know about your presentation, also, is that — and Snow White and the Seven Dwarfs is a fairy tale, right?
Expert: Yes.
Okay, she wrote the paper, the topic is introduced and the foundation is laid. But, considering the audience, this also may have been a great time to introduce the point, or remind listeners of its existence. For example, “I’m interested in how much factual data your method requires before you can identify someone as being a victim of battery. So I want to ask you about a fictional scenario you wrote about…” That at least tells listeners where you’re going and what you’re trying to show. I know some lawyers will respond, “I don’t want to tip-off the witness,” but the smart witness will know where you’re going anyway, and keeping the witness in the dark risks keeping your fact finders in the dark as well.
Chapter Two: The Parallels
Prosecutor: And in it, we have an individual, that’s the King, right? Who’s married and has a kid and they name her Snow White, right? Yes or no?
Expert: I’m not using the Brothers Grimm version. I’m using the Walt Disney cartoon. I just want to make that clear.
Prosecutor: But it is true that Snow White had a father, right?
Expert: Yes, she did.
Prosecutor: And the father was the King, right?
Expert: Yes.
Prosecutor: And it ends up that Snow White’s mother ends up dying, right?
Expert: Yes.
Prosecutor: And what ends up happening is that he remarries, right?
Expert: Yes.
Prosecutor: And what happens when he remarries is that he has somebody who is less than honorable, if you will or savory with regard to her view of Snow White, correct?
Expert: Yes.
Prosecutor: And so what happens during that situation is that there is a problem, because this woman, the Queen, begins to, if you will, abuse or be less than nice to Snow White, right?
Expert: Yes.
Prosecutor: So what we have, then, is a situation where we have a father who has failed to protect, right? If we’re looking at it from this global perspective, right?
Expert: Yes.
Prosecutor: And so then, if we look at it that way, Snow White is sort of being — and I use the term loosely — abused. Not in the technical sense, but she’s not being treated correctly, right?
Expert: She’s, she’s being abused as a child, right. That’s correct.
And this goes on for awhile. Whether the prosecutor actually needs to unpack the Snow White tale in a controlled yes/no, one-fact-at-a-time manner is debatable, but the reality is that it burns time, appears pedantic, and once again buries the purpose of the questions. It is also interspersed with periods of questioning that then focus on the details of Arias’ story (e.g., she also had a father, wasn’t treated well, left home, etc.). The back and forth is confusing and at times it was difficult to follow whether they were talking about Snow White or Jodi Arias. And the more time it takes to lay out the specific parallels, and the more the most patient judge in the world continues to deny relevance objections, the greater the chance that the jurors in this case could start to feel that their time is being wasted. Lesson: Get to the point faster, focusing only on similarities that matter.
Chapter Three: The Breakdown
Prosecutor: And she lived in what is, can be best described as less than ideal circumstances, right?
Expert: Correct.
Prosecutor: And the same thing with Snow White, right? She lived in a situation that was less than ideal circumstances, right?
Expert: She lived with the Seven Dwarfs and according to the Disney version she was pretty happy.
Prosecutor: She lived in a shack, right?
Expert: I thought it was a cute little cottage, Mr. Martinez.
Prosecutor: But there’s seven dwarfs that she’s living with. No one of her own age is there, right?
Expert: I don’t know the age of the dwarfs. I’m sorry, but I don’t.
Prosecutor: Is it your opinion that there were other little kids that would play on the playground with her when she was living with the seven dwarfs?…
Expert: Near the cottage, no.
Prosecutor: In fact, she was just there cooking and cleaning, right?
Expert: Well, she was talking to the birds and singing with the animals.
Prosecutor: And cooking and cleaning for the dwarfs, right?
Expert: Correct.
The two seem to have viewed starkly different Disney stories in their heads, and different perceptions of whether Snow White was a happy guest of the dwarfs or a miserable servant. Not every analogy is going to have a breakdown phase, though this one certainly did, as this was the exchange that attracted all of the media attention. Only a small handful of the media stories that I found seemed to have noted Mr. Martinez’ overall point that if she can diagnose of fiction, then it shows how subjective and ungrounded her method can be. If jurors get that, they may get that the expert’s diagnosis of Arias doesn’t counter the possibility that the facts it is based on may all be fiction as well. For every media story that got that, I found at least ten that didn’t and merely noted the exchange as merely one puzzling moment in a public trial that brings new surprises every day. The exchange aptly illustrates the dangers that some lawyers justifiably see in using stories instead of evidence or analogies instead of facts. Those concerns are well placed.
But You Should Use Analogies Anyway
Longtime readers of this blog will know that I’m a fan of the analogy, seeing it not just as rhetorical technique, but as a mode of understanding that plays a critical role in cognition. We understand the new in terms of the familiar, and that makes the analogic thought a critical stepping stone to all forms of learning. At a big picture level, you only need to consider an example like Orwell’s Animal Farm to understand analogy’s role in not just decorating your argument, but in making a point that could not otherwise be made (see Thagard, 2010). But “important” doesn’t mean “easy.”
In the Arias examination, you might say that the expert risked having her larger point about diagnostics overshadowed by a catchy title, and the prosecutor risked losing his central point in fairytale minutia. The best advice for legal advocates is to keep the point at the forefront and to not be overwhelmed by details, dwarfs, and poison apples of your specific scenario.
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Other Posts on Analogy and Metaphor:
- Stop Searching for the Perfect Analogy (but Don’t Surrender a Communication Lifesaver)
- Fight Fire With Fire (And Fight Bad Analogies With Better Ones)
- Use Metaphors to Touch Your Fact Finders
- Don’t Let Your Judge Reduce You to Absurdity
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Photo Credit: Loco Steve, Flickr Creative Commons (Photo of window display, Harrods Department Store, Central London)