By Dr. Ken Broda Bahm:
If your jurors are dug in on questionable beliefs, that can matter in how they view your case. Maybe they think that every large company puts greed over lives. Perhaps they believe that every officer is always telling the truth during testimony. Or maybe they believe there is no such thing as an oral contract. Adherence to these easy but false views sometimes falls under the rubric of “fake news” or “alternative facts.” The phenomena isn’t new, but has come to be viewed as a defining feature of our age. So why are people so resilient in holding beliefs that might be false? A recent New York Times opinion piece by psychologists Gordon Pennycook and David Rand suggests that there are two schools of thought on it. “One group claims that our ability to reason is hijacked by our partisan convictions.” The other group claims, “the problem is that we often fail to exercise our critical faculties: that is, we’re mentally lazy.”
Of course, the two could work in concert, if we are lazy in just sticking with the beliefs that align with our partisan preferences. Still the two social science explanations — partisanship versus laziness — contain different assumptions and different implications. For example, if it is laziness, then smarter and more analytical people would be less susceptible. But if it is partisanship, then those top-level thinkers could be even more adept than others at sticking with their false views. There is research backing up both sides. The authors, for example, refer to studies showing that, in some settings, high-analytical ability does indeed confer greater resistance to non-preferred facts, while in other contexts, training to help people think more critically actually works. The authors argue that both explanations capture a part of the problem, and that seems true in the context of jury persuasion as well. Instead of thinking of your jurors as just stubborn in their beliefs, I think it helps to ask why they are dug in, and it helps to address both the potential that they’re lazy as well as the potential that they’re partisan.
What Makes Jurors Less Lazy?
Individual effort will vary, but to some degree, most jurors will try to avoid tough mental work. To address that trait, here are a few ingredients that should be in your message.
Easy Information
Keep your presentations focused on what jurors need to know and do whatever you can – metaphors, visual aids, step-by-step explanations – in order to make the information accessible to your jurors. In addition to simplifying and teaching, make sure jurors understand that you respect their ability to understand and that you’re doing your best to make it understandable.
Framing Based on Responsibility
Jurors will see their role within a frame, and you can influence the frame they use. So in the language you use in jury selection and opening, emphasize the importance of jury duty, and in particular, the fact that they are not called upon to be passive recipients of information, but are instead called to work through what they hear, and that they should be proud of the effort.
Motivation
In your own planning, address the question of what would make jurors want to do the hard work of paying attention and making a decision in your case. That motivation isn’t just the knowledge that they’re doing their jury duty. Instead, it will be found in whatever principle a verdict for your side in the case will uphold. Identify and speak to that principle.
What Makes Jurors Less Partisan?
Not all jurors will be hard-core partisans, but most will have some beliefs that are closely entwined with their identities. Those beliefs will be hard for them to shake even in the face of facts to the contrary. So here are a few ideas.
A Point of Consistency
Research shows that even hardened adherents to conspiracy theories can be softened or converted if they are given an argument that highlights a point of consistency between a new belief and their present belief. For example, a committed climate-change denier might give environmental arguments greater credibility if those arguments are supported by reasons based on free market or capitalism.
Framing Based on Neutrality
With the right emphasis, you might encourage jurors to see the courtroom as a special setting where they’re required to set aside their prior attitudes and to assume a temporary identity that is neutral, and that puts the burden on all parties to prove what they’re saying.
Ownership
The authors of the New York Times opinion piece refer to their own research showing that people can be situationally induced to be better critical thinkers. Teaching the logic and the reasoning – showing the how and not just the what of your preferred answer — helps them own the process and makes it possible that they’ll at least consider changing their minds.
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Other Posts on ‘Fake News’:
- Use the Features that Make the Fake News Fly
- Expect the “Fake” to Get Very Real
- Inoculate Against False Information
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