By Dr. Ken Broda Bahm:
Speaking for most of us in the field of specialists who advise on jury selection, we like to say that “demographics are the least useful” of the factors that you might consider when you are evaluating a venire panel. Their experiences and their attitudes are critical, providing a foundation for how they will view the moral conflicts in your case. But whether they’re male or female, black or white, rich or poor, or old or young matters a lot less. “For every generalization one can make about demographics,” we will say, “you are likely to find as many exceptions as confirmations in any given jury pool.” That, at least, is what we usually say. But occasionally, there is a finding that proves us wrong. Recent research presented at this summer’s conference of the American Psychological Association provides one such finding.
An international team of researchers (Margoni et al, 2019) conducted a study on moral decision-making contrasting older adults (63 to 90 years of age) with younger adults (21 to 39 years of age). The results, briefly summarized in a release from the American Psychological Association, demonstrate that age does indeed matter to moral judgment, with the trigger for evaluation shifting from intentions to outcomes as people get older. In other words, to older adults, acts with bad consequences are more likely to be morally blameworthy, whether the intentions were positive or negative. One of the authors, Janet Geipel of the University of Chicago, explained, “We found that older adults condemned the accidental transgressors more than did younger adults and were more likely to attribute negligence to the actions.” Or, to put a finer point on it, “Put simply, the present findings imply that older adults may be more likely to convict.” And I’d add, more likely to find liability in a civil case involving accidental harm as well. In this post, I’ll take a look at why that would be the case and what legal persuaders can do about it.
Why Would Older Adults Focus More on Outcome?
In the study, the groups of younger and older adults were asked to look at actions in which outcomes, as well as intentions, ranged from positive to negative, and to decide how morally bad the action is and how much punishment is merited for the actor. “Older adults,” they found, “rely less on intentions and more on outcomes than younger adults.”
Why would older jurors be more prone to evaluate an act based on the consequences rather than based on intentions? The reason relates to cognitive changes that accompany aging, and specifically reductions in parts of the brain responsible for what we call “Theory of Mind,” or the ability to account for the thoughts of others. This decline is the flip side of the developmental shift in moral judgement that usually occurs between the ages of 5 and 6. Prior to that shift, children judge acts solely based on outcomes, and after that shift, we account for intentions as well.
This study is one of the first to document that, following this “outcome to intent” shift in early life, there is a corresponding “intent to outcome” shift back in later life. The authors argue that this return occurs due to age-related impairments in the dorsal sub-region of the medial prefrontal cortex. The article explains, “Older adults are less able to take others’ perspectives into account during social and moral tasks and to engage in role taking.”
What Can You Do About It?
When you have a case where you would need jurors to focus on intentions and not just outcomes, what do you do with this information? There are limits to wisdom of just striking older venire members. While we have yet to see a clear case establishing that courts will recognize age-based protections comparable to the race-based protections for jurors established in Batson v. Kentucky, such a blunt instrument probably wouldn’t make sense because what the research reveals is a tendency, not a guarantee. Not every older juror will treat accidents as negligence, and not everyone applying that shortcut will be older. So the question is really, what can you do to encourage a focus on intent when you need it? I see three things.
Encourage the Effort
One important consideration is that older jurors are more likely to downplay intentions, not because they cannot focus on intentions, but because they are not motivated to. The effect was found when dealing with harmful situations only, suggesting that the older participants were engaging in “shallow processing” when engaged in a negative task. In other words, they took a shortcut around intent because it is easier to default to outcome alone. When your case is harmed by that shortcut, you need to encourage jurors to take the longer and harder but, ultimately, more correct route. Praise them for putting in the time, for paying attention to detail, and for looking at all the steps and the whole picture before jumping to a conclusion.
Emphasize the Rules
It is also possible that a paper and pencil study will draw upon different forms of thinking than jurors would bring to their task. The courtroom is a unique setting where jurors are expected to set aside their first impressions, dive into the details, and to look at all of the evidence. Depending on the claim, intent may be relevant or even central based on the instructions. Make sure you teach not only the what but also the why of those instructions. Ultimately, the message should be that jurors are adapting a temporary identity, and thinking like a juror means setting aside the easy snap judgments we might make in other settings.
Prime the Relevance
If you need focus on intent, and you need to convey to jurors that intent is relevant, ascertainable and required, then start that focus early. For example, get them talking in oral voir dire about times where their own intent has been important in evaluating their own actions or the actions of others. For example, ask about a situation where they had good intentions but things still didn’t turn out correctly. Or, you could ask about the ways they’ll look at intent to determine how much trouble a child of theirs might be in. Or, perhaps, a situation in their work life where the company is paying attention to both intentions and outcomes. The more examples they can think of, discuss, and hear from others on the panel, the more they’ll be primed toward the view that intentions are important.
_____
Other Posts on Demographic Differences:
- Be Prepared to Explain Your Strikes
- Don’t Select Your Jury Based on Demographics: A Skeptical Look at JuryQuest
- Redefine Race
Margoni, F., Geipel, J., Hadjichristidis, C., & Surian, L. (2019). Moral Judgment in Old Age: Evidence for an Intent-to-Outcome Shift Francesco Presented at the Annual Conference of the American Psychological Association, August 9, 2019.