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Juror Polarization: As the Political Season Ends, Understand It’s Not Just a Season

By Dr. Ken Broda-Bahm:

As I write this, it is finally and mercifully Election Day, 2024. For many of us on the edges of our seats awaiting the returns, we might be considering the question, “What brought us to this?” The answer is that recent technological and cultural forces have powerfully changed American life in very big ways, and this stressful election is just one symptom of that. A current Atlantic article speaks to this moment, and is written by professor Jonathan Haidt (who I have previously written about regarding the roots of polarization in differing moral foundations). The article is fittingly entitled, “Why the Past 10 Years of American Life Have Been Uniquely Stupid.” His thesis is the internet and social media have deeply changed the way we interact with each other and this has had effects not just on politics, but on our trust in institutions and our basic human relationships. Using the post-God’s revenge part of the story of the Tower of Babel, he notes, “We are disoriented, unable to speak the same language or recognize the same truth.”

It isn’t just on election day that red and blue America can, as Haidt note, seem “like two different countries claiming the same territory, with two different versions of the Constitution, economics, and American history.” In the comprehensive case he lays out, this division was brought on by the massive expansion and salience of social media, along with its ability to cultivate and separate groups of people via algorithms that cater to and confirm our distinct interests, experiences, and beliefs. The result has been profound communication changes in the population, including the jurors who file into our courtrooms, hoping to summon enough trust for the institutions, the parties, and each other in order to resolve our disputes. As the idea of a common civil society is increasingly elusive, the mission of the jury takes on a greater challenge as well. In this post, I will review four of the main societal changes that Haidt discusses, and add my own thoughts on the impacts on the jury as well as our own strategic responses.

We Are Performing, Not Connecting 

By design, Facebook, Twitter (now ‘X’), Instagram and other social media vehicles facilitate easy communication with large and diverse groups of people. It allows us to not just be news consumers, but to become news selectors, and news broadcasters. This can make us more ‘connected’ but in a somewhat superficial way. As Haidt notes, people “became more adept at putting on performances and managing their personal brand—activities that might impress others but that do not deepen friendships in the way that a private phone conversation will.”

In a trial context, there’s a silver lining to this: As public “performers” on social media, it becomes much easier to know what your potential jurors are like by simply researching their social media.  Particularly for those who do not understand or value privacy settings — and those are often the more extreme members of your pool — a simple search will  often tell you which “tribe” the juror belongs to. But that tribal status may also make it harder for jurors to understand and relate to others.

We Are Divided 

Starting around 2009 and 2010, social media sources started adding a great deal of interactivity to their platforms, with the data gleaned from “liking,” “sharing,” or even simply viewing content leading to ever more specialized and curated content. The algorithms that can give us greater audience and make us part of groups that share our interests also tend to favor more emotional content, which tends to amplify the extremes in all directions. The radical democratization of content also creates the likelihood that any perceived “bad acts” or “bad statements” will be called out by others, which injects a fair amount of defensiveness.

In a trial context, these communication habits could create barriers to interaction, meaning that it is not only harder to deliberate with others, but also potentially harder to understand and identify with a lawyer, a party, or a witness who is unlike us. It’s always been a challenge to speak across the social divides, but the technological innovations of the last decade have arguably made it harder.

We Trust Less 

Haidt notes, “social scientists have identified at least three major forces that collectively bind together successful democracies: social capital (extensive social networks with high levels of trust), strong institutions, and shared stories. Social media has weakened all three.” Faith in our courts, like faith in elections, is based in some level of institutional trust, and bound up with the narrative that following a specific process will yield a fair and just result. “When people lose trust in institutions,” Haidt notes, “they lose trust in the stories told by those institutions.”

This loss of trust, I think, goes right to the speech that some judges and attorneys give to juries at the start of the trial: Jury trials are critical in a democracy, and the citizens who serve are playing a vital role. No doubt, jurors still buy into that narrative, but in an age of crumbling institutional trust, it is probably a heavier carry for skeptical jurors. The response is not to take jurors’ motivation for granted. Instead, give them a reason to connect to and care about your case, not just to their social role.

We Are Swimming in Confirmation Bias 

Social scientists have long noted that a big obstacle to dispassionate decision making is confirmation bias, or the tendency to seek out, understand, remember, and use that evidence which tends to confirm our preferred beliefs. “Even before the advent of social media, search engines were supercharging confirmation bias, making it far easier for people to find evidence for absurd beliefs and conspiracy theories, such as that the Earth is flat and that the U.S. government staged the 9/11 attacks,” Haidt notes, “But social media made things much worse.”

What this means in a courtroom context is that the logical process that jurors are asked to engage in — namely, to hear all of the evidence and to only then arrive at a decision — is dramatically at odds with the way they receive information and make decisions in the rest of their lives. Social media users are likely to use and believe, not the best information based on neutral criteria, but the information that arrives in their “feed” using highly personalized criteria. That investigative attitude that a jury should rely on may be increasingly foreign. For that reason, it helps to spend some time talking with jurors about information, and beyond sharing the platitude to “keep an open mind,” showing them how to use and evaluate evidence based on relevance and quality. Don’t just preach to them about your preferred conclusion. Instead, teach them the best way to get to that decision by evaluating the evidence.

Professor Haidt concludes his argument on a particularly grim note: “American democracy is now operating outside the bounds of sustainability. If we do not make major changes soon, then our institutions, our political system, and our society may collapse during the next major war, pandemic, financial meltdown, or constitutional crisis.” The hope for the future lies in strengthening institutions and educating the public. While litigators can adopt to more polarized jurors in the short-run, the longer-term survival of our institutions will depend on a broader conversations, including a closer look at initiatives like the “Trust in Justice” project to look at some causes and solutions for our fractured civil sphere.

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Other Posts on Political Polarization: 

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