By Dr. Ken Broda Bahm:
Last Friday, Dharun Ravi was found guilty on all fifteen charges of invading privacy and committing a hate crime against his Rutgers University roommate, Tyler Clementi. Ravi had used his webcam to spy on Clementi having an intimate encounter with another man, and then advertising the event in Twitter promising an upcoming viewing. Just after this, Clementi killed himself by jumping off the George Washington bridge. Importantly, Ravi was not charged with causing Clementi’s death. To many legal observers, however, he was convicted for it. As the New York Times reported over the weekend, “Mr. Clementi’s suicide came up only in passing during the trial. Still, the death defined the trial, turning what might have been a peeping Tom case, or as the Resident Assistant said, ‘a roommate issue’ into something far more grave.”
The lesson is that even as the jurors aimed to focus on the claims, and in all likelihood believed that they did focus only on the claims, it is nearly impossible to ignore the end of the story. Indeed, it is difficult to believe that the case would have turned out the same if Tyler Clementi had been sitting in the courtroom throughout the trial alive and well, albeit embarrassed and irritated. Jurors, including Kashad Leverett, said that they didn’t take the suicide into account, but other statements indicate that the sad consequences were not fully out of their minds either. “I hope they can put everything behind them and move forward,” juror Bruno Ferreira said about Clementi’s family after the verdict, “Hopefully, they finally have closure.” In context, the closure is not for the privacy violation or the intimidation, but for the death.
Jurors’ tendency to focus on consequences, and not just claims, has implications for litigators in all contexts. Even as you encourage jurors to share a proper focus, you need to adopt to the inevitability that consequences will play a role even when they’re not supposed to. This post takes a look at some of the research and provides some practical suggestions for adapting to the truth about consequences.
Apart from the Ravi case, there are many litigation contexts where the consequences might matter more to jurors than the law would like them to. For example:
- When trying the civil part of a claim that also involves criminal charges
- When trying the case of one or only a few plaintiffs in a case that involves a large class
- When a case is just a small slice of a large and well-known event, like the Gulf oil spill
In each of these cases, and many more, the question is whether jurors can consider the claims at issue, rather than those that are not being made. The research indicates that this is difficult, particularly when it means setting aside the known consequences.
How Do Jurors Address Consequences?
Consequences can play a complicated role in moral evaluation. Obviously, humans will naturally reason according to consequences, believing that acts that result in good are good acts, and acts that result in bad are bad acts. It is, however, possible in some contexts for individuals to downplay consequences, or to consider something else temporarily more important. In an earlier post we noted a study showing that you can be blamed based on the character of the act independent of consequences (Inbar, Pizarro & Cushman, 2012), a tendency that can cause jurors to jump straight from liability to damages without stopping to consider whether the act caused any harm. Another earlier post focused on how acts with identical consequences are judged worse based on bad intentions or motives (Nadler & McDonnell, 2012), a tendency that can cause jurors to blame the perceived “black hat” without considering that party’s individual responsibility in this case.
Nothing in the moral decision making literature — at least nothing that I could find — suggests that people are able to do what the Ravi jury was asked to do, namely, to ignore the consequences of an action in evaluating that action. Jurors do try to follow instructions, but limiting or avoidant instructions (don’t consider that…) have their limits. One study (Russell & Greally, 2010) even shows that an instruction to avoid an action can have the “ironic effect” of increasing the risk of exactly that action. There are ways to increase the reliability of those instructions, as we’ve written, but they will never be perfect. So litigators need practical ways to key their eye on the consequences that jurors can’t ignore.
How Should Litigators Address Consequences?
When the law is asking decision makers to focus on an act independent of all, or some, of that act’s consequences, then how does the litigator accomplish that restricted focus?
1. Admit the Temptation. There is a natural tendency to avoid what you don’t want the jury to focus on, but it can become the elephant in the room and jurors can become confused on the point of whether the issues should be in their frame of reference or not. You don’t want to open the door to testimony or argument that otherwise wouldn’t be allowed, but when it is safe consider saying something like, “I know you’ll feel a pull to consider what happened in the end, and it will be difficult to set that aside, but that is exactly what the law asks you to do.”
2. Rely on Instructions. In Ravi’s case, the jury felt there was strong evidence, including an admission in the Defendant’s statement to the police. But it is easy to imagine that in the face of weaker evidence, some jurors might have tried to magnify guilt by focusing on the suicide. In that setting, other jurors could have responded with the instruction, we’re not supposed to consider that. Even where it is at odds with human psychology, clear words from the bench can play a role in empowering some jurors and shutting down others.
3. Embed the Message in a Timeline. Another tool is to build a graphic timeline that reinforces the instructions. By emphasizing a definite starting and ending point to the timeline, you are continually reminding jurors of the limits of what they’re asked to consider. The implied message is, “If it isn’t on the timeline, then it isn’t part of your focus.”
In some cases, you may also need to simply address the consequences even though they are formally outside of what the jury is being asked to consider. The inherent difficulty of bracketing out some events might serve as a reason to try the case to the judge, or to another legally-trained decision maker. They can be similar to juries in many ways, but legal training and experience does tend to make you more analytical and more able to effectively bracket information. In Ravi’s case, the prosecutors may have been at least initially more focused on the act than its presumed consequences, since before trial they offered a plea deal that would have involved no jail time. The decision to turn down that deal adds another consequence for Ravi to consider.
______
Other Posts on Decision Making:
- Know the Limits of Limiting Instructions (But Don’t Necessarily Discard the Instruction to Disregard)
- Don’t Wear The Black Hat Lightly: You’re Not the Bad Guy Because You’re at Fault, You’re at Fault Because You’re the Bad Guy
- Mind the Gap: Stop Jurors From Jumping Straight From Liability to Damages
______
Inbar Y, Pizarro DA, & Cushman F (2012). Benefiting from misfortune: when harmless actions are judged to be morally blameworthy. Personality & social psychology bulletin, 38(1), 52-62 PMID: 22214885
Nadler, J. & McDonnell, M.H. (2012). Moral Character, Motive, and the Psychology of BlameNORTHWESTERN UNIVERSITY SCHOOL OF LAW PUblic Law and Legal Theory Research Paper Series, 11 (43)
Russell, C., and Grealy, M. (2010). Avoidant instructions induce ironic and overcompensatory movement errors differently between and within individuals. The Quarterly Journal of Experimental Psychology, 63 (9), 1671-1682 DOI:10.1080/17470210903572022
Photo Credit: Einalem, Flickr Creative Commons