By Dr. Ken Broda Bahm:
We would like to think that our important moral judgments are made slowly, with care and deliberation — a kind of internal mental version of Plato talking with his students on the hills of Athens well into the day. But according to more modern research, it isn’t. Instead, it is more like Quick Draw McGraw with an especially sensitive trigger finger. Think of how Americans reacted to the initial story involved in the current trial of George Zimmerman. For some, the neighborhood watchman shot the young Trayvon Martin in a clear and deadly act of racial profiling. For others, it’s an entirely understandable act of self-defense and community protection. Of course, almost everyone will also want to say, “show me the evidence,” but almost everyone will have also formed a quick initial judgment of which kind of story this is.
That is a lesson worth taking and applying to all legal cases. The rational legal model sees judgment as a deductive result after hearing all the evidence. But recent research (Decety & Cacioppo, 2012) tells us that we are hard-wired for very quick attributions of moral responsibility. The need to persuade at the speed of moral judgment is an important consideration in strategizing and preparing your case. This post takes a look at the ways litigators can adopt to the realities of hair trigger moral judgment.
The Speed of Moral Judgment
In order to look into the nature of our moral response, two University of Chicago Psychologists, Jean Decety and Stephanie Cacioppo, conducted a study last year (Decety & Cacioppo, 2012) that applied the tool of fMRI to measure blood flow in the brain during the act of moral evaluation, and specifically differentiating our responses to intentional versus accidental depictions of harm. While researchers collected and mapped data on brain activity, participants watched videos of people suffering accidental or intentional injury (e.g., being struck by a golf club or a baseball bat). What researchers found was that the depiction of intentional harm produced an immediate response within a number of neural networks. Viewing either scenario would lead to activation of the right posterior temporal sulcus within 60 milliseconds. But in the case of perceived intentional harm only, that would be quickly followed by activation of the amygdala (associated with emotion), and the ventromedial prefrontal cortex (playing an important role in moral decision making) within 180 milliseconds.
Breaking that down, it provides evidence that an important source of our moral response is our nearly-immediate tendency to determine intent. “It is part of humans’ evolutionary heritage,” lead author Jean Decety reported in Science Daily, “The long history of mammalian evolution has shaped our brains to be sensitive to signs of suffering of others. And this constitutes a natural foundation for morality and sensitivity to justice.”
The Implications of Quick Moral Judgment
If it is the case that an immediate perception of intention, rather than deliberative reasoning, serves as the vital first step of our moral response, that should inform the approach of litigators who are trying in courtrooms to create, temper, and direct the moral response of others. Here are a few takeaways.
1. Expect Quick Moral Judgment
Legal persuaders are used to thinking of legal judgment as a cumulative process, tacitly believing that what matters is what judges or jurors feel after hearing all of the evidence. Yes, there are some weak points, we think, but there are also answers we will be able to provide later on to those points. While the rational model would counsel patience, the reality is that our audience will first react to a thin slice of the case. Just hearing what the case is about, or just hearing a thumbnail version of what happened will set up an instant evaluation of the parties’ intentions and moral status. Because it is important for litigators to understand that thin slice reaction, we always recommend getting your fact finders’ reactions to the “elevator speech” version of your case. As part of the mock trial process, it is a good idea to test reactions after jurors have heard just a one-page statement of the case. The mock jurors will always say they need more information, but they’ll often give you a good idea of which way their immediate moral judgment is leaning.
2. Try to Push the Quick Moral Judgment in Your Direction
That immediate moral judgment isn’t destiny — it can and does change as a result of exposure to more information. But it is important because it sets up a context and a frame that will drive later evaluations. For this reason, it is important to control that immediate process if possible. Just because the reaction is instant doesn’t mean that its direction is fixed. There are ways to control that initial evaluation. One way is to focus on the story structure: What is the setting, the main actor, the central action? In a personal injury case, for example, if jurors’ first perception is that it’s a story about a sad injury, they may be primed to evaluate it as an accident. If, on the other hand, it is a story about a preventable decision, then they’re more likely to receive that immediate message of intent.
3. Strategically Frame the Parties’ Decisions as Either Fast or Slow
While the reality might be that decision making on all sides is a lot quicker than we would think, whether we run the clock quickly or slowly during the storytelling can make a difference in how it is perceived. In focusing on a different study also related to the speed of judgment, my colleague at The Jury Room blog, Rita Handrich, writes recently about research (Critcher, Inbar, & Pizarro, 2012) showing that the ways we represent the parties’ decision making speed matters as well. Good acts are judged most favorably and bad acts are judged most harshly when they are represented as quick. When telling your story, it makes sense to stress the hair trigger nature of both your adversary’s poor choices as well as your good choices. When those on the other side actually did do the right thing in some way, call attention to the details showing that they took their own sweet time to come to that decision.
And speaking of taking one’s sweet time, a jury has now been seated in the George Zimmerman trial, and interestingly, the panel is all female (perhaps more on that later). All say that that what little they know about the case, they’re willing and able to set aside. Still, thin slice reactions are likely to play a role in the case. Not only will the jurors be making immediate moral judgments when they hear the story, but the immediacy of those judgments are likely to play a role in the stories themselves. Prosecutors will say Zimmerman made an overly hasty moral evaluation and shot first in response to a misperceived threat. The Defense, on the other hand, will counter that seeing this as profiling, before all the facts are known, is the more pressing danger during trial. As the case moves into opening statements today and through trial in the coming weeks, we will see which perspective wins out.
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Other Posts on Moral Judgment:
- Prime Your Jury for Moral Judgment
- Use Mental Images to Sway Moral Judgment
- Find the “Universal Morality” in Your Case Story
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Decety, J., & Cacioppo, S. (2012). The speed of morality: a high-density electrical neuroimaging study. Journal of neurophysiology, 108(11), 3068-3072.
Image Credit: Mitch Barrie, Flickr Creative Comments (Detail)