By Dr. Ken Broda Bahm:
Who is a juror? Experienced legal persuaders know a juror isn’t just a passive receptacle for your arguments, and isn’t just an instrument, a route or obstacle to your preferred verdict in the case. Instead, a juror is fully human, a subject not an object, and possessed of their own particular identity. But what is that identity? It is the way they see themselves, the role they’re fulfilling, the person they want to be. And research is increasingly showing that in this polarized age, that identity can be quite tribal in being aligned to a particular group. But it can also be somewhat flexible, with some identities being more salient and some being less salient in a given situation. To those who study the persistence of belief and the resistance to attempts to persuade a person away from that belief, identity matters a great deal.
The power of identity in attitude formation and change has given rise to what has been referred to as an “identity-based model of belief.” An essay opinion published earlier this year in the journal Trends in Cognitive Sciences and discussed in a ScienceDaily release, describes this model as embodying the idea that, particularly when our beliefs are threatened, we tend to value our identity more than our accuracy, and that leads people to accept some pretty questionable beliefs and values. New York University psychologist Jay Van Bavel explains, “Having a really high-quality news source doesn’t matter that much if we think the people producing it belong to a different group than us. They might have the best writers, the best investigative journalists, the best editorial standards, all the stuff that we would normally care about.” But we will stop valuing those factors if we think they risk leading us away from our tribe.
It is the solution to that quandary, however, that bears particular importance in the context of legal persuasion. Van Bavel argues that situational roles can sometimes help to pierce through that tribal identity. Identifying and invoking some kind of superordinate identity — We’re all citizens, we all share this planet, etc. — can help to find a larger relevant ‘tribe’ to be appealed to. As the ScienceDaily release explains, that identity can also be more particular and functional: “Being put into a role that requires someone to be accurate, like being summoned for jury duty, can give people criteria with which to evaluate information and help them be better at thinking critically.”
Common Juror Identities to Construct and to Appeal to:
My view is that, even after being summoned, identity still matters: not just the broad-brush political tribes, but also the more particular roles a juror might play. These roles take the form of individual and situation personas that can be played up or played down based on the way advocates communicate.
The Investigator
The investigator is trying to find the truth in this situation. Instead of just listening to both sides and picking one side to agree with, the juror in the investigator’s role is looking for an independent route based on their own interpretation of the facts, the law, and the evidence.
The party who wants jurors to avoid the easy conclusion and dig more deeply into the evidence might encourage jurors to assume the investigator’s identity:
As jurors, you are like investigators who have been called to the scene. Now that all the evidence has been collected and assembled for you, it is your job to review it carefully and to decide on your own what really happened in this case.
The Skeptic
A variation on this investigator’s role positions the juror as a skeptic: someone who is aware of the tactics and has made themselves hard to fool. The skeptic brings their own common sense and is hardened to the strategies being employed by one side or the other. Essentially, their role is to be the legal system’s BS-detector.
The party who believes they benefit from the most clear-eyed assessment of the evidence, and who thinks that it is the other side who has to rely more on strategy, theme, and persuasion, might encourage jurors to adopt this skeptic identity.
Here in this courtroom, both sides are trying to sway you. That means, they’ll try to make their case as pleasing as possible. Your role, to put it bluntly, is to see through that. Your job is to look past the themes and the tactics, to even look past the persuasion, and get to the facts and the evidence.
The Voice of the Community
The more traditional and sepia-toned view of the jury is as the voice of the people. A jury drawn randomly from the community is designed to reflect that community. Reminding jurors of that fact calls to mind a particular identity: It isn’t just their own views they bring to a case, it is also the views of the larger society that are at least tacitly being evoked.
The party who believes that the idea of “sending a message” strengthens their case might want to emphasize this vox populi role for the jury:
Remember what brought you to the courthouse today: A summons that was sent out randomly to citizens of this city. You were asked to come here so you could represent those citizens, to be their eyes and ears here in the courtroom, and most importantly, to be their voice as you deliver a verdict.
The Referee
For some parties, that empowered juror is not quite what they want. Instead of someone delivering a message on behalf of a community, they really just want someone who enforces the rules. So the juror in that view is less like a quarterback carrying the football into the end zone, and more like the referee who favors no team over the other and simply and neutrally calls the fouls.
The party who wants their adversary to face a very high burden and who wants to avoid the notion of a ‘jury on a mission’ might emphasize this more sedate referee role.
This courtroom is full of many people playing many roles. As jurors, you really have just one role. That role is to decide what facts are proven. That’s it. You hear from both sides, and then you make the call. You are really the referee on whether the [government or plaintiff] has met its burden of proof.
There are definitely other situational identities that advocates can appeal to. The point is that legal persuaders should think not just about what you are offering and how you plan to get it across. You should also think about who you are talking to. That who can vary depending on the ways you want to frame it.
Other Posts on Identity:
- Avoid Condescension and Other Sins of Legal Argument: Know Your ‘Second Persona’
- Be Real: Seven Ways to Humanize Yourself to Your Jury
- Appeal to Your Juror’s “Temporary Identity”
Van Bavel, J. J., & Pereira, A. (2018). The partisan brain: An Identity-based model of political belief. Trends in cognitive sciences; DOI: 10.1016/j.tics.2018.01.004