By Dr. Ken Broda Bahm:
In a recent post, I wrote about a jury’s reason for decision, as well as the formal and informal ways of finding that out. In response, a reader raised a very important issue. “Jurors are only going to tell you what they consciously think are the reasons for their decision,” Oakland attorney Wes Wagnon wrote, “The problem is, these may simply be the surface justifications that serve to support a choice actually made on a much deeper, and less conscious, level.” That is an essential consideration: The reasons we give aren’t the same as the motivations that guide us. That feedback immediately got me thinking about another post, this time focusing on ways to get past the proffered reason and focus in on the real reason.
There are at least two forces that will push jurors and other humans to provide a rationale that doesn’t match their true reasons. One is “social desirability bias,” or the tendency to provide answers that we see as more acceptable. In a courtroom context, that means there is a strong pull in the direction of saying, “Yes, we followed the instructions and made our decision based on the evidence, and nothing else.” The other force is even more of a challenge: unconscious motivation. We may not know the true factors that pull us toward one decision and away from another. In reaching a verdict, a jury — or judge, for that matter — is likely to develop a leaning first, and then engage in a motivated search for reasons to support that leaning. Of course, these factors are well-known in a persuasion context, but what do we do, in a post-verdict interview situation, for example, when we want to get past the rationale and get to the true reason? In this post, I’ll take up Mr. Wagnon’s point and focus on a few ways to dig down.
Peeking Inside the Black Box
1. Treat Reasons as Reasons (Not Motivators)
It may sound counterintuitive, but just because the reasons offered may not be true reasons, that doesn’t make them irrelevant. After all, in the argumentative setting of deliberations, articulated reasons are the currency that juries deal in. The rationale may not reflect true motivation, but will reflect the ways jurors either have or will argue in deliberations. Even if the justifications given are just a mask for some unarticulated motivation, the reason is still what the other jurors are reacting to. A reason that withstands refutation is more likely to lead the verdict in its preferred direction.
So interviewers should still focus on the reasons jurors are able to offer after the fact. But it is critical to keep that distinction in mind, to know what you are asking for, and to focus on both reasons and motivators.
2. Don’t Make Dishonesty Too Easy
Even though interviewers can’t force honesty, they can avoid ways of questioning that make dishonesty all too easy. Priming is one way, and the term refers to the act of providing cues that make a certain response more likely. Asking a question about morality, for example, primes individuals for moral behavior later. In an legal interview context, after a jury’s mock trial or real trial verdict, one pitfall is to ask questions that prime in the direction of the legally appropriate reasons. In a negligence case, for example, it might seem like you are cutting to the chase in asking, “In what ways do you believe the defendant failed to exercise ordinary care?” It would be better, at least initially, to ask, “Why did you reach this verdict?” and let them define that act however they see fit. The less a question leads or structures, the better.
In addition to how you ask, there is also the issue of who does the asking. When an attorney asks the questions at the end of trial, that is also priming the jurors by sending the message that their reasons ought to be based on the law, and in reaction to the evidence the attorneys offered. It also causes jurors to pull their punches a bit when reacting to the points made by the one who’s doing the asking. The best practice is to use an interviewer jurors see as a neutral party with no dog in the fight.
3. Focus on How, Not Just Why
Ask “Why?” and you get a list of reasons. But ask “How?” and you may get a look at process. In other words, jurors responding to the question “How did you reach a verdict?” might tell you where they focused and what chain of topics led them to a final decision. For example, if jurors tell you they spent the early part of deliberations talking about everything that was wrong with the expert witnesses, and then broke for the defense on the next vote, that tells you a great deal.
In addition to asking that simple “how,” here are a few other questions to ask:
How did you start off your deliberations?
What did you spend most of your time talking about?
When did you develop a solid leaning in favor of this verdict?
What were the main disagreements?
How did you get past them?
When applied to an individual’s decision, similar questions can be asked: What did you spend most of your time thinking about? What were your main questions? Granted, individuals can still give socially desirable or rationalized answers to these questions. But, generally, the more you are able to get the jurors talking about how they got there, the more likely you are to see the actual motivators at work.
4. Focus on The Jury, Not Just the Juror
Lawyers and consultants aren’t the only ones who worry about people not giving truthful answers. In surveys, social desirability leads to a response bias in which, for example, people say they are more politically moderate and independent than their behavior would suggest. For researchers trying to get past that bias, one method they’ll employ is to ask about other people. This approach of asking indirect questions works because people tend to project their own beliefs and evaluations when describing others (Fisher, 1993).
This suggests that asking, “How do you think a typical juror might react to this information” can sometimes be illuminating. In addition, you can gain greater insight by asking about the whole jury instead of just about the individual jurors. For example, “How did the jury react to the expert testimony” might free up a juror who doesn’t think it is appropriate to evaluate based primarily on demeanor, to nonetheless share that reaction as long as they’re attributing it to others on the panel. In some situations, the rules may prevent you from explicitly asking about other individuals on the panel, but a focus on what the jury on the whole was doing and thinking still has a good chance of getting you beyond a “just the facts” description of the verdict.
A Relevant Aside
As I wrote this post, I had a song in my head: “Dig a Little Deeper” from the 2009 animated movie The Princess and the Frog — in my opinion, the best by far of all the Disney princess movies (…and, yes, as a matter of fact, I do have a young daughter). For me, I like the movie because it’s set in New Orleans with music composed by Randy Newman. But the point of the song, and the movie as well, is the need to get beneath the surface to find what truly matters. That is the goal of the interviewer as well.
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Other Posts on Interviewing:
- Treat Post-Verdict Juror Interviews as Education, Not Discovery
- In Jury Selection, Pay All Kinds of Attention to the Man Behind the Curtain
- Jury Selection: Probe But Don’t Embarrass
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Image Credit: jeffmikels, Flickr Creative Commons
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