By Dr. Ken Broda Bahm:
With the travel plans of NSA whistleblower Edward Snowden still up in the air at press time, the asylum seeker continues to draw attention to the extent of government surveillance of private communications in the U.S. and abroad. Some have questioned whether the diplomatic capital being expended on the dispute is worth it, and whether the revelations are even that revelatory. Russian leader Vladimir Putin, for example, analogized it thus: “It’s like shearing a pig – lots of screams, but little wool.” While the controversy carries obvious importance, it’s possible the story is being overvalued due to the frame placed around it: an unmasking of secret information. According to a forthcoming study (Van Boven, Judd & Travers, 2013 – previewed in the New York Times), we tend to place a much higher value on secret information just because it is secret.
The researchers refer to this as a “secrecy heuristic,” or a tendency to believe that information that is or has been secret is extra important or credible for that reason. That rule of thumb applies in litigation as well. In a criminal context, of course, secrets and crime tend to go together. But the heuristic also plays a frequent role in civil trials as both sides look for discovery’s surprise revelations and the smoking gun emails never expected to be seen by a jury. In one recent contract mock trial, for example, the plaintiff focused on what transpired at “the secret meeting.” The jury absorbed that focus, even though the meeting was only “secret” in the sense that not everyone was invited – like most meetings – and what occurred there was simply a normal business proposal. Still, the theme of secrecy played an important role in the stories jurors reconstructed. This post takes a look at the new research on this tendency to overvalue secrecy and shares some thoughts on playing up or playing down the secret information in your legal case.
Study: If It Is Secret, It Must Be Important and Credible
Leaf Van Boven and Charles Judd, professors of psychology and neuroscience at the University of Colorado, Boulder conducted two studies with doctoral candidate Mark Travers. In the first study, research participants read two government papers arguing each side of an issue (in this case, the sale of military jets to Taiwan), and based on random assignment, one paper was labeled classified and the other wasn’t. Most of the study participants believed that the “classified” document contained more accurate and well-reasoned information than the public document. In a second study, researchers provided a government memo and told participants that it had been used by the National Security Council to make a decision on the issue. Half were told the document had been secret and only recently revealed under the Freedom of Information Act, while the other half were told the document had always been public. In this case, again, the information was considered more useful, more important, and more accurate when research participants believed it was secret.
Logically, there might be some reason to believe the opposite: Information that is hidden may be less accurate because it is immune to the natural checks of public scrutiny. The secrecy hueristic works the other way, however, relying on secrecy as an external cue in the same way that we might assume that old coins locked in a safe are much more valuable than old coins left on the dresser. For that reason, the previously “hidden” evidence that comes out in trial — an unguarded email, a confidential report, or a private conversation — is likely to take on greater importance due solely to the fact that it was once concealed.
Whether information is or isn’t secret is, of course, a fact. But smart legal persuaders will look not only at the quality and accuracy of evidence, but also in how salient that evidence is likely to be. Acknowledging the psychological reality of the secrecy heuristic points to a few ways that this effect can be dialed up or dialed down during litigation.
Messages for Playing Up Secrecy
In cases where the secret information is to your benefit, you will want to play that up. Here are a few themes to rely upon when doing that.
Care: This is how hard they tried to keep it secret. List all of the precautions and other concrete steps taken to maintain the secrecy of the information. The more steps, the more important the information is.
Duration: It was secret for an awfully long time. A long-term secret is more important than a short-term one. Design your time line to reflect the difference between what was known (above the line) and what was hidden (below the line).
Reluctance: It was only revealed when they were forced to reveal it in discovery. Discovery may be old hat to attorneys, but to jurors it can feel a little more dramatic. When legal process must be used to pry information out of the other side, that information must be pretty damning.
Messages for Playing Down Secrecy
When the secret information potentially cuts against you, you’ll want to play it down. In addition to denying where possible the themes above (We didn’t try very hard to keep it secret, it wasn’t secret very long, and we shared it willingly), there are a few additional themes the secret-keeper can employ to drain away some of the impact.
Normalcy: We treated it like we treat all our information. If the protective procedures are in line with the normal course of business — e.g., Yes, it was encrypted but so was our emailed lunch order — then it is ‘just business’ rather than a special secret.
Expectation: Nobody really expected this to remain secret. Playing to current attitudes about online privacy and the openness of electronic communication, the theme that “nothing is really secret anymore” resonates.
Consistency: We were saying essentially the same things publicly and privately. An unguarded email exchange about an employee might sound damning, but if you can say that “we were just candidly sharing with each other the same basic messages we were giving the employee,” then there is less harm in the secret.
Coming back to Edward Snowden, it is also interesting to note the results of a new poll coming out of Pew Research Center for the People and the Press. According to that survey, a majority of Americans approve of NSA tracking Americans’ phone activity as a weapon against terrorism. While that view may be a well-considered opinion on the value of this kind of metadata mining, it also could be another instance of the secrecy heuristic: After all, Americans might reason, if it was a secret program, then it must be gathering some pretty valuable information.
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Other Posts on Heuristics:
- Address the Need for Closure
- Tune in to the Signal and Not the Noise in Pretrial Research
- Complex Case? Beware of “Low Effort Thinkers”
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Image Credit: Library_Mistress, Flickr Creative Commons