By Dr. Ken Broda-Bahm:
Trump’s second indictment is now unsealed, this one framing 37 federal felony counts for willfully retaining classified records at his private residence, and for trying to obstruct the efforts of the FBI and others in trying to recover these documents. Predictably, the response from the former President’s supporters has been to focus on what they say are the comparable actions of others. For example, you may have heard about 1,850 boxes of documents that President Biden supposedly has illegally kept in a Chinatown location. Except he doesn’t. The claim stems from Biden’s records from his time in the Senate, and not being covered by the Presidential Records Act, the documents are held, in a very normal and legal fashion, by the University of Delaware. The problem is that audiences typically don’t get the details: When casually hearing about Biden’s documents (or Hillary Clinton’s documents, or Mike Pence’s documents, etc.), it is easy to reach the conclusion that Trump’s federal indictment is a case of selective prosecution. The argument works well for a low-effort audience.
Easy but false equivalencies can also be common in legal arguments. Jurors might conclude, for example, that because there are experts on both sides of a legal case, they just cancel each other out. A company defending an employment case might point out the employee did bad things as well. A products manufacturer could refer to other products that also pose dangers. A party in a commercial dispute could say that both sides were protecting themselves. Or an IP defendant could say, in effect, “you stole from someone else (before we stole from you).” In each case, the implicit argument strategy is to defend one condition by comparing it to another condition. When that comparison is strained, when any points of potential similarity are overwhelmed by points of difference, then what you have is a fallacious argument, and a frequent marker of propaganda (Sala, 2021). The claim might be attractive to those who are not being analytically careful, but it is only the appearance of support. In this post, I’ll share three general approaches to fighting false equivalence in trial.
Assess Your Audience
Like other fallacies, the false equivalence is a mental short-cut. The more it’s analyzed, the weaker it becomes. So one important question when assessing an audience is whether they are prone to take that quick route (the route cognitive scientists call System I thinking) or whether they are prone to dig into the reasons and analysis, and evaluate more carefully (which cognitive scientists call System II thinking). A handy example is when you’re grabbing one of the “impulse items” clustered in your store’s check-out lane, that is System I, but when you pour over Consumer Reports to decide what kind of laptop you need to buy, that is System II. Granted, in trial, the symbols and the substantive instructions tell jurors to go with System II, and most will at least try to do that. But a person’s day-to-day habits are hard to set aside during a trial. We have found that measuring a potential juror’s or mock juror’s “Need for Cognition” is useful. Rather than measuring intelligence, Need for Cognition measures an individual’s preference for either knee-jerk conclusions or careful analysis. If you need to talk jurors out of a false equivalence or another low-effort argument, you need jurors with a higher Need for Cognition, who are inclined to apply their System II thinking to the trial.
Unpack the Argument
When arguing based on a comparison, often the connection or the criteria that links the two things being compared is pretty simple. Those comparing Trump to Biden note that in both cases, there’s a politician with a bunch of boxes of documents, and that’s as far as it goes. Leaving the exact comparison undeveloped or implied operates to the advantage of the loose arguer. So if you want to argue that the circumstances really aren’t the same, it helps to break it down. Enumerate the differences. You might identify with your audience by first acknowledging that there are some superficial similarities, before going on to explain why the distinctions are more important and more relevant to the overall point being made.
The situations might be similar on first glance, but the closer you look, the more differences you see, and ultimately the differences are going to matter a lot more than the similarities.
Encourage Deliberative Process
Ultimately, it is not just the ability to see the flaws in a fallacious argument, it is also the motivation. If, like many on both sides of all things Trump, the audience is already dug in on a position, they will find a way to consistently maintain that position. That is why it is important to measure individual disposition (as suggested above), but it is also a reason to emphasize the jurors’ own deliberative process. I feel that litigators sometimes persuade as though jurors are going to make an immediate decision, and having voting buttons right there in the jury box. Instead of deciding in the moment, what jurors are really doing is absorbing information they can use later in the deliberation room. Thankfully, there is research that deliberation increases accuracy (Bago, Rand & Pennycook, 2020). Instead of just amplifying the biases they walk in with, the discussion — particularly when the group is both demographically and attitudinally diverse — will lead to more careful consideration. So when your side in the case benefits from that harder work, it helps to play up the process by frequently emphasizing that stage: When you get to the deliberation room… as you carefully review each of these items of evidence… when you are finally discussing the evidence and making your ultimate decision.
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Other Posts on False Equivalence and Fallacies:
- Fight False Equivalency Among Experts
- Train Your Witness to Combat Simplistic Equivalence
- Know Your Fallacies
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Bago, B., Rand, D. G., & Pennycook, G. (2020). Fake news, fast and slow: Deliberation reduces belief in false (but not true) news headlines. Journal of experimental psychology: general, 149(8), 1608.
Sala, I. M. (2021). False Comparisons as PROPAGANDA. Fellowship, 84(1), 25-26.