By Dr. Ken Broda Bahm:
Take a moment and visualize what your next in-person jury trial might look like. The jurors arrive at the courthouse and have their temperature checked while being asked whether they or anyone in their household have been coughing, sneezing, running a fever, or showing any other symptom of COVID-19. They come into the courtroom and sit in the gallery at least six feet apart from each other. They have constant access to hand sanitizers and frequent hand-washing breaks. They may have another temperature check mid-day. And throughout trial, they and everyone they see — the judge, bailiff, attorneys, witnesses, and court reporters — are wearing face masks to limit the spread of coronavirus. There are few other visual symbols in the courtroom — the flag, the high bench and the imposing dark wood paneling. But one dominant message is this: There’s a pandemic putting all of us at risk!
That continuous visual message does something that the psychologists call “priming.” It raises the salience of a factor such that it influences our future behavior and judgments without our necessarily being aware of it. Fundraisers, for example, will often ask for your opinions before asking for money: They don’t want your opinions, they just want to prime a certain mindset before they make their ask. In the case of coronavirus precautions, it is predictable that having reminders everywhere you look is going to have an effect on jurors. A study completed this Spring offers support to that. A group of psychology researchers in Poland (Karwowski et al., 2020) conducted two large-scale experiments in the U.S. and Poland with a combined total of 1,237 research participants. They primed these participants on either neutral materials, or on the COVID-19 pandemic (by having them read an article), and then measured the effects. They found that those induced to think about the coronavirus showed elevated anxiety, an increased preference for social structure and conservatism, and, specifically, a preference for more conservative political candidates. “Thinking about coronavirus makes Americans and Poles more anxious,” they concluded, and “that anxiety translates into a stronger personal need for closure, which in turn promotes social conservatism and support for more right-wing candidates.” The discovery of a consistent pattern in both countries points toward that effect being a human tendency rather than just a cultural artifact.
The research stems from something called “Parasite model of democratization” (Thornhill, Fincher & Aran, 2009), a theory that suggests that, historically, and around the world, liberal ideas of freedom, democracy, and equal rights for women all advanced when and where the threat of infectious disease was low, and were all held back when and where that risk was high. The reason is that anxiety creates a greater need for structure, and that leads to greater conservatism.
In thinking about how these infectious reminders might work in a courtroom, let’s briefly look at each of the three links in that chain.
Anxiety
We live in anxious times, of course, and what the researchers found is that simply reminding people of the coronavirus threat cues their anxiety. So, we might expect that the visual reminders of the social constraints required for in-person court would also serve to cue that anxiety. As I’ve written recently, fear already plays a role in some litigation strategies, like the plaintiffs’ “Reptile” strategy. How the potential for greater anxiety plays out in a post-COVID courtroom may depend on the specific case. For some, the increased salience of personal risk might make the plaintiff’s loss seem more acute and more personal, but in other cases, a plaintiff’s complaint might seem trivial in the context of the pandemic.
Need for Structure
The second factor the research team found is a need for greater structure. Reminders of the coronavirus risk elicited a broad psychological preference for increased predictability and decreased ambiguity. The appeals of rules, order, and convention becomes greater. This set of personality characteristics, often termed psychological “authoritarianism,” has received a great deal of study in a courtroom context, with high-authoritarian jurors being more likely to convict in criminal cases and more likely to side with the more powerful party in civil litigation (for example, an employer over an employee, or a larger company over a smaller one).
Conservatism
The last link in the chain is that anxiety and a need for structure leads people toward greater conservatism in a social sense and not just a partisan sense. While the Polish research team looked at support for American and Polish politicians, the tendency is also for coronavirus reminders to promote social conservatism in the sense of a preference for the status quo and against ideas that would be viewed as new or progressive. The researchers note, “Our results highlight how important it is for people to perceive the world as a stable and predictable place. This preference is even stronger in times of chaos.” So it is possible that, in a courtroom filled with reminders of our medical vulnerability, jurors may be primed to protect the powerful, emphasize personal rather than collective responsibility, and to be skeptical of lawsuits and damages.
It is important to note that the researchers did not document a huge effect. While these priming effects are statistically significant, the effect size is relatively low in the United States and moderate in Poland. But in a courtroom, small differences can make a difference. Another caveat is that the study was conducted in March at a time when there were zero deaths in Poland and only 36 deaths in the United States. The effect could well be higher now that there are more than 115,000 deaths, or, we could be getting desensitized to it.
But one thing that is certain, is that courts and litigants will need to consider the effect. The priming influence of all of the necessary personal protective measures might buttress the reason for online trials. Conducting trials through Zoom or similar web conferencing would still exert a priming influence, but presumably in a less direct way without the masks, sanitizers, and distancing. Ultimately, we will need many precautions, but like everything else in a courtroom context, we should not pretend it is neutral.
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Other Posts on Priming:
- Account for the Priming Effect of Location
- Consider the Contagiousness of Bias
- Prime Before Persuasion
Karwowski, M., Kowal, M., Groyecka, A., Białek, M., Lebuda, I., Sorokowska, A., & Sorokowski, P. (2020). When in danger, turn right: Covid-19 threat promotes social conservatism and right-wing presidential candidates. Preprint: https://www.researchgate.net/publication/340322300_When_in_Danger_Turn_Right_Covid-19_Threat_Promotes_Social_Conservatism_and_Right-Wing_Presidential_Candidates
Thornhill, R., Fincher, C. L., & Aran, D. (2009). Parasites, democratization, and the liberalization of values across contemporary countries. Biological Reviews, 84(1), 113-131.