By Dr. Ken Broda Bahm:
Formally, a legal case creates a situation calling for a factual judgment combined with a legal judgment. At a more basic level though, it calls for a moral judgment. It’s not necessarily the kind of morality we associate with religion or high philosophy, but the kind we apply practically in daily life decisions of what is good, what is bad, what is better, and what is worse. Even in the most boring of commercial cases there is a dimension of good versus evil to the decision that jurors are being asked to make. As I’ve written previously, there are aspects of the situation, the story, or the imagery that can alternately elicit or inhibit that moral tendency, depending on the appeal. In other words, instead of gearing persuasion to whether the audience is highly moral or not, it’s better to think about what message elements will move the moral tendency in any target to the background or to the fore.
On that score, there is a recent study Young & Durwin (2013) that should prove interesting to litigators and other practical persuaders. Two Boston College psychologists, Liane Young and AJ Durwin, conducted an experiment showing an ability to substantially influence moral decision making by asking just one priming question. Because lawyers in trial will often want to induce a moral frame of mind, or inhibit one, it is worth taking a look at how these two researchers were able to do it in a simple, practical and measurably successful way. This post takes a look not only at the research and the morality-producing question, but also at the larger role of situational and rational elements in moral judgment as it applies in law.
Morality is Situational…
There has been a great deal of interest within the field of psychology in this concept of “priming” or using specific cues to induce a specific response. One frequently-referenced study, for example, showed that when research participants were asked to rearrange words like “bingo,” “Florida,” “knits,” “wrinkles,” “bitter” and “alone” into meaningful sentences, they adopted the associated behaviors of being old and actually walked more slowly as they left the experiment. Some of this research has been controversial in the sense that its proven difficult for other researchers to replicate. Much of the disputed research, however, has to do with what I’ll call “irrelevant priming” in the sense that exposure to words about being old really shouldn’t influence your own walking speed. But in the case of Young and Durwin’s (2013) study, the prime is definitely a relevant one: It is easier to understand why a question about moral judgment would influence a moral judgment your target is about to make..
So here is what the researchers did (and a full text is available here). They started with the idea of “moral realism,” or the tendency to treat morality as objective fact or mathematical truth, and contrasted that with “anti-realism,” or the tendency to see morality in relative or cultural terms. They wondered how each of these different priming concepts would fare in a situation in which research participants are being asked for donations. Conducting two studies (one in person and one online), they solicited the research participants to donate to a cause. But before asking, they primed the participants with a moral realism question, (“Do you agree that some things are just morally right or wrong, good or bad, wherever you happen to be from in the world?“), a moral relativism question, (“Do you agree that our morals and values are shaped by our culture and upbringing, so there are no absolute right answers to any moral questions?“) or a neutral question. The questions were leading by design, and participants answered “yes” the vast majority of the time: 195 out of 200 respondents in the online experiment, for example..
Those primed with a anti-realistic message donated about as much as the control group receiving the neutral message. Those primed with the message of moral realism, however, were twice as likely to be donors. So whether you personally think of morals as absolute or relative, it works to remind decision makers of the absolute perspective if you are looking for a moral judgment from them. “Priming moral reasoning,” the authors conclude, “may prime empathetic or collectivist attitudes.” So when a case presents a choice between a moral and a pragmatic frame, litigators want to ask, what moves jurors to the right frame? Priming can be part of the answer.
…But Still Rational
Lest we think that persuasion is nothing but finding the right cues and emotional primes, however, reason still plays an important role. Author of The Righteous Mind, Jonathan Haidt is probably the figure most known for supporting the thesis that moral judgment is fundamentally emotive in its core. He’s done much to establish this principle that applies quite well to litigation: Something must “feel right” before we’re motivated to look for, understand, and remember the reasons why it is right.
But that doesn’t mean that rationality plays no role, and particularly in a legal context. One thing I like about Jonathan Haidt is his affinity for good metaphors. He sat down recently for a conversation with Social Science Bites (that last word is intended as a noun, I believe, not a verb), and he ran through a number of the analogies he has used in his writings to explain the relationship between the rational and emotional modes of moral judgment:
- “The Emotional Dog and its Rational Tail” (Haidt’s first review article in Psychology Review in 2001). The point is that intuitions drive reasoning, not the other way around.
. - “The Rider on the Elephant” (from The Happiness Hypothesis). Our conscious verbal-based mental process is like the rider, attempting to control but largely at the mercy of the much greater emotional and motivational component of processing — the elephant.
. - “The Chimpanzee and the Bee” (from The Righteous Mind). “We human beings are products of individual-level selection, just like chimpanzees, that makes us mostly selfish, and we can be strategically altruistic, but we have this weird feature which is that under the right circumstances, we love to transcend ourselves, our self-interest, and come together like bees in a hive.”
All three metaphors should carry meaning for litigators who may at times overestimate a juror’s ability to resolve a case on purely rational terms. But the message isn’t to discard the rational approach either. Cutting across all three metaphors is the idea of a duality: There are two parts. One may be dominant, like the elephant, or more active, like the tail wagging the dog, but neither is missing, reminding us that reasoning isn’t purely emotive but always contains a reason-generating and reason-giving component. And much like the bees versus the chimp, sometimes that rational component may be more important within a certain collective situation.
Deliberations seems clearly to be one such “bee” situation. We see it frequently, but especially after remarkable verdicts like that of the Casey Anthony trial. There is a perceived nobility in transcending passions, setting aside persuasion, and focusing on facts, evidence, and burdens. While people may disagree with the result, the belief that one is taking on a temporary identity and stepping away from common passions is not far from what the system is supposed to be. The important point to remember though is this: The motivation tends to come first and the reason-giving follows.
So Use Your Communication in Trial to Create Rational-Moral Situations
So knowing that moral judgment is simultaneously an emotive response to situational cues as well as a rational conclusion supported by reasons in the unique situation of legal deliberation, what does the practical litigator do with that information? Let me suggest a few things:
One, use a priming question in voir dire. When you believe that your side will benefit from the moral “good versus evil” frame of mind, consider asking your venire a priming question, using the version the experimenters used above, or one that is more specifically suited to the morality at issue in your case.
Two, use priming questions in opening statement. In opening, of course, you can’t actually ask and jurors can’t actually answer, but the use of rhetorical questions can be ideal for tacitly engaging jurors and encouraging them to think within a specific framework.
Three, use priming in cross-examination. Creating good moments in cross-examination is like volleyball: There is the set, and then the spike. This research gives us another way to think about the perfect set up in cross: it serves to prime the witness and the listeners to a certain mindset that makes the desired response more salient and more likely.
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Other Posts on Moral Judgment:
- Find the “Universal Morality” in Your Case Story
- Pick the Right Frame
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
- Cultivate Compassion
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Young, L., & Durwin, A. (2013). Moral realism as moral motivation: The impact of meta-ethics on everyday decision-making Journal of Experimental Social Psychology, 49 (2), 302-306 DOI: 10.1016/j.jesp.2012.11.013
Image Credit: Opensourceway, Flickr Creative Commons