By Dr. Ken Broda Bahm –
Crowds can be scary things. At a debate this past Monday (September 9th), Republican Presidential candidate, Ron Paul, was asked if his stance against government mandated health insurance would dictate denying care to a hypothetical man who found himself in a coma without the benefit of catastrophic health insurance. “Are you saying,” Wolf Blitzer asked, “that society should just let him die?” In response, a chorus of voices from the audience shouted “yeah!” Less than a week earlier, in a similar Republican candidates debate, Texas Governor Rick Perry received his biggest applause of the night, including cheers, hoots, and whistles, when the moderator noted the Governor’s two hundred and thirty four executions. It is a record for a modern governor, and there is compelling evidence that at least one of that number was innocent. But my point is about neither healthcare, nor the death penalty, but about what happens to opinions when they become the voice of the crowd rather than an individual’s judgment.
There is mounting psychological evidence: Collective judgments differ dramatically from individual judgments, and the “wisdom of the crowd” also has a dark side in the form of a herd mentality. Our system of jury trials – with strict rules of evidence and reliance only on information presented in the courtroom – is designed precisely to combat mob rule. As the recent trial of Casey Anthony, as well as the upcoming trial of Dr. Conrad Murray illustrate, maintaining that distance from the crowd’s beliefs can be difficult. This post includes some research and advice, not only for high profile trials, but for any trial that has you running against something that the mob at large takes as truth.
Crowd Intelligence?
Based on a recent profile article in the Wall Street Journal, the phenomena of collective judgment can be both surprisingly accurate and surprisingly fragile. When people are asked to answer difficult questions, like the number of marbles in a jar or the murder rate of a given city, the answers are, predictably, all over the map. But surprisingly, once those answers are averaged in a group response, the result tends to be more accurate than you’d expect. The article reports on a recent study (Lorenz et al, 2011) in which 144 Swiss students were asked to estimate something they wouldn’t naturally know: the number of new immigrants living in Zurich. When measured individually, the median guess was 10,000 and the correct answer was 10,067.
That is not bad for a guess. However, when scientists gave the students access to the guesses made by other study participants, the range of the guesses began to dramatically narrow, and errors were magnified through imitation, instead of being cancelled out. In this case, access to the crowd’s response made study participants more confident about their answers, but less accurate.
This study result can be seen as a microcosm of the echo chamber or “filter bubble” that modern media and social networks afford. As we’re more able to listen to and imitate the same sources, we become more confident that we know the truth, but less likely to be accurate.
Applications to Trial
The need to manage social influence, and the unfortunate transition from “wise crowd” to “dumb herd,” apply in two distinct trial situations.
1. Manage Social Influence in the High Profile Trial
For a small but influential subset of trials, the dominant focus becomes entertainment. If your trial is getting substantial press coverage, then conclusions about your case will be formed very quickly, reinforced through the media and amplified through the social networks. One answer, of course, is sequestration, to literally keep the jury segregated from crowd influence. While sequestration clearly has its own downside, for some cases, there is no alternative. Whether you agree with the Casey Anthony verdict or not, it is hard to imagine the same decision coming from a nonsequestered jury.
And that realization makes it all the more surprising that the upcoming trial of Michael Jackson’s physician, Conrad Murray, is not going to be sequestered. How the future jury will fare remains to be seen (and may be grist for future blog posts), but the best fallback position for that trial is its supplemental juror questionnaire. Just released, this long (32-page, 113-item) questionnaire will probably be critically reviewed by others, but I’d just note a few things that it does well. First, it doesn’t just ask about prior knowledge of the case, but broadly investigates the many sources and depth of that knowledge. Second, it accounts for the new reality as well that jurors are not just information consumers, but also social media outlets of their own, asking in question #33, for example, “Have you ever posted any blogs or posted comments on any internet sites?” in order to supplement the social media analyses that are being conducted on the panel. Third, the questionnaire goes beyond experiences to ask at least a few questions on relevant attitudes. In a clear window into the defense, question 86 asks potential jurors to indicate agreement or disagreement with a set of six statements, and all but one of them are negative statements about celebrities, like “Celebrities and high profile people abuse their power and status to intimidate others into giving them what they want.”
2. Manage Social Influence in the Low Profile, but High Presumption Trial
For the typical trial receiving little to no coverage, the social influence effect can still be great. Does your case involve issues that audiences would make assumptions about? No, I’m not talking about the presumption of innocence (which is a kind of legal fiction), but about the presumption that a corporation would lie if it could get away with it, the presumption that accident victims exaggerate their injuries, or the presumption that someone who is charged with a crime probably did something wrong.
To address these common, but possibly incorrect, group judgments, you will also want to rely on a good supplemental juror questionnaire, focusing on attitudes to the greatest extent possible. Once you’ve discovered how presumptions are likely to play in your case (for example, by conducting a community attitude survey, focus group, or mock trial), you will want to make them a focus of jury selection. In that light, we have found that it is strategic to deal with social presumptions head-on in a three step approach.
Step one is to acknowldge that the presumption is out there: “I know that, these days, many of you might assume that if a bank went out of business, then it is probably because of bad decisions and bad loans...” Step two, give jurors an opportunity to “own” that presumption (and earn themselves a strike): “Who agrees that it is more likely than not that a bank in that position brought it on themselves?” Step three, suggest a reason why the presumption may not be correct in this case, and ask if jurors will listen to the evidence: “In this case, you are going to hear evidence about many other causes, independent of the bank’s actions, that make it a little more complicated. I need to ask who is willing to set aside that assumption and look at the evidence.”
Going back to the crowd response examples from the recent Republican candidates’ debates, it may not be surprising to find a bit of bloodlust in the political arena. But a critical point to bear in mind is that this level of passion comes from engagement, and a juror is likely to be even more engaged than a voter: They are, after all, not just casting a vote, but directly determining justice in a specific situation. For that reason, you need to pay attention not just to the evidence and persuasion delivered in the courtroom, but to all of the social messages and judgements that walk into the courtroom with your jury.
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Related Posts:
- Take a Lesson from the Casey Anthony Verdict: It Is the Story, and Not Just the Evidence
- Beware of the Jury’s “Filter Bubble”
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Lorenz J, Rauhut H, Schweitzer F, & Helbing D (2011). How social influence can undermine the wisdom of crowd effect. Proceedings of the National Academy of Sciences of the United States of America, 108(22), 9020-5 PMID: 21576485
Photo Credit: Robert Couse Baker, Flickr Creative Commons