by Dr. Ken Broda Bahm:
So you are sizing up that potential juror, wondering what she is probably thinking about you, your client, and your case. You think, “African-American woman, lives in the city, works for the government…I’ll bet she considers my client to be just one more rich and out-of-touch corporation, abusing the people and acting like they’re above the law.” This kind of perspective- taking is probably inevitable, and it also tracks with some long-term advice about communications: If you want to adapt to your audience, then figuratively walk a mile in their shoes and think about how they would see it. That approach is straight out of Dale Carnegie’s, “How to Win Friends and Influence People,” a book that influenced thousands of other books on the basics of persuasion. But is it correct? The research suggests, no, it isn’t.
According to recent research discussed in ScienceDaily, this kind of speculative adaptation seems to work, since people can be quite confident in the assumptions they make about others. But an exhaustive series of 25 laboratory experiments suggest that it doesn’t work. The predictive assumptions that we make about another’s mental state are generally not going to be accurate. And, more than that, there is a better option available. If you want to know what the woman in the scenario above is thinking, the better course is this: Ask her.
The Research: Perspective-Taking Fails, Conversation Succeeds
Researchers from Ben-Gurion University of the Negev, the University of Chicago and Northeastern University (Eyal, Steffel & Epley, 2018) ran 25 experiments designed to assess the reliability of perspective-taking, while aiming to separate accuracy from egotism. The research team asked participants to assess the emotions of another, including their truthfulness, the genuineness of their smiles, their consumer preferences, and a number of other features, and were asked to make these predictions in a particular way: by adopting the other person’s perspective.
If you ask the participants, it works. “Initially a large majority of participants believed that taking someone else’s perspective would help them achieve more accurate interpersonal insight,” the researchers told ScienceDaily. “However, test results showed that their predictive assumptions were not generally accurate, although it did make them feel more confident about their judgement and reduced egocentric biases.” Most believed that taking another’s perspective would increase their accuracy, but it did not. “If anything,” they write, “perspective-taking decreased accuracy overall.”
The team’s final experiment, however, showed one technique that did improve accuracy. That technique was conversation. “Increasing interpersonal accuracy seems to require gaining new information rather than utilizing existing knowledge about another person,” they write, “Understanding the mind of another person is therefore enabled by getting perspective, not simply taking perspective.”
In other words, “If you want an accurate understanding of what someone is thinking or feeling, don’t make assumptions, just ask.”
The Implications: Converse When You Can
The research underscores a couple of points that are relevant to an attorney’s task of assessing potential jurors in voir dire.
Prioritize Their Answers Over Your Assumptions
It is tempting, perhaps even inevitable, to speculate about what potential panelists might think based on their demographics or their situation. But an actual conversation with that juror about their attitudes and experiences will always tell you more than those assumptions. So ask. That doesn’t mean you always fully trust the answer. When asking potential jurors to self-diagnose their own bias, for example, they will most often err on the side of the “social desirability” of saying that yes, they can be fair. Based on the complete picture, including the full exchange with the jurors, you will sometimes have reason to doubt that assurance. But in most cases, simply assuming based on your mental act of putting yourself in the panelist’s shoes is going to be unreliable.
Attorneys Need To Be Able to Talk With the Potential Jurors
Unfortunately, some aspects of the selection systems in some courts, in effect, force attorneys to rely on assumptions. When, as in most federal courts, attorneys are not allowed to conduct their own oral voir dire, they are reduced to inferring risk from the thin slice of information they get from the jurors’ appearance, body language, and the stilted answers given to often formal questions from the judge about whether they can be fair. Giving the attorney the opportunity to actually converse with the jurors leads to more information, more appropriately-grounded cause challenges and strikes, and less guesswork and assumptions about who is going to be biased. In other words, attorney-conducted voir dire helps the system work the way it is supposed to work.
Other Posts on Voir Dire:
Eyal, T., Steffel, M., & Epley, N. (2018). Perspective mistaking: Accurately understanding the mind of another requires getting perspective, not taking perspective. Journal of personality and social psychology, 114(4), 547. DOI: 10.1037/pspa0000115