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When identifying punishment—will jurors focus on intent or outcome?

Monday, September 27, 2010
posted by Rita Handrich

Back in October of 2009, we blogged about some new research from Harvard University showing that when we know someone has hurt us intentionally, it makes us furious. We talked about using that knowledge strategically to light the fire of moral indignation in jurors.

Now, some new research comes from Harvard and the work of Fiery Cushman (a new Ph.D. and post-doctoral fellow—hey, btw, congratulations!!). He looks at whether we tend to focus more specifically on intention as we assign punishment and finds that outcome is really central to how punishment is assigned. Situationist blog posts a video of  a Cushman presentation in which he discusses this research. The point is made that “the work has interesting implications for tort law, explaining in part why findings of negligence lead to large compensatory rewards even in the absence of any intentional action”.

Related research has focused on injuries where corporations are to blame. The results of a trial may not “make sense” with the facts and we always recommend pretrial research to examine how a specific set of facts may result in unanticipated outcomes and how a story can be told to minimize bad outcomes. Ultimately, it isn’t that the results don’t make sense with the facts—it’s just that they don’t make sense if you overlook the facts that the jurors found important.

My son is a college freshman taking Introductory Psychology and his comment is “people are just bizarrely complicated”. Apart from the grammar—it’s true. And it’s probably why law students flock to psychology lectures at Harvard and elsewhere.  [It has long been true that the reason that psychology research with undergraduates is considered representative is that the majority of college students (not merely college graduates) take PSY 301.]  People are just complicated. Our reactions don’t always make sense with the facts. Intent is important. Outcome is important. Deep pockets can be important (even though most would agree they should not be). What’s most important though is that you not be caught unawares when your fact pattern hits the complicated members of the jury.

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