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Simple Jury Persuasion: The dark side of psychological closeness

Friday, October 22, 2010
posted by Douglas Keene

I swear there are times when simply reading a research report gives me chills. This is one of those times. We’ve written a lot about making your client more “like” jurors. In our posts on witness preparation you will see a lot of thoughts about making witnesses relatable to jurors without pandering to them.  It’s a good thing. It helps jurors see your client (who may seem different from them) as more similar to them than they may have realized. And we’re seeing just how powerful the concept of “that person is ‘different’ than me” is in recent research. So, generally it’s good to build a bridge between your client and the jurors themselves. Ahem… [drumroll]  Even when your client has done very, very bad things. (This is where the chills come in.)

Gino & Galinsky (2010) found that feeling similar to someone who has been selfish or dishonest led participants to “vicariously justify the actions of the wrongdoer and to behave less ethically”. Further, the ‘badness’ of the acts will be downplayed and framed in the participants’ mind as legitimate.

In other words, you can cause the morally upright to see how they are also capable of straying into serious errors of behavior.  Or as some of us pondered during the Carter administration, “who among us has not sinned in their heart?” Gino & Galinsky describe it a bit differently:

“a psychological connection to another individual who engages in selfish or dishonest behavior, however subtle, creates distance from one’s own moral compass.” (p 7)

One would think the implications for criminal defense attorneys are straightforward. Be subtle about it, but you will want to draw parallels between your client and the jurors.  Obviously, don’t suggest that another person would have acted the same as he or she did, but build a bridge that they can relate to. Identify shared values of family, community, church, work, whatever you have. Attribute your client’s bad behavior to situational (i.e., external) factors rather than to character. Give the jurors a reason to discover in your client a person that they recognize, which allows them to recognize the humanness in their accused behavior.

There is also a ‘recovery dynamic’ for criminal prosecutors and civil defense counsel. Despite study participants’ willingness to embrace the bad actor with whom they felt a kinship—when they were observed by those who challenged their beliefs, the results reversed.  [My Dad is a minister who was very well liked for his sense of humor and joviality, but he was never invited to parishoners New Years Eve parties.  I mean seriously—who wants to walk the line of drunk and inappropriate behavior with your moral arbiter looking on?  To their credit, my parents never took it personally.] In essence, when participants in this study became aware that they were being watched by ‘outsiders’, they behaved ethically and honestly. We’ve written about raising the “flag of self-awareness” before. When defense counsel makes the bad-acting client similar to the jurors—opposing counsel can negate that connection through strategic questioning of other witnesses. Opposing counsel can address the similarity in closing. “You may have been angry too but I would guess most of you have not embezzled from your employer.”

Defense counsel wants to underscore similarity and psychological identification. Prosecution wants to invoke the “flag of self-awareness” to ensure the voice of “the other” is present in the deliberation room.

This is a powerful piece of research, and worthy of thoughtful study. We hear so much about moral psychology research. While it is not accurate to call this “immoral psychology research”, it is fascinating to see how persuasion works to draw even the innocent to the lure of the dark side.

Gino, F. & Galinsky, A. (2010). When Psychological Closeness Creates Distance from One’s Moral Compass. SSRN.

Gino, F., & Galinsky, A. (2010). When Psychological Closeness Creates Distance from One’s Moral Compass SSRN

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