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Despite reports that death penalty use and support continue to decline and stories of freed innocent prisoners,  researchers continue to explore the impact of ‘death qualification’ on the makeup of American juries.

Recently, a study published in the Journal of Applied Social Psychology, examined whether the ‘death qualification’ process in jury selection systematically excludes jurors based on “religious characteristics, justice philosophy, cognitive processing and demographics”. You may think you know the answers to these questions, and you are probably right.

Religious characteristics:

Catholics were more likely to be excluded by the death qualification process as were those higher in ‘devotionalism’ (a rating of the importance of religion in one’s life). Those who interpreted the Bible literally and those who scored higher in fundamentalism were more likely to be ‘death qualified’. ‘Evangelism’ (how active is the person in sharing their beliefs with others) was not a significant predictor of either inclusion or exclusion in a ‘death qualified’ jury.

Justice philosophy:

The more participants agreed with the statement that “murderers deserve to be killed”, the more likely they would be included in a ‘death qualified’ jury.

Cognitive processing:

Cognitive processing (are you a complex thinker or not) was not related to death qualification in this study.


Gender and race predicted death qualification while age and prior jury experience did not. Women and racial minorities were more likely to be excluded from juries.

This research is certainly consistent with earlier research showing that females and minorities are more likely to be excluded from a capital jury as well as research showing more fundamentalist religious beliefs tend to result in being ‘death qualified’. The researchers opine that this systematic exclusion of certain groups likely results in perceptions that the justice system is unfair and will not result in a fair trial.

It’s a really thorny issue. Regardless of your political and personal feelings about the death penalty—juries are being required to make life (with the possibility of redemption) and death (no possibility for redemption) decisions based on evidence they hear presented in court.

Given the high number of people opposed to the death penalty, in capital cases the underlying decisions about guilt and innocence are being made by those who are most judgmental.  For some, the death penalty represents a form of legal killing that is as reprehensible as any other decision to elect an end to a life.  For others, it arises from a sense that “juries make mistakes”, and they are not going to risk compounding one horrible crime with a wrongful death by execution.  So what that leaves is a jury of people who are willing to trust their own judgment to make the right call when ending a life is in the balance.  As this research shows, it is a subset of America that is identifiable by their beliefs on other matters.

Summers, A., Hayward, RD, & Miller, MK (2010). Death qualification as systematic exclusion of jurors with certain religious and other characteristics. Journal of Applied Social Psychology, 40 (12)


Simply Resisting Persuasion: Digressing

Friday, January 28, 2011
posted by Douglas Keene

We’ve been doing our series on Simple Jury Persuasion for a while now and thought it might also be good to illustrate some of the most common ways we see people trying to resist persuasion (and then provide you ways to counter their resistance.  Researchers (and even popular writers) have studied this topic for years.

In a way that is only partly ironic, I have long asserted that I don’t believe in ‘persuasion’.  Rather, what I believe in is the ability to reduce resistance.  An assertion that meets no resistance is experienced as persuasive, but instead of adding an ingredient (trust and belief) to their evaluation of the facts, you are removing one (skepticism, mistrust).  So it may look like persuasion, but its actually about ways you will see jurors resist what you have to say.  The goal is to tell the story in a way that aligns with their values, and consequently encounters less resistance.

We’ll look at one strategy per post and this series won’t be nearly as long as our ongoing Simple Jury Persuasion strategies. It’s meant simply as a set of tools for you to use when bad things happen.


We all know what digression is—it’s what politicians do when they don’t like your question (also known as ‘artful dodging’). It’s what an untrustworthy other does when they have done something about which you should be concerned. It’s a powerful tactic to divert your attention and make you forget the actual question that elicited the dodge. In court, their digression and your response may look like this:

“Please tell us why your product is better than theirs.”

“Thanks for asking that question. You know, I’ve really wanted to talk about how we developed the product that millions of people worldwide have used and appreciated…”

“Excuse me, I want to make sure you heard the question correctly. The question is not about product marketing but about product quality. Again, please tell us why your product is better than theirs.”

You are neither rude nor agitated.  You can even express the same confusion that the jurors might be experiencing (thus aligning with them:

“I don’t think I heard an answer to the question.  Let’s try it again…”

You are simply focused on the task at hand (and on not wasting the jury’s time).
Jacks, J., & Cameron, K. (2003). Strategies for Resisting Persuasion Basic and Applied Social Psychology, 25 (2), 145-161 DOI: 10.1207/S15324834BASP2502_5


We know that if we want higher damage awards, we would rather have jurors mad than have them sad. But with all the focus on moral psychology (and particularly disgust) we thought it would make sense to look at whether having disgusted jurors is just as good as having angry jurors. Our hunch was that mad would be better because disgust would lead to a veritable throwing up of jurors’ hands and a desire for neither party to prevail.  We see that sort of reaction a lot in family disputes—a sort of ‘pox on both of your houses’. But we still wondered. And like great minds with a single thought—some researchers from the UK came to our rescue.

Recent research compared anger and disgust when it comes to impact on changes in moral judgment. That is, is anger or disgust more likely to change minds (and hearts) in a situation where someone has been wronged, and will it mobilize people to right that wrong?

The researchers had two conditions: a person kicks a dog (the harm/fairness condition) and a person eats a dead dog (the purity violation condition). One makes you morally outraged, the other may disgust you.  [It should be acknowledged that both conditions are tough on the dog.]

Participants in the study were asked to rate their reactions to the morality of these two behaviors and then told to generate scenarios that could change their opinion about the behavior.

We often do this in pretrial research focus groups by inquiring after all evidence has been presented—“For those of you who disagree [with a proposition] what more would you have to hear from to be convinced?” and “What more would you have wanted to hear for you to change your mind?  What evidence would you require to support the other side?

In this research, participants were asked to generate examples of what would have to be present for them to change their minds about the behavior. (For example, the dog had just bitten an infant child or perhaps, the person had been without food for days and the dog just died so the person cooked and ate the meat to survive.)

Those participants in the harm/fairness condition [where the dog was kicked] were less angry after generating scenarios that could change their opinion but in the purity violation condition [where the dog was eaten] the anger increased a bit. A purity violation is apparently harder to overcome with “what if” scenarios. The researchers hypothesize that moral anger is more flexible than moral disgust as

anger changed more than disgust in response to these novel circumstances and had more to do with changes in moral judgment”.

So the answer is that it depends. (Go figure.) Sometimes (depending what side you are on) you don’t want to disgust your jurors. You want to make them angry in order to evoke actions to fix the situation. Other times (again, depending on what side you are on) you want them to be disgusted so they stay stuck. Possibly, the turning point is whether there is a credible circumstance that could justify or mitigate the offensive behavior.

Disgust is less flexible, like sadness. When you are sad, you are sad. You feel helpless and hopeless. When you are disgusted, you are mired in the disgust.

And according to this research, once disgusted you are not prone to become tolerant. If, on the other hand, your disgust morphs into anger over that disgusting behavior—you are likely primed to act in the deliberation room.

Russell, P., & Giner-Sorolla, R. (2010). Moral anger is more flexible than moral disgust. Social Psychological and Personality Science


New research touts findings that conservatives have bigger amygdalas while liberals have bigger cingulate cortices. The bigger amygdala means conservatives could be driven by fear while the bigger cingulate cortex means liberals have more decision-making power. Hmmm. Is it possible that our politics are fixed at birth?

Probably not. Neuroskeptic takes a look at the research and makes us question, yet again, if we can believe anything we read these days. In essence, he says this is probably a fluke and that you really should not look to the brain for information on political views. Political views do not originate in the brain, according to the Neuroskeptic—but in the wider culture. Thankfully, we are not doomed to robotically carry out whatever political orientation our genes would design for us.

So—if we cannot look to the brain for insight about political orientation—what about the eyes? “The eyes are the window to the soul” after all—might they tell us something?  As a matter of fact, they do, according to researchers at the University of Nebraska at Lincoln. We wrote about this study recently but are bringing it back today. The Nebraska researchers found that there are big differences in how liberals versus conservatives followed directives to shift their attention in response to another’s eye movements. Liberals tended to look where you look while conservatives did not. Hmmm. Is it possible our politics are fixed at birth? Where is the Neuroskeptic when you need one?

We continue to make efforts to find ways to explain why we do the things we do. While we happen to think the ‘gaze cues’ research is really pretty intriguing (since we cannot whip out MRIs to scan potential jurors brains without anticipated objections) much of the brain hoopla is just that, hoopla.  We just don’t understand enough about how brains work and how they interact with our awareness and our unawareness.

We assisted on a case about two years ago in which a young mother with a very young child was hit by an oncoming train as she drove up to and then crossed some railroad tracks. The mother was killed but her child survived (horribly injured). Mock jurors questioned how she could simply not have seen nor heard the oncoming train. After these questions were raised, another juror tentatively stated that she had had several near misses. After this admission, several others agreed. The room was split. The animations of what was visible from the young mother’s vantage point were not of use to them (so they thought) since they “were not in the car with her” and did not know if she had been distracted by her child or music.

These jurors were discussing something called “change blindness” well before the gorilla videos emerged.  Now, the phenomena is well-known. We can see something and yet not recognize and understand it simultaneously.  It’s about the brain, yes. And it’s about vision. And perception. And attention.

An oncoming train—huge, loud, fast, rattling and ground-shaking—can be invisible. It’s hard to understand. But for some people who tragically experience it—it is a harsh and life-changing real experience.

Michael D. Dodd, John R. Hibbing, & Kevin B. Smith (2010). The politics of attention: gaze-cuing effects are moderated by political temperament. Attention, Perception and Psychophysics.


This is a pretty amazing yet simple and straightforward tool. We saw this idea at Neuromarketing blog in a post titled “Building Trust in Ten Easy Words” and went to find the original research to see the details so we could discuss it in the context of litigation advocacy. The Neuromarketing blog post counts out 10 words that increase trust by about 33%:

“You can trust us to do the job for you.”

They report that this simple statement placed at the end of an ad raised ratings on specific areas of performance: perception of fair price (7%); caring (11%); fair treatment (20%); quality (30%); and competency (33%). These numbers are pretty impressive. Most of the comments on the post are enthusiastic (even almost giddy) although a few caution they might use slightly different and more objectively measurable statements such as

“We built our business/clientele on this type of work”;

“90% of our customers rate our company as excellent”; and

“92% of first-time customers place another order within six months”.

When we went to the original article (Li & Miniard, 2006), we found some interesting findings in their literature review.

“Trust emerges only after direct contact and develops gradually over time. [snip] Little may be gained from advertisements that simply label a brand as untrustworthy or call for consumer’s trust in the brand.”

“Including a trust appeal within advertising may influence the thinking that occurs during processing. Its simple presence should encourage thoughts about the advertised brand’s trustworthiness.”

“Being a trusted brand implies certain characteristics: competency; perceptions of benevolence—i.e., they will act to do no harm and to protect consumer interests” (paraphrased for brevity).

Li & Miniard’s findings support the notion that the simple inclusion of an appeal for trust fosters more positive feelings toward the product. On the other hand, if the advertisement also contains information about the brand’s competency and benevolence, gains from a trust appeal are minimized.

The authors hypothesize that simply asserting objective evidence regarding competency and benevolence is as useful as an overt trust appeal.

They also address suspiciousness about advertising and suggest that in instances where a brand or product is disliked and the requests for “trust” could be seen as negative (or even ridiculous)—the more implicit request inherent in discussing measurable and objective variables (such as competency and benevolence) is a better way to go.  As an example, after seeing the torrent of good will advertising that BP has engaged in along the gulf coast in the last several months, we wonder how this research is playing out in the face of low trust and low belief in competence.

As we consider these findings in the context of litigation advocacy—we cannot help but think of the poll findings over the years about trust in lawyers. In the most recent Gallup Poll (2009) on sense of honesty and ethics among various professions:

“In addition to the clergy and bankers, ratings of stockbrokers have hit a new low, and ratings of business executives, members of Congress, and lawyers have tied their previous lows.”

We would imagine this qualifies as being a disliked/distrusted “brand”. So “trust me” appeals to a jury are likely unwise and ineffective. Thus, our recommendation, based on Li & Miniard’s work, would be to go for the implicit message of competency and benevolence. And how is that done?

One of our long-standing clients is an attorney whose courtroom persona displays intense sincerity, competence, and benevolence. He conveys concern about the jurors’ comfort, lets them know when evidence may be disturbing and tells them he will be as efficient and brief as possible in his presentation to them because their time is valuable.

His case presentation style is very transactional—he has a timeline of events and carefully works through that timeline telling the story in a very matter-of-fact yet compelling fashion. Jurors are able to draw their own conclusions as he walks them through the evidence.

And juries think he isn’t like other lawyers. He is respectful and he obviously cares about his client, his case, his professionalism, his jury, and the law. He is a poster boy for advertising competence and benevolence. And it works. (Trust us on that!)

Li, F., & Miniard, P. (2006). On the Potential for Advertising to Facilitate Trust in the Advertised Brand Journal of Advertising, 35 (4), 101-112 DOI: 10.2753/JOA0091-3367350407