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Pretrial publicity & bias: Take a look at the age of your jurors!

Friday, January 27, 2012
posted by Douglas Keene

Despite the Supreme Court ruling [Skilling v US] that pretrial publicity [PTP] does not bias the public perception and limit the right to a fair trial, most of us who have experienced the impact of pretrial publicity disagree.

It is an accepted truism that older people are more conservative than younger people. So it’s interesting to see some research on how pretrial publicity affects older jurors [range = 60-80 years old, average age = 69.5] and younger jurors [range = 18-21 years old, average age = 19]. In this instance, researchers looked at the impact of both positive and negative publicity on mock juror decision-making related to a specific set of case facts.

Mock jurors read either positive or negative pretrial publicity accounts of the case (via mock news articles) and then, one week later, they watched an edited 30 minute video of the trial. (This video was used in previous research and found to be realistic, believable and ambiguous as to guilt. Pretrial publicity is believed to be most important when guilt is ambiguous.) Following viewing of the trial video, they were told to disregard any relevant information from their readings the week before and then they wrote down their individual verdicts.

Older jurors were only affected by positive pretrial publicity.

Younger jurors were only moved by negative pretrial publicity.

In other words, even though the mock jurors were given identical information “pretrial” and then viewed the same video summarizing the trial, they came to very different conclusions. Older jurors were only biased by the positive PTP while younger jurors were more conviction prone than the older jurors only when exposed to negative PTP.

The researchers summarize by saying:

the same PTP can have a large biasing effect on the decisions made by one age group while having no significant effect on decisions made by the other. [snip]

these attentional biases [in older adults] may lead to more biased decisions, when the biasing information is positive and less biased decisions when the biasing information is negative”.

They also suggest that this age-related attentional focus may be more important in terms of decision-making than overall liberal or conservative orientation.

What this research would suggest is that when you have negative pretrial publicity, older adults (early Boomers and Silents) are going to make less biased decisions than when they have been exposed to positive pretrial publicity.

If you have a well-known and positively regarded client, older adults are going to be more affected by the ‘halo’ surrounding your client than will younger adults.

If you have a high level of negative publicity and your client is a relative unknown, younger jurors are going to be more swayed (negatively) while older jurors are largely unmoved.

It’s an intriguing finding for us for two different reasons: one is that this is a demographic finding–attitudes and values are almost always more powerful in affecting decision making. The second point is the question of why the older jurors were only moved by the positive PTP. They are, for the most part, more conservative. If they were looking for reasons to be punitive, the negative PTP would be powerful.  Instead, another finding in our analysis of generational research seems to fit: older jurors are happier. They prefer to pay attention to news and information that says ‘the world isn’t so bad after all’. Setting aside our crazy aunt Freda who is fixated on conspiracy theories and Glenn Beck, you can expect older jurors to prefer positive stories, good character, and good manners.

This is an important new study (heading into press now) that we hope will see follow-on research to add nuances to our understanding.  We’ll be watching, and will keep you posted.

Ruva, C., & Hudak, E. (2011). Pretrial publicity and juror age affect mock-juror decision making Psychology, Crime & Law, 1-24 DOI: 10.1080/1068316X.2011.616509

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