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The foreign-language effect: ESL Jurors

Wednesday, May 9, 2012
posted by Douglas Keene

We’ve seen multiple examples of jurors being excused because they learned English as a second language (ESL) and their English is limited. But new research shows us that there may be an advantage to the juror thinking in English when it is their second language.

Researchers were interested in if and how the use of a foreign language affected judgment and decision making. They tested three groups of university students: Americans, Koreans and native English-speaking students studying in Paris, France. All of the research participants had chosen a language to study at university. The researchers discuss two different points of view on decision-making and bias. One view is that thinking in a foreign language takes so much effort that you will make fast and not particularly systematic decisions. The other view is just the opposite–that when thinking in a foreign language, you make slower and more systematic decisions.

After conducting four experiments, the researchers reported that when you are thinking in a foreign language, you are more likely to apply systematic thinking to what you hear than you are to rely on stereotypes and heuristics. In other words, you have less (not more) bias in your decision-making processes.

The researchers hypothesize that when you are thinking in a foreign language, you automatically have more psychological distance from the situation and are more able to consider rationally without excessive emotional interference.

We know that the more emotions enter into a decision-making process, the more biased the thinking processes.

We also know that trial lawyers are often wary of the English-as-a-second-language juror.

What this research says is that, if English is chosen as an area of study with the goal of mastering the language, these jurors will focus and exert cognitive effort to process the evidence in a non-biased and non-emotional way. [We can’t know about those who end up in America but exert little effort to learn the language as this research was done on students who had chosen to learn foreign languages in a university.]

This study is an interesting start, but the limitations of this study are several, as they relate to trial advocacy.  First, these are college students with a heightened interest in different cultures (they are studying outside their native culture and language). They may be brighter than many jurors. Second, many ESL jurors in the United States are undereducated, disempowered, and poor. They are not likely to be as assertive as the native English speakers in the jury. The effects described in the study may be exactly on point for the study subjects, but they may not generalize in a way that is meaningful for jury applications. Other biases and perspectives need to be kept in context when the goal is one of determining trial outcomes.

It’s another “don’t guess and don’t generalize” lesson for voir dire. Not all for whom English is a second language should be automatically discounted for jury participation.

Keysar, B., Hayakawa, S., & An, S. (2012). The Foreign-Language Effect: Thinking in a Foreign Tongue Reduces Decision Biases Psychological Science DOI: 10.1177/0956797611432178


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