Simple Jury Persuasion: In the face of ambiguity, we just make stuff up!
As we watch mock jurors we are often struck by how they fill in the blanks in a story. Sometimes a trial team is unsure about whether to include or exclude evidence, so we initially test the case with the evidence left out, to see what mock jurors ‘fill in’ when a piece of the story is left out. Generally, jurors fill in the blank with what they see as most suitable, but when it isn’t driven by evidence, it is based on past experiences and/or their willingness to trust.
It’s like watching optical illusions. When you look at the graphic illustrating this post–do you see a saxophone player or a woman’s face?
Focus group testing of the impact of incomplete stories can be disorienting to trial counsel, especially when they find out that their case works better with a favorite piece of evidence left out. Two recent studies show just how much we all work to fill in the gaps and our tendency to make assumptions as to what small pieces of “evidence” mean. (Prepare to be afraid.)
Researchers know that when we scan pictures of crowds, we focus on emotionally negative faces (unhappy, angry, distressed) rather than positive or neutral faces. We identify the negative faces first–they are the ones with potential threat to us. So in the first study, researchers examined the impact of a “downward pointing triangle” and discovered that this shape is picked out as fast as the negative faces in a crowd. There is something threatening about the shape of a downward facing triangle.
As it happens, this is the shape in which cartoon villains are generally drawn. We have negative associations with that shape from childhood on. Those are the “bad guys”. According to this study, if your client has prominent eyebrows and a narrow chin (i.e., a face in the shape of a downward facing triangle)–jurors may have an illogical negative reaction. The best solution to this appearance is to smile. It creates an impression that is inconsistent with the negative attributes, and it modifies face shape. The point is this is a hard-wired response and if your jurors feel “negative vibes” from your client–they are going to pay attention to that feeling rather than the evidence.
A second study illustrates another way we fill in the gaps of missing information. In this study, research participants watched videos of a woman telling a story that either was emotionally neutral, happy, angered her, or made her feel shame. The woman’s face was either covered with a face veil, uncovered, or blocked with bars to prevent visual inspection of her face. While identification of the expression of anger was unchanged when the woman’s face was covered (by either the veil or the black bars), the woman wearing the face veil was seen more negatively and as more ashamed. The researchers conclude, “the attempt to decode emotions in covered faces leads one to perceive more negative emotions, which in turn influences how one feels about covering one’s face.”
Wearing a face veil has taken on an inference of threat for many people since the terrorist attacks of 9/11/2001. Somehow though, we also attribute more shame and less positive emotion to someone wearing the face veil–simply because we cannot see their face readily. Because it’s unusual, it obliges us to form an explanation for it; it can’t easily be overlooked. The assumption appears to be that if they are not hiding menace, they are hiding sadness, shame, or guilt, regardless of their verbal content.
While the “easy answer” is to remove the face veil–this may not be such an easy fix for the witness herself. A face veil is often a religious imperative. There is no guarantee that the removal of a face veil will result in the removal of the bias toward someone of the particular ethnicity or religious persuasion. Witness preparation might focus on communicating friendliness, confidence, and universal values. And if appropriate, collateral testimony that supports a warm and gracious person behind the veil can prepare jurors to see her as positive and kind; perhaps a bit mysterious but not ashamed or threatening.
We always need to be on the alert for issues jurors may see as “gaps” in information. We need to understand that sometimes those gaps may make no sense to us–as in the case where the shape of your face makes me view you negatively but I cannot explain why–I just don’t trust you. Other times, we can anticipate the negative reaction–as in the case of the face veil.
Bias works in odd ways, but it doesn’t have to be a surprise. The more we can identify existing story gaps, the more we control the story jurors hear and the ways they modify the story to make sense with what they see, hear, and believe to be true.
Watson DG, Blagrove E, Evans C, & Moore L (2012). Negative triangles: simple geometric shapes convey emotional valence. Emotion (Washington, D.C.), 12 (1), 18-22 PMID: 21787078
Fischer, A., Gillebaart, M., Rotteveel, M., Becker, D., & Vliek, M. (2011). Veiled Emotions: The Effect of Covered Faces on Emotion Perception and Attitudes Social Psychological and Personality Science, 3 (3), 266-273 DOI: 10.1177/1948550611418534