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Accepting the morally outrageous: Is this our new normal? 

Monday, February 6, 2017
posted by Douglas Keene

Some interesting research is described in plain language over at the Vox website by Joshua Knobe (an academic from Yale). The article highlights a question we’ve been wondering about that may be important for all of us to consider over the next four years as we plan strategies for litigation.

The question is this: Just how hard is it to get people to move from a perspective of seeing some behavior as morally outrageous to seeing that same behavior as acceptable or even normal? And the answer is disturbing: it is pretty darned easy.

The author discusses how it is important that we continue to see morally outrageous behavior as not normal and that we do not move it to something as simple as bad or wrong. He offers examples of how cognitive science can help us to understand how we begin the process of moving behavior from “morally outrageous” to “bad or wrong” and perhaps, on to “that is just how s/he is”.

Recent studies have taught us a lot about what happens when people classify events as normal or abnormal. [snip] Our minds use the normal-abnormal distinction to rule out many options in advance. At the core of this research is a very simple idea: When people are reasoning, they tend to think only about a relatively narrow range of possibilities. [snip] One important question about human cognition is how people end up choosing one option over the other in a case like this.

[snip] This is where the notion of normality plays its most essential role. Of all the zillions of things that might be possible in principle, your mind is able to zero in on just a few specific possibilities, completely ignoring all the others. One aim of recent research has been to figure out how people do this. Though the research itself has been quite complex, the key conclusion is surprisingly straightforward: People show an impressive systematic tendency to completely ignore the possibilities they see as abnormal.

We make use of the normal-abnormal distinction when thinking about causality.

That last sentence from the Vox article is why we are sharing it with you here today. We know our mock jurors always want to know ‘why’ or to hear about the motivations of the parties. What this research tells us is that if jurors see behavior as abnormal—they are less likely to view the morally outrageous behavior as acceptable or valid. Or they may be more likely to see the behavior as totally unacceptable and worthy of punishment.

Yet, we have to be careful with these research findings and not assume we know how to use them. Here, again, is an example taken from the Vox article (and real life).

For an especially striking example, consider a real-world problem that arose in Arizona’s Petrified Forest National Park. Tourists were stealing bark from the trees, and the park as a whole was gradually being destroyed. What could be done to stop this theft? The staff of the park decided in the end to put up a sign:

‘‘Your heritage is being vandalized every day by theft losses of petrified wood of 14 tons a year, mostly a small piece at a time.’’

The goal was to raise awareness of the problem, making people see more clearly what was so bad about stealing from the park. Perhaps the sign did succeed in raising awareness, but it also had another, more surprising effect.

By drawing attention to the fact that people often steal, it made people see theft as normal.

Many of the park visitors might have seen theft as something that wasn’t even worth considering (like trying to eat your shoe), but the sign helped to switch them over to seeing it as something that might be bad but was still among the normal options (like eating chocolate cake). A systematic study examined the [counter-intuitive persuasive] impact of this sign.

The key result: Putting up this sign actually led to an increase in the total amount of theft.

In the story above, the park took down the sign and stopped informing visitors of the thefts (and thus normalizing theft and making it a behavioral option). From a litigation advocacy perspective, we want to work to maintain the (moral) outrage and horror associated with egregious behavior and not do or say anything that would normalize it. That is easier said than done though, as Joshua Knobe comments in closing the Vox article.

So then, what is to be done? I wish I could say that cognitive scientists have settled on a different but equally effective solution and that all we need to do now is go out and implement it. Unfortunately, however, that is not the case. Research in cognitive science has done a lot to give us a deeper understanding of the problem we now face, but it has not yet furnished us with a workable way of addressing it.

Thus, it is for all of us to focus on how we can seek to not dull jurors’ minds to the horribleness of egregious conduct.

A number of years ago we worked on a criminal case in which an employer was drugging female employees and taking nude photos of them while they were unconscious. What we noted in pretrial research was that the more often we showed the photos of the women, the less impact it had. The Defense would want to work to maximize the photos being shown while the Prosecutor would want to limit the photos to maximize the visual (and emotional/moral) impact.

The next few years will be a challenge for each of us as we work to understand more about how to either maintain the moral outrage of jurors at egregious behavior or trying to dull the impact of the egregious behavior through repeated exposure (depending on our side of the aisle). The actual research the Vox article is based upon is available here.

Thomas F. Icard, Jonathan F. Kominsky, & Joshua Knobe (2017). NORMALITY AND ACTUAL CAUSAL STRENGTH. Cognition

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