The first entry in our Simple Jury Persuasion series was titled “There is no such thing as persuasion”. The thesis was that you should craft your story to fit the jurors–rather than trying to pull them in your direction.
It’s more than two years (and a lot of posts) later and we still know it to be true. The difference is that now, we have much more research supporting the idea that values and attitudes lead the way in whether jurors ‘hear’ your trial story as also being their own.
There’s a long-standing argument about whether demographics (like age, race, gender, education, and more) can be used effectively to identify jurors good for your particular case. Trial consultants have historically said “no they don’t”. Occasionally we’ll do a mock trial where one of those variables is related to eventual verdict but we’re much more likely to see attitudes, beliefs and values pointing to ultimate verdict. And in those cases where a demographic variable appears relevant, it is usually due to a common life experience that shaped their viewpoint, and the key life experience would apply as well to people of another demographic segment.
In three different studies, researchers wanted to see if activating important values prior to the encountering of a persuasive message would enhance message processing. They had participants rate the importance of six different values (e.g., self-respect, loyalty, freedom, wealth, social power, and unity). They divided the values up into more important to the group (e.g., self-respect, loyalty and freedom) or less important (e.g., wealth, social power and unity).
What they found was that activating the ‘important values’–as rated by each participant–prior to hearing the persuasive message was helpful in the participant actually being persuaded. The researchers actually displayed the value labels on a screen (and in other ways)–the participant would see “self-respect” (for example) for a second or so prior to focusing on the message. We imagine there would be an issue with that in the courtroom. But there are other ways to “activate” values.
Activate as early as voir dire: Prime a receptive attitude in jurors by establishing a tone of commonly held values– let them know that what is important to them is important to you. Pay attention in voir dire and jury selection to the ways your jurors answer value and attitude based questions. If your client has visible negatives, you want to avoid jurors who express strong beliefs that will make it uncomfortable for them to support your client and quietly note those who are more open and tolerant.
Make your client ‘like’ the jurors: Introduce your client in a way that touches on universally held values–such as family, community involvement, education, church activities, volunteering, etc.
Use case themes tied to values: Tell your story in a way that touches on values and beliefs that jurors share. You can tell a story about a broken contract with themes of trust, good intentions or bad ones, and keeping your word.
Remember to be responsible: And this is different that ‘taking responsibility’ for the events at issue. Jurors are very focused on personal responsibility these days and want to see your client take responsibility for that for which it is truly appropriate to take responsibility.
Use what you say and how you introduce your client and tell their story to activate values in the jurors. The idea of shared values and beliefs makes whatever story you tell less threatening to jurors. Less threatening messages are less resisted and more likely to be ‘heard’ by jurors with disparate life experiences from your client.
Blankenship, K., & Wegener, D. (2011). Value Activation and Processing of Persuasive Messages Social Psychological and Personality Science DOI: 10.1177/1948550611424084
An intriguing survey came out recently from the University of Michigan. It’s a study of Americans’ values.
“More than 90 percent of those surveyed agreed that all people deserve equal opportunities in life,” says sociologist Wayne Baker, the project’s principal investigator. “Just about everyone also agreed that respect for people from different racial and ethnic groups, and for people of different faiths, is also important to them.”
In fact, these values are so widely held that they can be said to be American universals , according to Baker, who is a faculty associate at ISR and a professor at the U-M Ross School of Business. [quoted from press release]
So we say we believe in equal opportunity and that respect for varying racial and ethnic groups and for people of different faiths. But do we really show these values through our behavior? The parade of continuing polls showing Americans persist in thinking Obama is a Muslim and the ongoing explosions that continue in the media and often seem to boil down to race (see here for example) would certainly seem to call that into question.
We say these values are important to us but our behavior doesn’t reflect the values we say we hold dear. We see this all the time in pre-trial research. Mock jurors can tell us what they think they think. But almost always, when their decisions reflect bias—they have many ‘reasons’ as to ‘why they think what they think’. Most of those ‘reasons’ don’t hold up to analysis.
It’s a shame. It would be nice if what we say we hold dear was really what we fight to uphold and honor. But it often isn’t.
The Finnish metal band Apocalyptica (pictured at left) combines classically trained cellists with metal music. According to this research, you are likely to find them very attractive one way or another. Fortunately for you, you do not have to combine metal and Mozart to be optimally attractive. Just ask yourself this (hopefully) simple question: Am I male or female? [If the answer to this question is a struggle for you, contact us and we will recommend a blog you might find more interesting.]
Researchers created a website and then varied whether the website was allegedly the personal website of a male or a female by posting a photo (of either a male or a female). They also varied whether the webpage played a recording of Mozart or Metallica as the page loaded. Undergraduate student participants were asked to rate how attractive they found each person (i.e., the male with Mozart playing, the male with Metallica playing, the female with Metallica playing or the female with Mozart playing).
Men with Metallica playing on their webpage were seen as more attractive.
Women with Mozart playing on their webpage were seen as more attractive.
The researchers say their findings illustrate a sexual double standard. They say “female participants perceived the male website owner with heavy metal background music to be more attractive because men are expected to be tough and somewhat rebellious”. On the other hand, say the researchers, “male participants considered the female website owner with classical music to be more attractive since women are preferred to be the ‘angel in the house’.” Yes, they really say that. [Sometimes research reports tell us a lot about the data. Other times they tell us a lot about the researchers themselves.]
We hope that these research findings illustrate the preferences of this particular group of heterosexual undergraduate students. What we see is that what is attractive, likable, credible, and worthy of empathy varies a lot in actuality.
Typically, we talk a lot about helping jurors see your client as sharing the same universal values as them or making them “like” the jurors even though they may appear quite different on the outside. Recently we did some pretrial research where a head injury had incapacitated a proud Middle Eastern man (and left him unable to appreciate his own incapacitation). His national and ethnic origins had nothing at all to do with the case facts–it was simply there. We call that a “non-salient fact” and it often results in intense bias against the client. So we were vigilant for that sort of bias.
What happened was heart-warming. The mock jurors saw video excerpts from the deposition of the injured man’s wife. Her English was fluent and graceful, but remained markedly accented after more than 25 years in this country. It was apparent in her deposition that their marriage had been arranged during a brief visit by her husband back to his home country. It was also very apparent that they loved each other deeply. She spoke of love, family, commitment, and was one of the most touching, empathy-inducing, and sincere witnesses we have ever seen. But we watched for jurors to casually comment on the arranged marriage, terrorist ties, sexist stereotypes, and other “they are not like us” sorts of commentaries.
What we heard was this:
“For anyone, the loss of capacity would be horrible. But for a proud Middle Eastern man who grew up in a culture where men take care of their wives and family, this has to be devastating.”
“She obviously loves him so much and is as loyal as the day is long.”
“He is ashamed of his behavior that comes from the head injury. He talks about the conflicts with his daughter and how he wonders how his wife still loves him. It is so very sad.”
“This family was the American dream. Now they are living a nightmare and it will only get worse. It’s a horrible thing and it’s just wrong.”
It was heart-warming. It was also a little scary because the reality was the testimony of the Plaintiff’s wife was entirely extra-evidentiary. For jurors, though, her testimony was essential to understanding the real losses (since the Plaintiff thought he was much less impaired than he truly was). Her testimony also convinced jurors that this family, although as foreign to them as a Plaintiff could be, was like the family they all wished for, hoped they had, and held dear. And, said these jurors, someone had to pay and they knew with certainty, just who that ‘someone’ was.
So. Research finds what it finds. What we learned in this particular pre-trial research reassured us and reminded us of a long-standing wisdom:
Beauty is truly in the eyes, ears, and heart of the beholder.
Yang, Q, & Li, C (2013). Mozart or Metallica, who makes you more attractive? A mediated moderation test of music, gender, personality, and attractiveness in cyberspace. Computers in Human Behavior, 29, 2796-2804 DOI: 10.1016/j.chb.2013.07.026
What? You’ve never heard that saying before? It’s the new version of “walk a mile in my shoes”. We are always looking for ways to minimize racial biases and so when we saw a writeup on a new study over at Pacific Standard, we took a look at the original work.
This is interesting. The researchers use an “immersive visual reality” (IVR) experience most often associated with futuristic computerized gaming. The researchers knew that immersive virtual reality (IVR) could stimulate “illusions of ownership over a virtual body” but wondered if it would also modify implicit biases toward others who are racially different.
So they put 60 female research participants (light-skinned and of Spanish origin since the study was conducted in Barcelona, Spain) into an IVR booth and gave them “virtual bodies” (VB) that were either light-skinned, purple-skinned or dark-skinned. These virtual bodies moved in time with the participant’s own movements. (Fifteen participants (25%) in a “non-embodied” condition, did not have a VB but rather, a dark-skinned avatar whose body movements were asynchronous to the research participant.)
At least three days prior to the experiment, the research participants completed a racial implicit association test (IAT). During the experiment itself, participants spent 5 minutes in the IVR booth getting used to their environment, moving their body about to see what happened with their virtual body, and describing their environment and their body. Then, there was a 6.5 minute “approach phase when 12 virtual human female characters walked past them, one by one, either to the right or left”. Six of these virtual human female characters were light-skinned and six were dark-skinned. Immediately following the IVR experience, participants redid the racial IAT.
What the researchers found is that for participants whose virtual bodies were dark-skinned avatars , the experience “can lead to a comparative reduction in their implicit bias”. Specifically, their IAT scores dropped significantly. Those who saw themselves as purple-skinned “aliens” and those in the control group (who did not have a VB) had no significant change in their IAT scores. (Oddly, those who were depicted as a light-skinned avatar had a small increase in implicit racial bias.)
Unfortunately, there is no data on the duration of these effects. Looking back on experiences we have all had that heightened our racial sensitivity, it seems likely that something like this which is less emotionally powerful is likely to fade. Essentially, what this experiment says is that when you see yourself as “like” the other–your level of implicit bias decreases. This is something we have written about a lot here. We talk about it as the importance of showing jurors that your dissimilar client shares some universal values or life experiences with them.
It’s a process of increasing empathy. And apparently you can do it with an extensive and expensive IVR setup, or you can do it free using your words to evoke empathy for your client. Like these researchers, we can’t tell you our method will last long-term. What we can tell you is, based on hundreds of pretrial research projects and actual jury trials, we think it lasts long enough.
Peck, TC, Seinfeld, S, Aglioti, SM, & Slater, M (2013). Putting yourself in the skin of a black avatar reduces implicit racial bias. Consciousness and Cognition, 22, 779-787 DOI: 10.1016/j.concog.2013.04.016
Image taken from article itself.
Words matter. That’s how we’d sum up this particular research article’s findings. The author begins by citing a 2010 poll completed by CBS News and the New York Times. For half the respondents, the poll asked if the respondent favored “homosexuals” in the military. For others, the question asked was whether the respondent favored “gay men and lesbians” in the military. The poll found more support for “gay men and lesbians” serving in the military than it found for “homosexuals” serving in the military. And that made the researcher curious.
So she completed two studies looking at how attitudes like authoritarianism and social dominance were related to reactions to the terms “homosexual” versus “gay men and lesbians”. (As an aside, these are research measures we could never use in court as the items in them are often offensive and/or seen as dated. Despite that, they are popular in psychological research and tend to identify disturbing attitudes and beliefs.) In the current studies, participants completed a 6-item measure of Right Wing Authoritarianism (see the longer original version here on pages 11-13) and the 16 item Social Dominance Orientation scale (the Wikipedia entry shows items on this scale).
Both studies found that higher levels of right-wing authoritarianism predict greater prejudice against “homosexuals” but not against “gay men and lesbians”. (The findings on social dominance were mixed and will not be reported here. You can thank me later.) The researcher focuses on how these results can be used to decrease prejudice. Specifically, she advocates dropping the term “homosexuals” and using the term “gay men and lesbians” since this results in more positive reactions. She also suggests the idea that
“persuasive messages that describe sexual minorities’ values as compatible with those of heterosexuals, [snip] may be crucial for increasing tolerance toward sexual minorities in society”.
That fits nicely with our belief in using “universal values” to help jurors see your client (or witness or party) who looks different on the outside, as similar on the inside. And we also have an idea of why the two terms (homosexual versus gay men and lesbians) elicit different responses.
We think what the CBS/NYT pollsters saw and what this researcher saw are related to our own writing on racial bias. What we have seen, both in the formal research and in our own pretrial research with mock jurors, is that when race is salient to the case, jurors are alerted to the need to appear unbiased. In cases where race is not salient (like the plane crash case we had in Arkansas) you will see and hear more juror bias because they have not been alerted to the need to remain unbiased. In that case, and in every relevant case thereafter, we issued the following advice:
“What this means for you is this: You should overtly raise the race issue when race is not salient to the story itself, and don’t feel compelled to when race is central to your case facts. Granted, this does not make sense. Neither does racism. Racism is driven by deep-seated emotional experiences that are often not accessible to us on a conscious level. Yet, they control our behavior. The heart of the reasoning is that if the racial elements are self-obvious, you don’t need to put the jury on notice to consider it. But if it is less obvious, or even irrelevant, the jury needs to have their awareness of potential bias raised. It has to be done in a non-manipulative way and without being heavy-handed, but it has to be done.”
With regard to this research on the use of the terms homosexual versus gay men and lesbians, we see it in much the same way as we see racial bias. Use of the term homosexual does not “raise the flag of bias awareness” and so people respond out of their biases and beliefs. On the other hand, use of the descriptive phrase “gay men and lesbians” does alert the respondent to the need to appear unbiased since it is a more tolerant and accepting phrase. So ultimately, we agree with Dr. Rios but for different reasons.
Using the phrase “gay men and lesbians” will indeed result in lower levels of reported bias since it raises respondent self-awareness.
And connecting unfamiliar people to familiar universal values will also result in lowering biases.
Or at least the report of biases. What it is really doing is raising juror awareness of those issues in a situational context. This, in turn, alerts them to the need to process information in a way that does not communicate bias. Whether that situational awareness results in lasting change in their attitudes and beliefs is a whole ‘nother question. But for your client, short term bias suppression may be enough.
Rios, K. (2013). Right-wing authoritarianism predicts prejudice against “homosexuals” but not “gay men and lesbians”. Journal of Experimental Social Psychology DOI: 10.1016/j.jesp.2013.05.013