For this research, participants were wired up to fMRI machines to measure and record brain responses. In phase one of the experiment, participants were shown statements like the mundane “you are a tea drinker” to the more controversial “you are pro-life”. They were asked to choose if they agreed or disagreed with the statement.

In phase two, participants were offered up to $100 for signing a document stating the opposite of what they believed. For those statements they valued highly, they could opt out of the monetary reward. When a participant refused to sell out their values (aka ‘soul’), the researchers identified that statement as a personally sacred value for that individual. The researchers compared the fMRI’s for non-sacred and sacred values and found that different areas of the brain were activated when the individual considered whether they would sell the value statement. Thus, the researchers saw an entirely different decision-making process underway.

These findings are not particularly surprising to those who track the neuroscience literature. What is unknown is which values and attitudes are “personally sacred” to the individual. Or, as we think of it in constructing trial arguments, which statements correspond to firmly held or ‘core’ beliefs and values? The experiment was done as part of a series of experiments looking at cultural conflicts. What we see in our focus groups and mock trials is that there are idiosyncratic “sacred” ideas or perspectives for some jurors.

When we are doing corporate or contract work, we hear jurors who say “that just isn’t right” and other jurors who say “it’s just business and it happens all the time”.

When we are doing patent work, we hear jurors say “the inventor should get money for this idea for all time” and others who say “technology has moved on and this patent doesn’t have value”.

In personal injury death cases, we hear jurors agreeing that “No amount of money can compensate the family for the loss of a loved one”.  But the impact of that belief is that some jurors say that as a result the family should get little or nothing, while others feel that the moon is not high enough.

All of these positions represent sacred values to those engaged in the dispute. The key is to do one of three things:

Identify those whose core beliefs are at odds with your case, and strike as many of them as possible.

Reframe your trial story so that jurors won’t feel that the verdict is inconsistent with their core or soul-defining values.

Since strategies 1 and 2 above are often incomplete strategies, determine which jurors with problematic values you can still live with.  Identify those that will be open to your story and will surprise themselves by making a decision inconsistent with what they believe is a deeply held value. We’ve seen this happen. And when it does happen, it can be a beautiful thing.

Berns, G., Bell, E., Capra, C., Prietula, M., Moore, S., Anderson, B., Ginges, J., & Atran, S. (2012). The price of your soul: neural evidence for the non-utilitarian representation of sacred values Philosophical Transactions of the Royal Society B: Biological Sciences, 367 (1589), 754-762 DOI: 10.1098/rstb.2011.0262

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Related posts:

1. “I can see it from both sides”
2. Derogating do-gooders [like vegetarians] is how I roll
3. Pretrial publicity & bias: Take a look at the age of your jurors!

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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Related posts:

1. Pretrial publicity & jury deliberations
2. Propaganda, Dogmatism & Bias: Who are your jurors?
3. Imagine and decrease bias

Are “pictures” of the brain so persuasive that they can sway juror decision making? Even though the credibility of the medical experts has to be factored in, many people believe that when you include brain scan photos (as opposed to bar charts or topographical maps for example) the viewer is more persuaded. Even though there isn’t a chance in the world that an average juror can make sense of the image.

So, the current researchers decided to look at the effect, if any, of neuroimages using a fact pattern of a capital murder case. They were trying to sort out whether it is useful to focus mitigation arguments on neuroimaging evidence, since it could “create the impression the defendant is ‘damaged goods’ and beyond repair.”

The researchers presented the facts of a murder along with evidence (included in nearly all capital trials) of the likelihood of future dangerousness and evidence about the psychiatric condition of the defendant. They divided participants into 3 conditions:

The first group was told the defendant was psychotic.

The second group was told the defendant was psychotic and was given the results of neuropsychological testing discussing damage to the defendant’s brain (specifically, the frontal lobe).

The third group was given the diagnostic information and the test results but also shown color photos of “structural and functional scans of the defendant’s brain” and given descriptions of likely consequences with this sort of damage to the brain.

The researchers expected that the more information participants were given, the less they would choose the death penalty IF the defendant was adjudged to be at low risk for future violence. And they were wrong.

When mock jurors were provided only a diagnosis, and were told the defendant had a high risk of future violence, they were overwhelmingly more likely to give a death sentence (65% voted for death penalty) than other mock jurors. When they were given additional information (either a psychological testing summary or the testing summary with neuroimaging evidence), their imposition of the death sentence dropped dramatically (down to 12% voting for death penalty). If jurors assessing these ‘dangerous’ defendants were given all three forms of information, the death penalty was selected only 8% of the time.

Oddly, low risk of dangerousness only affected those jurors who were only given the diagnosis (but no supportive test data or images). ‘Diagnosis only’ mock jurors assigned the death penalty about 17% of the time (down from 65%), while diagnosis plus testing mock jurors chose the death penalty about 21% of the time and mock jurors receiving all three types of evidence chose the death penalty about 14% of the time (essentially the same as the ‘high risk of violence’ condition).

The researchers concluded that with high risk for future violence defendants, both neuropsychological testing and neuroimaging evidence reduced the likelihood jurors would choose the death penalty. Rather than being ‘aggravating’, this additional evidence was truly mitigating in the case of the high-risk-to-violently-reoffend defendant.

Our view is that this is consistent with what is frequently seen in juror decision-making: Jurors are much more comfortable accepting a high-risk proposition if they are comforted that they have a valid reason for doing it.  This is most clearly seen in the high risk group, where they needed to be assured there is ‘scientific evidence’ that the defendant was impaired, not merely that the defense found an expert willing to make that claim.  It also suggests that in the population used in the study, there were about 15-20% who were in favor of the death penalty regardless of mitigating scientific  evidence.

It’s important to note that the neuropsychological testing results mitigated almost as much as the testing results plus the brain pictures. The verbal description alone (or verbal picture if you will) persuaded jurors. The researchers say it is possible that any additional information pertinent to the defendant’s condition ‘personalizes’ the defendant for jurors and thus may prove mitigating. We go with the former idea, as it seems unlikely that a psychological test profile or a description of neuroimaging studies causes anyone to become more ‘personal’. The jurors simply want reassurance that they are working off more than one person’s opinion.

For the practitioner, this says you don’t need bells and whistles [like brain scans] to successfully mitigate. But you do need solid and scientific information, well-presented using language and examples jurors can understand. That testimony can save a life.

Greene, E., & Cahill, B. (2011). Effects of Neuroimaging Evidence on Mock Juror Decision Making Behavioral Sciences & the Law DOI: 10.1002/bsl.1993

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Related posts:

1. Life lessons from mock jurors: Look before you sit & always read the fine print
2. On brains, brain damage, pedophilia and other things we don’t like
3. Does ‘death qualification’ systematically bias our juries?