In other words, you want to encourage the analytic to be more intuitive and encourage the intuitive to embrace the analytical. Why? Essentially, it levels the playing field. In plain English, the more analytically (e.g, rationally, logically) you think through evidence, then–the more you set aside religious beliefs–even if you are religiously devout and, even if you are already a skeptic.

In a fact is stranger than fiction move, the researchers successfully triggered analytical thought by showing research participants images of Rodin’s The Thinker  and having them review text written in “hard to read fonts” [e.g., fonts smaller and in a much fainter, typewriter-style font for harder review fonts, versus enlarged and darkened for ease of review].  Both were found to increase analytical thought and reduce religious beliefs. This study has gotten tremendous attention in the popular media.

We are not as interested in the relationship between analytical thought and religious belief–as we are in the ability to promote an analytical cognitive process over an intuitive one. Intuitive thought has been found to be related to quick cognitive processing (impulsive judging) using stereotypes/heuristics as short-cuts. Analytical thought, on the other hand, promotes logic and rationality–resulting in fewer short-cuts in the decision-making process and more complete evaluation of evidence. You want to give jurors an invitation to attend carefully to the evidence presented. 

When you want jurors focused analytically, and thus processing evidence carefully rather than making quick and biased conclusions based on pre-existing attitudes, beliefs, and values–consider the experimental manipulations used in this research.

You might use an illustration of Rodin’s famous sculpture on visual evidence to nudge jurors to think analytically.

Use logical/rational language. Use language like ‘thoughtful and careful review’, ‘study of evidence’, ‘serious and thorough’. Do not be seen as applying ‘spin’ to the story. Tell the story with little drama but a tight and efficient story structure. You are helping jurors to piece together what happened and providing them with the facts, evidence and data to conclude (consistent with your presentation) what actually happened.

Overall, you are encouraging the sort of thought (that would be “analytical”) that promotes evidence processing rather than quick and dirty decision-making characterized by the use of bias and stereotypes. If you want that sort of thinking process in your jurors–these researchers have pointed to a couple of (free) ways to promote it.

Gervais WM, & Norenzayan A (2012). Analytic thinking promotes religious disbelief. Science (New York, N.Y.), 336 (6080), 493-6 PMID: 22539725

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We still see 2012 surveys showing (for example) that about half the Republicans in Alabama and Mississippi believe Obama to be Muslim. We see multiple depictions of President Obama wearing a turban which we presume, are meant to incite anger and fear. So, here’s a study we missed earlier on how we automatically kill video game non-Caucasian opponents who wear turbans first. Because they are wearing turbans. Which makes them dangerous. Because they wear turbans. Turbans = Danger. (See how life just got simpler?!)

This study was conducted in Australia with “otherwise liberal and tolerant Australian undergraduates” and the authors suspect there would be an even stronger “turban effect” in either the US or Britain (both of whom have experienced assaults by Muslim terrorists). In the study, participants playing a violent video game were much more likely to shoot “Muslim-looking characters” whether male or female–even if they were carrying an innocent item rather than a weapon. And, perhaps not surprisingly, the subjects all denied any intention to behave in this biased way and the post-game debriefing left them “very uncomfortable”.

“Whether they’re holding a steel coffee mug or a gun, people are just more likely to shoot at someone who is wearing a turban,” says author Christian Unkelbach, a visiting scholar at Australia’s University of New South Wales. “Just putting on this piece of clothing changes people’s behaviour.”

Another odd finding in this research was that a positive mood increased the tendency to shoot more at turban-wearing characters while an angry mood increased the tendency to shoot at all characters. The researchers took this finding to indicate that a positive/happy mood often results in a “top-down, assimilative processing that facilitates the influence of stereotypes on responses”. In other words, being in a positive mood makes you more likely to act on stereotypes and selectively shoot more video game opponents wearing turbans. They also comment (in plain language this time) that “even tolerant university students will display strong negative biases towards Muslims”.

So what does this mean for litigation advocacy? A lot.

If you have a Muslim client who wears a turban, headgear or a hijab, you need to pay special attention to bias as you proceed through voir dire, witness preparation, and pretrial research. You’ll find some additional voir dire tips here.

Obviously, you need to make your client as similar to the jurors as possible to minimize the impact of his or her ‘differentness’ and threat. The opportunity to do that with their attire may not be possible, so you have to do it through other means (collateral witnesses, personal life story, discussions of their work, their family, their kids. etc.). By doing so, you control the “intuitive interpretations” jurors may make in the absence of a conscious effort to draw connections between your client and the jurors themselves.

We’ve seen bias against Muslims in our pretrial work that is intense and intractable and acceptance that is a thing of beauty. Recently, we hired a Iranian subcontractor to do some computer programming for us on a jury selection tool. In our first meeting, curious as to how he had gained entry to the US after 9/11, we asked him to tell his story. His face lit up as he described how he came to be in this country, his family (his hijab-wearing wife and three daughters), his sense of the US (“I have found my country”) and his directives to his daughters on breaking the ice with new acquaintances (“Tell them you are not a terrorist”). Ultimately, we were touched and felt emotional similarities with him we would not have predicted.

It often works with jurors too.

Unkelbach, C., Forgas, J., & Denson, T. (2008). The turban effect: The influence of Muslim headgear and induced affect on aggressive responses in the shooter bias paradigm Journal of Experimental Social Psychology, 44 (5), 1409-1413 DOI: 10.1016/j.jesp.2008.04.003

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Researchers wondered whether media depictions of both physical and relational aggression contribute to aggressive thoughts in women. While prior research had examined the impact of physical aggression (and found that viewing it does increase aggressive thoughts) these researchers were interested in whether viewing relational aggression would also increase aggressive ideation.

They showed female participants clips from one of three different movies: one depicting physical aggression (Kill Bill); one depicting relational aggression (Mean Girls); and one depicting no aggression (What Lies Beneath). They then assessed emotional arousal, had participants complete various questionnaires measuring aggression and asked about television viewing.

The researchers found that both physically and relationally aggressive thoughts are activated following viewing of media aggression.

Those women who saw the Mean Girls clip displayed more relationally aggressive thoughts while women viewing Kill Bill had both higher physically aggressive and higher relationally aggressive thoughts.

The researchers suggest that aggression begets aggression–or that the act of watching physically aggressive media activates the general aggressive neural networks of the viewer. This would encompass both physical and relational aggressive thoughts and would explain the increases in both types of aggressive thoughts after watching a physically aggressive movie clip.

Alternately, they suggest the finding may be gender-dependent and have occurred due to the all-female sample of research subjects. Physical aggression is depicted less often among females and watching Uma Thurman attempt to “kill Bill” may also activate aggressive thoughts of a type that is more gender-normative (i.e., “relational aggression”). They suggest future research investigating the impact of these types of media on male research participants.

From a litigation advocacy standpoint however, what we care about is the activation of the aggressive thoughts–not so much whether viewing physical aggression activates both physically and relationally aggressive thoughts across genders. What this research corroborates is that viewing media depictions of aggression stimulates aggressive thoughts. We know from years of research (and years of work in litigation research) that angry jurors are more likely to act (and award damages or convict) than are sad and hopeless jurors. What this research says is that viewing aggressive media activates aggressive thoughts.

This may have implications for ‘day in the life’ videos, evidence videos/animations, or other court admitted film/video. While it is straightforward to see how a physical injury/assault case can make use of aggressive visuals, even a videographer’s depiction of a broken contract can be presented with aggressive themes/visuals. Editing strategies can be smooth or jarring. Sound tracks can be soothing or edgy. The idea is to activate the aggressive cognitions within your jurors and then give them an action to take to honor those aggressive impulses.

If you are opposing counsel, you want to reframe the aggressive actions depicted by the plaintiff/prosecution as sad, misdirected anger that won’t turn back time. While the plaintiff/prosecution wants to ramp up anger, you want to turn it down and replace it with sadness and hopelessness–a “stuff happens” reaction that will inoculate against high damage awards or a guilty verdict. And find a way to convey that video editing, formatting images, and sound tracks can be argumentative and prejudicial.

Coyne SM, Linder JR, Nelson DA, & Gentile DA (2012). “Frenemies, Fraitors, and Mean-em-aitors”: Priming Effects of Viewing Physical and Relational Aggression in the Media on Women. Aggressive Behavior PMID: 22331575

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