“That’s a good business model”, an older Caucasian woman said, “because those Mexicans will do whatever you tell them to do”. She seemed oblivious to the very bright, young Hispanic male sitting next to her and the Asian American woman sitting next to him and the middle-aged Hispanic female next to her. All of their eyes opened very wide and they made extended eye contact with a young African American male with dreadlocks sitting across the table from them. The lawyers in the observation room watched with open mouths.

When asked to explain what she meant, the woman modified her statement a bit to incorporate comments about education, lack of language proficiency and poverty. Several other Caucasian jurors around the room chimed in that poor people were more likely to fall victim to financial scams since the economy had made their lives especially tough. It became apparent that “poor” would be a code word for “Mexican” and that the group was going to talk around issues of race and bias and potentially blame the victims. 

More than an hour later we took a break and all four of those jurors waited until everyone else left the room and then they burst out laughing. One said, “No, she didn’t!” and they all exchanged comments about how casually racist things are said with a seeming lack of awareness from the speaker. They were surprisingly not angry (and none of them confronted her in the moment) but they definitely felt a bond with each other over their shared experiences. And if you go read the original post, you will see that another African American male completely changed the direction the discussion was headed, and again, without confrontation. They showed far more grace in the moment than I believe I would have in their position, which is the point of this blog post.

New research sheds some light on why this might happen. The researchers cite prior research findings: “Even though confrontations can be effective in curbing prejudice, most people do not directly address an offending person or behavior despite desiring and expecting to do so.” We’ve written about this reality before in a post on sexual harassment. What you believe you will do in theory is different than what you actually do when confronted with the situation yourself.

The researchers conducted three different experiments and found exactly what they expected:

When asked in a pilot study if they would confront sexist statements, women who valued confrontation said they would speak up and challenge sexist comments. However, in all three studies, when women were given the opportunity to confront sexist comments, “the vast majority failed to provide any sort of confrontational response”.

And when women who valued confrontation did not confront the sexist speaker, they compensated psychologically by giving the sexist speaker more favorable evaluations than did women who were not given the opportunity to confront the sexist speaker.

In other words, they pretended they liked the sexist speaker more than they probably did. And they went even further by minimizing how important they thought it was to confront prejudice/sexism when given the opportunity to rate the importance of that behavior after they had chosen not to confront.

The researchers believe this happens due to cognitive dissonance. We see the gap between what we anticipate we will do and what we actually do and it results in efforts to excuse ourselves to ourselves. We might see this in the idea of our inventing “racist roads not taken” and excusing ourselves because we’ve confronted prejudice in the past (even when we haven’t). Their own failure to speak up was so dissonant to them, they rated the person more highly as if to explain why they didn’t take them on.

It’s part of why it’s so important to be vigilant about facts in your case that may trigger racist beliefs, or other forms of bias. Often they make no sense– such as when race isn’t salient to your case narrative. Other times, you can see how those cognitive leaps are made but the comments can still give you pause (as we say here in Texas). The last thing you want is to be surprised when jurors go to deliberate and there are no wise middle-aged African American men to disrupt racial biases with gentleness and humor. Here are some ideas to consider as you prepare for trial:

Identify potential triggers for bias prior to trial and weave information to counter those biases into your case narrative. Give jurors who support your case concrete facts to use in deliberations.

Teach jurors how to deliberate so they know what to discuss and how to frame their arguments so that bias does not derail their work.

Consider when to raise the issue of race or ethnicity so that your jurors are aware of the need to be fair as they consider case issues. Whether you make jurors aware of the insidiousness of racial biases will likely depend on which party you represent.

Rasinski, H., Geers, A., & Czopp, A. (2013). “I Guess What He Said Wasn’t That Bad”: Dissonance in Nonconfronting Targets of Prejudice Personality and Social Psychology Bulletin DOI: 10.1177/0146167213484769

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Right wing authoritarianism had a research heyday some decades ago and has enjoyed a sort of resurgence in the current work of researchers. Fortunately (or unfortunately) questions like these, from a 2005 update of the Right Wing Authoritarianism Scale, are rarely heard in voir dire (even in the most conservative venues):

Our country needs a powerful leader, in order to destroy the radical and immoral currents prevailing in society today. 

God’s laws about abortion, pornography and marriage must be strictly followed before it is too late, violations must be punished. 

It would be best if newspapers were censored so that people would not be able to get hold of destructive and disgusting material. 

If the society so wants, it is the duty of every true citizen to help eliminate the evil that poisons our country from within. 

But they appear routinely in research and we try to learn what we can. Sample 1 was collected in the Dutch-speaking region of Belgium by “aggregating data from six subsamples” collected between 2000 and 2010. The researchers used data from 577 men and 644 women with an average age of 43.9 years. Sample 2 was collected in the Netherlands in 2010 by an online survey company. This sample included 426 men and 374 women with an average age of 49.5 years.

Participants completed the Right-Wing Authoritarian Scale, a cultural conservatism scale, and the 8-item Subtle and Blatant Prejudice Scale. (How blatant you ask? Here’s a sample question: “We have to keep our race pure and fight mixture with other races”.  Again, not a likely question for voir dire.)

There was a relationship between age and prejudice (both subtle and blatant)  with older age resulting in higher levels of prejudice as well as stronger endorsement of right-wing attitudes.

Interestingly enough, the strength of right-wing attitudes increase with age. The researchers think as we age, we may derogate outgroup members to affirm our own self-worth. It calls to mind the [in]famous quote falsely attributed to Winston Churchill: “If you are not a liberal at 25, you have no heart. If you are not Conservative by 35, you have no brain.”

While we can’t use these measures themselves (or items from them) in voir dire–the findings of this research important. There is a tendency for us to become less tolerant of others as we age. However, that may have little to nothing to do with the senior citizen potential juror in your venue. Instead, your task is to glean what you can from their responses and what you know about them as individuals.

Do they sit quietly, isolated from others or are they chatty with diverse others? Do they appear stern and angry and bitter? Do they proudly wear a Confederate Flag pin, a Daughters of the American Revolution scarf, or an ACLU tee shirt? You may think that sort of comparison is ridiculous. So, we think, is assuming your senior citizen can’t be fair in deliberating, can’t keep up in a high tech trial, and can’t relate to/understand complex case narratives. It isn’t about the statistical aggregate. It’s about the individual when it comes to voir dire. And you know what assuming does…

Franssen, V Dhont, K Van Hiel, A 2013 Journal of Community and Applied Social Psychology, 23: 252-257.

Franssen, V., Dhont, K., & Hiel, A. (2013). Age-Related Differences in Ethnic Prejudice: Evidence of the Mediating Effect of Right-Wing Attitudes Journal of Community & Applied Social Psychology, 23 (3), 252-257 DOI: 10.1002/casp.2109

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“Their message is likely to be rejected regardless of whether it is objectively ‘right’, well-considered, well-justified, or well-argued.”

Bummer. If you don’t fit in with your audience, you may as well not be a messenger at all, according to this research. The reality is that logic doesn’t change hearts and minds. What you may see as simple recitation of fact, can be heard by the listener as a potential threat to how they see themselves. Especially if you are someone they believe espouses values opposed to their own.

It’s called the intergroup sensitivity effect. The intergroup sensitivity effect describes how people “agree with criticisms much less when the criticism comes from outside the group than when the same comments are made by an insider”. Members of a group see a critical outsider as not having their best interests at heart while in-group critics are seen as being more constructive–at least according to past research. (Those who have been in-group critics may question this declaration.)

The researchers say the ‘message rejection’ is a 3-step process.

First, the listener assesses your motivations. Are you trying to be constructive or not? If no, they stop listening. If yes, they continue listening.

Second, they appraise your message. Are the criticisms well-justified? If not, they stop listening. If they are, they keep listening.

Third, they accept you and your message.

The authors quote other researchers saying that “criticisms are ‘hot’ forms of communication, marinated in themes of threat, suspicion, and self-esteem”. And with that evocative description–let’s take a look at their research.

Participants were 188 Australian university students (124 female, 64 male with an average age of 18.6 years). They were exposed to written messages (argument quality: strong vs. weak vs. no argument) and messenger information (some critics were ingroup members, [i.e., Australians] and others were not [i.e., from the US, England or Canada]) and participants were asked to evaluate both the messenger and the message. The “messages” used were criticisms of Australia. Each message began with the following lines:

“One thing I have noticed is that Australians tend to be intolerant of immigrants and racist toward Indigenous Australians…”

In the no argument condition, there was no additional text. In the argument (weak or strong) conditions, the authors do not provide the contents of the essays but they indicate the strong argument was supported by research citations and government statistics while the weak argument was supported by comments in the newspaper, personal opinions and hearsay.

The author findings are stark and simple: outgroup critics will not be as successful as ingroup critics.

Participants thought ingroup critics were more constructive, less negative and they liked the ingroup critics more than the outgroup critics. When criticisms were made by an ingroup member, participants were more likely to agree with the critic’s position than when the same message was communicated by the outsider.

The authors make only one recommendation for the outgroup critic: Clarify your motivations for the criticism and then justify your claims.

“If messengers are not able to demonstrate that their intentions for criticizing the group are sincere, no amount of persuasive evidence will be effective in helping the critic win acceptance.”

This has direct applicability to litigation advocacy. We talk a lot about finding ways to make your witnesses and parties “like” the jurors. In the language of these researchers, that means the witness/party moves from an outgroup member to an ingroup member–to someone who is “like me”. This research highlights why that is so critically important.

Strategies for bridging this gap can include various reasonable forms. The crucial facet is that you can’t make any assumptions about acceptance– you have to earn it.

If you or your client are different (economically, culturally, racially, educationally, gender, age, et cetera) work to establish a trial story that includes threads of connection. And do it without pandering.

Take a careful look at your jury and see who is most likely to let you into their individual in-group. Maybe a difficult time they went through will help them identify the problems your client is having. Maybe they have a close relative or friend who gives them insight into the problems.

Everyone has felt shut out and misunderstood. A foreigner in our own country. Sometimes that common experience will soften resistance to seeing the commonality between “us” and “them”.

If you remain an outgroup member, or ‘not one of us’, we don’t care what you have to say. And that is simply a risk you cannot take.

Esposo SR, Hornsey MJ, & Spoor JR (2013). Shooting the messenger: Outsiders critical of your group are rejected regardless of argument quality. The British Journal of Social Psychology. PMID: 23316747

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