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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3. Pretrial publicity & bias: Take a look at the age of your jurors!

First, research participants were assessed to see if they were liberal or conservative (based on self-reports and a series of questionnaires to ensure consistency). Those with the strongest political positions (strong liberal and strong conservative) were selected to continue with the study. Then, researchers tested skin conductance changes [as subjects looked at either positive or aversive images] and gaze attraction [what did you look at first and what did you look at longest].

Because we know you are wondering, the aversive images were a spider on a man’s face; an open wound with maggots in it; and a crowd fighting with a man.  The positive images were a happy child; a bowl of fruit; and a cute rabbit. You can see a more detailed description of the study online at Miller-McCune.

What they found is interesting:

Conservatives spent a longer time paying attention to the aversive images and their reactivity to those images was higher. It was as if they could not look away. Were they afraid? They were drawn to the aversive images twice as fast as the liberal participants and spent a much longer time staring at them. But the researchers did not think they were afraid. Instead, the researchers thought “individuals on the political right are not so much ‘fearful’ and ‘vulnerable’ as attuned and attentive to the aversive in life”.

It wasn’t that liberals didn’t look (or as the researchers say, “they did their share of gawking”) they simply didn’t look as long and were more drawn to the positive images.

From a litigation advocacy perspective, this study would indicate that if you are plaintiff and there are gruesome images, conservative jurors are likely going to be more impressed with the potential threat to their safety. Some would say, they might be more influenced by the “reptile approach”.  Know that conservative jurors are going to spend more time dwelling on them than liberal jurors. The open question for you is: “how are these images going to move decision-making, and how can I optimize their impact on my case?” Do the liberal jurors turn away more quickly because they are upset? Are they prone to deny the impact of the image? Do conservative jurors gaze longer because they are immune to the emotional impact, or because they are internalizing a sense of threat and will react more harshly to its cause?  A simple pre-trial focus group can give you insight into what jurors think about the images, as well as insight into the potential value of knowing their conservative or liberal leanings.

It is important to bear in mind that participants in this study were those who were very conservative and very liberal. When we see mock jurors that identify themselves that way–they are often unpredictable and emotionally reactive for idiosyncratic reasons. They are simply not good bets as either pro-defense or pro-plaintiff, as they are prone to seizing on what they see as a key subtlety of the case and making more of it than anyone else thinks makes sense.

Although there is a growing literature similar to this research, and certainly a growing political polarization in the country–don’t rely on this criteria (liberal or conservative) in selecting jurors for your case without knowing where the jurors’ judgements go as they look at the images. As one of a number of criteria, it is likely fine. Alone? It’s dangerous.

Dodd MD, Balzer A, Jacobs CM, Gruszczynski MW, Smith KB, & Hibbing JR (2012). The political left rolls with the good and the political right confronts the bad: connecting physiology and cognition to preferences. Philosophical transactions of the Royal Society of London. Series B, Biological sciences, 367 (1589), 640-9 PMID: 22271780

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Related posts:

1. Voir Dire Strategy: Who’s the Libertarian?

Some wonder about the timing of this medical record disclosure–saying only a narcissist would leak his medical records at a time like this–shouldn’t we have heard about this when he was running for President? Our friend Charli Morris (a self-described “loyal Democrat”) tells us that the up-close view of this trial from her North Carolina home is not a pretty picture.

John Edwards took a short cut on the long slide from from “golden boy” to “most contemptible”.  Not unlike Newt Gingrich, he had an affair with a woman during his wife’s convalescence from cancer, and is now suffering the complications of having to deal with the stunningly insensitive abandonment. It’s  the ultimate challenge to pretrial publicity. While recent research would say that older jurors might be better for John Edwards, it’s hard to believe that jury selection will be that simple in his case. There are too many wrinkles and caveats and too many negative opinions.

While Gingrich prevailed among the Christian evangelical voters in the South Carolina Republican primary with claims that it was an error of the past brought on by excessive devotion to work(!), Edwards has much bigger problems.  Edwards’ betrayal was relatively recent, with a wife who has consistently been more popular than he is, who died after having been in recovery at the time that the scandal was made public.  While potential jurors may say they are able to be fair, it’s hard to see how most people can put the media information aside completely and offer a verdict based on facts alone.

It’s part of what makes voir dire such a constantly changing puzzle. Everyone tries to find an edge. Whether that edge is assessing social anxiety from Facebook profiles or some other strategy–we all look for clues in the arena of the not easily observed that will lead to a better jury selection. It’s our guess that the Edwards’ defense team is doing extensive pretrial research to identify trial themes, case narratives, and juror experiences that work for them and not against them.

Fernandez, K., Levinson, C., & Rodebaugh, T. (2012). Profiling: Predicting Social Anxiety From Facebook Profiles Social Psychological and Personality Science DOI: 10.1177/1948550611434967

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