Updated: Feb 12, 2021
Trial Attorneys: Have you ever left an intelligent person on a jury thinking, "smart people will get it," only to learn in post trial juror interviews they didn't "get it;" rather, they found against your client?
If so, read on. If not, read on anyway.
So, why do smart people arrive at "strange," or seemingly "irrational" conclusions? It's simple: Ideology + Confirmation Bias. Combined, these two principles exert a great deal of influence on how we interpret information, and arrive at conclusions. The following formula approximates how it works in the minds of jurors: Fact 1 + Fact 2 + Fact 3 → Ideology + Confirmation Bias = "Right" Conclusion (verdict). (Click here for a real world example at trial).
Let's define the terms:
Ideologies function as prepackaged units of interpretation that spread because of basic human motives to understand the world, avoid existential threat, and maintain valued interpersonal relationships (Jost, Ledgerwood, and Hardin, 2008). And, Ideology implies a selective interpretation and understanding of the data that come to our senses in terms of a general emotional picture of how things should be rather than an objective and rational evaluation of the evidence (Walsh & Ellis, 2004).
Confirmation bias is the tendency to search for, interpret, favor, and recall information in a way that confirms or supports one's prior beliefs or values. People display this bias when they select information that supports their views, ignoring contrary information, or when they interpret ambiguous evidence as supporting their existing attitudes. The effect is strongest for desired outcomes, for emotionally charged issues, and for deeply entrenched beliefs (Watson, 2014).
Confirmation bias solidifies ideology and ideology impedes reason.
What does Solzhenitsyn have to do with jury selection?
I was just reading Volume II of The GULAG Archipelago by Aleksandr Solzhenitsyn, and I came across a passage that highlighted how ideology and confirmation bias work hand-in-hand to exert an incredible influence on how we (and jurors) interpret information and arrive at conclusions - sometimes tragically incorrect conclusions. The excerpt below illustrates the point.
Before I get to the passage from the book, here's some context: While on a prison transport from one labor camp to another, and after years in the GULAG, Solzhenitsyn encounters a recently arrested professor, a "Marxist scholar." By this time Solzhenitsyn had recognized that Marxism was at the root of the horrors of the GULAG. He had also realized that ideologues (such as this Marxist scholar) would defend Marxism and Stalin's pursuit of communism, even in the face of evidence that it's been a catastrophic failure. Solzhenitsyn apparently entertained himself at times while in the GULAG by testing the resolve of such ideologues. His exchange with one of them follows. As you read, note how the Marxist defends his ideology by using confirmation bias (dismissing evidence that contradicts his belief system or ideology). Keep in mind, this Marxist was now a victim of the implementation of the very doctrine he supports.
Solzhenitsyn: "Look over there how poverty stricken our villages are, straw-thatched crooked huts."
Marxist: "An inheritance from the Tsarist regime."
Solzhenitsyn: "Well, but we've already had 30 Soviet years."
Marxist: "That's an insignificant period historically."
Solzhenitsyn: "It's terrible that the collective farmers are starving."
Marxist: "But have you looked in all their ovens?"
Solzhenitsyn: "Just ask any collective farmer in our compartment."
Marxist: "Everyone in jail is embittered and prejudiced."
Solzhenitsyn: "But I've seen collective farms myself."
Marxist: "That means they were uncharacteristic."
Solzhenitsyn: "Just ask the old folks, under the Tsar they were well-fed, well-clothed, and they used to have so many holidays."
Marxist: "I'm not even going to ask, it's a subjective trait of human memory to praise everything about the past... 'the cow that dies is the one that gave the most milk.' Our people don't like holidays, they like to work."
Solzhenitsyn: "But why is there a shortage of bread in many cities?"
Solzhenitsyn: "Right before the war for example."
Marxist: "Not true! Before the war in fact, everything had been worked out."
Solzhenitsyn: "Listen, at that time in all the cities on the Volga, there were queues of thousands of people."
Marxist: "Some local failure in supply. But more likely your memory is failing you."
Solzhenitsyn: "But there's a shortage now."
Marxist: "Old wives tales! We have from 7 to 8 billion *poods of grain."
Solzhenitsyn: "And the grain itself is rotten."
Marxist: "Not at all! We have been successful in developing many varieties of grain."
Solzhenitsyn: "But in many shops the shelves are empty."
Marxist: "Insufficient distribution in local areas."
Solzhenitsyn: "Yes, and the prices are high, the workers have to do without many things."
Marxist: "Our prices are more scientifically based than anywhere else."
Solzhenitsyn: "Why is it that the father of a family used to be able to feed his family with his own labor, but now two or three in the family have to work?"
Marxist: "Because there was unemployment previously, and the wife couldn't get work and the family went hungry. Furthermore, the wife working is important for her equality."
Solzhenitsyn: "Look around at the number of people in prison."
Marxist: "They got what they deserved."
Solzhenitsyn: "But what about you?"
Marxist: "I was jailed by mistake, they will sort things out and release me."
Ideology + Confirmation Bias and Jury Selection
As I read the above passage, it reminded me how important it is to dismiss the right jurors during jury selection, because it's not just facts, evidence, and arguments that convinces jurors. Jurors accept or reject facts, evidence, and arguments via confirmation bias to fit their ideologies. This is why when an attorney tells me "we need smart people on the jury because this is a complex case," I cringe a little bit. Who is a worse juror for a case involving extremely complex facts? A juror of average intelligence who might not understand key elements of the case, but who's ideology comports with the narrative you will be promoting at trial? Or an intelligent juror who might understand the facts, but who's ideology is contrary to the narrative you will be promoting at trial? Knowing a juror is smart isn't enough reason to keep that person on a jury, you need to learn what ideologies they might have that will inhibit their ability to give your facts, evidence, and arguments a fair evaluation.
An attorney's ability to advocate does play a role in juror decision making, but it's a danger to underestimate how powerful the combination of confirmation bias and ideology are when it comes to juror decision making. As was seen in the example above, it was easy for the Marxist to dismiss, minimize, or explain away objective evidence that contradicted his world view (ideology). He even explained away his own imprisonment that was likely a result of the Marxist doctrine he supported. Jurors are no different. The same processes that prevented the Marxist from abandoning his position also impact jurors' ability abandon theirs. And, if you have an intelligent juror with the wrong ideology, he or she might have the ability to persuade other jurors in the jury room to his or her way of thinking.
*A "pood" is a Russian measurement. One pood of grain is equal to 16.38 kilograms.
Jost, John T., Ledgerwood, Alison, & Hardin, Curtis D. (2008). Shared reality, system justification, and the relational basis of ideological beliefs. Social and Personality Psychology Compass, 2, 171–186.
Solzhenit︠s︡yn, Aleksandr Isaevich, 1918-2008. (197478). The Gulag Archipelago, 1918-1956: an experiment in literary investigation. New York :Harper & Row.
Walsh, A, & Ellis, L. (2004). Ideology: Criminology’s Achilles’ heel? Quarterly Journal of Ideology, 27, (1&2).
Watson, Peter. The Telegraph. Retrieved 24 November 2014.
For more advice from a jury consultant, check out the following blog posts:
Jeff Dougherty, M.S.
President - Litigation IQ