By Scott Herndon, M.A.
Traumatic national events, like the COVID-19 pandemic elicit a broad range of emotions in potential jurors. Jurors, like all of us, worry about the safety of our family and loved ones, keeping jobs, the state of the economy, or the stress of taking on new family and educational responsibilities. Recently, we have conducted some national survey research and the data demonstrates that the pandemic has heightened many latent juror attitudes about the government, corporations, and many other institutions and business. These stressors and biases combine to create a mix of emotions that potential jurors bring into the courtroom. Overwhelmingly, and not surprisingly, research on emotion and affective states demonstrates that people bring their emotional baggage with them when making decisions and passing judgements, even if they consciously realize their anger or sadness is extrinsic to the decision they are making. It’s simply human nature.
Added to those external stressors are the feelings jurors experience while serving as a juror. Fear, sadness, anger, and anxiety are all commonly reported by jurors, and these emotions influence the cognitive frames jurors use to decide a case. Research on emotions and decision-making has established that different emotional states directly influence cognition, memory, and most importantly, decision-making. It’s important not only to consider how a national emergency like COVID-19 impacts jurors’ emotions, but also to understand how those various emotional states influence decisions in jury trials. While most jury research looks at the general valance of emotion, positive or negative, when discussing decision-making, a more thoughtful analysis tells us that the specific emotion has a significant impact on how jurors process information. Knowing how jurors feel isn’t enough; it’s important to consider how those feelings impact the affective economy of your trial and how everything from evidence presentation, witness choices, and even the ethos of the attorney matter in maximizing your chances of successful verdict.
A cursory view of common takeaways about juror emotions and decision frames during times of crisis reveals basic sets of conclusions. Specifically, if we look at what mainstream jury research told us about 9/11 and the 2008 recession, common conclusions were that jurors faced stress stemming from fear about the security of their own jobs or personal safety. Moreover, some analysis suggested jurors were angry with corporations and management, and had a heightened sense of distrust for the government, leading them to render verdicts with higher awards. Analysis during these periods often failed to produce meaningful strategy advice because it tended to lump juror emotions in the broad category of “negative” without much attenuation to the specific nature of those emotive states.
One thing that stands out in the above conclusions is that while useful, they are very general. As we look at our own data on juror emotions post COVID-19, it’s clear a more nuanced approach to the affective economy of jury trials is necessary. If we break down negative emotions (sadness, anger, fear), we quickly find that the research on emotional states tells us that jurors process information very differently in each state; therefore, the strategies to persuade jurors requires attention to this detail. Let’s consider some of what the most salient research on three key emotions – sadness, anger and fear – tells us about how jurors make decisions.
Sadness: Sadness is a very common emotion for jurors at trial. Often the details of a case are heartbreaking, and jurors typically find elements of those cases to which they can relate. Even when jurors don’t enter trial in a personally sad state, sad case facts can move them in that direction, which has a direct impact on how they process information. For example, research indicates that sad jurors express less certainty about case facts, generally leading them to spend more time scrutinizing evidence and being more cautious in drawing conclusions. A 2002 study published in Behavioral Sciences and the Law indicates that sad jurors were more likely to detect inconsistency in witness testimony, leading them to find for the side with fewer inconsistencies. Similarly, a 2003 article from the Brooklyn Law Review supported this finding, suggesting that jurors attribute blameworthiness differently in sad states. For instance, jurors who reported feeling sad tended to blame the situation rather than the persons involved in that situation, and more often found for defendants in accident or murder cases. Finally, research published in Journal of Personality and Social Psychology in 1993, shows that sadness induces a more fatalistic world view, prompting sad jurors to be less likely to try to “change the world” with higher damage awards, instead deciding that sometimes bad things happen and attributing less blame, generally.
Anger: Another common response is for jurors to report feeling angered by facts in a case. The previously mentioned research from Behavioral Sciences and the Law on anger and juror decision-making indicates that angry jurors are more likely to rely on heuristic approaches to decision making, falling back on stereotypes, or making more brash judgments about the facts in the case. Angry jurors tend to believe “they know” what happened in a case and draw those conclusions with less attention to detail. In the same studies mentioned above, angry jurors recognized fewer inconsistencies in witness testimony and reported spending less time referencing evidence in making their decisions. Angry jurors, according to a 2015 study published in Applied Cognitive Psychology in 2015, are also more certain of their outcomes, and as a result, are more likely award larger damages. When assessing blameworthiness, angry jurors are significantly more likely to blame people for accidents and tend to assign blame personally more often than situationally. Also, this research indicates that anger in jurors triggers a “prosecutorial mindset,” leading them to more heavily consider evidence that aligns with their world view and often favors plaintiffs. Finally, angry jurors tend to have more optimistic outlooks, believing that they can make the world a better place, adopting a more punitive mindset toward awards.
Fear: Fear might be the most complex of the emotions that jurors commonly feel during a trial because it has the highest likelihood of interacting with both sadness and anger, and as research shows, can produce less definitive effects. Most research, including the previously cited Journal of Personality and Social Psychology, and Applied Cognitive Psychology, demonstrate that fearful jurors show a tendency to blame the defendants for not mitigating a perceived risk. This is particularly strongly felt and acted upon when fear interacts with juror’s own sense of mortality, which has been demonstrated to lead to harsher judgements at trial. Fearful jurors may feel as though they lack control and attempt to exert control by supporting larger damage awards, for instance. Similarly, fearful jurors are more likely to rely on racial or cultural stereotyping in making decisions, blaming “out groups” when the opportunity presents itself. For example, the Brooklyn Law Review in 2003 cites several studies of mock jurors in negligence cases who reported feeling fear were more likely to blame Japanese car manufactures for car accidents, in contradiction of evidence that Japanese vehicles were found to be safer. However, fear can be tricky. When it is combined with other emotions, such as sadness, fear can produce the opposite effect and lead jurors to blame the victim/plaintiff. In these cases, fear, interacting with sadness, triggers a defensive response where jurors essentially blame the victim because it allows the jurors to tell themselves that the same outcome would never happen to them since they would make better decisions than the victim.
A strong grasp on how juror emotions impact the affective economy during trials is vital to deploying the best possible strategies, especially during times of national emergency when emotions are running high. Extrinsic and intrinsic factors can have a lasting impact on juror processing. Knowing which emotions to trigger and which to counteract is an invaluable advantage as cases go to trial in the post-COVID environment.