By Thomas M. O’Toole, Ph.D.
Without a doubt, we are living in unprecedented times. Whether it is the leader of the free world firing off daily rants on Twitter or the mere fact that smart-phones leave us plugged in 24 hours a day and 7 days a week, technology and social media have profoundly changed the way we experience the world. The psychological and sociological research is finally catching up, offering an interesting glimpse into how all of these changes are impacting our brains. Here are three ways in which technology and social media are impacting your jury pool.
1. Our unprecedented access to information negatively impacts our memory. One of the greatest features of the internet age is our immediate access to information. With the proliferation of smart phones, everyone has access to information and answers anywhere they are. Some studies are showing that the internet has come to serve as pseudo external hard drive for our brains, which means we have less of a need to remember information since we know we can find it almost anywhere, at any time. In fact, a study by Science Magazine shows that people are significantly less likely to remember information if they believe they are going to have later access to it. This can be particularly concerning at trial since jurors often have unrealistic expectations about what they will have access to in deliberations. It may also explain the increasing number of jurors who violate rules about internet research during trial. Regardless, it highlights the need for attorneys to get creative in their presentations strategies. For example, repetitive lead-ins to questions that remind jurors that the question touches on a key issue may help peak their attention and increase their retention of the information.
2. Social networking and the “breaking news” media strategy have shortened our attention spans. Everything is breaking news these days. Click on CNN’s website any time of day and there’s a good chance you’ll find a bright red or yellow banner prominently placed near the top, alerting us to “breaking news.” Similarly, social media and the constant updating of new (but often meaningless) information about those in our social circles has created another genre of less formal “breaking news.” According to a Microsoft study, this has all contributed to the shortening of the average human’s attention span because we are constantly looking for the next burst of interesting information. In other words, we have become so inundated with new “breaking news” kinds of information that we are quick to lose focus on old stimuli. A Microsoft study found that the average attention span these days is about 8 seconds. As a point of comparison, the attention span of a goldfish is about 9 seconds. In other words, we need something new and interesting every 8 seconds to keep our attention. This has important consequences for attorneys since even the most interesting trials can quickly become boring in the day-to-day trenches of witness testimony and the exceptionally boring requirement of having to lay foundation for nearly everything the attorney asks of a witness.
3. “Facts don’t mean a thing when we’re chasing our beliefs.” This is a great lyric to a song I heard not so long ago and hits on one of the biggest implications of our current political culture. A series of Pew studies over the past couple of decades suggests that 2017 brought in significantly more political polarization in the United States than we have seen in the past. This is particularly important when you consider the concept of motivated rationality, which says that most people figure out what they want to believe first and then seek out the facts that support those beliefs rather than drawing deductions from the information itself. In fact, an Emory study found that our brains reward us with a rush of dopamine when we are able to explain away information that contradicts what we want to believe about the world. To top it off, the internet revolution and the age of media segmented by belief provides a treasure trove of competing information to support nearly anything someone might want to believe about anything (see flat-earthers). This means that it is more important than ever that attorneys develop a case theory and themes that resonate with the attitudes and experiences of the jury pool. In short, it is reckless to expect jurors to bend to the case. Instead, it is critical to craft a narrative that bends the case to the jurors.
