By Dr. Ken Broda-Bahm:
Sometimes the bandwagon isn't a bad place to be. If your case embraces what is likely to be the popular position (e.g., the big company is to blame or the accused is guilty), then a tidal wave of opinion reaching a swift conclusion, and sweeping the doubters along in its wake, might seem like a pretty good thing. But lawyers often find themselves on the opposite side of that dynamic. In the toughest cases, your preferred verdict will rely on jurors exercising their own independent judgment long enough to consider the unpopular view and avoid being swept up into the bandwagon.
In that setting, does the attorney simply hope that a critical mass of jurors will have the fortitude to resist the crowd effect? Or are there techniques that a legal persuader can apply in order to bolster arguments against the bandwagon? A new research article, interestingly a piece focusing on jury size and the likelihood of hung juries, has something so say on the point. Starting with the fact that smaller juries are as likely to produce hung juries as larger juries, the analysis suggests that the reason for this paradox can be found in what it calls "informational cascade," or the bandwagon dynamics of the group. This post looks at the research and provides some advice for those times when you want to combat the cascade.
Jury Decision making and "Informational Cascade"
In 1970, the Supreme Court held that juries with as few as six jurors could satisfy the due process requirements of the Sixth and Fourteenth Amendments. Part of the rationale for allowing the reduction had to do with decreasing the chances of a hung jury and a mistrial. In the decades that have followed, however, there has been no broad-based reduction in mistrials. Recently, two economists (Luppi & Parisi, 2012) tried to figure out why using the tool of decision theory. While the article is based on some complex formulas, the gist of the analysis is that smaller juries are more likely to be homogeneous, and homogeneous juries are more likely to fall victim to the informational cascade that occurs when individuals "make a decision based on the observation of others, disregarding or discounting their own private information" - or a bandwagon effect. The bandwagon can of course lead to a unified verdict, but it can also polarize a jury making it less likely to compromise. Thus, they conclude that the reason that smaller juries aren't more likely to come to a consensus is because the jurors aren't exercising truly independent judgment, and the greater risk of a cascade effect tends to overwhelm any advantage of a smaller group. The key is not the numbers, it is the diversity of the group. In a heterogeneous jury, individuals are less likely to feel peer pressure to emulate each other, and hence more likely to exercise independent judgment and come to better conclusions.
While Luppi and Parisi rely on mathematical decision theory, a similar conclusion is bourn out in observational studies. For example, we've previously reported on a decision making study (Lorenz et al, 2011) showing that while a group's aggregate answers, when estimating a particular unknown fact, tended be be surprisingly accurate once individuals were given access to the estimates made by others, they started to imitate each other and became less accurate, yet more confident in their answers.
The result of both analyses underscore the fact that even in a context like deliberation that prizes collective decision making, it is important to preserve a role for individual judgment. There are a few ways to do that in trial preparation and in court.
1. In Mock Trials and Focus Groups, Always Measure Individual Before Group Response
I was recently asked by a client to review the results of a mock trial conducted by another group (yes, lawyers sometimes ask for second opinions). It was an intense and well-organized two-day project. But what struck me is that between attorney presentations, the mock jurors were asked just one question, "What is your current leaning?" and they circled a number without giving an explanation. That technique may work to maximize attorney presentation time, but at the high cost of sacrificing what could be learned of jurors' individual opinions prior to group interaction and deliberations. Having mock jurors complete a thorough questionnaire after each segment of the project is important not just for what you learn at the time, but also for the way it encourages the mock jurors to develop independent attitudes. One feature of attitudes is that we are often not fully aware we have one until someone asks us what we think and why. If the first time we are asked is in a group of others responding to the same question, then a bandwagon response is likely. We've seen it in focus groups: If you ask the same question of the group, then go around the table collecting the answers, once you've heard from half the mock jurors, the second half are generally giving you some version of "I agree with what Jim said..." While the real trial won't have questionnaires after every presentation, that is a very desirable feature in mock trials. You are not only collecting data, but also making your mock jurors more resistent to informational cascade. This means that you will see more robust deliberations which is after all the point of the exercise.
2. In Trial, Voir Dire With an Eye Toward Heterogeneity of the Panel
When selecting a jury, it is typical to think of individual panelists and the way their presence would help or harm your client. While that should be the primary focus, we also advise attorneys to give some thought to the character of the selected group as a whole. Based on studies of group dynamics, one of the most important group characteristics to keep in mind is heterogeneity. Will your jury be composed of individuals who are basically the same on demographic and attitudinal factors, or will there be a healthy level of diversity in the group? "Homogeneity can be breeding grounds for unjustified extremism, even fanaticism," notes Cass Sunstein, a legal scholar well-acquainted with the research. "To work well, deliberating groups should be appropriately heterogeneous and should contain a plurality of articulate people with reasonable views." That is admittedly harder to achieve in some venues than in others. The more common problem, though, is that attorneys are comfortable with a particular type, and not surprisingly, that is often people like them. If what the case needs is robust deliberation to weaken a bandwagon effect, then we should exercise strikes with an eye toward the resulting diversity of the panel.
3. Foster Independent Choice Through Your Message
Apart from the ways to research and to select jurors, are there ways to adapt your trial message in order to promote independent judgment? I believe that when you need to reduce the risk of a bandwagon verdict, it is always worth it to try. Beyond the typical request to "keep an open mind," it is also effective to weave in the following messages, starting with jury selection, and continuing through openings, evidence, and closing arguments:
We expect this case to be difficult.
We expect that it will be a challenge to understand some parts of the testimony.
We expect that you'll have some difficulty reconciling your views once you've heard all the evidence.
We ask you to take extra care to hear out each person on the jury.
I understand that zealous advocates generally want to say that it will be easy to find for their clients. However, in the more difficult cases, you don't want the easy decision because the easy decision will be against your client. In addition to setting jurors' expectations for more robust and challenging deliberations, it will also help to support juror note taking if allowed in your venue, and to encourage that behavior by using a flip chart and writing on it frequently. When you or a witness writes, the jurors will often write as well. In that way, you are directly composing the notes that could serve as an important aid to a juror in the minority.
So, if you are sure you have the easier side of the argument, then you probably don't care about a bandwagon effect (and probably haven't read to the end of this article). If, however, you're aiming to reduce the chances of an easy, popular, and unfavorable decision, then you should be giving some thought to what would prevent your jury from deciding too quickly.
Other Posts on Group Dynamics:
- Keep Your Burden of Proof in Your Back Pocket
- Remember, Jurors Are Always Forgetting
- Protect Your Jury From the Poison of the Crowd
Luppi, B., & Parisi, F. (2012). Jury Size and the Hung-Jury Paradox SSRN Electronic JournalDOI: 10.2139/ssrn.1980387
Photo Credit: Beige Alert, Flickr Creative Commons
Photo Credit: Beige Alert, Flickr Creative Commons