July 18, 2013

Go for “Mad” Not “Sad” When You’ve Got the Burden: Listening to Juror B37

By Dr. Ken Broda-Bahm: 

Sitting Back to Back - Animation

“It was hard thinking that someone lost their life,” Juror B37 said through tears, “and there’s nothing else could be done about it. I mean, it’s what happened. It’s sad. It’s a tragedy this happened, but it happened.” 

I thought I was done writing about the Zimmerman trial, but then along comes B37’s exclusive interview with Anderson Cooper on Monday and Tuesday of this week. Though four of the five other anonymous former jurors released a statement clarifying that B37 doesn’t speak for all of them, the interview is still a fascinating window into a verdict that continues to hold America’s attention. The talk, of course, has been dissected already, and a number of valuable points made. She admitted to the use of excluded information (testimony the jury was instructed to disregard on Sanford police Detective Chris Serino’s perception of Zimmerman’s truthfulness made a “big impression” on B37). Also of interest are the warning signs for the prosecution in her voir dire (she is a former concealed carry owner who referred to Trayvon Martin as a “boy of color”). 

But one point I haven’t seen made yet, exemplified in the quotation above, is an attitude that is relevant in nearly every case: the tendency for sadness to blunt other emotions, including key attitudes that are necessary tools for prosecution and plaintiff in motivating jurors to revise the status quo. “It’s a tragedy…but it happened” perfectly sums up the problem. When jurors focus on poor choices, then the story can motivate a response. But when the case is viewed within that frame of tragedy, it just invites a “nothing else can be done” attitude in response. That is what the research on emotional reasoning tells us as well. Juror B37’s response, not just the one quotation, but the language throughout the two-part interview, is a perfect example of a communication principle with the unwieldy name of “appraisal-tendency framework,” focusing on an audience’s immediate emotional appraisal’s effect on other appraisals made down the road. Perhaps the better expression is “emotional blunting,” (Winterich, 2010, 2011) which means that a person experiencing sadness first will blunt later experiences of anger and vice-versa. 

Bottom line: Angry jurors are more punitive in both a criminal and civil sense. A focus on the control exerted by situational cues (e.g., auto accidents caused by weather) brings on sadness, while a focus on control by individuals (e.g., auto accidents caused by texting drivers) brings on anger. And, for the prosecutor, anger is a lot more useful. Of course, this basic formula — that a mad jury is better than a sad jury when you bear the burden of proof — is well-known. But the interviews provide a flesh and blood example of the principle in action, as well as an opportunity to share some thoughts on how litigators should address the emotional dynamic of anger versus sorrow.

“An Unfortunate Incident that Happened”

That is how B37 described it as early as her voir dire. Post trial, she was saying much the same thing to Anderson Cooper. There was a preference for the passive voice, referring to “what had happened” and repeatedly using phrases like “it happened” throughout the interviews. She is attributing the loss to circumstances, not to choices. “Circumstances caused George to think [Trayvon Martin] might be a robber,” and “Circumstances happened that he saw Trayvon and at the exact same time, thought he was suspicious.” And when it is “circumstances” that are leading the parties by the nose and arranging them in a fateful encounter, it is hard to place blame on anyone. “I think his heart was in the right place, it just went terribly wrong…Things just got out of hand.” 

According to the research by Pennsylvania State University professor Karen Winterich (2011), anger is “characterized by certainty and human control.” When the danger is viewed as a mistake, or an error — when it is “things” and not “George Zimmerman” who got out of hand, then there is no voluntary and decisive act to motivate jurors toward a verdict. 

“It’s Just Very Sad”

That is also how Juror B37 described her reaction to the incident as early as voir dire. She then used exactly the same expression several times in the interview post trial with Anderson Cooper. When it is “just” sad, then it is nothing more than sad. “I feel sorry for both of them,” she said. We know four of the other jurors as well characterized the experience as “highly emotional and physically draining experience for each of us.” Part of what might have made it so emotional, as Winterich (2011) even notes in the research, is the isolating effect of sequestration. But it is also a good example of the demotivating effect of the tragic frame. “The blunted anger experience,” Winterich explains, “likely would lead the jury to hold the defendant less responsible for his or her actions and thus to recommend a lesser penalty than it otherwise would.” 

Sad is Bad (If You’re the One Promoting Change), So Try to Avoid It

This debilitating effect of sadness serves as a lesson for any attorney who might want to overplay the sympathy card. The emotional punch of the sad details of the case isn’t all it’s cracked up to be. Consultant Tammy Metzger, for example, writes in response to the Winterich article in The Jury Expert (2011) of a benzene case in which plaintiffs, understandably enough, wanted the threat to be as extreme as possible in the minds of jurors. But when jurors heard that they too were being exposed to benzene even through the courthouse paint and there was little they could do about it, this effectively drained away whatever motivation they might have had to help the benzene-injured plaintiffs. It is hard to be angry when there is nothing to be done. As Metzger explains, “Anger drives us to overcome obstacles and control our environment so we can reach our goals, instead of fearfully anticipating pain or sadly accepting a loss.” Here are three additional ways to try to keep jurors focused on the right emotions.  

Acknowledge Jurors Where They Are

An important message from Winterich’s research is to account for the baseline emotional states of the jurors. As she writes, “Knowing the emotional base states of the jurors may be just as, if not more, important as the emotions one hopes to elicit.” As consultant Susan Macpherson writes, also in response to Winterich in The Jury Expert (2011), that means paying attention to jurors closely in voir dire. An ear tuned to this research would have noticed B37’s statements in voir dire and realized that she had already placed this whole event in a bucket marked “tragedy,” and after all the evidence, she left it there. A juror’s view of arguments will be filtered through their emotional perception. “So what kind of story is this?” they will ask. In addition to focusing on how jurors feel when they walk in the door, it is also important to think about the state of mind they’ll be in after a more complete telling of the story (a mock trial is very useful for that). Instead of crafting arguments as though you will be addressing that fictional blank slate, choose arguments that acknowledge and play off of the jurors’ most likely state of mind. 

Ask Jurors to Monitor Their Own Emotions

Of course, the common course is to ask jurors to set aside their emotions – as if those emotions are a hat that one can simply remove. As Susan Macpherson notes, however, “If the goal is to reduce the impact of emotional responses on decision making, it is more effective to encourage jurors to do the opposite: that is, pay close attention and actively monitor how their emotional reactions are influencing their judgments during trial.” That is a subtle way to coach jurors to be aware of and to resist the debilitating effect of the sadness they’ll inevitably feel. 

Induce Jurors to Speak the Language of “Power and Choices” 

I suspect that if we heard from a true prosecution-oriented juror in the Zimmerman case (and we still haven’t heard from B29), they would sound very different. Yes, they would agree that it is tragic, but they would talk more about how that tragedy sprang from choices the Defendant had the power to have avoided: He could have chosen to not profile, not follow, and not reach for the gun. Getting jurors to think in those terms — power and choices — puts them in a cognitive frame rather than an emotive frame. The more jurors believe that parties controlled the outcome, the angrier they become. In that state, they are more likely to assign blame and less likely to be swayed by doubt or by opposing information. 

One final word must be said on the admirable job Anderson Cooper does in conducting B37’s interviews. It doesn’t come across in the short clips, but is clearly evident in the full video of Monday’s interview especially. He does everything a consultant would do: not inserting himself, asking careful follow-ups, and never offering evaluations or challenges that would shut the juror down. Anderson has a career as a trial consultant if the news broadcasting thing doesn’t work out. But more importantly, the interview is a good reminder of how useful and how educational a post verdict interview can be.  

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Other Posts on Emotion in Legal Argument: 

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Winterich K.P., Han S., & Lerner J.S. (2010). Now That I’m Sad, It’s Hard to Be Mad: The Role of Cognitive Appraisals in Emotional Blunting. Personality and Social Psychology Bulletin 36, 1467–1483

Winterich, K.P. (2011). Are Your Jurors Mad or Sad? The Jury Expert 23:3. With responses from James, K., Macpherson, S., and Metzger, T. http://www.thejuryexpert.com/wp-content/uploads/WinterichTJEMay2011.pdf

Image: 123RTF.Com, used under license

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