By Dr. Ken Broda-Bahm:
A picture can be worth a thousand words. And, it turns out, that picture can also make the words you do use more believable. Researchers point to this as the “truthiness” effect, in homage to comedian Stephen Colbert’s neologism for the feeling of something being true independent of its actual truth value. The current issue of The Jury Expert, features not one, but two new articles focusing on that effect. One is a discussion by a law professor and a cognitive psychologist (Newman & Feigenson, 2013), and the other is a research review by a litigation consultant (Kellermann, 2013). Both articles point to a wide array of evidence demonstrating the tendency for claims to be more credible when they're accompanied by even nonprobative graphics. In other words, put a picture on it, and it becomes more believable, or to use the term that’s now made the dictionary, more truthy.
What is unique in the truthiness discussions in the current issue of The Jury Expert is that both articles discuss remedies for dealing with the inappropriate effects of visual truthiness in a courtroom context: Judges should consider special instructions on graphics use, jurors should be sensitized to the effects of accompanying visuals, and adversaries should respond specifically to these attempts to leverage graphics into truth-value. There are clear limits to these approaches, as the authors acknowledge, but there is also the broader question of whether the truthiness effect in trial presentations is a special concern to begin with. In this post, I add my own thoughts to the discussion and argue that litigators should be no more concerned with the nonprobative effects of visual communication than they are concerned over any other aspect of good advocacy.
Research continues to support the conclusion that the addition of simple imagery can increase the credibility of a claim, specifically:
- People who view a fabricated image of President Obama shaking hands with Iranian President Mahmoud Ahmadinejad come to adapt the false recollection of hearing news reports of the event (Frenda et al., 2013).
- The belief that macadamia nuts are in the same family as peaches (not true) seems to have better support when a simple picture of macadamia nuts accompanies the image (Newman et al., 2012).
- Individuals are more likely to believe a claim that a famous person is alive, or to believe that person is dead, if the claim is accompanied by a photograph (Newman et al., 2012).
- Even when visual information is unrelated to the claim being made, it still increases the perceived truth-value of that claim (Newman, 2013).
- As many as 60-70 percent of respondents are influenced by this truthiness effect (Newman, 2013).
Of course, this is not an automatic effect, as Kellermann documents. Graphics consultant Jason Barnes, who responds to the Newman and Feigenson article, also provides several examples illustrating that the visual accompaniment may be ineffective, or may backfire once the other side responds. But the potential for the nonprobative gain seems to be enough to justify a warning. While they note the limitations of an instruction-based approach, Newman and Feigenson (2013) suggest that "judges might tell jurors that a picture or photo is only illustrative -- that it is intended to help the jurors understand testimony, but is not to be taken as evidence that the testimony is true." They also recommend researching the effectiveness of warnings that stress "the power of photos—even nonprobative ones, only tangentially related to the claims they are paired with—to influence judgments about the truth of those claims.” Kellermann similarly notes that "One of the most effective responses an attorney can make to an opponent using truthiness and falsiness is to expose the persuasive tactic the attorney is using,” further arguing that, "this exposure method provides a warning (helping jurors guard against the further use of the tactic), exposes the opposing attorney as using ‘tactics’ (being tricky, having a persuasive goal) rather than ‘informing’ (having an informational goal), and refocuses the argument on the evidence (which jurors prefer to follow)."
Why Should Visual Information Be Any Different?
But a broader question might be whether there is any special danger here that needs to be warned against. Let's consider a courtroom scene and take a moment to separate out what is probative and nonprobative. To start with, the plaintiffs' attorney has combed his hair and chosen to wear a suit -- both nonprobative, but certainly good ideas. The defense attorney has chosen a trial theme, a narrative structure, and a central metaphor to explain the weaknesses in her adversary's case -- none of that probative in and of itself, but all of it reasonably calculated to improve the face validity, the comprehensibility, the stickiness, and the ultimate persuasiveness of the case.
Instead of exhibiting surprise and concern that these nonprobative verbal and nonverbal elements can sway the decision in a case, we accept that these factors are still important parts of good advocacy within a system that depends not simply on facts, but on persuasion as well. Knowing that, litigators and social science researchers alike shouldn't draw too hard a line between what is “probative” and “nonprobative.” After all, is it really “nonprobative” if a technique helps jurors remember, think about, or apply the probative information? Ultimately, the knowledge that graphic information increases believability should be no more concerning than the knowledge that various other presentational elements -- good delivery, strong themes, intelligent structure -- also increase believability. Ultimately, it is all simply a part of advocacy.
Know When to Call It Out...
Of course, if an adversary's image use is egregious or crosses the line from supplementing to misrepresenting a message, then you should call it out. Because any tactic becomes less effective when it is known and named, it can help to point out in those circumstances that the visual information is not adding any support at all. Jason Barnes' response to the Newman and Feigenson piece in particular contains some very good illustrations of effective ways to make that argument.
...And Know When to Just Chalk It Up to Advocacy
But don't get carried away. If the other side is simply using reasonable graphics to supplement and maybe even put a spin on their message in favor of its truth-value, that probably is just good advocacy and not per se improper. You risk irritating judge and jury, and further jeopardizing your own use of effective communication if you apply too much of a hair trigger in calling out all nonprobative features in your adversary's persuasion.
After all, if the trial was simply limited to that which is probative, it would be a simple recitation of facts without connection, story, emphasis, or color. We are not machines just made for logic. We are humans who use not just logic, but every other tool that makes a message stick. That includes pictures, even nonprobative truthy ones.
Other Posts on Visual Communication:
- Follow the Ten Commandments of Graphics Use in Trial
- Keep an Eye on Your "Truthiness"
- Use PowerPoint (For Both Credibility and Comprehension)
Newman, E. & Feigenson, N. (2013, November). The Truthiness of Visual Evidence. The Jury Expert 25: 5. URL: http://www.thejuryexpert.com/2013/11/the-truthiness-of-visual-evidence/
Kellermann, K. (2013, November). Truthiness, Falsiness, and Nothingness. The Jury Expert 25: 5. URL: http://www.thejuryexpert.com/2013/11/trial-advocacy-truthiness-falseness-and-nothingness/
Image Credit: Memecrunch.com, created by the author.