January 30, 2014

Trust Your Older Jurors (or Judges)

By Dr. Ken Broda-Bahm:


Let’s play word association. If I say “old age,” what are the first words that come to mind? Would it be something like “senile,” “feeble,” “scattered,” “sad,” “sick,” or “absent-minded”? If so, you would be in line with most individuals’ general associations with the elderly. And these stereotypes attach to jurors as well. I recall a recent jury selection where counsel asked if I thought an older juror would really be able to follow the details of the case. We believe that age means decline, and we assume that this means a cognitive decline as well. New research, however, is showing that this is most likely a false assumption. Of course, there are diseases affecting mental acuity that can set in when you’re older. But the research targets the belief that it is “just part of getting older” to have some level of mental decline. 

The good news: it isn’t. The topic carries some importance for trial lawyers as our jury pools are getting older and as we continue to try to get jury selection past the stereotypes and onto the factors that really matter. Recent research suggesting that there is a “Myth of Cognitive Decline” attached to the elderly provides another reason to think of jurors as individuals, not as collections of demographic information. This post takes a look at that myth and provides a few recommendations on combatting it.

The Research Says “No” To the Myth of Cognitive Decline

We have long known that there are biases against the elderly based on assumed cognitive abilities. Recent advances in the ability to measure implicit bias, however, has shown just how pervasive these stereotypes can be. Writing about research employing the implicit attitudes test, psychologist Ian Stuart-Hamilton concludes that “The simple fact is that practically everybody has a negative implicit attitude towards older people and aging.”

But those attitudes are apparently mistaken. A  recent post in the always-useful Psyblog by psychologist Jeremy Dean reports on research showing that “Elderly Know More and Use it Better.” Instead of simply slowing down and becoming less efficient with age, the brain’s changes with age seem to show the benefits of experience and accumulated information. When a test appears to show a decline, what it may be showing instead is the effects of having more information to process. Pointing to a finding published this year in the journal Topics of Cognitive Science, (Ramscar et al., 2014), Dean reports on a computer simulation used to show that the slowdowns caused by having more information to remember is a close match to the slowdowns associated with getting older. But the brain isn’t getting stupider, it is simply getting more information to process.

In other words, the brain is gaining wisdom and experience. “Older people,” Dean notes, “are actually making better use of the extra information that comes with experience.” This finding is consistent with other research I’ve noted before (Worthy et al., 2011) showing that adults aged 60 or older actually do better in sequential decision making tests than their peers in other age groups.

Don’t Carry That Myth Into Court

Biases in everyday life can be harmful. In court, they can lead to bad strategy and the illusion that we are basing choices on something real instead of something that is simply stereotype. The knowledge that we’re wrong on cognitive decline, in addition to giving us a little boost for the future, should also change what we bring to trial.

Don’t Judge Your Books by the Age of Their Covers

Jury service in England and Wales used to be capped at age 65. Then in 1988, it was raised to 70. Now, the Criminal Justice Minister is bringing legislation this year to raise that cap to 75. That is moving in the right direction, but the land of Jeremy Bentham, C.S. Lewis, and Albus Dumbledore might instead base the decision on the individual and not their age. That is what American courts do already, but the trial teams holding the strikes need to make sure they’re doing the same. Effective voir dire depends on discovery of the experiences and attitudes that tend to bias the potential juror against your party. And that bias can just as easily come in a young wrapper as an old one.

But Assume That Some of These Beliefs Might Be Internalized 

The thing about pervasive biases is that they take on a reality of their own. Even when inaccurate, they gain power simply by being believed. The cognitive researchers covered in Psyblog (Ramscar et al., 2014) note this likelihood when it comes to the myth of cognitive decline. When people believe in an inevitable mental slowdown that comes with age, they are more likely to see an aging population as a burden on society. “What is more likely,” the researchers note, “is that the myth of cognitive decline is leading to an absurd waste of human potential and human capital.” If you’ve watched many mock trial deliberations, then you’ve seen the jurors who don’t believe they have the intellectual abilities to follow the discussion. Whether they actually can or can’t, they hang back and follow the herd, because what they lack is confidence. In my experience, those jurors are equally likely to be young or old. But the research does suggest the possibility that some older jurors might believe that they’ve “lost it” when it comes to the ability to work with detailed information. That means that, with all potential jurors, you should assess not just their attitudes and potential bias, but also their likelihood of actually participating in the deliberations and being an opinion leader.

And Don’t Forget About Your Judge

Jurors aren’t the only potentially older fact finders in court. Quite often, the oldest is sitting about four feet higher at the bench. Judges usually got to be in that seat based, at least in part, on their mental abilities and judgment. They also, in my experience at least, tend to be pretty confident about those abilities even when, perhaps, they shouldn’t. The judge, however, presents a clear case where it is far more important to learn about a fact finder’s decision making style and quality than to learn about their age.

But there is one interesting finding from our own research (Persuasion Strategies, 2008) that relates to a judge’s age. We polled 105 federal court judges and federal magistrate judges and compared these findings to our annual poll of the general jury-eligible population. We found an interesting trend: The younger a judge is, and specifically the fewer years they have on the bench, the more similar they are to the juror population. That stands to reason, of course, but it relates to experience and not to anything inherent in age. As they hear more cases, they have a chance to develop particular knowledge and views that separate themselves further from society’s average.

The same might be generally true of older adults as well. The old saying that “You’re not getting older, you’re  getting better” may sound trite, and perhaps a little self-serving from those of us who’ve started to get AARP invitations. But the happy fact is that it seems to be true. Cognitive improvement with age, as a general principle, is more likely than cognitive decline.


Other Posts on Juror Age: 


Ramscar, M., Hendrix, P., Shaoul, C., Milin, P., & Baayen, H. (2014). The Myth of Cognitive Decline: Non‐Linear Dynamics of Lifelong Learning. Topics in cognitive science.

Worthy, D. A., Gorlick, M. A., Pacheco, J. L., Schnyer, D. M., & Maddox, W. T. (2011). With Age Comes Wisdom Decision Making in Younger and Older Adults. Psychological science22(11), 1375-1380.

Photo Credit: Sfloptometry, Flickr Creative Commons 


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