May 22, 2014

Meter Your Jury’s Moral Outrage

By Dr. Ken Broda-Bahm: 

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For jurors in the trial of Cicily McMillan, the outrage came a little bit too late. In one of the last criminal cases emerging from the “Occupy Wall Street” protests, the jury found the protestor guilty of assault for elbowing a police officer when, she claimed, the officer grabbed and severely bruised her breast as Zuccotti Park was being cleared. After coming to a compromise by convicting on what they thought was a lesser charge, jurors were shocked to learn McMillan faced a potential prison sentence of two to seven years. Based on this, nine of the twelve jurors had a change of heart. “We the jury petition the court for leniency in the sentencing of Cecily McMillan,” they wrote in a letter to the judge. “We would ask the court to consider probation with community service.” That tapped into a more general public outrage over the verdict, and after a number of individuals and groups joined that petition, she was sentenced to just three months in jail and five years of probation. 

Moral outrage can be triggered in response to the actions of parties or the actions of the state. A deep-seated emotional response to perceived basic violations of our sense of value, moral outrage matters not only in criminal cases, but also in any case in which jurors are weighing issues that are fundamental to their views of right and wrong. In a recent article in The Jury Expert, (Peter-Hagene, Jay & Salerno, 2014), social scientists from the University of Arizona and the University of Illinois report on some of the determiners and effects of moral outrage as they relate to juror evaluations and verdicts. Together with some comments from consultants Jill Holmquist and Jason Barnes, the article takes a close look at moral outrage and finds a unique mix: anger, attributions of blame, and a desire to punish. Taken together, these feelings serve as a rough barometer of perceived harm. The greater the moral outrage, the harsher and more certain the punishment. Rather than being simply a rational response to an extreme event, moral outrage is also intuitive and emotionally driven. The idea and the associated research provides a reminder: When assessing our case, we shouldn’t just think about on what jurors think, but should also focus on what they feel.

The Equation: Anger + Disgust = Moral Outrage

Simplifying the emotions involved, some have argued that “outrage” is really just a stronger word for “anger.” The authors of this study, however, argue that there is a distinct emotional component. Looking at mock juror reactions to a number of scenarios (criminal cases on rape and murder cases and a civil case on intentional infliction of emotional distress) they tested which discrete emotional responses were accompanied by which outcomes. The bottom line? It takes both anger and disgust to create the kinds of moral outrage that is associated with the most punitive outcomes. “In short, the combination of anger and disgust that jurors experienced,” they concluded, “determined how much moral outrage they felt, which in turn determined how certain they were of the defendant’s guilt.” 

The suspected mechanism for that effect, according to the researchers, is likely to be reduced monitoring: When jurors feel angry, that makes them more able to rely on their gut reactions, and less likely to bracket those reactions out. In other words, the anger gives them permission to give free rein to their disgust, and the result is moral outrage. 

In reviewing the broader literature, the article also calls out research supporting a number of specific findings:

  • Jurors experiencing moral outrage are more likely to convict.
  • Morally outraged jurors are more punitive in their sentencing and damages.
  • Moral outrage leads jurors to be more certain about their determinations.
  • Angry jurors are more likely to find a defendant guilty.
  • Photos are more likely than verbal descriptions to elicit anger.
  • Color photos elicit more punitive reactions than black and white photos.
  • Jurors who are more sensitive to disgust are more punitive in their reactions.  
  • Emotional reactions encourage more superficial information processing (reliance on rule-of-thumb heuristics rather than logical reasoning).
  • When people are angry or disgusted, they are less likely to process information carefully, to use new information, or to think about alternatives.
  • When people are angry or disgusted, they are more likely to rely on prejudice and racial stereotypes.

Recommendations: The Implications of Outrage 

Of course, the broad implications are to cultivate moral outrage when it benefits you, and to worry about moral outrage when you’re on the receiving end of it. In that latter circumstance, the Rule 403 implication is to be prepared to argue, using evidence like this article, that the prejudicial effect of any strong outrage-inducing evidence outweighs its probative value.

At the case assessment level, however, thinking about moral outrage should give us a broader view of jurors’ likely response. 

1. Ask What They Feel and Not Just What They Think

The law as well as our own rational habits might prioritize reasons. But often those reasons are an after-the-fact byproduct of jurors’ motivation and feelings. When assessing one’s case, it helps to think about what those feelings are likely to be. In a mock trial, for example, make sure you are checking on mock jurors’ emotional response. How do mock jurors react? Do they get visibly upset when talking about the parties or the story? Are there specific events or statements that lead to anger, to disgust, or to a combined feeling of outrage? When you are developing questionnaires or interview outlines for your pretrial research, make sure your tools are designed to explore those feelings and not stop at just asking jurors for their reasons for or against.

2. Look at Intensity and Not Just Opinion

What jurors think is one thing, what they feel is another, and how intensely they feel it is still another. Instead of treating attitudes as an on/off toggle (Jurors are either angry, or they’re not), treat them as a continuum (How angry or placid are they?). On questionnaires, prioritize those questions that provide a scale of response. In interviews, ask open-ended questions and note how much emphasis the panelists themselves choose to give. Pay attention to the words they use as well as their nonverbals. Ask respondents to choose a number between one and ten in order to tell you how strongly they feel about something. Don’t just ask “Why do you think so?” to elicit reasons. Also ask, “What is your reaction to that?” in order to elicit feelings.

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Other Posts on Moral Judgment: 

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Peter-Hagene, L.; Jay, A.; & Salerno, J. (May, 2014). The Emotional Components of Moral Outrage and their Effect on Mock Juror Verdicts. The Jury Expert 26:2. 

Photo Credit: romana klee, Flickr Creative Commons

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