Juror Confirmation Bias Powerful. Perilous. Preventable. [Trial Advocate Quarterly]

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1. Juror Confirmation Bias: Powerful. Perilous. Preventable. Bill Kanasky, Ph.D.

8. Copyright 2015 Litigation Psychology, LLC. All Rights Reserved

3. TRIAL ADVOCATE QUARTERLY – SPRING 2014 - 35 - People tend to interpret new information in a way that confirms their existing beliefs. This is called “confirmation bias.” Psychologist Bill Kanasky explains here that confirmation bias affects both potential jurors and trial attorneys, and suggests some strategies for minimizing its effect. J uror c onFirmaTion b iaS : p owerFuL , p eriLouS , p revenTabLe By Bill Kanasky, Jr . ABOUT THE AUTHOR... DR. BILL KANASKY , an expert in litigation psychology, consults on more than 175 cases an- nually in the areas of defendant witness training, jury decision-making research, and jury selection strategy. His empirically-based consulting methods are specially designed to defeat plaintiff “Rep- tile” strategies, which have resulted in billions of dollars of damage awards across the nation. Dr. Kanasky is recognized as a national expert, author and speaker in the areas of witness preparation and jury psychology. He earned his B.A. in Psychology from the University of North Carolina at Chapel Hill, and his Ph.D. in Clinical and Health Psychology from the University of Florida. Introduction In science, you move closer to the truth by seeking evidence contrary to a hypothesis . A general rule among scientists is called “empirical criticism,” which means focusing on seeking data that disprove a hypothesis rather than seeking supportive, confirmatory data. In civil litigation, jurors are instructed to find the truth by impartially evaluating the evidence and coming to an unbiased conclusion . Unfortunately, what actually takes place is a far cry from impartial and unbiased . Here’s how it generally works: • Jurors come up with a hypothesis early in a trial; • They immediately begin working to prove it right instead of working to prove it wrong; • They give preferential treatment to evidence and testimony supporting their existing belief; • They tend to better recall evidence and testimony supporting the side they favor; • They entrench themselves deeply into their stance, before the trial is complete . At this point, jurors simply stop work- ing . They stop listening . They stop think- ing . Jurors do this unintentionally and automatically, without intending to treat evidence or testimony in a biased way or even being aware of doing so . Important- ly, this is not just a “juror thing .” Rather, it is a “human thing,” and we are all guilty of it . No one is immune from it, and it transcends all demographic categories . This important phenomenon is called “Confirmation Bias.” Powerful Simply stated, confirmation biases are errors in jurors’ information process- ing and decision making . There is a ten- dency for jurors to search for, interpret, or remember information in a way that “confirms” their preconceptions, biases or beliefs . In other words, jurors selec- tively collect (or omit) new evidence, interpret evidence in a biased way, or selectively recall information from mem- ory . Throughout a trial, most jurors seek information that confirms their existing attitudes and beliefs rather than keeping an open mind until deliberations begin, as they are instructed to do . Many are reluctant to consider alternative stances and views, and instead set higher stan- dards for arguments that go against their current expectations. Confirmation bias is perhaps more dangerous than other biases because it actively keeps jurors from arriving at the truth and allows them to wallow in comforting prejudice and partiality . Confirmation bias is powerful. So powerful, that psychology research shows that many people tend to stick to a position even after the evidence had shown it was false . Psychology researchers Ross and Anderson (1982) say it best: “Beliefs can survive potent logical or empirical challenges . They can survive and even be bolstered by evidence that most uncommitted observ- ers would agree logically demands some weakening of such beliefs . They can even survive the total destruction of their original evidential bases . ” The problem is how jurors’ brains instinctively exam- ine and evaluate contrasting positions .

4. The brain is hard-wired or “pro - grammed” to confirm propositions and arguments rather than falsify them; compared to data that falsifies a position, confirmatory information is easier for the brain to process . In other words, it is much easier for a juror to see how a piece of data supports a position than it is to see how it refutes the position . Therefore, people give an excessive amount of value to confirmatory information, i.e. positive or supportive data . To see confirmation bias at work on a large scale, one only need re - view the conspiracy theories offered for the JFK assassination and the 9/11 attacks . These theorists see the evidence in a one-sided way, search - ing only for evidence consistent with the theory they hold at the time . They also look for the consequences they would expect if their theory were true, rather than what would happen if it were false . Another real-world example is that Republicans tend to watch Fox News and Democrats tend to watch MSNBC or CNN, with both groups ignoring and avoiding views that contradict their own . On a smaller scale, a common example is that people notice when they get a phone call from a person they were just thinking about, but don’t remem - ber how often they didn’t get such a call when thinking about a person . This tendency can have serious consequences in many aspects of daily life: • Medicine: A family physician may quickly form a diagnosis in his mind during a brief discussion with a patient, and then convince himself that the other complaints and physical exam fit that initial diagnosis . • Media: A reporter who is writing an article on an important issue may only interview experts that support her or his personal views on the issue . • Employment: An employer who believes that a job applicant is highly intelligent may pay attention to only information that is consistent with the belief that the job applicant is highly intelligent, and ignore clear flaws. • Science: Scientists can set up experiments or frame their data in ways that will tend to confirm their hypotheses, and then proceed in ways that avoid dealing with data that would contradict their hypotheses . • Health: A person reads about a particular medical condition on the internet, and then looks for those symptoms in one’s own body, thereby increasing the chances of detecting them . Confirmation bias is a powerful, ubiquitous phenomenon: it’s every - where, like it or not . It is a good les - son to observe how easily intelligent people can see intricate connec - tions and patterns that support their viewpoint and how easily they can see the faults in viewpoints contrary to their own . Perilous Decades of jury decision-making research has repeatedly shown that demographic variables do not accurately predict verdict outcomes or damage awards in civil litigation . This is because demographic fac - tors such as intelligence, education, income, and race are not relevant when it comes to confirmation bias, as it is simply a natural aspect of our personal biases and its appearance is not a sign that a juror is dumb . In situations involving numerous variables and in which the cause- effect relationships are unclear (i . e . , evidence and testimony in a civil trial), data tend to be open to many interpretations . In these instances, confirmation bias can have a pro - found effect . Attorneys should not be surprised to see intelligent, well- intentioned people draw support for diametrically opposed views from the same evidence and testimony . Confirmation biases are stronger and more prevalent for issues that are emotionally significant to jurors and for established beliefs which shape a juror’s identity . For example, cases involving significant injury, suf - fering and/or death (especially with infants, children, adolescents and/ or mothers) can fuel confirmation bias . Additionally, cases that relate to jurors’ lives and work roles (i . e . , em - ployment matters, divorce, religion, politics, gender, etc . ) can lead to higher levels of confirmation bias in the courtroom . The more emotionally and personally involved jurors are with a belief, the more likely it is that jurors will ignore whatever facts or arguments undermine that belief . Ironically, trial attorneys are extremely susceptible to confirmation bias as well . For example, defense attorneys are often reluctant to strike educated, intelligent people in higher income brackets during jury selec - tion, incorrectly assuming those potential jurors are less biased than less educated people . They assume that “smart” people are rational and level-headed, will be able to better understand their case arguments, and therefore will be more logical and fair in their decision making during deliberations. On the flip side, they assume jurors with less education and lower income status are not smart enough to understand their case, are more sympathetic to plaintiff themes, and tend to award high damages because they don’t understand economics . As a result, during the voir dire and jury selec - tion process, a defense attorney will actively seek out data to satisfy his working hypothesis (related to the above demographics) and ignore or avoid data that goes against it (i . e . , a less-educated juror who expresses pro-defense characteristics) . In the end, this heavy reliance on demo - graphic variables can be costly, as analysis of pro-plaintiff oriented juries who award high damages often have a significant percentage of educated, intelligent individuals in higher in - come brackets . A second example of how trial attorneys fall victim to confirmation bias is the process of early case assessment . Trial attorneys are re - quired to generate “case assessment reports” for their clients very early in a case, and then send updates to the client as discovery progresses . These initial assessments frequently TRIAL ADVOCATE QUARTERLY – SPRING 2014 - 36 -

6. act as a cognitive anchor that pre - vents the trial attorney from consider - ing alternative views of liability and damages as the case progresses . This can result in a trial attorney sticking with ineffective themes and arguments because he deempha - sized or even ignored subsequent information (e . g . , expert witness opinion, liability and damages data from mock trial research) in an effort to confirm his original assessment. This cognitive blunder can lead to an adverse verdict with high damages, which can negatively impact the trial attorney’s self-confidence, as well as the confidence that his client has in his abilities . Again, it’s not the attor - ney’s “fault” per se , as confirmation bias is unintentional and unplanned . It’s powerful . It’s perilous . But is it preventable? Preventable At the jury level, it is impossible to completely prevent confirmation bias from occurring . It is a natural and powerful cognitive tendency that cannot be totally extinguished . However, it is indeed possible to interrupt it and perhaps even weaken it . Trial attorneys can use the jury selection process and the opening statement to educate jurors about this inadvertent, automatic cognitive error that results in faulty thinking . Helping jurors understand cogni - tive bias generally, and challenging them to see the evidence presented at trial in a different way (i . e . , resist - ing the temptation to confirm their hypotheses and instead giving equal weight to all of evidence) is the very best way to control confirmation bias. Making jurors aware of their cognitive errors before the trial starts and pro - viding them with a new methodology to assess evidence and testimony can at least interrupt or slow down confirmation bias. In other words, it is important to challenge jurors to “re - think how they think . ” Ideally, this can create juror “cognitive dissonance,” an uncomfortable mental state that results from conflicting thoughts and feelings that surface when bias and impartiality mix with this new bur - den being placed on them. Specifi - cally, you want to pre-program jurors during jury selection and opening statements to be aware of confirma - tion bias and to essentially “feel bad” about becoming biased and impartial during the trial . This won’t completely prevent juror confirmation bias, but it may result in at least some of the jurors evaluating the evidence and testimony differently . However, it is clear that educa - tion will not completely solve the problem of confirmation bias. There - fore, it is critical to identify those ju - rors with the strongest biases during jury selection and strike them from the panel . This requires the trial at - torney to focus voir dire on jurors’ at - titudes and beliefs, rather than other variables that are poor predictors of verdict and damages . Some of the worst voir dire questions ever written (but are frequently used by trial at - torneys and judges) are: “Can you be fair in this trial?”; “Can you follow the Judge’s instructions?”; and “Can you keep an open mind, and wait until the end of the trial to make judgments?” These questions elicit information that is useless in determining true bias and impartiality, as the vast ma - jority of jurors quickly and obediently respond with a simple “yes . ” Instead, trial attorneys need to tap into jurors’ attitudes and beliefs to truly figure out how they tick . This requires both a) a deep understanding of psychol - ogy, specifically human attitudinal and belief systems, and b) painstak - ing levels of work to construct the ap - propriate voir dire questions that will elicit meaningful information that one can use to make wise strikes . Since the vast majority of trial attorneys have little to no training in psychol - ogy, it is important that they receive the appropriate training and/or expert consultation to ensure that they can construct the most useful and effec - tive voir dire questions . At the trial attorney level, con - firmation bias can be contained by developing a new system of case as - sessment and reassessment . While cognitively difficult, trial attorneys need to learn to not drop the an - chor so fast when assessing liability and damages . They need to take a step back, maintain an open mind, and give full weight to subsequent information that becomes available as the case progresses . After getting “hammered” in a mock trial (i . e . , a plaintiff verdict with high damages), a defense attorney recently com - mented: “ Many cases are lost in the conference room, not the deliberation room. We (trial attorneys) can’t see the case like a jury would see it...we start thinking things that REAL peo - ple do not think ...we get wrapped up in our case, tending to believe only the things WE want to believe... people with law degrees don’t think like real people . ” Conclusion Confirmation bias is a poten - tially devastating element of litigation psychology that can affect both jurors and trial attorneys alike. Confirmation bias can prevent jurors from hearing both sides of a case, as it causes them to selectively perceive and re - call evidence and testimony present - ed at trial. Additionally, confirmation bias can inhibit trial attorneys from making key strategic adjustments during discovery and trial, potentially leading to expensive settlements at mediation or high damage awards at trial . One way to avoid falling prey to confirmation bias is to partner with litigation psychology experts who can provide strategies to inhibit juror con - firmation bias and eliminate attorney confirmation bias. www.fdla.org TRIAL ADVOCATE QUARTERLY – SPRING 2014 - 37 -

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