PREJUDICE/STEREOTYPES/HEURISTICS Questions for Pretest 1. Why should one avoid presenting stereotypical information? 2. How do labels affect juror interpretation of clients? 3. How does one reduce bias against the client? 4. Why should one avoid discussion of undesirable traits? 5. What impact does a credible source have on stereotype- based judgments? 6. Why would one wish to create a neutral mood in the jurors? 7. Why should jurors be motivated? 8. How can stigmatization of the client be used to your advantage? 9. How do stigmas that are perceived as being uncontrollable affect the perception of your client? 10. Why do jurors attempt to simplify complexity of the client? 11. When is social class bias more likely? 12. What is the importance of perceived internal causes of behavior? 13. Why is decategorization of the client in relation to group membership desirable? 14. Why should one shift the jurors’ focus to the client as a person rather than as a member of a group? 15. How do jurors respond to the client with whom they identify highly? 16. Why would one wish to categorize the opposition into a negatively perceived social group? 17. What is a social force field? 18. How is the persuasion of the opposition diluted by this force field? 19. How does one maintain a stereotype? 20. How would one diminish a stereotype? 21. What is the importance of cognitive dissonance? 22. How can stereotypes be divided? 23. Why should one avoid stimulating the jurors' self- awareness? 24. Why would one want to elicit sympathy from the jury toward the client? 25. How are jurors able to regulate their prejudiced responses? 26. Why would one encourage the jury to think about their response to the client? 27. What form does modern racism take? 28. Define the specifics of neosexism. 29. How does the perception of accountability affect juror judgment? 30. How does low involvement affect juror decision-making? 31. Why is research with ongoing groups not relevant to the jury decision-making process? 32. What is the importance of instructing the jurors on their role? 33. Why is preinstruction of case-specific law useful? 34. What is the four-step decision-making process? How does it overcome bias? 35. What is the role of preinstruction in a civil trial? 36. What is a perceptual bias? 37. Who is the most useful juror in punitive damage cases? 38. How will a controlled process inhibit automatic prejudicial processing? 39. What effect will a juror with low self-esteem have on the judgment process? 40. What is the mood-congruent judgment effect? 41. How should actions and injustices against your client best be described? PREJUDICE/STEREOTYPES/HEURISTICS Jurors and judges cannot help noticing and being affected by the client's physical appearance, attractiveness, gender, race, etc. Aspects of social thought, or stereotypes about the members of certain groups, play a role in the decision-making process. The overall result is that many factors other than available evidence may enter into the jurors’ decision concerning guilt or innocence. Bias can, however, be overcome by instruction. Jurors are not as fair and unbiased as we might wish, but they can readily be induced by appropriate procedures to behave in a fair manner. Stereotyping When stereotype-based explanations of behavior are not available, other relevant information will be considered. When a stereotype of an event has been formed, the other information is reviewed in an attempt to confirm the implications of the stereotype. Harsher punishment is recommended for stereotyped offenses than for non- stereotypic ones (Bodenhausen and Wyer, 1984). Avoid presenting stereotypical information. Present your arguments using statements that do not alert the jurors to stereotypical expectations. Every label that is applied to a person properly refers to only one aspect of his character. Labels, especially those of primary potency, distract juror attention from concrete reality (Allport, 1958). When a client displays a characteristic that carries a label, be sure to present concrete information about his nature to draw attention away from the stereotype. Clients who are members of groups that are socially dissimilar from the majority of the jurors will be seen as being more benign and acceptable if other, even more extreme behaviors, by members of another group are introduced. This will serve to reduce bias against the client by referencing examples of social divergence that is even more dissimilar than that represented by the client (Wilder and Thompson, 1988). Jurors will evaluate behaviors that are demonstrated by minority group members more extremely than those of non- minority groups (Katz, 1981). In order to promote the jurors' positive reactions and to minimize their negative reactions to your client who is a minority group member, focus on and display the client's desirable and familiar traits. Avoid discussion of undesirable traits. Use of a highly credible source to present information about the client has an important impact on stereotype- based judgments. The source must be seen by the jurors as being reliable, believable, accurate, and honest. Stereotypical beliefs are highly resistant to change or modification (Macrae, Shepherd and Milne, 1992). Awareness of the jurors’ stereotypical beliefs regarding the client and presentation of disconfirming information will help to alleviate this resistance. Be sure to inform the jurors of the credibility of the source. Persons who are at risk of being stereotyped (e.g., members of historically disadvantaged groups) might benefit by making certain that individual group members possess unique information about them. Target individuals play an active role in discouraging the spread of stereotypical information. Multiple communicators who have unique target information desire to be accurate and complete, and the chance that they will transmit stereotype-incongruent attributes is heightened. The presence of these attributes in a communication, in turn, discourages stereotypical impressions (Ruscher and Duval, 1998). Create a neutral mood in order to counteract adverse stereotyping. Individuals who have been induced to feel happy usually render more stereotyped judgments than those who are in a neutral mood (Bodenhausen, Karmer and Sisser, 1994). Ensure that the jurors are motivated, which will discourage their tendency to make superficial judgments and to stereotype your client (Chaihen and Mahaswaran, 1994). Gain the jurors’ complete attention, and indicate the importance of their decision to your client's future. Stigmatization of the client can be used to your advantage or disadvantage as appropriate. You should be aware that social stigma is a pervasive aspect of social existence. There are three major types of stigmatizing conditions. Tribal stigmas include membership in disadvantaged or despised racial, ethnic or religious groups. Stigma related to abominations of the body would include physical handicaps and disfiguring conditions. Blemishes of individual character would include substance abuse, juvenile delinquency and homosexuality. People who have these stigmas usually are the targets of negative stereotype and are devalued in the larger society. If a stigma is seen as being uncontrollable, such as race and gender, your client will have more chance of being perceived in a positive light than if the stigma is seen as being controllable. Examples of controllable stigmas are obesity, poverty, being a rape victim, or sometimes even a cancer victim. The negative outcome a person incurs is considered justifiable if the stigma is perceived as being controllable, or that the victim has chosen his condition. It is considered fair and justifiable that they live with the negative repercussions that the stigma has incurred (Crocker and Major, 1994). Jurors will attempt to simplify the complexity of the clients by classifying them into applicable social categories. This process is an attempt to reduce interference from competing or distracting representations of the client. This tendency is largely automatic and draws selective attention to the stereotypic qualities of a person (Macrae, Bodehausen and Milne, 1995). Be wary of this oversimplification and counteract it by deflecting stereotypic qualities of the client in your presentation. Social class bias is more likely when information about the client is ambiguous or absent. When jurors have access to information that individuates the client, the information rather than the categorization of the client will prevail in judgment determination (Lock, Hepburn and Ortiz, 1982). Be sure to provide the jurors with more information about your client when the client is a member of a group that is prone to stereotypical attitudes. Internal causes of behavior are seen as being innate characteristics, and the role requirements of the person will be overlooked when his behavior is attributable directly to him. This locks the person into the role of stranger and establishes his/her remoteness (Gudykunst and Hall, 1994). If the goal is to make jurors attribute behavior to personal dispositional causes, describe the actions of the subject as being antisocial or undesirable. Use authoritarian-type questions to determine mental rigidity that is linked with extreme prejudice. For example: The results of a study that was conducted to determine the correlation between ego involvement and rigidity of authoritarians confirms previous findings regarding authoritarian rigidity. The findings suggest that greater rigidity among high-authoritarians exists only under conditions that are designed to produce ego involvement. High-authoritarians were more rigid in maintaining their mind-sets, but only when the ego is involved; e.g., politics, religion, race, and sexual preference evoke ego arousal in most persons. The study shows that high- authoritarians were no more rigid than low-authoritarians under neutral conditions. When the issue is gender specific such as in sexual harassment cases, be gender specific. Make all members of that jury see the situation from the perspective of the victim. For example: Research indicates that skewed occupational sex ratios influence perceptions of sexual harassment. There are three recognized forms of sexual harassment: unwanted sexual attention, gender harassment, and sexual coercion. The perception of sexual harassment was found to be affected by an interaction between the occupation of the target person and the type of harassment. For example an incident of unwanted sexual attention would more likely be viewed as being sexual harassment if the female in question was a forklift driver as opposed to a secretary or a flight attendant (Sheffey and Tindale, 1992). Other studies indicate that gender harassment would less likely be perceived as being harassing when the target was in a nontraditional occupation (Carothers and Crull, 1984; Fitzgerald, 1993). Surveys indicate that this perception is due to the fact that the female is viewed as being role deviant, with gender harassment being the price she has to pay. In situations involving coercion, occupation was less likely to influence judgments; coercion represents the behavior that most closely fits lay definitions of sexual harassment (Frazier, Cochran, and Olson, 1995). Studies indicate that women are more likely than men to view a greater variety of sexual behaviors as being harassing (e.g., Frazier, et al., 1995; Gutek et al., 1983; Jones and Remland, 1992; Powell, 1986; Pryor, 1985). Because women are more likely to view an incident as being sexual harassment, the courts have shifted from reasonable person standard to reasonable woman standard (Ellison v. Brady, 1991). By viewing sexual harassment from the vantage point of a reasonable woman, jurors are able to take into consideration how women’s experiences might influence the way in which certain sexual behaviors are perceived. Many legal and theoretical implications are involved with this study. One overriding factor is that the existence of a gender gap does have an affect on not only whether sexual harassment occurs but also on whether or not it is perceived as such. If co-workers, supervisors, juries, and even the players involved are unclear regarding what is or isn’t sexual harassment, then that must mean that all who misperceive sexual harassment, based upon a stereotypical role, are just as guilty as the harasser. Use priming during voir dire to avoid juror influence by stereotypic perceptions. For example: Research indicates that trait concepts and stereotypes become active automatically in the presence of relevant behavior or stereotyped features (Bargh, 1994). However, the use of priming (the incidental activation of knowledge structures) carries over for a period of time to exert an unintended passive influence on the interpretation of behavior (see Bargh, 1994; Higgins, 1989; Wyer and Srull, 1989, for reviews). Passive automatic activation of a trait concept results in trait-like behavior by the individual in two ways, direct activation and stereotype. It is difficult for members of one social group to view an individual member of another social group as being distinct; i.e., all Black people like fried chicken and watermelons and have rhythm, or all White people think that all Black people like fried chicken and watermelons and have rhythm. These stereotypes, though perhaps not to this extreme, do exist. So how does one overcome the previously held notions of twelve individuals serving on a jury panel? What preconceptions do the jurors hold about a certain group of individuals? How deeply embedded are these opinions? What positive traits does the target possess that are in conflict with the stereotype? Recategorize Members of a group are favored in the allocation of reward, personal regard, and evaluation of work. Decategorizing to separate the individual from perceived membership in the group will decrease attractiveness and identification with group members, reducing bias (Gaertner and Mann, 1989). Intergroup bias thus can be reduced when changes are made in the jurors' categorized representations. To reduce the utility of membership in a category, undermine the meaningfulness of the category that is used to place the clients. This serves to nullify the stereotypic response to the client and to force the jurors to discriminate the client's individual characteristics, differentiating the focus on the client as a person rather than on a member of a group (Daly and Kreiser, 1994). Categorization by apparent physical features is spontaneous; jurors make judgments based on those readily available cues. Subcategorizing occurs when more information about the client is learned, and the judgment then will be altered to fit and include the added information (Stangor, Lynch, Duan and Glass, 1992). Elaborate on the qualities of the client that are not immediately apparent in order to counteract stereotyping that is related to physical aspects. Jurors will tend to allocate more rewards to members of their perceived group, those whom they find similar to themselves in some respect. If the jurors identify highly with your client, they may perceive the opposition as being a threat and accordingly will be inclined toward the viewpoint of your case (Branscombe, Wann, Noel and Coleman, 1993). Thus, it would be advisable to emphasize the similarities between the jurors and your client and to downplay the differences. Manipulation of the jurors' perception of the opposition can be used to effect by focusing on the social category of the opposition, especially if their client is a member of a negatively perceived social group. This will prime an unconscious negative thought in the jurors, which will be translated into conscious negative feeling (Banaji, Hardin and Rothman, 1993). If possible, categorize the opposition into a negatively perceived social group and then continue to emphasize his/her membership in that group. Individuals can be seen as being located in social force fields that are determined by the strength, immediacy, and number of sources of influence. The impact that is exerted by these influences decreases with increasing distance (Bibb, 1995). Therefore, the persuasion that is exerted by the opposition will be diluted by the plaintiff’s perceived distance in similarity to the jurors. Reference to the plaintiff in terms of "your next-door neighbor" will reduce their distance and influence perception of immediacy while amplifying the stability of the minority opinion. Increase Detail Maintenance of the stereotype can be accomplished by confirming events that exist in the mind of the perceiver rather than in external reality. This process is called imaginal confirmation. Change your questions from general to specific, concerning the actual incident, including all of the details to counteract this tendency. Giving a prototype of worst-case scenario, confirmed in the imagination, allows the stereotype to remain available and influential on general attitude (Slusher and Anderson, 1987). When attempting to diminish stereotypical thoughts and beliefs of the jurors, increase the details of the case, including portraits of the client as a real person and details of the circumstances of the case. Attitudes When a person's actions are inconsistent with his attitudes, he experiences a cognitive dissonance. Attitude change restores consistency and reduces the aversive state. Dissonance also can occur if one feels responsible for aversive consequences (Scher and Cooper, 1989). It is important that jurors are made aware of the aversive consequences of their inappropriate attitudes and the effect of these attitudes on their judgment and decision- making. Individuals stereotype others in an attempt to put order into their world. These stereotypes can be divided significantly by the use of individuating information that is useful across many situations (Hilton and Fein, 1989). Guide the jurors to ignore their beliefs, overcoming their stereotypes about a particular stimulus, and instruct them to focus on the behaviors. One should avoid stimulating jurors' self-awareness; less self-aware subjects are more easily persuaded than highly self-aware subjects. People who are highly self-aware analyze arguments more closely and resist persuasion unless the argument is strong (Hutton and Baumeister, 1992). High levels of sympathy for the victim will be associated positively with helping behavior and intervention (Carlo, Eisenbert, Troyer, Switzer and Sper, 1991). When seeking awards for damages, point out the aspects of your case that are likely to elicit sympathy from the jurors. Jurors can and will regulate their prejudiced responses if they are made aware of those responses. Stereotypes are activated easily, even if they are not endorsed, if the stereotype is spontaneously elicited (Monteith, 1993). Instruct the jurors on the effect of these prejudiced responses and have them monitor them closely. Changing the jurors' attitudes toward your client will be a function of having them think about their reasons for feeling the way that they do. When thinking about reasons, people tend to focus on attributes that are easily accessible in memory, plausible as causes of their feelings, and easy for them to verbalize. Though compelling, these reasons usually are unrepresentative of the actual cause of jurors’ attitudes and imply a somewhat different attitude than jurors held before they actually thought about their reasons (Wilson, Hodges and LaFleur, 1995). Racial attitudes have shifted from the more blatant kinds of prejudice to a more insidious form. Open statements of racism are societally undesirable, illegal, and politically incorrect. As a consequence, the justifications for racism have changed to maintain the status quo. Modern racism proposes that: Discrimination is a thing of the past; Blacks are pushing too hard, too fast, and into places where they are unwanted; that the tactics and demands they are using for recognition are unfair; and that the gains they have made are undeserved (Tougas, Brown, Beaton and Joly, 1995). Point out to the jurors the dangers and insidiousness of this symbolic racism in order that they may be aware of their attitudes in this regard. There is also a new kind of gender prejudice that manifests itself as a conflict between egalitarian values and residual negative feelings toward women. This is called neosexism. The prejudice focuses on issues such as affirmative action programs and is accountable for the concentration of women at certain lower levels of employment. Because of the cultural norm against sexism, those who are prejudiced use the language of equality rather than the language of inferiority (Tougas, Brown, Beaton and Joly, 1995). This also can be a very insidious form of bias and is a prejudicial condition of which the plaintiff's attorney should be fully aware. Decision-Making Conditions Jurors will invest little effort in an acceptable heuristic and simply will conform when they know the views of others and are unconstrained by past commitments. When they are not aware of others' views and have no past commitments, they will think in more complex, multidimensional ways. When jurors are committed to a position and devote the majority of their mental effort to justifying their committed positions they use defensive bolstering. The perception of accountability will affect what they think and how they think. Jurors anticipate that opinion conformity will serve as a reliable means of gaining approval and avoiding the disapproval of others (Tetlock, Skitka and Boettger, 1989). Therefore, the decision-making heuristics of conformity, complex information processing, and defensive bolstering can be explained by the accountability conditions that the jurors face. People remember more of the facts that support their position than they do other information. If there is low involvement on the part of the juror, there is less inclination to fill in details of the story, and their interpretation will be frozen. Jurors will tend to conform by rationalizing their position based on hindsight and the response of others (Griffin and Buehler, 1993). Thus, it would be a good idea to monitor the involvement and rationalizing tendencies of the jurors in order to manipulate the conformity effects. Research with mock juries will most closely approximate the actual jury decision-making process; ongoing groups that are engaged in judgmental tasks cannot be compared to short-term groups that are engaged in intellectual tasks (Michaelson, Watson, Schwartzkopf and Black, 1992). Be aware that research that is relevant to group decision- making will not always apply to the juror decision-making process because it involves judgment in an entirely different context. Jurors will make less extreme and more discriminatory patterns of attribution if they are given instruction. The expectation that they will have to communicate their impressions of an event places a premium on their ability to generate succinct and readily comprehensible descriptions of the event. The jurors must be prepared not only to communicate their opinions but also to justify and defend those opinions against possible counterargument (Tetlock and Kim, 1987). Therefore, in order to reduce jurors’ bias or stereotypical way of thinking, stress the fact that they will be required not only to express their opinions to others during deliberation but also to justify and defend their positions. Preinstruction of the relevance of case-specific law in a complex case, when the evidence may be difficult to understand, will enhance the jurors' competence. Preinstructed mock jurors tended to award higher amounts than other jurors. The preinstruction alerted the jurors to the kinds of evidence that were required to establish liability and monetary damages and facilitated their search for information (Bourgeois, Horowitz, Grahe and Forster, 1995). There is a four-step decision-making process that is well within the jurors' capability of regulation in overcoming bias. The jurors should be encouraged to gather information, assess implications, reassess, and integrate their inferences. The reassessment process consists of evaluating the validity, clarity, strength, and relevance of the implications. When integrating the information, the juror will resolve inconsistencies and assign relative weights to the various factors of the presentation (Baumeister and Newman, 1994). Incomprehensible evidence in complex trials tends to lend itself to a pro-plaintiff bias because the plaintiff has the burden of proof. Preinstruction of the jurors in a civil trial will provide a cognitive framework in which the jurors can render appropriate verdicts when they are provided with comprehensible evidence (Bourgeois, Horowitz, Lee and Grabe, 1995). Jurors will be prone to a perceptual bias when they perceive the client as being dissimilar to themselves. When faced with threatening information, people will augment their perceptions of their own safety characteristics, causing a similarity bias. When there is a motivation to perceive the person as being less similar to oneself to protect one's own welfare, similarity bias can be used to predict actual behavior. In order to perceive juror error in similarity bias, there must be an objective or unmotivated standard for comparison (Gump, 1995). Juror Profiles When presenting a case that includes punitive damages, choose the potential juror who is inclined to award large money damages. Research indicates that women, the underemployed, and people who are subject to depression, as well as "do gooders," consistently award generous damages (Heinen, 1988). Researchers have found that one can break the bad habits of jurors regarding stereotypes and prejudices by replacing their prejudiced responses with non-prejudiced ones. A controlled process can be used to inhibit the effect of the jurors’ automatic prejudicial processing. Be aware that jurors with low self-esteem will have more negative views of people from minority groups than those with high self-esteem (Stephen, Ageyev, 1994). Carefully select jurors with high self-esteem during the voir dire process when representing a client from a minority group. A mood-congruent judgment effect explains that when a mood and an idea are similar in pleasantness, the idea generally will seem better in some way. Happy people judge pleasant concepts to be richer in their associations. They associate pleasant attributes with more applicability and categories of pleasant examples as being more typical. Knowledge of the jurors' mood states would be useful in predicting a variety of their related judgments (Mayer and Hanson, 1995). Perception of the jurors' moods will allow accentuation of the concepts and ideas of your case in the direction of their moods. Presentation The inference of causality is directly related to the description of the actions and injustices that were performed against your client. Verbs should be extremely strong and descriptive. Use terms such as “annihilate,” “pulverize,” or “total” (Kasof and Lee, 1993). Strong, explosive words when describing conditions are consistently more effective than less explosive and stimulating words. Question for Posttest Discuss the various issues relative to prejudice and stereotyping of clients. Why are these issues crucial to the failure or success of the case? What strategies would you employ to disincline the jury from awarding large damages to a Black youth who was shot by a White man, in self-defense, if the Black youth was permanently brain damaged? How can you help jurors to recategorize persons/events into unique rather than stereotypical categories, or vice-versa? How does stereotyping/recategorizing help? What kind of jurors would you eliminate if you had a client/case that you felt would be viewed in stereotypical terms?