How do Mass Tragic Events Affect Juror Decision Making?
Updated: Aug 13, 2020
Originally published on Blueprint Trial Consulting
The Psychology of Fear
As COVID-19 public health emergency develops around the world, it infiltrates every part of our lives. We fear for the health and safety of ourselves and our loved ones, our jobs, our economy, our freedom, our futures. We live in fear of contagion, and of food and medicine shortage. Grocery shelves are empty, hand sanitizer is being hoarded, and toilet paper is suddenly worth more than some of the stocks in our portfolios. Each day the disruptions continue to compound, and uncertainty and dread loom as we enter uncharted territory.
Similar to other mass tragedies, such as shootings, terrorism, and weather related disasters, the COVID-19 reminds us of the inherent unpredictability of life. Based on the work of existential psychologists, death transcendence is a fundamental component of the human experience, as is panic, anxiety, and fear during a mass crisis or tragedy.
“These tragedies kindle our inner fears and sense of vulnerability, and reinforce the fact that much in life still remains beyond our control. When this occurs, the brain’s innate fear center, goes on high alert and can incite a reaction that’s exaggerated, far greater than what is justified and needed. The result is that our fear takes hold of us, and relegating many of our other drives—pleasure, love, joy, faith, and connection—to the backseat.”[i]
Fear in human beings may occur in response to a certain stimulus occurring in the present, or in anticipation or expectation of a future threat perceived as a risk to oneself. The fear response arises from the perception of danger leading to confrontation with or escape from/avoiding the threat. Fear and its close relative, anxiety are activated by the amygdala portion of the brain while parts of the prefrontal cortex part of the brain responsible for decision making and problem-solving become less active. Fear and anxiety share many common cognitive and physiological properties, however they may also be distinguished. [ii] Fear responses are elicited by specific stimuli, and tend to be short-lived, decreasing once a threat has dissipated. Anxiety may be experienced in the absence of a direct physical threat, and typically persists over a longer period of time. However, anxiety is commonly conceptualized as a state of sustained fear[iii]
Decision Making and Mental Shortcuts
Heuristics are simple strategies or mental processes that humans, use to quickly form judgments, make decisions, and find solutions to complex problems. This happens when an individual, human or otherwise, focuses on the most relevant aspects of a problem or situation to formulate a solution. Those involved in making these decisions can also be influenced by similar past experiences as well. There are many different kinds of heuristics that can be tailored to solve many different types of problems in everything from psychology to technology design to economics. Heuristic processes are used to find answers and solutions most likely to work or be correct. Heuristic processes can easily be confused with the use of human logic, and probability. While these processes share some characteristics with heuristics, the assertion that heuristics are not as accurate as logic and probability misses the crucial distinction between risk and uncertainty. [iv]
How Does Fear Affect Decision Making?
As human beings, emotions influence our behavior inducing changes in the chemistry of our bodies and our brains. Psychologists and neurobiologists have developed tools to study their consequences on human behavior. A 2009 study conducted at Columbia University studied decisions made under conditions of fear, when a catastrophic outcome was introduced. Results provide evidence that fear influences the cognitive process of decision-making by leading some subjects to focus excessively on catastrophic events.
The 2009 Columbia study discusses how fear is an emotion that plays a crucial role when individuals face choices under uncertainty involving catastrophic events. “When facing such catastrophic events - like earthquake terrorist attacks, major nuclear accident, the consequences of global warming - individuals are likely to experience fear and adopt behaviors that appear as irrational.”[v] The Columbia study also sites another study conducted after the 9/11 terrorist attacks which found that “the prevention of terrorism deaths is valued by respondents almost twice as highly as preventing natural disaster deaths arguing that terrorism risks are perceived vividly due to the 9/11 attacks and involve a substantial element of dread.”[vi] We believe the implications for trial jurors are clear. Jurors will be more likely to punish defendants based on their need to preserve psychological equanimity in response to reminders of death.
Future Implications for Jury Trials Following Mass Crisis or Tragedies
As any mass tragedy or crisis, the COVID-19 health related tragedy, and the resulting mass fear and anxiety will find a place in our individual and collective psyche, and will play a role in the decision process in one of our most historical and formidable institutions, our jury system. Terror Management Theory (TMT) provides a great deal of insight into how jurors manage the existential anxiety that is caused by the uniquely human knowledge of our own vulnerability and mortality. Based on the theory, individuals are able to achieve protection from death-related concerns by finding meaning within their culture worldviews. When death-related concerns are made salient, people are motivated to punish those who violate their worldviews. We can only speculate how something as wide reaching, and emotionally disturbing the viral pandemic of COVID-19 can have on the decision-making process of our future juries. It will be interesting to see whether this phenomenon will be more salient at first, and will taper off as time passes? Will it influence certain cases more than others? Will cases involving healthcare, medical issues, and safety be affected disproportionately? Will trust in corporations and governments be further eroded, to the detriment of the defense bar? Will nuclear verdicts continue their upward trajectory? Will the arguments focused on danger to the community which are advocated by plaintiff counsel who use reptile strategies become even more effective. As with previous strategies, the impact on Covid-19 on jury decision making remains to be seen but based on experience, it is likely to influence jurors either consciously or unconsciously at trial.
[ii] Sylvers P, Laprarie J, Lilienfeld S.(2011) Differences between trait fear and trait anxiety: Implications for psychopathology. Clin Psychol Rev. 2011;31(1):122–137 .
[iii] Davis M, Walker DL, Miles L, Grillon C. Phasic vs sustained fear in rats and humans: role of the extended amygdala in fear vs anxiety. Neuropsychopharmacology. 2010;35(1):105–35
[vi] Viscusi, Kip. (2009). “Valuing risks of death from terrorism and natural disasters,” Journal of Risk and Uncertainty 38(3), 191-213.