Source of article Jury Insights.
Moral Conundrums and
Alan J. Cohen, PhD, Jury Insights
Edward Snowden – A Moral Conundrum
Tinker, Tailor, Soldier, Sailor
Whistle Blower Hero, Terrorist, Traitor
Cowboy Hacker, Foreign Spy in Chief
Good Man, Bad Man, Robin Hood Thief
Morally speaking-who is your client, and what
is your case about?
Most people are a little perplexed when facing questions of
conflicting situational morality; that is, the very kind of moral questions
that reside in many cases making it past summary judgment motions.
Edward Snowden is a pretty good example of a person whose
actions present a situational moral conundrum. Imagine taking the position of
arguing Snowden is a textbook example of a whistle blower to an audience of
jurors with a point of view that Snowden is a traitor, and then imagine the
Attorneys seek jurors who have favorable moral biases to his/her
side of the case, and who are resistant to changing their position. The
attorney seeks to remove jurors adverse to the case, and who are resistant to
We know the mind resists changing a position already taken.
Check out these PsyBlog articles that discuss some common issues
in dealing with resistance to persuasion.
Nine ways the mind resists
Balanced arguments are more
One takeaway for the attorney is that it is a risky strategy to
attempt to scare, seduce or manipulate someone into changing a mindset.
When I started studying hypnosis as a practicing
psychotherapist, I thought I was going to learn about mind control. Paradoxically,
I learned that the basis for helping someone to “change” through
hypnosis was in helping the person become unchained from rigid attachments and
become receptive to seeing things from a different point of view. The
psychotherapist cannot just suggest/command someone to stop doing one thing and
start doing another. The therapist has to discover some motivational foothold
receptive to change already resident within the person.
Looking at it another way, it’s easier to scare a person into
not changing– becoming more rigid and resistant– than it is to get the person
to change. And, if you, as the persuader, come across as someone you
threatens the equilibrium for that person, you will encourage their
If you, as the persuader, cannot deeply understand the
listener’s emotional and moral attachment to an adverse mindset, it’s going to
a rough road to making a convincing persuasive argument.
In old psychotherapy parlance, people resist change because they
are defended against the anxiety the change represents. Every position we take
serves as self-assertion and a protective measure.
We all develop life skills that help us navigate morally confusing
waters based on our biology, experiences and teachers.
When we seek to “change someone’s mind,” we are often
entering into territory that butts up against self-identified notions of what
it means to be a good or bad person–what’s right and wrong.
If the person doing the persuading cannot reach the listener’s
self-identification to remain a good person, it’s a lost cause.
Since most litigation presents two sides of a story, it is
important to embrace the “moral conversation” about the inherent
choice. The jurors are free to choose, and they need clarification of the moral
nature of the choice, and why they should morally identify with the choice for
your side of the argument.
Many cases in litigation have an Edward Snowden somewhere in them.
It’s a kind of “Where’s Waldo” game. You have to find the Waldo
of conflicting situational morality. You, as the attorney, at some point
in the “conversation” of voir dire and opening statement need to both
clarify and polarize the moral conundrum in your favor. But your
timing must acknowledge the listener’s capacity and readiness to integrate your
side’s moral premise. If you and the jurors do not harmonize, you’ll be
just as unsuccessful as a marital partner telling the other to stop smoking.