Source of article Litigation Strategies.
Moralizing Judgment: The Impact of Disgust on Juror Decision Making**
Br’er Rabbit and Tar Baby
” Br’er Fox went ter wuk en got ‘im some tar, en mix it wid some turkentime, en fix up a contrapshun w’at he call a Tar-Baby, en he tuck dish yer Tar-Baby en he sot ‘er in de big road, en den he lay off in de bushes fer to see what de news wuz gwine ter be….
“Brer Rabbit keep on axin’ ‘im, en de Tar-Baby, she keep on sayin’ nothin’, twel present’y Brer Rabbit draw back wid his fis’, he did, en blip he tuck ‘er side er de head. Right dar’s whar he broke his merlasses jug. His fis’ stuck, en he can’t pull loose. De tar hilt ‘im. But Tar-Baby, she stay still, en Brer Fox, he lay low…
`Howdy, Br’er Rabbit,’ sez Br’er Fox, sezee. `You look sorter stuck up dis mawnin’,’ sezee, en den he rolled on de groun’, en laft en laft twel he couldn’t laff no mo’. `I speck you’ll take dinner wid me dis time, Br’er Rabbit. I done laid in some calamus root, en I ain’t gwineter take no skuse,’ sez Br’er Fox, sezee.”
From the Tales of Uncle Remus
Disgust is one hot sticky mess. Whether you are Br’er Rabbit or Br’er Fox, should this “tar baby” characterize the emotional moralization response of the jurors to your case, once they swing; you are stuck. Disgust short-circuits reasoning and the mitigating influences of context or situation. You can’t argue with revulsion. Disgust is an emotion made to stick. You might like that; you might not depending upon the way disgust splashes on your case facts and theories.
Prior researchers thought that moral judgments were based on higher order cognitive thought processes. This newer view of moral judgment highlights how certain emotions feed into intuitions or predetermined readiness regarding what’s right and what’s wrong that figure prominently in a moral judgment. Distinct emotions such as anger and disgust, can amplify the importance of different moral domains during moral judgment. This process is known as a moralization.
Researchers in the area of moral judgment have found essential differences between the “other condemning” emotions of anger and disgust as they are expressive of moral disapproval. Anger is driven by contextual factors and environmental cues which influence felt intensity and effects upon behavior and judgment. Conversely, disgust seems devoid of rational or situation specific cognitions which trigger the affect. With apologies to Justice Potter (in his opinion on obscenity, “We know what’s disgusting when we see/smell/hear/feel it”.
For instance, if an individual appraises a negative event (e.g., child sexual abuse) to be controlled by other individuals (e.g., parents), she will experience disgust. If, however, she appraises the event to be controlled by the situation (e.g., drug addicted parents), she will still experience revulsion. There are no appraisals that mitigate the revulsion, even if it is understood rationally that this is a deranged situation. There are no reasoned mitigations. Yuck is yuck; it’s visceral rather than rational. You can’t talk someone out of being revolted.
“The Foundations of Morality”: The theory was first developed from a review of thinking about morality and cross-cultural research on virtues (reported in Haidt & Joseph, 2004) and then later defined by Jonathan Haidt and Jesse Graham of the University of Virginia (Social Justice Research, 2007). They suggest that human beings have five natural tendencies, or intuitions, through which they instinctively develop moral values that drive judgments. These intuitions are the same always and everywhere. However people don’t necessarily possess them in equal doses. What’s more, cultural and other circumstances influence just what kinds of moral values may develop within each of five areas for a given individual.
The Five Foundations:
1) Harm/care, related to our long evolution as mammals with attachment systems and an ability to feel (and dislike) the pain of others. This foundation underlies virtues of kindness, gentleness, and nurturance.
2) Fairness/reciprocity, related to the evolutionary process of reciprocal altruism. This foundation generates ideas of justice, rights, and autonomy.
3) In-group/loyalty, related to our long history as tribal creatures able to form shifting coalitions. This foundation underlies virtues of patriotism and self-sacrifice for the group. It is active anytime people feel that it’s “one for all, and all for one.”
4) Authority/respect, shaped by our long primate history of hierarchical social interactions. This foundation underlies virtues of leadership and followership, including deference to legitimate authority and respect for traditions.
5) Purity/sanctity, shaped by the psychology of disgust and contamination. This foundation underlies religious notions of striving to live in an elevated, less carnal, nobler way. It underlies the widespread idea that the body is a temple which can be desecrated by immoral activities and contaminants (an idea not unique to religious traditions).
Link to YourMorals.org for a self rating on the Five Foundations http://www.yourmorals.org/
Cultural and genetic traits have some impact on an individual’s expression of the Five Foundations. For example, having a Liberal or Conservative bent seems to determine which of the moral tools are emphasized and how they are applied. People who identified themselves as liberals attached great weight to the two moral systems protective of individuals — those of Harm and Justice. But liberals assigned much less importance to the three moral systems that protect the group, Loyalty, Authority and Purity. Conservatives typically place value on all five moral systems but they assigned less weight than liberals to the moralities protective of individuals.
For a revealing discussion of the moral reasoning difference between Liberals and Conservatives useful for case conception as well as voir dire/jury selection see: Haidt, J., & Graham, J. (2007) “When morality opposes justice: Conservatives have moral intuitions that liberals may not recognize.” See also: TED video, Haidt: http://www.ted.com/talks/view/lang/eng//id/341.
Disgust arises as a specific visceral moral evaluation that indicates a violation of Purity, the fifth of the Five Foundations. The kinds of things that arouse disgust are appraisals of contamination, impurity, or potential degradation. Emerging from an ancient protective distaste for the eating or touching things likely to make you sick or die; disgust evolved into an emotion that functions to guard the body and soul from contamination, impurity and degradation. Disgust is extremely easy to elicit. All you really have to do is to show a picture of a pool of vomit or a zombie eating living human flesh and you will see and hear a full-blown disgust reaction from the audience. Just like the flight or flight syndrome (see a wolf;run like hell), the ability to make an adaptive and immediate non-cognitive determination that that something could contaminate you has a lot going for it.
Lakoff has written about embodied cognition and embodied mind theory (Lakoff & Johnson (1980), Lakoff (1987), Lakoff & Turner (1989), Lakoff & Johnson (1999), Lakoff & Nunez 2000), and that the nature of the human mind is largely determined by the form/function of the human body; that all aspects of cognition, such as ideas, thoughts, concepts and categories are shaped by aspects of the body. Visceral aversion involves to visceral moralization.
Core disgust is revulsion elicited by noxious objects, such as soft body products or offensive odors. Characterized predominantly by unpleasant sensory experiences, core disgust elicitors bear a minimal explicit association with conceptions of morality (good versus bad).
Animal nature disgust is triggered by activities that remind people of their animal origins, such as certain sexual or eating habits. Interpersonal disgust is elicited by the prospect of contact with strangers, evildoers, or diseased persons. Finally, socio-moral disgust is revulsion evoked by people who commit vulgar violations against others, such as child abuse or incest. However elicited, disgust motivates people to reject anything perceived as likely to contaminate the self physically or spiritually or to threaten their status as civilized human beings. In this way, disgust signals the “badness” of impurity and, by extension, the “goodness” of purity.
Implications of Moral Disgust in the Courtroom
Pretrial Jury Research
1) Test the case elements, narrative, facts, relationships, character descriptions of the parties and witnesses for mock juror reactions and characterization consistent with disgust.
2) Listen for metaphors and analogies describing violation of norms of purity. Observe to see if there’s any consistency the demographic or values based trends among the jurors in expressing disgust.
3) Experiment with sequencing of disgust features within your case for optimal outcome. Prime disgust by the use of suggestion, metaphors, analogies and framing prior to carrying out the required moral judgment. Olfactory language, metaphors or analogies are particularly powerful. Mitigate the effects of disgust by emphasizing the similarities between the plaintiff/defendant in the jurors.
4) Assess how “same as” or “different from” your client or witnesses are perceived from the prevalent cultural group.
5) Assess whether a behavior was seen as morally right or wrong by looking at the characterizations of the actor’s intentions.
6) Assess compensation/punishment by noting the mock jurors’ interest in and characterization of outcomes, even if an outcome was accidental. Outcome drives compensation and punishment.
7) Explore with mock jurors, after their verdict and deliberation, which scenarios they imagine may assist them in mitigating the effects of disgust.
Voir Dire/ Jury Selection
1) Use a short juror questionnaire to assess disgust sensitivity. If you can’t do that then at least apply the variables below.
2) Demographic variables may be used, as conservatives are, on average, more disgust sensitive as are lower income individuals. The demographic predictions are statistically reliable but caution should be used when inferring disgust sensitivity from any demographics.
3) Listen for language, analogies and metaphors as well as facial expression and nonverbal behavior consistent with disgust.
4) Ask open-ended questions regarding social issues of the day, e.g., illegal immigration, abortion, same-sex marriage, taxes, social programs, labor unions, the U.S. debt limit, etc. depending on the side of your advocacy you may want or not want people who are particularly prone to disgust.
5) Listen for people who claim to be disgusted with lawyers, the legal system, defendants, criminals, or plaintiffs in general, such as implications of greediness or being somehow immoral simply for filing a lawsuit.
1) For the plaintiff or criminal defendant: Emphasize the similarities between the individual, their personal, family and cultural practices and values and the members of the jury and their American culture and values.
2) For the civil defendant or prosecution: Emphasize the risk of contagion, chaos and calamity should this foreign, exotic, norm violating, greedy, grasping, dirty, wild, outlaw behavior or individual prevail or profit.
1) If you want jurors to judge innocuous actions harshly or you want to drive home the point about ‘bad’ behavior—use subtly disgusting analogies, metaphors or expressions. You want to tie ‘disgust’ to the other side. Quietly. Subtly. Let jurors think it was their own reaction.
2) Disgust may not be where you want your jurors to land. An angry juror is more likely to take action to fix the situation.
3) Maybe you do want them to be disgusted. A disgusted juror/jury is more likely to entrench and stay stuck. A disgusted juror is less likely to consider context or circumstances that could mitigate. Consider the quality of the mitigating circumstances.
4) Once disgusted you are not prone to become tolerant. If, on the other hand, your disgust morphs into anger over that disgusting behavior—you are likely primed to act in the deliberation room.
5) Show the jurors that the harm caused was unavoidable or even better was brought on by the irresponsibility of the plaintiff. On the other hand, show the jurors that the pain inflicted on your client was ‘intentional’, jurors may have a stronger moralizing response to it.
6) Your goal may be to simply light the fire of moral indignation in the minds of the jurors.
i) For the plaintiff, you want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them it isn’t right. Show them it isn’t legal. Lead them beyond contempt… to disgust.
ii) For the defendant, you want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them that you follow the rules and that this at worst was an accident, but you shouldn’t be held responsible for the unforeseeable consequences of what happened to this strange person who was irresponsible themselves. Suits like this hurt everyone, cost everyone money and are part of the defiled and broken system. Anyone who would do something like this is gaming the system and wants to be unjustly enriched. They should never prevail. Help them beyond contempt… to disgust.
Disgust is one hot sticky mess. From its biological survival value to its modern day evocation as the emotional driver of moralization in judgment; disgust presents as a human preset that resists all efforts to clean up the mess. As certain as was B’rer Fox that B’rer Rabbit could not resist responding to Tar Baby; the “clever as a fox” advocate should recognize disgust’s impact on fact pattern, parties and jurors. This is the true “reptile” emotion. It’s the mammalian way.
**Reprinted from “The Jury Expert”, July 2011 — Volume 23, Issue #4: http://www.thejuryexpert.com/2011/07/the-dangers-of-disgust-in-the-courtroom/