It is beyond question that we inhabit a nation where, to some, a trusted voice is more valued than hard data and science. Why? Are some people hard wired (or might we say “politically wired”) to view scientific evidence either as credible or untrustworthy? And if the answer is “yes,” what does that imply for courtroom advocacy – in the jury selection process or at trial itself? Or for how we teach trial skills to our students?
This is the problem analyzed in the paper “We Should Hear from Both Sides: Ideological Differences Between Liberal and Conservative Attitudes Toward Scientific and Experiential Evidence,” by Stein, Swan and Sarraf (2019) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3428776, last visited November 7, 2020. The overarching research question asks if someone’s political leanings are predictive of whether the individual will credit the ‘researcher’ or the ‘rejecter.’
To test this, they used problems not usually connected to public policy and politics, such as whether people accept the science of global warming. Consider this example: “a researcher debunks the possibility of ‘lucky streaks’ in games of chance, while a casino manager says he does not believe the researcher and claims to have seen lucky streaks.” To really measure how dominant political allegiance might be, the authors even added information that would help the test subjects understand why the casino manager might be wrong.
The outcome of the initial research was stark in its findings:
- “compared to liberals, conservatives evaluate the science rejecter more favorably…[and] conservatives also evaluated the researcher less favorably than liberals…” Id, 14-15
- “Looking at liberals and conservatives only, among those who preferred the researcher, 37.0% are conservative, while among those who preferred the rejecter, 77.4% are conservative, and among those who gave equal ratings to both, 59.3% are conservative. Thus, those who do not rate the researcher more positively than the rejecter are especially likely to be conservatives…” Id., 15
The first of two studies found that conservatives treat “scientific and non-scientific perspectives as closer in legitimacy to one another” with one reason being that they see “intuitions as an infallible source of truth.” Id., 17.
This does not mean that science did not prevail. After a second study, the researchers concluded that “both conservatives and liberals, on average, evaluated the researcher more positively than the rejecter, indicating that both groups overall see the value in science and, at least on these [non-politically-charged] issues, tend to think the scientific perspective is more likely to be the correct one.” Id., 21.
Was there a bottom line? One conclusion was that conservatives hold sincere beliefs that what people experience is as legitimate a source of truth as scientific evidence. As well, “the case that intuitive thinking makes empirical understanding difficult continues to be clear.”
Okay, an interesting digression into mainstream thinking. But what might this have to do with trial advocacy? Plenty. Just some of the considerations this research triggers include the following:
- What is fair jury voir dire in a data-driven case where the jurors may also hear experience-based testimony that counters the research. It is doubtful that judges would (or should) permit the question “what are your political leanings,” but might it be appropriate to ask “if you heard a mathematician say that ‘odds always favor the casino’ but a blackjack dealer testifies that ‘lots of people beat the system’ would you tend to believe one or the other?”
- What expert do you select, and how do you ‘school’ that person to make data seem more tangible and trustworthy?
- Can you find a story to make the jurors who are more conservative “think slowly” and get to the place where they can reason past their intuitive thinking?
There is one more consideration, and that is for those who teach advocacy skills to law students and to young lawyers: when do we introduce them to studies like these and explain that our model direct- and cross-examinations are just that – generic models for the ‘reasonable person’ juror in a world where that stereotype may have less and less relevance?