Legal Analysis and Commentary from Justia

The Downside of Juries in a World That Can’t Stop Talking

The legal system, in a variety of ways, assumes that being extroverted—gregarious, socially engaged, eager to speak, and fearless in front of a crowd—is optimal.  In part because of this assumption, law schools and the legal world more generally encourage and reward extroversion.  The assumption, moreover, may seem eminently sensible.  But what if it is wrong?  In this column, I explore some of the detrimental effects that our collective elevation of extroversion may be having on the criminal justice system, and on society more generally.

Underrating Introverts

I purchased the book Quiet:  The Power of Introverts in a World That Can’t Stop Talking, by Susan Cain, a few months ago, because it was so well reviewed.  I have only recently read it, however.  My putting off reading the book was, in part, a reaction to the very assumptions that Cain ably highlights and challenges in Quiet.  I had thought that a book about introverts would not be that engaging, since I have tended to think of introverts as less interesting people than extroverts, a tendency of which I was then not even fully conscious.

Extroverts are dynamic, fun, and exciting.  As students, they make teaching a joy for the professor (because they happily participate in class discussions), and as attorneys, they give stirring closing arguments to juries and perform outstandingly before judges in oral argument and in negotiations with adversaries.  Introverts, I thought, not so much.

Then I began reading Quiet and was pleasantly surprised by how deeply engaging it was.  I have learned from the book that many of the most creative people in the world are, and have been, introverts.  I have also found out that while many of us (at least in some countries, including the United States) associate extroversion with intelligence, there is, in reality, no correlation.  Introverts are as intelligent as extroverts.

At some level, of course, I and everyone else knew this.  Indeed, the stereotype of the “nerd” in high school portrays a highly intelligent student who prefers reading to socializing, and who goes on to contribute more to society than his or her gregarious classmates with their gift of gab and long list of friends.  (Bill Gates is just one example that comes to mind).

Yet as much as that stereotype of the brainy, socially awkward nerd prevails, Cain shows that we (as teachers and as parents in particular) nonetheless negatively evaluate young schoolchildren who are quiet and may prefer solitude or one-on-one interactions to group activities.  We in the United States educate children as though everyone must become a salesperson or a celebrity, even if many students will go on to choose jobs that demand focused concentration, rather than a love of networking.  And even in professions that are plainly concerned with the life of the mind, Cain demonstrates how much we nonetheless—increasingly—demand that professionals be highly skilled at (and interested in) addressing large groups of people extemporaneously (in PowerPoint presentations and the like).

Fairness and Relevance

When I teach my course in the constitutional law of criminal investigation, I draw a distinction between arguments about fairness and arguments about relevance.  To cite one example, a student might observe critically that police are far more likely to become suspicious and therefore to pull over drivers in a dangerous, high-crime neighborhood than in its safe, low-crime analogue.  This may seem unfair, because most of the people in even very dangerous neighborhoods are law-abiding individuals who live where they do because they cannot afford to do otherwise.  To subject them to police stops, checkpoints, and arrests at a higher rate seems only to add insult to injury:  Not only does one need to worry much more about becoming a victim of crime, but one has to worry, as well, about being falsely identified as a criminal by the police.

Yet, as a matter of relevance, the fact that police are in a high-crime neighborhood does raise the odds than any given individual in that neighborhood is engaged in criminal activity.  And such standards as “probable cause” and “reasonable suspicion” reflect judgments of probability, given the totality of the circumstances, rather than judgments of fairness.  This reality of policing gives rise to painful and vexing questions about whether police ought instead to be discounting the probative weight of a neighborhood’s crime rate, on equity grounds, in deciding whether to stop or arrest a suspect in that neighborhood.  One can mobilize compelling arguments both pro and con.

I mention this divide between relevance and fairness, because in Quiet, Cain persuasively argues that our tendency to treat introverts as second-class members of society (in classrooms and in professions as well) is not just inequitable (which it plainly is) but also very foolish.  People in extroverted countries (such as the United States) are already inclined to listen to the extrovert (and to the sorts of things that extroverts are more likely than introverts to say when they do speak—optimistic things, for example).  For that reason, our institutions, if anything, ought to bend over backwards to ensure a place for introverts, perhaps not primarily because their feelings and lives matter (though they do), but because the disproportionate dominance of extroverts and extroversion is harmful to all of us.  Cain outlines the many ways in which this is true. Especially striking is a section on how the authority of extroverts—with their low reactivity to negative stimuli—may have played a crucial role in causing the economic collapse of 2008.

Extroverts and the Law

Although all of this interests me for its own sake, I became particularly intrigued by research that was cited in Cain’s book, revisiting studies conducted by Solomon Asch between 1951 and 1956.

In the original Asch studies, each subject was shown lines in a “vision test” and asked to compare the lengths of the different lines.  Of the subjects who answered the questions alone (the control group), 95% accurately compared the line lengths.   However, of the subjects who answered questions in the company of planted actors who had already confidently volunteered the wrong answers (the experimental group), only 25% answered the questions accurately.  If you were in the study, then, and everyone said that a longer line was shorter than a shorter line, you would be likely to echo what the others had said, even though it was obviously incorrect.

I remember learning about this conformity study as a psychology major in college.  The standard interpretation for the high error rate in the experimental condition—an interpretation which I had no occasion to question—was that subjects in the experimental condition felt peer pressure to make inaccurate statements.  Like the citizenry in the fairy tale “The Emperor’s New Clothes,” individuals apparently found it very difficult to state their true view when others in the room rejected that view.  This interpretation of the study seemed intuitively logical, and most of us can understand why it would be challenging to part ways with an otherwise-unanimous group of people.  In fact, I here wrote about the role of such peer pressure in juries that are split 11-1.

In Quiet, however, Cain tells us of a recent study that more closely examined the process by which vocal but incorrect groups of people might alter the responses of experimental subjects.  In 2005, Emory neuroscientist Gregory Berns performed an updated version of the Asch experiments.  The subjects were each shown two three-dimensional objects and asked whether the first could be rotated to match the second.  As in Asch’s studies, the subjects were divided into a group of those who had to answer the question alone (the control group), and a group of those who had to answer the question in the presence of planted actors who had volunteered the wrong answer (the experimental group).

The results were not quite as stark as Asch’s, but they were still impressive.  Subjects who answered the question alone were wrong only 13.8% of the time, while subjects who answered the question in a group whose other members gave the wrong answer were wrong 41% of the time.

Berns also added an additional element to his study.  He attached subjects to functional Magnetic Resonance Imaging (fMRI) scanners so that he could see what parts of their brains were active during the experiment.  In subjects who solved the problem alone, their active brain areas were the occipital cortex and parietal cortex, the visual-spatial portions of the brain, as one would expect given the problem posed to them.

In those participants who worked in a group of actors pretending to believe in an incorrect response, Berns was particularly interested in what he might find on the fMRI.  If the subjects knew the correct answer but gave an incorrect response as a bow to peer pressure, then one would expect to see heightened activity in the frontal cortex, where conscious decision-making (such as the choice to lie and identify a wrong answer as correct) occurs.  What Berns found instead was that the conformists in the experimental group—those who gave incorrect responses after other group members had done the same—showed little activity in the frontal cortex (the seat of conscious decision-making).  These same subjects did, however show heightened activity in the perception-related areas of the brain.

When asked about their responses to questions, the conforming subjects in the experimental group reported that they had come to their answer on their own, although they noted that the other group members had also—independently—come to the same conclusion.  In other words, it appeared that the subject would not—as many assumed –lie in order to appeal to her incorrect peers; her peers were actually distorting her perceptual process.  Cain describes this effect of the group as resembling the impact of “mind-altering substances” on perception.

To be sure, not everyone in the experimental group gave the wrong answer.  But interestingly, the nonconformists in the experimental group (the 59% of subjects who gave the correct response despite the group’s disagreement) showed heightened amygdala activation when they did, a sign that those individuals experienced a sense of threat in giving the correct answer in the face of the group’s disagreement.

The Potential Relevance of Asch’s Experiments to Our Jury System

Asch’s study, to the extent that it proves robust and replicable, has serious implications for the utility of the jury system.  We (including yours truly) have long assumed that twelve minds deliberating together reach better, more accurate results than would one mind deliberating alone.  The peer pressure concern raised by Solomon Asch seemed, at most, to be a concern about courage: Would the dissenting (but correct) juror feel confident enough to say “You are all wrong” to the others?

Berns’s fMRI studies suggest, however, that the hypothetical dissenting juror may not, in fact, become a dissenter, no matter how courageous she is, because her thought process may unconsciously bring her to honestly adopt the conclusion that the others in the group have reached.  As Cain aptly warns, “[w]hen the group is literally capable of changing our perceptions, and when to stand alone is to activate primitive, powerful, and unconscious feelings of rejection, then the health of . . . institutions [including elections, jury trials, and majority rule] seems far more vulnerable than we think.”

As much of the research debunking the supposed benefits of “brainstorming” suggests, the process of in-person group deliberation is, in truth, not the valuable tool that we once imagined it to be.  And Berns’s study offers further reason to doubt that jury deliberation provides an effective way to reach accurate results.

Extroverts on the Jury

Readers may wonder, what does any of this have to do with extroversion?  Here is the answer: Extroverts on the jury are—as the stereotype holds—the most likely to speak up early and often.  Introverts are more inclined to ponder things and to speak rarely and only when they feel strongly that they have something useful to offer.  Furthermore, according to Cain, extroverts are likely to reach a conclusion more quickly than introverts are, as extroverts are generally more decisive.  Add to that, too, the fact that extroverts tend to be (and also to appear) more confident in their conclusions than introverts are, even though extroverts are no more likely to be correct in those conclusions.

Indeed, in workshops that Cain attended on how to act more like an extrovert (and thereby achieve success and influence people), she was told to behave as though she was confident of whatever she was saying, even if she in fact had some doubts.  We have here the ingredients for poor decision-making:  the main speakers are those who reach conclusions quickly and confidently (but not more accurately), and the quiet people who are inclined to ponder matters and entertain doubts have their own thought processes distorted and/or inhibited by the statements and certainty of their peers.

Is there a solution to this problem?  One solution arises from something that Cain suggests in her book.  She observes that the wisdom-of-crowds phenomenon (where a crowd of people can do a better job of problem-solving than just one individual can) is real.  It does not typically emerge, however, in an in-person group meeting.  We see it most when individuals can independently offer their insights to a common pool (an approach that is quite common on the Internet).

Perhaps it would be worthwhile to consider having each member of a jury, after the evidence is all submitted, separately compose his or her own written assessment and analysis of the facts, of legal and factual questions and uncertainties, and of a conclusion (guilty/not guilty, etc.).  Once each juror had written such a document, the documents could be distributed and read by all the other jurors.  And only then, might deliberation begin.

If we did this, we could accomplish two goals at once:  First, we would drastically reduce the dominance of extroverts in the process, thereby increasing the likelihood of accurate results, unsullied by the kind of perceptual distortions that are made evident in Berns’s work; and second, people serving on the jury might feel greater pressure to pay attention during the trial and thereby to avoid the diffusion and delegation of responsibility that can accompany group-decision-making.

In sum, we need not throw out the jury, but I think it critical that we seriously reflect on the downsides of how this institution currently operates.   And, I feel a debt of gratitude to Susan Cain, a very wise and reflective introvert, for inspiring me through her book to rethink some of the tacit assumptions behind our existing jury system.

Sherry F. ColbSherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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