Potential jurors arrive at the courtroom with misinformation that might bear on your case. They could have opinions on scientific validity and reliability that will conflict with what your experts will tell them. They might have views on social groups that prevent them from seeing your witnesses fairly. They might have heard selective and filtered information about the case itself and believe that it is God’s honest truth. Among some attorneys, and particularly judges, there is often the hopeful belief that once they hear the facts, they will come around. This ability to correct misinformation is in many ways at the heart of the rational legal mindset. But it is in open conflict with our current post-fact world.
The research continues to struggle to keep up with the changing meaning and use of the basic idea of “Facts.” For example, earlier research suggested that in at least some cases, corrective information had a “backfire effect” in the sense that correcting someone’s misinformation would just lead that person to defensive motivated reasoning, and the resulting mental engagement would leave their original beliefs not just intact, but stronger. More recent research has not replicated that finding, however, suggesting that fact-checking can work. One important cross-cultural study I just came across (Hameleers, 2019) adds to this debate over whether, where, and when it works to try to correct someone’s erroneous beliefs. The study provides more support for the hopeful idea that fact-checking works, while also reinforcing a few less hopeful conclusions. Opinions, they find, can be as strong as facts, and fact-checking still relies on a partisan lens, particularly in the United States. In this post, I’ll take a look at the research and three implications.
The Research: Fact-Checking Works…Kind of
Micheal Hameleers, a researcher at the University of Amsterdam, looked at fact-checking to refute misinformation on anti-immigrant crime narratives (the idea that immigrants are responsible for a very large or disproportionate amount of crime). Varying the format of the message (opinion or fact-based) and the presence or absence of fact-checking, he looked at populations in the United States and the Netherlands.
As noted, fact-checking broadly did work in both countries, reducing the strength of belief in misinformation. But the researcher also noted an equivalence between opinion and other sources of information. The sobering way he put it was, “Hard facts, objective sources and empirical evidence are not perceived as more credible than the opinions of ordinary citizens.” Read that again before your next jury selection. The researcher also found that the partisan lens that a person brings is critical and that the issue is more acute in the United States than in the Netherlands.
The Implications for Legal Persuaders
Legal persuaders should always carry equal parts sensitivity, realism, and hope. In dealing with the complexities of what some have called a “post-factual relativism,” there are a few practical implications.
Don’t Over-Value Corrective Information
The potential juror in voir dire may be told, “You may have that view now, but you haven’t heard the evidence yet,” and then be asked, “Do you think you could set aside that belief and just rely on the evidence?” When the juror says, “Yes,” don’t just take that with a grain of salt, take it with an entire bag. We are not yet at the cynical place where fact-checking doesn’t work. Research continues to show that it does work, but it is also an uphill battle, so strikes exist for a reason.
Opinions Can Matter as Much as Facts (or More)
This finding is a reminder for those conducting voir dire: Don’t just look for those who may have beliefs that would interfere with your case, look for the attitudes that provide those beliefs with a home. Lawyers are trained through college and law school to draw a sharp and practical distinction between things that are proven and things that aren’t. But outside that mindset, the distinction isn’t nearly so clear. The researcher also noted, “The main findings indicate that two different formats or frames of misinformation — people-centric/anti-experts and evidence-based information — are equally credible, and yield similar levels of issue agreement.” In other words, “I heard a friend say…” and “The CDC is reporting findings that…” exist in comparable frames, and to most people, as Hameleers notes, “Facts are not more credible than experiences” “
Americans May Be Uniquely Vulnerable
Americans may have once felt that we had an advantage of being more broad-minded than we imagined other parts of the world to be. That was likely never a grounded conceit, but it certainly isn’t now. The author compared the American experience with fact-checking to that of the Netherlands, where there is a definite diversity of opinions, but they are not so polarized into two camps as the United States. The research article noted that fact-checking may be less effective in the United States because Americans, “may perceive fact-checkers as part of the biased and partisan media system.” Through the years of Obama and Trump, and now through the waves of the pandemic, the American rift just seems to be growing wider and wider.
It is still possible to correct someone on the facts. Persuasion isn’t dead and facts aren’t dead. It does feel necessary to add “yet” to the end of both of those statements, but in the meantime, advocates can still keep persuading with a sensitivity to the challenges.
Hameleers, M. (2019). Susceptibility to mis-and disinformation and the effectiveness of fact-checkers: Can misinformation be effectively combated?. SCM Studies in Communication and Media, 8(4), 523-546.
Image credit: 123rf.com, used under license