Going for the gut

We've all heard through anecdotal research that most jurors make up their mind on a case after opening statements. Is it because one attorney or the other was that much more eloquent or persuasive in his opening remarks? Is it because jurors pick the side they like more? Is it because jurors are making moral judgments about what's right and wrong and shaping the stories and facts to fit their mindset?

Or is it because the jurors are disgusted about something?

Dr. Jonathan Haidt, a psychologist at the University of Virginia, proposes that what we pass off as moral judgments are really the result of "moral emotions" such as disgust, anger and compassion.

Psychologists like Haidt are leading a wave of research into the so-called moral emotions — not just disgust, but others like anger and compassion — and the role those feelings play in how we form moral codes and apply them in our daily lives. A few, like Haidt, go so far as to claim that all the world’s moral systems can best be characterized not by what their adherents believe, but what emotions they rely on.

In other words, our reactions are based on our gut instincts. How many times have we been told to "follow your gut?" How many times have we told clients to "go with their gut?" Of course the research is controversial and some have questioned the basic premise.

Philosophers and theologians have spoken about the evolution of our moral code and how the development of a sense of right and wrong is what separates us from the "baser" species. What if the development of that moral code had more to do with the evolution of our digestive tract? Does our "universal" sense of right and wrong end up different had early man been less social or had a different diet?

Dr. Haidt also points out that we are unique in the animal kingdom for our feelings of "disgust" toward certain foods, items or events. While other animals dislike the taste of certain things, we find ourselves disgusted at the notion of eating things such as brains, testicles and other innards.

The origins of disgust remain somewhat mysterious, but it may have first arisen when the diet of our hunter-gatherer forebears began to contain more meat — rotten meat is much more dangerous than rotten vegetables, and even today we’re far more disgusted by things that come from animals than things that come from plants. But because disgust worked so well at getting people to steer clear of certain dangerous food — as well as the outward signs of contagious disease in other people (sores, pus, and the like) — Haidt and others hypothesize that as human society grew more complex, disgust also began to serve a social function.

Partly through biological selection, partly as a taught behavior, disgust became a disciplinary mechanism to steer us away from dangerous behaviors. Understanding that betrayal or child rape is wrong is one thing, but actually being sickened by it is a more powerful form of social control.

Think of the words a prosecutor uses during their opening statement to describe what your client is accused of doing. What emotion is the prosecutor trying to elicit? Is the prosecutor trying to create a sense of disgust in the jury box?

Dr. Haidt has even conducted research in which people were subjected to disgusting odors and asked their opinions on a variety of moral issues. The results are astounding.

Haidt has done studies in which he primed people to feel disgusted and then asked them to judge the morality of certain actions. In one study, he had some of his unfortunate test subjects respond to four vignettes related to moral judgment while sitting in a room that had been infused with an ammonium sulfide “fart spray.” The stink, he found, made them harsher judges, not only of body-related questions like whether first cousins should be able to have sex and marry, but whether people should drive to work when they could walk or whether a movie studio should release a morally controversial film.

Just think about the process by which a juror finds himself in that jury box. First he's told to report to a central location at 8am and made to wait. Then a bailiff comes and takes a group of jurors to another room where they stand inside a square taped off on the floor. The juror is no longer known by his name but is merely a number on a piece of paper. After standing in that square the jurors are taken to the courthouse (passing through yet another metal detector) where they stand about in the hallway until someone decides to bring them into the courtroom. After being seated they are then questioned by two people they've never met who ask them some very personal questions -- and who generally address them by number, not by name. Only after enduring this process is the juror seated in the box.

What emotions would you imagine that juror is feeling as the prosecutor begins his opening statement? And how might those emotions affect any moral judgments that juror might make during the trial?