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Monday, March 2, 2015

Perception and Persuasion: Musings on How the First Affects the Second

One of my research assistants dropped by my office this morning so I could sign her time sheet. We spent a few minutes discussing work and life. Knowing that I am not always aware of current cyberspace events that are common knowledge to Millennials, she recommended that I take a couple of minutes and look up the online controversy about the white and gold dress. A quick Google search took me to this New York Times story entitled Is That Dress White and Gold or Blue and Black?

For those of you who were, like me, heretofore unaware of the controversy, it involves the impact of perception on determining the color of a dress in a photograph. Some people believe it is white and gold in dark shadow, and others believe it is blue and black washed out in bright light.

When I opened the website, I saw a white and gold dress. Maggie, my research assistant, told me she had never seen it as anything other than blue and black. Neither of us could understand how the other could see the dress as any other color combination than the one we had personally perceived.

In truth, the dress is blue and black, as a photograph later in the story conclusively demonstrates. Now that I have seen that second photograph, my perception has changed, and the dress in the first photograph appears blue and black to me (washed out in strong light). Every time I look at it, it appears bluer and blacker.

I was fascinated by this phenomenon of perception. Maggie and I discussed applications of this in a trial advocacy environment. How is it that witnesses, attorneys, and jurors can view the same event differently? How do we move people past incorrect perceptions (the dress is white and gold) to seeing things as they really are (the dress is blue and black)? What role does cross-examination and argument play in this?

And most intriguing to me--how do we arrive at the truth when an objective picture of things as they "really are" cannot be made available to the jury because such a picture does not exist? Advocates often have to convince a jury why what appears to be "white and gold" is in reality "blue and black" without the benefit of a blue-and-black picture to show them.

I am a strong believer in the adversary trial process. When two sides, represented by strong and skillful advocates, present their evidence in the crucible of the trial process, the truth (at least as most of us understand the term) has a good chance of emerging from the process. Nonetheless, all of us are aware of trials at the end of which perception trumps truth. Twenty years later, for example, people still have strong opinions about O.J. Simpson's innocence or guilt for the murders of Nicole Brown Simpson and Ronald Goldman. 

The task is further complicated because we live in a society that has difficulty differentiating between perceptions, opinions, and facts. Judge Bob McGahey shared an article, entitled Why Our Children Don't Think There Are Moral Facts, about how children in our schools are unable to meaningfully distinguish between fact and opinion. Someday, these children will grow up and sit on juries. If they believe there are no moral truths, and that one set of beliefs or perceptions is equally as valid as another, how can advocates in an adversary trial process lead them to the truth?

I'm interested to see how others view these issues of perception, truth, and persuasion. Please use the blog's comment function to share your thoughts. All of them are equally valid, of course. :)

--Chris Behan

1 comment:

  1. Chris--

    I have been pondering this topic for quite awhile. Maybe a couple of years. We have had a couple of high profile cases around here that have engendered a whole lot of public comment on social media. This got me thinking about it. I have also recently been reading about the JFK assassination, where there are a lot of heated arguments about what the “truth” is.

    My tentative (and hopeful) conclusion is that our perceptions of what most people think is “true” is skewed these days. I don’t think most people necessarily believe the things they politely tolerate.

    I also don’t think that most peoples’ perception of what is justice has changed at all.

    I think that our perception of the consensus of what other people think is true about any particular topic has changed because increasing technology has democratized idiocy. There seem to be more dumb people getting public acceptance of their stupid ideas because there are, in fact, more dumb people getting public acceptance of their stupid ideas.

    When I first started reading about JFK, I discovered on the blogs that there is a pretty hardcore contingent that thinks LBJ was involved in the Kennedy assassination. I thought “Well, that’s kind of out there, but I can see how somebody might entertain that notion.” Then I ran into the lesser populated crowd that thinks George H.W. Bush was in on it. I thought, “That’s kind of delusional. That’s really a stretch.” Then I ran across the few truly demented people who think Jackie had something to do with it. I thought “That’s just f___ing crazy.” But if you believe that Jackie Kennedy arranged to have a sniper kill JFK with a high powered rifle while he was sitting a mere 6 inches away from her, then nowadays, you can find people who will loudly validate your view.

    This is a trend that has been progressing onward for almost a hundred years. The internet is doing to lawyers and justice the same thing that radio and the telephone did to our forebears. Time was, you had to go down to the church, or the courthouse, or the public square to receive your information about your community. That’s also where you had to go to get your views validated. And if you expressed the view that maybe Mary Todd hired John Wilkes to kill Abe, they would flog you in front of the feed store.

    Then the radio and the telephone came along and you could get your information and exchange it and discuss it with whatever stupid crowd you ran with. And now, the internet allows more idiots than ever before to receive stupid stuff and transmit it. It allows them to find validation from other idiots.

    Most of us walk around indulging such idiocy without questioning and confronting it directly because it wouldn’t be polite (or productive) to challenge it. “Truth” is sometimes a cultural phenomenon, I think. We can survive that and have been since at least the 1920s.

    Justice is a separate issue from truth. We will sometimes sacrifice “truth” for justice. See e.g., the exclusionary doctrines. When justice becomes subject to cultural forces, we are in trouble. That is what is troubling about the article you cite.

    The Scottsboro trials and the Medgar Evers murder trials are examples of cultural forces subverting justice. I guess what I have tentatively concluded is that “the truth” is faddish sometimes but justice is a basic human need.

    I have also concluded that, as an advocate, casting a case as being about “justice” of one sort or another is something we should obviously strive to do. Sometimes you can’t. Sometimes a case is about nothing more than some wretch running with a bag of dope and a gun who needs to be in prison for awhile or it’s about some businesswoman who got in over her head and didn't pay her taxes. Such cases are only about what is true and it is hard to cast them as some big justice passion play.

    But when a case can be cast as being about justice, then we should so cast it.