“Who are you going to believe – me or your own eyes?”

                                                                        – Chico Marx

You may guess correctly as to the majority response to that judgment-testing tease, but research shows that your preferred inclination may be a debatable conclusion.

And so was my thought, after once witnessing a juror in a mock trial deliberation bark at a fellow juror, “Come on, you saw the video. It’s only common sense that he is guilty!” Several around the table nodded their heads. The only problem with that assertion was that the video showed the accused with his colleagues in a storage container, sorting inventory. There was no offered evidence that that particular inventory had been stolen or was illicit in any way – as was the charge against the defendant. My curiosity into the juror’s conflation of “common sense” with visual evidence was rekindled when I read Neal Feigenson’s excellent essay, titled “Visual Common Sense”.

Neal Feigenson is the Associate Dean of the School of Law at Quinnipiac University and has long held a research interest in the use of Visuals in the Courtroom. His work is must-read for any litigator or trial graphics consultant interested in the litigator-visuals-juror persuasion relationship.

Naïve Realism – “Seeing Is Believing”:

Feigenson’s own research, and his understandings of related research, supports his argument that a particular common sense attitude – naïve realism – toward visual representation of evidence, tends to make many decision-makers overconfident in their interpretations of that visual evidence, and less receptive to alternative viewpoints or even the introduction of contrary evidence.

By “naïve realism” Feigenson means people’s tendency to identify a visual that looks like – or affirms as – ordinary observable reality. This could be a video, an animation, a photo, a graphical analogy, a timeline or even data graphs & charts. Other possible relevant facts or contextual detail that may be omitted from the depiction are not considered, if that visual depiction is easily understood, and thus resonates with “common sense”.

In an age of Photoshop and YouTube, one may think that people in general have become sophisticated consumers of visual information. But even in our relatively visually sophisticated culture, naïve realism about the truthfulness of visual information engages a common and psychologically powerful mental default.

Research shows that well-received picture-based understandings can convince affirmation of the viewer’s contextual perspective and end any further reasonable dispute. The sway of visual naïve realism, like appeals to common sense, tends to be a conversation-stopper for some decision-makers. It ends discussion on the grounds that the visual “speaks for itself”.

Justice Scalia & “Visual Common Sense”: A Case Study:

Neal Feigenson points to a Supreme Court majority opinion by Justice Antonin Scalia in the matter of Scott v. Harris (2007) as an exemplary exercise in gauging the possible effects of “visual common sense”. One late night in 2007, Victor Harris led Georgia county police on a high-speed chase. After some time, a pursuing officer decided to ram Harris’s car off the road, causing Harris to crash. As a result, Harris became a quadriplegic. Harris sued the county and officers in federal court, alleging violation of his Fourth Amendment right with the use of excessive force. The defense was of course that Harris posed enough of a threat to public safety to justify the officer’s actions.

When a question of reasonableness of conduct is in dispute, it’s up to a jury to decide the case – both the trial judge and Court of Appeals agreed. But eight of the nine Justices of the Supreme Court disagreed. They ruled that there would be no trial, as “any reasonable person” would have concluded that Harris’s driving posed such a risk that police were justified in their action.

Why did the Justices believe they should decide a question ordinarily left for a local jury? Because they watched the chase as recorded from two dash-mounted police cruiser cameras. In the Justices’ opinion, the video outweighed other evidence, including sworn testimony of officers and witnesses. They had the tape.

Justice Scalia, responding to the lone opposing Justice, wrote for the majority, “We are happy to let the videotape speak for itself.” Feigenson questions, though, does the videotape “speak for itself”?

Scalia wrote that “what we see on the video … resembles a Hollywood-style car chase … at speeds that are shockingly fast.” (Scott v Harris 2007, 379-80)”. He later invoked reference to the movie ‘The French Connection”, to support his reliance on the videotape to reach his conclusion.

Feigenson points out that there are many “memory-imprinting” differences between Hollywood style – and The French Connection in particular – chase scenes, with vehicles jumping curbs, side-swiping other cars, near-misses of horrific collisions, etc, and with the police tapes in evidence. That actual evidence – the police dash video – shows none of the Hollywood mayhem. Harris drives fast, yes (but also consider that most dash-cams use wide-angle lenses, which because of their spacial distortion, make movements across space appear even faster than they are), but he appears to be driving in a very controlled fashion, even signaling his turns, with no near-collisions and no vehicle forced to swerve to avoid him.

Feigenson ponders whether the cultural contextual references that Justice Scalia invokes might have influenced how and what he believed he saw in the police video? A lower and appeals court, and one Supreme Court Justice, did not see what Scalia “saw”. Yet Scalia argued “the videotape speaks for itself.”

Feigenson argues that Scalia’s interpretation of the video evidence, central to his “obvious” conclusion, suggests a naïve realist’s perspective: that the visual unproblematically conveyed ”the real”, even though that “real” may have been, at least in part, shaped by his own cultural influences and biases, rather than objectively critiquing the evidence before him.

“Keep It Simple, Stupid” & Naïve Realism:

When planning the visual presentation with trial teams, I often speak to Edward Tufte’s advice to “Get your audience out of the puzzle solving business”. More easily understanding visual evidence generates decision-maker confidence in their judgments of that evidence, especially with naïve realists. If it appeals to one’s common sense, it is compelling.

Believing the truthfulness of our own visual perception is intuitive: The brain processes pictures 60 times faster than it does words! Intuitive visual judgment “feels right” when presented simply and accessibly.

Consequently, studies reveal that when people find it easier to understand a visual, as opposed to a verbal description (which more often is the case than not), they would be more inclined to like that visual over the verbal account, and more likely to believe it more truly represents reality – an important persuasive bonus. Naïve reality viewers would hold this belief with added confidence.

Cognitive and social psychology studies have shown that the easier it is for people to mentally process something (quick fluency), the more they tend to like it (Winkielman et al. 2003) – and subsequently, the more likely they are to believe that it is true (Reber and Schwartz 1999). They unconsciously misattribute this positive inner reaction to the visual they are processing, producing a more favorable acceptance of that visual. The good feel of fluency influences truth judgments.

Furthermore, studies reveal that the easier it is for people to retrieve information from memory, the more confident they are that their retrieved answer is correct. Meaning, many people mistake memory accessibility of information for truthfulness. Consider these points above when devising your next set of trial graphics, and how best to arm your favorable-leaning jurors for deliberation. Keep it simple & accessible.

When strategizing & identifying your deck of demonstratives for your next case, serious consideration of how to display, as well as what to display, needs to be on the table. Neal Feigenson’s observations on the mechanisms of juror tendency towards Naïve Realism should be kept in mind to help achieve maximal persuasion with your jurors. Simplicity, accessibility and quick fluency are key. These trial graphics design attributes help to engender a juror’s “truth judgment” with the content you wish to convey.

If “seeing is believing”, then visual evidence offers the best foundation for juror persuasion – and belief.

___________________________________________________________________________

Source: (2014) “Visual Common Sense,” Neal Feigenson, chapter 5 in Richard Sherwin & Anne Wagner (eds.), “Law, Culture, and Visual Studies”, pp.105-124.