Trial consultants are often asked by attorneys for insight into the demographic and personality variables that will be most influential in the jury room during deliberations. Of course, each case – and each jury – is unique. The complete answer to this question requires a full understanding of the case and findings from pre-trial research designed specifically to test the issues of the case. Nevertheless, certain principles of social psychology can illuminate, in coarse grain, how some jurors are likely respond to evidence and argument, as well as to the ways in which they are presented.
For centuries, humans have understood that social power, the feeling that we have control over others’ resources, has predictable effects on the way people behave. In some cases, power can have ill effects, as Lord Acton famously observed in 1887: “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” Modern psychological research tells us that power influences people’s thinking at a very deep level. It affects not only how our brains navigate social situations, but also how our physiology – down to the hormones circulating in our blood – responds. Social power makes people think, feel, and react differently. Therefore, it is useful as a factor to consider during jury selection and as a tool to employ during arguments.
Social power helps to govern the way we perceive, judge, and interact with others. It has been shown to decrease our inhibition, buffer us from the effects of social and physical stress, and clarify our perceptions. Recent findings in the psychology literature have also suggested a link between feelings of social power and moral cognition (e.g., Wiltermuth & Flynn, 2012). In this article, I present the findings of a research project that I conducted for my master’s thesis examining the ways in which social power influences moral judgments of others. In two studies, participants’ feelings of power were manipulated and then they were presented with a variety of moral vignettes. The vignettes presented decision making scenarios that varied across several dimensions, including the overtness of the moral issues, the complexity of the information presented, the uncertainty of the information presented, and the moral principles underlying the scenario.
Lord Acton may have been right. Power may corrupt by making people less critical of their own moral behavior. However, when it comes to judging others, results from this research suggest that high power is associated with harsher judgments of simple moral issues, ranging from littering to premarital sex. When participants are presented with moral vignettes complicated by additional information and/or moral principles (see examples in Figure 1), the association between power and moral judgment all but disappears, except in one consistent way. In complex moral dilemmas that pit utilitarian (outcome-based) and deontological (rule-based) principles against each other, power (versus no power) is associated with harsher judgment of utilitarian acts (see example in Figure 1). These findings demonstrate two distinct ways that power influences moral thinking.
The Psychology of Power
Recent research efforts have revealed broad-reaching implications of social power in a variety of contexts. In particular, power has been identified as a key factor in many types of social perception and judgment. For the purposes of this research, and following in the path of previous studies, I defined power as the psychological experience of having control over valued resources and other people (Dahl, 1957; Emerson, 1962; French & Raven, 1959; Keltner, Gruenfeld, & Anderson, 2003). This definition emphasizes the subjective and transitory feeling of power. It also includes control over people, an attribute of power that makes power a fundamentally social phenomenon, and is the focus of this research.
Power as Disinhibition
Recent empirical evidence has confirmed what has been reflected so clearly in recent media headlines – that power is linked with corrupt behaviors. One theory is most easily described as “power-as-disinhibition.” First, people who are primed with feelings of power are faster at setting goals and pursuing them (Guinote, 2007; Keltner, Gruenfeld, & Anderson, 2003). Power also increases willingness to engage in action (Galinsky, Gruenfeld, & Magee, 2003), and improves motor performance (Burgmer & Englich, 2012). Low power, by contrast, hinders people’s ability on cognitive tasks (Smith, Jostmann, Galinsky, & van Dijk, 2008). Taken together, these findings suggest that power can serve as a disinhibiting force in social interaction and judgment.
Power as Immunity
In a variety of contexts, power has also been associated with immunity from concern about others and from social influence. Kipnis (1972) demonstrated that people who feel powerful view the less powerful as objects of manipulation and respond by treating them poorly. Power can also lead people to “use” others as tools to achieve their goals (Gruenfeld, Inesi, Magee, & Galinsky, 2011). People who feel powerful also struggle to take the perspectives of others or correctly determine others’ emotional expressions (Galinsky, Magee, Inesi, & Gruenfeld, 2006). A higher sense of power is associated with a decreased ability to feel distress when exposed to other people’s suffering, suggesting that power may interfere with our sense of compassion (Van Kleef, Oveis, Van der Lowe, LuoKogan, Goetz, & Keltner, 2008).
This blindness to others is carried to the societal level as high power individuals also tend to ignore major social norms, such as those regarding sexual aggression (Bargh, Raymond, Pryor, & Strack, 1995). Some of my own recent work with Dana Carney suggests that power buffers people against the psychological and physiological effects of stress (Carney, Yap, Mehta, McGee, & Wilmuth, under review). Feelings of power may induce an increase in testosterone secretion in both men and women. This increase in testosterone level appears to be associated with suppression of an increase in cortisol, usually associated with the stress response. If normal people experience stress when committing immoral acts, power may reduce the psychological cost of immoral behavior, and thus lead to more of it.
Power as Clarity and Control
A theory recently advanced by Wiltermuth and Flynn (2012) has characterized social power as a sense of clarity with regard to one’s moral judgment. According to this theory, power may be able to reduce the ambiguity with which people perceive others’ behaviors and the appropriateness of their own judgments. This view is supported by studies that show that power is associated with overconfidence in one’s own beliefs and judgments (Fast, Sivanathan, Mayer, & Galinsky, 2012) and certainty in speaking (Magee, Milliken, & Lurie, 2010). Feelings of power may help people to see the world in terms of black-and-white rules, just as it helps people to see certainty in their own thoughts and behaviors. As a result of perceiving and applying rules more easily, the powerful may believe that they are insulated from potential negative effects of rules being enforced with punishment (Wiltermuth & Flynn, 2012).
The Power to Judge
The results of previous research on power suggest that power influences judgment by preparing people to make decisions, buffering them from the negative consequences of those decisions, and increasing the clarity with which they view their decisions. The special case of moral judgment seems to proceed in one of two possible ways – a slow, deliberate, and rational process of moral reasoning, or a rapid, emotion-driven burst of moral intuition (e.g., Kohlberg, 1969; Haidt, 2001). Power may influence these two mechanisms differently.
When individuals are faced with scenarios of simple moral transgressions, there is little chance for moral or situational ambiguity. Moral rules and principles are more easily applied when the issue is clear and simple. High power individuals have been shown to focus more easily on rules, and are prone to punish (e.g., Wiltermuth & Flynn, 2012). When presented with a simple moral issue, high power individuals are well prepared to attend to and apply a moral rule or principle (and ultimately deal with the consequences), which makes it easier to condemn another’s actions. Thus, I expected that those primed with high social power would be more likely to judge people more harshly when presented with moral transgressions described in simple scenarios. The precursor of this condemnation is a focus on rules, and the outcome is an increase in punishment.
However, when faced with scenarios of complex moral transgressions, power should not have a significant impact on moral judgments. When the moral transgression presented in a vignette is complicated by uncertainty, additional relevant information, or multiple moral principles, it is more difficult, and less adaptive, for an individual to use a rule-based rational process to arrive at a judgment. Rather, an intuitive, unconscious process is more likely to be used. This intuitive process that people use to weigh multiple factors in a complex moral scenario may be less subject to influence by social power.
Results of Two Studies
Across two studies, I investigated how feelings of social power may influence individuals’ judgments of moral transgressions. The first study tested the relationship between social power and judgments of simple moral issues. The second tested the relationship between power and judgments of complex moral transgressions and examined this relationship across five different types of transgressions. For the purposes of this article, the description of the research methods and the statistical analyses of the findings have been abbreviated.[i]
Study 1: Does Power Influence Judgments of Simple Moral Issues?
In Study 1, I investigated the relationship between power and moral judgment across a variety of simple moral issues. One hundred participants (56% female; median age range: 30-39) were recruited online using Amazon Mechanical Turk, a popular crowd-sourcing platform that is now commonly used for conducting social science and behavioral research. Studies on the use of Amazon Mechanical Turk for behavioral research suggest that online responses closely approximate in-person responses (Buhrmester, Kwang, & Gosling, 2011). Participants were required to be at least 18 years old and to live in the United States.
Study 1 had two conditions, high power and low power. Participants were assigned to one of the two power conditions using a method that approximated random assignment. Power was manipulated with a recall task. The task required participants in the high-power condition to recall a time in which they felt power over someone else and to write four to five sentences on this topic. The low-power participants were given a similar task, but were instructed to recall a time in which someone else had power over them (Galinsky, Gruenfeld, & Magee, 2003; Wiltermuth & Flynn, 2012; see Figure 2 for results of power prime manipulation).
Figure 1: Example moral vignettes
Figure 2: Power manipulation for Study 1
Following the power prime, each participant responded to a set of 12 randomly-ordered questions about moral issues. Each item presented a moral issue, framed as a judgment about an anonymous individual engaging in a potentially immoral behavior. Participants were asked to judge the degree to which they found the person engaging in each behavior to be moral or immoral. Response choices ranged from “very immoral” to “very moral” on a 9-point Likert-type scale, with no midpoint demarcated. The moral issues presented were adapted from research by Zhong, Strejcek, & Sivanathan (2010), and included the following issues: adultery, alcoholism, casual sex, drug use, homosexuality, littering, pornography, premarital sex, profane language, prostitution, smoking, and wearing animal fur clothing.
Following the 12 moral issue questions, participants were asked to complete a manipulation-check, which was a measure of self-reported feelings of power. Last, participants completed a set of demographic questions, which included items on gender, age, race, and political ideology.
The results of Study 1 support the hypothesis that feelings of high power are associated with harsher judgments of certain moral transgressions when they are presented as simple issues. (See Figure 3 for results of Study 1; statistical information on each variable is available in the endnotes [ii].)
Figure 3: Results of Study 1
Study 2: Does Power Influence Judgment of Complex Transgressions?
In Study 2, I investigated the relationship between power and moral judgment when moral vignettes are not presented as simple moral issues, but are modified to increase the level of complexity. For Study 2, four hundred participants were recruited using the same online panel that was employed in Study 1. As in Study 1, participants were required to be at least 18 years old and to live in the United States.
Study 2 employed three conditions, the high- and low-power conditions from Study 1 as well as a no-power control condition. Power was manipulated using the same recall task that was used in Study 1. The same instructions were presented to participants in the high- and low-power conditions. For the no-power condition, participants were presented with a neutral prompt (Galinsky, Magee, Inesi, & Gruenfeld, 2006).
Following the power manipulation, participants were presented with a set of moral scenarios based on those employed in Study 1, but modified to include additional layers of complexity. The types of complexity measured were (1) uncertainty of information, (2) additional information specific to the moral scenario, and (3) additional information generally about the moral issue. Each item presented a scenario and then asked the participant to judge the degree to which the person in the scenario was moral or immoral on a 9-point Likert-type scale.
A fifth type of scenario was presented, which included three derivatives of the “trolley problem,” (Foot, 1967; Paxton, Ungar, & Greene, 2011) a moral dilemma which tests proclivity toward deontological versus utilitarian reasoning. Deontology is an approach to moral reasoning that emphasizes the duties and rules behind moral acts. It suggests that there is an inherent rightness or wrongness to each act, which is unrelated to the outcome (Fiske, Gilbert, & Lindzey, 2010). By contrast, utilitarianism is a consequentialist approach. It emphasizes outcomes in determining whether an act is morally right or wrong. The morally right action is the one that will result in the greatest overall good. The trolley problem and its variants test the relative influence of these two approaches in moral reasoning by pitting them against each other. In a short vignette about a train traveling down a track, about to run over and kill a number of people tied to the track, a hypothetical person observing this impending event can perform an action and change the outcome, which will kill only one person. Confronted with a trolley problem, a participant must choose between actively killing one to save many (utilitarian choice) or letting the many die to avoid actively killing the one (deontological choice).
Participants in Study 2 were also presented with a scale assessing self-reported feelings of power (Lammers & Stapel, 2009), which served as a manipulation check, and a set of demographic questions.
Overall, the results of Study 2 suggest that the relationship between power and harsher judgment of moral transgressions disappears when the vignettes contain additional layers of complexity, such as additional information or uncertainty. When moral judgments are made in the context of such additional information, high power and low power individuals behave similarly (See Figure 4 for results of Study 2). However, when the principles of deontology and utilitarianism are positioned against each other in a complex vignette, high power individuals favor the outcome of the deontological decision. That is, they judge the subject of the vignette more harshly for choosing the utilitarian outcome of killing one to save many. (See Figure 5; statistical information for this study is available in the endnotes[iii].)
Figure 4: Results of Study 2 (only those that were significant across power conditions in Study 1)
Figure 5: Trolley problem results of Study 2
Discussion and Practical Implications
Jurors routinely evaluate the morality of defendants and witnesses at trial. Knowing where jurors stand with regard to social power may well influence their perceptions of these individuals, the ease with which they perceive wrongdoing and become advocates for punishment. (Jurors do not make sentencing decisions, although they may determine damages in civil cases.)
Implications for Trial
The results of this research suggest that people with feelings of high social power (e.g., during voir dire, think of those with high social standing, high income, respectable jobs, or many subordinates) may be more likely to condemn others, such as defendants and witnesses, for clear-cut moral transgressions, such as causing physical harm to others. This may also apply to those who take on powerful roles within the jury, so considering social power together with the likelihood that a prospective juror will become a leader is also important. Perceived wrongdoing in both criminal and civil cases may be subject to harsh moral judgment by high power individuals. In the jury room, this may manifest in several ways.
Figure 6: Research findings and implications
Powerful jurors are more likely to strictly enforce moral rules by condemning the transgressors. They will be especially receptive to applying the rule of law when it is spelled out clearly or when the facts of the case are relatively simple. When presenting cases to juries, consultants should advise defense attorneys to minimize the effects of social power on harsh moral judgment by presenting layers of complexity (e.g., additional evidence, uncertainty with regard to evidence, and conflicting legal or moral principles) as early as possible in the trial. If the prosecution makes a case seem straightforward during opening arguments, the defense attorney would be prudent to complicate matters quickly to undermine powerful jurors’ proclivity to condemn.
High power individuals are also better cognitively equipped to identify and apply rules and norms to the actions of others. At trial, this means that powerful jurors seek the proper application of the rule of law to a situation. They are more likely to be influenced by arguments about the fairness of applying rules to everyone than by arguments about the fairness of the outcome. For example, in an insider trading case, powerful jurors would be less concerned about how insider trading gives some investors an unfair advantage or contributes to market volatility (outcome), and more concerned with applying the law fairly (rules). By making the applicable law clear and emphasizing the jury’s duty to apply it, either side could appeal to high-power jurors. However, in the same example, defense attorneys should aware that a defense emphasizing the victimless nature of the alleged crime may have limited appeal to high power jurors, because it focuses on the outcome.
Finally, consider patent cases when jurors are typically asked by the defense to invalidate a patent that was issued by the United States Patent and Trademark Office. Many jurors do not feel justified in invalidating a patent, even when the jury instructions make it clear that it is their job to do so if the evidence of the case supports it. Even the most powerful jurors can feel intimidated by the complexity of the patented technology. Empowering the jury is especially important in this context if the goal is a finding of invalidity. To do this, appealing to higher power jurors is the patent litigator’s best bet. Convincing the powerful jurors and enabling them to convince others can be best achieved by emphasizing the underlying simplicity of the technology at issue. Give powerful jurors the tools to convince their peers – in simple terms, analogies, and visual images. This will not only help to instruct jurors about the case material, but will also connect the material to subjects over which they have a greater command, in essence priming feelings of power for them. In turn, this will enable them to invalidate and to teach the less powerful jurors that they, too, have sufficient knowledge to invalidate. Such a task can be challenging, as patent cases are often complex, but the defense can be compelling to powerful jurors by focusing on the simple application of the laws, including the jury’s power to invalidate.
The research described in this article was funded by a generous fellowship from the Advanced Consortium on Cooperation, Conflict, and Complexity at The Earth Institute, Columbia University.
James McGee is currently a trial strategy consultant at DOAR Litigation Consulting in New York City. He employs behavioral and social science methods, including surveys, focus groups, and mock trials, to conduct pre-trial research on case themes. He has previously held research positions in organizational behavior and psychology at Columbia Business School and Princeton University. He holds a master’s degree from Columbia and a bachelor’s degree from Cornell.
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[i] Please contact the author at firstname.lastname@example.org for a complete description of the methods and analyses.↩
[ii] Detailed results of Study 1: The 12 moral issue items were averaged to create a composite measure of moral judgment (α = .83). As predicted, participants in the high power condition judged simple moral transgressions more harshly (M = 3.96, SD = 1.09; lower values correspond to judgments of immorality) than participants in the low power condition (M = 4.60, SD = 1.00), although the effect on the composite measure did not quite reach statistical significance, t(44) = 1.98, p = .054. The moral issue items were also analyzed individually. For each of the 12 individual moral issues, the sample means of moral judgments suggest that individuals in the high power condition judged each transgression more harshly than did those in the low power condition. That is, the sample means for the high power condition were lower than those for the low power condition across all items (lower mean indicates harsher judgment). For three of the 12 individual issues, this relationship reached significance at the .05 alpha level: casual sex (Mhigh = 4.13, SDhigh = 1.46;Mlow = 5.10, SDlow = 1.45, p = .04), profane language (Mhigh = 3.80,SDhigh = 1.86; Mlow = 5.13, SDlow = 1.34, p = .01), and premarital sex ( Mhigh = 4.80, SDhigh = 2.24; Mlow = 5.97, SDlow = 1.66, p = .05). For littering and pornography, the p-values approach significance (each is approximately .1).↩
[iii] Detailed results of Study 2: The 19 moral issue items were averaged to create a composite measure of moral judgment (α = .75). As predicted, a one-way ANOVA comparing the composite measure across the three conditions revealed that there was no significant difference in the judgment of the complex moral transgressions between high power (M = 4.72, SD = .843), the low power condition (M = 4.57, SD = .734), and the no power control condition (M = 4.83, SD = .72), F(125) = 1.32, p = .271. Since the control condition was added for Study 2, an independent samples t-test was also conducted between the high and low power conditions in order to directly compare the results of Study 2 to those of Study 1. The t-test also revealed that there was no significant difference between the high and low power conditions in the harshness of moral judgments for the composite (average) ratings: t(76) = -.816, p = .42.
The moral items were further analyzed individually. For 16 of the 19 individual moral vignettes, the sample means of moral judgments did not differ significantly across the three conditions. This result provides further support for Hypothesis #2, that power fails to influence the severity of judgments of moral dilemmas complicated by additional information or uncertainty.
For all three vignettes derived from the classic trolley problem, a significant association emerged across the three conditions. In all three cases, the high and low power mean ratings were lower than the mean for the no power condition. This was true for the “baby” trolley problem (Sara must kill her baby to prevent it from alerting enemy soldiers; Mhigh = 4.13, SDhigh = 2.15; Mlow = 4.44, SDlow = 2.35; Mno = 5.51, SDno = 1.68; F(124) = 5.17,p = .007), the “submarine” trolley problem (David must kill an injured crewman to conserve limited oxygen for the other crewmen;Mhigh = 5.34, SDhigh = 2.07; Mlow = 5.17, SDlow = 2.21; Mno = 6.30, SDno = 1.88; F(124) = 3.92, p = .02), and the “classic” trolley problem (Mhigh = 4.09, SDhigh = 2.45; Mlow = 3.72, SDlow = 1.96; M no = 4.81, SDno = 2.18; F(124) = 2.99, p = .05). This indicates that participants rendered harsher judgments against the subjects of each vignette for choosing the utilitarian outcome (i.e., participating in the killing of one to save many). Thus, participants in the two power conditions favored the deontological outcome.↩