Pretrial Publicity, Unconscious Bias, and the Court of Public Opinion

The fact is that we are all subject to heuristic thinking and the biases it can give us.

This week brought us another congressional hearing, another testimony by Robert Mueller, and yet another series of verdicts by the court of public opinion on the guilt or innocence of political figures. In this case, the “defendant,” President Trump, is still either clearly innocent or clearly guilty, and if you don’t agree with said guilt/innocence, it’s because you’re just a Trump worshipper or suffering from Trump Derangement Syndrome.

This helps explain why so many people, including accomplished writers, saw such different things during Mueller’s testimony.

“From my perspective, after six hours of testimony, it was the 74-year-old career prosecutor and law enforcement officer who won the day. It wasn’t that close,” wrote Renato Mariotti, the legal affairs columnist for Politico.

Howard Kurtz, on the other hand, called the hearing a “debacle.” In the New York Post, an article written by Nikki Schwab and Ebony Bowden summarized Mueller’s testimony as “a stammering, stuttering mess.”

“Robert Mueller Delivered the Goods,” declared The Daily Beast. “Will Dems Feast on Them?”

“Impeachment is over,” said ABC’s Terry Moran.

These are people paid to write objective opinions. However, when it comes to ideologically-driven, highly publicized cases like these, psychology indicates that there is really no way for jurors—either in a courtroom or the court of public opinion—to easily maintain neutrality. Instead, pre-trial publicity (PTP) has been shown to affect the very way we think about cases like these, imbuing decision-makers with latent, unconscious biases that affect how we perceive, process, and respond to the information we encounter.

Pretrial Publicity and Its Effects

Humans often make use of heuristics—cognitive shortcuts—in decision-making. Normally, these heuristics are all well and good; can you imagine the exhaustion you’d feel if you had to thoroughly deliberate every single decision you make? However, when it comes to decisions regarding guilt and innocence, heuristics, especially those using PTP, have long been shown to negatively affect our ability to make objective decisions.

Heuristics are not necessarily “biases” in the colloquial sense. They are not active, we are not aware of them, and they are not necessarily intentional. However, within the courtroom, and thus in the court of public opinion, relying on PTP to aid us in decision-making—rather than on the facts of the case alone—has been shown to have implications for how we perceive the accused, how we process information, and how we make our decisions.

PTP and Altered Perception

Jurors are supposed to be objective and ideologically neutral when it comes to reaching a verdict. Unfortunately, years of empirical research demonstrate that this doesn’t hold true in the courtroom, and certainly not in the court of public opinion. Pre-trial publicity affects our perceptions of the defendants themselves, making us either sympathetic or antipathic toward the defendant long before we ever encounter the actual facts of the case. Worse, this initial perception of the defendant remains a powerful force in determining our verdicts, especially if the evidence is relatively unclear—as most cases that make it to trial or cause political division tend to be.

In a digital age where we can craft and self-select our news sources to line up with our ideologies, it is all but impossible that we will not be firmly biased before any hearing or trial is held.

When the “defendant” in the court of public opinion is a political figure, there is an almost unfathomable amount of biases that we will bring to the table: their party membership, their political history, and their past behavior will all inform our initial disposition to them even before a case is “tried.”

Worse still, when it comes to PTP about the specific alleged wrongdoing in question, we will not only be inundated with publicity about it from the 24-hour news cycle but will likely also have heard this news from an ideological source about whom we are likewise biased.

In a digital age where we can craft and self-select our news sources to line up with our ideologies, it is all but impossible that we will not be firmly biased about the defendant before any hearing or trial is held. This bias, in turn, will strongly incline us to an initial position about that individual's guilt or innocence, and it is unlikely that we will even be aware of this initial bias’s effects on our subsequent decision-making.

PTP and the Perception of Evidence

Beyond our initial disposition toward the “defendant,” PTP-related biases will actively (and I cannot stress this enough, unconsciously) alter how we perceive, weigh, and pay attention to the evidence presented to us. Individuals exposed to PTP have been shown to pay more attention to, and thus place greater weight upon, evidence that lines up with their initial PTP-related biases. Further, the biases given to us by PTP may even lead us to ignore or actively disregard evidence that does not line up with these biases.

Every time a political figure sets foot in the court of public opinion, these effects become readily apparent. Journalists and individuals on social media will, after watching the same testimony or seeing the same set of evidence, crow about its “damning” or “exonerating” qualities as if the hand of the Almighty himself had descended to inscribe a verdict. This can even reach the point that it almost seems like different cases are being discussed, clearly showing the power of how these biases affect our interpretation of evidence.

For similar examples of this phenomenon, you need not look further than your local meme page or political talk show.

Yet, there is another concerning way that PTP effects how we weigh evidence, and that is that it can lead us to confuse what the facts of the case actually are. Especially as we “deliberate,” either in a room or in society, sources become conflated, and what is and is not “factual” can become intensely distorted to the point that PTP, which may not actually be admissible as evidence, becomes a key factor in determining guilt or innocence.

One example of this in the current public sphere is the allegation against Representative Ilhan Omar that she supposedly married her brother to allow him to emigrate. These serious and insulting accusations have been rebutted by Rep. Omar and yet are still levied against her when it comes to any decision or political position she holds.

This unsubstantiated rumor has now become perceived as fact and serves as a form of “evidence” when considering her “guilt” for everything from being unfit to serve in Congress to being an alleged Islamist. For similar examples of this phenomenon, you need not look further than your local meme page or political talk show.

PTP and Decisional Distortion

The most disturbing effect of PTP-derived biases is that they can actually cause a disregard for established norms regarding guilt or innocence. In the courtroom, research has shown that despite instructions to the contrary, jurors actively considered “facts” not admitted as evidence, even suspending assumptions like the presumption of innocence in order to achieve what their PTP-related biases dictated to be the “just” decision.

This sort of behavior has become commonplace in the court of public opinion. Presumption of Brett Kavanaugh’s innocence (though not technically legally required in those circumstances) was non-existent. Representative Ilhan Omar is accused of everything from incest to supporting Al-Qaeda. Robert Mueller is accused of everything from collaborating with Democrats to outright lying under oath. Gone are assumptions like the presumption of innocence, the importance of weighing only relevant facts, or trying to maintain objectivity; publicity has erased them all.

PTP’s Implications

Though the court of public opinion does not have legal power, this does not mean its verdicts cannot have serious implications and consequences. Further, just because we, as the court of public opinion’s “jurors,” are not bound by strict legal codes, this does not mean we are free from a moral obligation, borne from sheer human decency, to make wise and just decisions for our “defendants.”

It’s easy, when it comes to confronting bias, to have a “thee not me” attitude; they are biased, they can’t see the clear facts in front of them. The fact is, however, that we are all subject to heuristic thinking and the biases it can give us. This is especially important when we consider how we relate and react to news and other sources of pre-trial publicity. When almost every article is a hot take with “clear” conclusions, we need to be aware of our biases and utilize our cognitive resources wisely and fairly to overcome them.

We must not allow publicity to dictate our opinions; we should seek to examine the evidence from all sides. Seek alternative news sources. Try to understand the opinions of those who have reached different conclusions. In other words, do what juries are supposed to do: deliberate. We demand that our juries be objective and fair; as jurors in the court of public opinion, we must hold ourselves to the same standard.

Further Reading

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