“I want to be broadly right rather than precisely wrong.” – Nassim Nicholas Taleb, from his book, The Black Swan.
How will this pandemic and everything surrounding it affect juror decision-making? The broad answer to this question is it won’t. At least not directly.
The process of decision-making will remain largely unchanged by the pandemic. An overwhelming majority of human decisions, including those made by jurors, will continue to be made based on cognitive shortcuts, not objective logic or reason. To the extent that these decisions are made under stress, these shortcuts will become more pronounced, commensurate with the level of stress and regardless of cause. Decision-making shortcuts have been studied and are predictable in their application. They have developed over the course of human existence and have in fact perpetuated that existence. This won’t change, survival assumed.
Within the narrow context of juror decision-making, COVID-19 is somewhat unique in several regards. Everyone is impacted in some way, directly or indirectly, by the virus. So, to the extent it’s a variable worthy of consideration, it could more appropriately labeled a constant. Further, the frequency and breadth of available information tied in some way to COVID-19 is staggering. Therefore, we have massive amounts of information not only available to all, but potentially relevant to all.
From a news application on a phone, the following headlines are the first to appear as of the time of this writing: “States rushing to reopen are making a deadly error, coronavirus models and experts warn”; “UN warns the world is on ‘the brink of a hunger pandemic’”; “Health chief’s early missteps set back coronavirus response”; and “The body collectors of the coronavirus pandemic”. Further scrolling reveals more of the same. All potentially relevant to everyone and available to all.
Without even having to read these stories, we know each has at least one hero and one villain. We know this because they are stories and we’re human. But who are the heroes and who are the villains? It depends on the lens of the reader. The hero might be a doctor and the villain a politician. In the same story, the villain might be the author of the article and the same politician the hero. The news outlet could be perceived as hero or villain. We consistently make sense of new information based on our existing preconceptions. This is known as confirmation bias. It’s a shortcut that when applied repeatedly across spectra might be called a lens. The shortcut will be used, like it or not, and regardless of whether it leads to the correct or incorrect answer, assuming there even is one. The point being, even the way we make sense of information about COVID-19 is largely dictated by something other than COVID-19 or the information itself.
We can likely agree that if a jury were picked tomorrow, it would be nearly certain that every prospective juror would have read or heard a story that had something to do with COVID-19. It would also be highly probable that every juror would have a personal story about how they were effected by COVID-19. These personal stories could range from mild inconvenience to crippling grief. Whether the stories were read, heard, or experienced, the length of time these stories remained readily available such that they might impact a juror’s decision-making would largely depend on the story’s emotional impact on the individual juror. Even stories with little to no emotional impact would influence decision-making if fresh in the mind, meaning easily accessible to the juror.
Assuming the story is readily available, it will only be relevant to decision-making to the extent it represents something that fits into a broader narrative that makes a relevant decision easier to make. If and only if it does, that available information will influence decision-making. This availability bias will cause jurors to take this readily available information and transpose it onto the narrative to solve the problem or make the decision at hand.
That the story (consumed or experienced) concerned COVID-19 is essentially irrelevant.