The “risky shift,” once the domain of like-minded folks on committees, is playing out in social media, and being wrapped up in pretty bow under the guise of “truth.” After all, if everybody you like and respect says that what you’re feeling is right, then it’s elevated from merely your feelings into some immutable “truth.” And when something morphs from mere feelings to truth, it becomes obvious, absolute and irrefutable.
As previously argued, facts and truth are not the same thing.
Facts are objective.
Truth is subjective.
This conflation of facts and truth is altering people’s capacity to dispassionately assess facts and reason their way through what is happening in the world around them, and what they can and should do about it. It’s altering their ability to discuss and debate, not just substantively but to the extent of being able to be in the same room as someone who disagrees, even remain married.
This problem has existed in the courtroom and jury room forever. Trials are often called a “search for truth,” which is a dangerously endearing phrase designed as a low-level appeal to emotion, our fuzzy desire for fairness. The word “truth’ is a good word, a good thing, and shouldn’t truth be out goal?
It’s nonsense on two levels. First, a trial is a test of the state’s evidence to ascertain whether it is sufficient to overcome a reasonable doubt. Second, truth at trial is whatever a jury finds it to be. If a jury finds that day is night, that becomes its truth. No trial lawyer trusts a jury to decide a case for the “right” reasons, but for its own reasons. We can argue to them what the discrete issue is in a case, what the question of guilt turns on, and the jury then retires to its private room to deliberate about any damn thing it wants to achieve its verdict. When they come out, they present their truth. It may be factually right or wrong, but it’s truth to them.
The distinction is considered in a Columbia Law Review article.
The Constitution protects us from criminal conviction unless the state can prove guilt beyond a reasonable doubt. However, after defining reasonable doubt, many trial courts will then instruct jurors “to search for the truth” of what they think really happened. Defendants have argued that such truth-related language reduces the state’s burden of proof to a mere preponderance of the evidence. That is, if the jury were to find the state’s case only slightly more convincing than the defendant’s, it would follow that, in a search for the truth, the jury would be obligated to convict.
Rhetoric aside, if we’re searching for truth, then whatever strikes us as more likely than not, based on our knowledge, experience and sensibilities, is our truth. As noted in the nerd-ish arguments over what the correct burden of proof should be for Title IX hearings, the name given the burden matters far less than the end game.
Appellate courts, however, consistently reject this argument. Most appellate courts acknowledge that such truth-related language is inaccurate, highly disfavored, and could, in theory, lower the state’s burden of proof. However, these courts then go on to conclude, without any empirical support, that such language probably does not cause any actual harm.
In our previous study and article, we put this judicial reasoning to the test. In a hypothetical criminal case, we found that mock jurors who were properly instructed on reasonable doubt convicted the defendant at a rate of 16%. However, mock jurors who received the identical case information and instruction and were also told “not to search for doubt” but instead “to search for the truth” convicted at a much higher rate of 29%.
In this Piece, we discuss the results of our new study wherein we first attempted a conceptual replication of our previous work and then attempted to identify a cognitive explanation for why truth-related language produces a higher conviction rate. Just as in our previous study, we found that mock jurors who were instructed “not to search for doubt” but instead “to search for the truth” convicted at a significantly higher rate than mock jurors who were properly instructed on reasonable doubt.
Unlike our previous study, however, our new study also asked jurors a postverdict question about their subjective understanding of the burden of proof. Through this, we found that jurors who were first instructed on reasonable doubt and then told “not to search for doubt” but instead “to search for the truth” were nearly twice as likely to believe they could convict the defendant even if they had a reasonable doubt about his guilt. Even more significant, jurors who held this mistaken belief (regardless of the group to which they were randomly assigned) actually convicted at a rate 2.5 times that of jurors who correctly understood the burden of proof.
The distinction is whether the approach to the facts is framed as a search for doubt or a search for truth. This isn’t about confirmation bias, where you credit only that information which conforms with your already-held beliefs, but your purpose in assimilating information. If your goal is to find the “truth,” you will almost certainly find it, not because it is objectively true, but because it strikes you as more likely than not.
And this is strongly influenced by the support of the group, the crowd, which enables you to accept beliefs that you might otherwise doubt but are more comfortable assuming because so many others agree that it’s true.
While this may be good enough for kibbitzing on social media, it’s not good enough for a jury. Then again, it may not be good enough for you personally, as your expectations of yourself are greater than either going along with the crowd or finding truth by the thinnest of threads, more likely than not.
With so many paths to perdition, take the one that will get you the most likes.
— Scott Greenfield (@ScottGreenfield) August 13, 2017
It’s fine to play to the crowd with whom you prefer to hang, but understand that just because you’ve joined in their version of truth doesn’t make it true. It’s just what the group, and you, decided was more likely. Don’t bet your life on it. Don’t bet other people’s lives on it. And if you want to do better, don’t search for truth, but for doubt.