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The Expanding, Lop-Sided Universe of Social Influence and Law Research

Abstract and Keywords

This chapter explores “social influence and the law,” which we conceptualize as consisting of three parts: (1) social influence in the legal system, (2) the legal regulation of social influence in our everyday lives, and (3) law as an instrument of social influence. Within each part, we identify the primary topics that psychologists have studied empirically and review the existing research. The chapter thus highlights the many and varied contributions of psychologists related to social influence and the law. The chapter also reveals a marked imbalance in the social influence and law literature—the vast majority of psychological research falls within the first part, despite the fact that the second and third parts capture equally or more important topics from both legal and psychological viewpoints. We end the chapter by explaining this uneven distribution of effort and urging psychologists to take a broader approach to social influence and the law.

Keywords: empirical legal studies, law and psychology, legal psychology, persuasion, persuasion and law, psychological jurisprudence, social influence

Law is, by its very nature, an institution of social influence. In its democratic form, law is a mechanism of social control for implementing challenging and sometimes conflicting goals such as stabilizing society, fostering individual freedom, and protecting members of vulnerable groups from powerful interests. Democracies achieve these goals through the most complex forms of social influence—those that impart to citizens a marked element of choice in their beliefs, attitudes, and actions rather than coerce them to predestined outcomes. By declining to control citizens through heavy-handed suppression, democracies permit nongovernmental forces to flourish, and these forces likewise establish and maintain social norms and societal values. Democratic law, then, is inextricably intertwined with social influence, both as a primary means of shaping behavior and as a check on other sources of social influence operating in public and private spheres.

There have been no attempts to conceptualize this universe of “social influence and the law.” One purpose of the current chapter is to offer a preliminary framework within which empirical research on social influence and law might productively be considered. Given the absence of a conceptual framework, there exist no overarching reviews of studies on the subject. A second purpose of this chapter is to employ our conceptual framework to highlight important experimental findings on social influence and law. We emphasize psychological research, because psychology, more than other disciplines, applies the scientific method in pursuit of understanding the topics of which social influence and the law is comprised. Our intent is to convey the current state of this research without reviewing it exhaustively.

We take an expansive view of social influence and the law. “Social influence” captures changes in our beliefs, attitudes, and behaviors induced by other persons. “Law” refers to the formal substantive laws that govern society and the legal process and procedures that implement them. Social influence and the law sits at the junction between these (p. 396) two subjects. Far from being a narrow, readily segmented area of inquiry, however, this review underscores that social influence pervades the law.

We place the topics of social influence and law into three distinct categories: (1) social influence in the legal system, (2) the legal regulation of social influence in our everyday lives, and (3) law as an instrument of social influence. While important discoveries have been made in each of these areas, the latter two literatures are relatively sparse. Psychologists have only recognized and devoted substantial attention to social influence within the legal system. Moreover, within the realm of social influence in the legal system, a select few topics have outshone all others (e.g., Williams & Jones, 2005). We end the chapter by briefly exploring the antecedents and consequences of the current imbalance of psychological research on social influence and law. Throughout the chapter, the focus is actual empirical investigations of social influence and law, not scholarship that merely theorizes how basic social influence research applies to legal issues. Also omitted are investigations of social influence and politics that do not directly implicate the law, although they overlap with social influence and law in some respects—for example, influence tactics employed in lawmakers’ campaigns for office. We leave this area to the chapter dedicated to it (see Borgida & Fisher, this volume).

Social Influence in the Legal System

Studies of social influence in the legal system address important factors that drive and, at times, derail legal decisions such as the passage of legislation, judicial rulings on the admissibility of evidence in anticipation of trial, and jury verdicts. We begin this section with the suggestibility of eyewitnesses recounting events underlying litigation and false confessions by crime suspects resulting from police interrogations, two topics that have undergone substantial, long-term, programmatic study. We next discuss juror decision making, several facets of which also have received considerable empirical attention. Finally, we relate the relatively scant research on judicial decision making and legislative decision making.

Eyewitness Suggestibility

Eyewitness suggestibility studies investigate the ways in which eyewitnesses’ memories of events that underlie litigation can be distorted by postevent information. Loftus revealed the potential influence of postevent information on eyewitnesses in a series of groundbreaking studies. In Loftus and Palmer (1974), for example, participants viewed several traffic accidents and estimated how fast the vehicles were going when the accidents occurred. To discern whether seemingly minor variations in investigative inquiries could alter eyewitness accounts, the researchers tested different verbs in the question they posed to participants: How fast were the cars going when they [“smashed into,” “collided with,” “bumped into,” “hit,” or “contacted”] each other? The phrasing of the question led to disparate speed estimates, ranging from a high average of 40.5 mph for “smashed into” to a low average of 31.8 mph for “contacted.” In a follow-up study, the researchers investigated whether the verb actually altered participants’ memories of how fast the cars were going or merely caused participants to report differing speeds while their memories of the events remained intact. Here, participants viewed a filmed car collision and estimated the cars’ speed in response to an inquiry containing either “smashed into” or “hit.” A week later, the researchers asked participants whether they saw any broken glass in the film (there had been none). Participants who received the “smashed into” inquiry were more likely to recall broken glass than were those who received the “hit” inquiry, indicating that postevent questioning actually changed their memories of the event.

These classic investigations of eyewitness accounts demonstrated that eyewitnesses’ purported memories of events might actually be a combination of true memories and subsequently encountered information that merges with the memories. The studies ignited a firestorm of research on the malleability of memory for legally relevant information that continues to this day. This research investigates various types of postevent misinformation that could lead eyewitnesses astray, such as biased composition of lineups and suggestive instructions from law enforcement personnel. The studies also reveal some of the psychological mechanisms that underlie eyewitness misremembering—for example, eyewitnesses who are repeatedly shown a certain suspect during the investigative process might misattribute their enhanced familiarity with the suspect to having viewed him at the scene of the crime. Given these findings, the studies suggest potential remedies for minimizing the introduction of postevent misinformation and its effects on eyewitness accounts. Several recent works recount the empirical research literature on eyewitness suggestibility (e.g., Cutler, 2013; Lampinen, Neuschatz, & Cling, 2012).

(p. 397) False Confessions

A large body of research investigates elements of police interrogations hypothesized to generate false confessions by innocent suspects. These studies focus primarily on the effects of questioning suspects for lengthy periods of time; confronting suspects with false evidence (e.g., that a fictitious eyewitness has identified them or that investigators found their DNA at the crime scene); and impliedly promising suspects leniency if they confess.

Drizin and Leo (2004) found that interrogations resulting in false confessions lasted 16.3 hours on average, approximately 14 hours beyond usual interrogations. These extended interrogations induce substantial physical and mental fatigue in suspects, which impairs their cognitive functioning and emotional regulation and thereby renders them more prone to falsely confessing.

Kassin and Kiechel (1996) simulated the police practice of presenting suspects with false evidence in order to encourage them to confess. In a purported study of reaction time, participants typed on a computer keyboard letters that a confederate of the experimenters read to them at either a slow or fast pace. Each participant was warned to avoid pressing the “ALT” key because this would supposedly cause the computer software to crash and the experimental data to be lost. When, during the experiment, the software stopped functioning due to no fault of the participants but the experimenter nonetheless accused the participants of pressing the forbidden key, every participant initially denied having done so. When a confederate then falsely claimed that she had seen the participant hit the forbidden key, however, 89 percent of participants in the slow-paced condition and 100 percent of participants in the fast-paced condition (who were less confident in their actions and therefore more susceptible to suggestion) signed a confession. This research and subsequent studies (e.g., Kassin et al., 2010) indicate that innocent suspects might falsely confess to committing crimes when confronted with fabricated evidence of their involvement.

Klaver, Lee, and Rose (2008) investigated the effects of interrogators’ implicit promises to suspects that confessing will result in lighter punishment than will continued protestations of innocence. Within the Kassin and Kiechel (1996) reaction-time paradigm, participants were more likely to falsely confess when the experimenter normalized the act, termed it an accident, and blamed it on the computer. These results suggest that innocent criminal suspects might interpret police-offered moral justifications and face-saving excuses for the crime to be implied promises of leniency were they to confess. This, in turn, can decrease innocent suspects’ resistance to falsely confessing. Implied promises of leniency thus can operate similarly to express promises of leniency, which courts view skeptically when determining whether a confession was coerced (Kassin et al., 2010).

Regardless of the precise factors that precipitate false confessions, these declarations often set in motion a pernicious chain of events within the criminal justice system. Police and prosecutors might consider a false confession to be confirmation of a suspect’s guilt and therefore not investigate other suspects or discount exculpatory evidence (Kassin, 2012). False confessions also might corrupt the judgments of polygraph examiners, fingerprint experts, eyewitnesses, and other persons who are presumed to provide independent assessments of defendants’ involvement in criminal activity (Kassin, Bogart, & Kerner, 2012). Finally, judges and jurors might be more inclined to find a defendant guilty when he has confessed to the charges against him, even when they believe the confession was coerced (Kassin & Sukel, 1997; Wallace & Kassin, 2012).

In sum, for decades, there has been a continual stream of studies investigates factors that increase the likelihood of eliciting false confessions from crime suspects and the consequences of false confessions within the investigative and adjudicative processes. Several reviews of this literature discuss these manifestations of social influence in greater detail (e.g., Kassin et al., 2010; Lassiter & Meissner, 2010).

More recently, psychologists have studied interrogations of suspected terrorists (e.g., Alison et al., 2014). This enterprise is conceptually related to traditional criminal interrogations but focuses on aiding intelligence-community interrogators in eliciting accurate and timely information from terrorist affiliates for use by national security personnel.

Juror Decision Making

The factors that influence juror decision making constitute another popular area of psychological inquiry. Several primary issues include how jurors make sense of and use the voluminous, disparate, and conflicting evidence presented at trial; the role of inappropriate influences such as pretrial publicity, inadmissible evidence, and limited-use evidence on juror decision making, including the effectiveness of judicial instructions to disregard; (p. 398) the relative persuasiveness of different types of evidence; methods attorneys might employ to minimize the influence that weaknesses in their clients’ cases will exert on jurors; the degree to which trial attorneys’ monetary requests influence the size of jurors’ damage awards; and whether the verdict options that trial judges provide influence jurors’ verdicts apart from the merits of the case. We address each of these aspects of the juror decision making literature below.

Story Model

The most compelling description of juror decision making recognizes the persuasive power of narratives. In a series of studies, Pennington and Hastie (e.g., 1992, 1993) found that jurors construct stories about the events that underlie the case, and that these stories derive from three primary elements—1) the evidence and arguments presented at trial (Pennington and Hastie mentioned only evidence, but attorneys’ arguments also naturally fall in this category), 2) jurors’ knowledge of similar situations, and 3) jurors’ general understanding of human behavior. Jurors ultimately arrive at verdicts by comparing the story that provides the greatest explanatory power of the evidence to the verdict options articulated by the trial judge. They place great weight on facts that fit their preferred story, draw inferences to fill missing gaps in the story, and downplay or disregard facts that contradict the story. While Pennington and Hastie focused on criminal trials, more recent research provides empirical support for the story model within the civil realm (Huntley & Costanzo, 2003). Studies of metaphor and other rhetorical devices provide substance to the story model framework. Research by Vasquez et al. (2014), for example, suggests that if prosecutors describe a defendant’s actions in animalistic terms, jurors might view him as more likely to recidivate and therefore deserving of harsher punishment for the crime.

While the story model presents a general overview of juror decision making, it does not account for such extralegal influences as pretrial publicity, inadmissible evidence, and limited-use evidence on jurors’ judgments. Rather, the model assumes that jurors incorporate only permissible evidence into their stories of the case. Pennington and Hastie (1993) acknowledge, however, that this assumption is probably more normative than descriptive, and empirical studies support the conclusion that jurors are often influenced by information not sanctioned by the formal rules of court.

Pretrial Publicity, Inadmissible Evidence, and Limited-Use Evidence

Pretrial Publicity

A cardinal rule of trials is that jurors should base their judgments on information they hear and see in court. During voir dire, judges remove jury pool members who appear to be contaminated by pretrial publicity. If the contamination permeates the local jury pool, judges permit a change in venue. A meta-analysis (Steblay, Besirevic, Fulero, & Jimenez-Lorente, 1999) indicates that the judiciary’s concerns are well founded; mock jurors who were exposed to negative pretrial publicity about a defendant or events at issue in a case were more likely to find the defendant guilty.

Several studies investigate methods for reducing the influence of pretrial publicity on jurors. Traditional measures, such as judicial admonitions to set aside this information, are generally ineffective (Studebaker & Penrod, 1997). More novel approaches to countering prejudicial pretrial publicity are rare. In one study, Fein, McCloskey, and Tomlinson (1997, Study 1) investigated the effects of causing jurors to question the validity and relevance of the pretrial publicity. They presented mock jurors with a criminal trial in which the defendant was accused of murdering his estranged wife and a male neighbor. Before the trial, some of the jurors read newspaper excerpts that incriminated the defendant. The excerpts suggested, for example, that the defendant’s fingerprints were found on the murder weapon and an eyewitness placed him at the scene of the crime. Some of the jurors who read this incriminating information also read a newspaper article in which defense counsel questioned the information’s validity and the motives of the press in publishing it. The attorney termed the pretrial publicity libelous, accused the media of omitting exonerating information in order to dramatize the story, and went so far as to suggest that the prosecution might have planted the information in order to inappropriately color public opinion. While all of the jurors were instructed to base their verdicts solely on the information presented at trial, those who encountered the pretrial publicity were more likely to find the defendant guilty unless they were induced to be suspicious of it.

Inadmissible Evidence

Evidence is inadmissible at trial if the presiding judge deems it irrelevant, unduly prejudicial, (p. 399) confusing, misleading, unfounded, or contrary to specific public policy concerns (Federal rules of evidence [FRE], 402, 403; 2014). When jurors see or hear evidence that falls within these categories, the trial judge instructs them to disregard it in its entirety.

Many studies demonstrate the general inefficacy of traditional instructions to disregard (e.g., Kassin & Sommers, 1997; Thompson, Fong, & Rosenhan, 1981). A meta-analysis of the inadmissible evidence literature (Steblay, Hosch, Culhane, & McWethy, 2006) finds that instructions to disregard often fail to eliminate the impact of inadmissible evidence on mock jurors’ verdicts. Moreover, instructions to disregard sometimes cause jurors to place greater weight on inadmissible evidence than they would in the absence of an instruction.

Given the generally unproductive nature of traditional instructions to disregard, researchers have tested alternative methods to remedy juror exposure to prejudicial inadmissible evidence. Diamond and Casper (1992) explored the effects of trial judges telling jurors the reasoning behind the instruction to disregard. In this study, an instruction that merely directed jurors to disregard the inadmissible evidence was ineffective, whereas an instruction that explained why jurors should disregard the inadmissible evidence negated its effects. These results indicate that some explanations underlying instructions to disregard can counter the influence of inadmissible evidence on jurors’ verdicts.

In a study akin to their pretrial publicity work, Fein, McCloskey, and Tomlinson (1997, Study 2) investigated the effects of instructions to disregard that induce jurors to be suspicious of a trial attorney’s motive in introducing prejudicial inadmissible evidence. Jurors who received a more-or-less traditional objection and instruction were influenced by the inadmissible evidence, whereas those who received a suspicion-inducing objection and instruction were not. The study suggests that jurors’ suspicion regarding the introducing party’s ulterior motives can eradicate the effects of inadmissible evidence. This type of instruction raises serious policy concerns, however. A judge who actively undermines the credibility of certain trial participants—for example, defense counsel—might violate litigants’ right to a fair trial. Moreover, even when a suspicion-inducing instruction does not raise this constitutional concern, it might nonetheless remove trial judges from their role as objective arbiters of legal proceedings.

To effectively negate the effects of inadmissible evidence on jurors’ verdicts while avoiding unwanted policy consequences, Demaine (2008) proposed that courts change their view of disregarding from forgetting to debiasing. Under this new approach to disregarding, courts would acknowledge that jurors cannot erase inadmissible evidence from their minds and recognize that jurors can correct for the biasing effects that this evidence exerts on their verdicts. The debiasing approach eliminates several concerns inherent to the traditional forgetting approach. For example, judges would no longer instruct jurors to undertake the cognitively impossible task of ridding their minds of the objectionable evidence or refuse to give an instruction to disregard on the grounds that doing so would only draw more attention to the objectionable evidence and thereby make it more difficult for jurors to forget the evidence. In an empirical test, Demaine found that jurors who received a debiasing instruction rendered a percentage of guilty verdicts indistinguishable from jurors who had not learned of the inadmissible evidence.

Taken as a whole, empirical investigations of inadmissible evidence suggest that judicial instructions to disregard are often ineffective but that, with careful wording and delivery, they can eliminate objectionable influences from jurors’ verdicts (Demaine, 2012).

Limited-Use Evidence

In Bruton v. United States, the United States Supreme Court found that jurors cannot be expected to use the confession of a defendant when deciding his guilt yet disregard this confession when deciding the guilt of a co-defendant also implicated by the confession. The courts have not extended Bruton to other types of limited-use evidence (e.g., hearsay, prior convictions, or subsequent remedial measures) and cases (e.g., civil), however. Rather, the prevailing view within the legal system is that jurors can partially disregard all types of limited-use evidence except the confession of a co-defendant (FRE Rule 105).

Several psychologists have investigated this assumption.

Wissler and Saks (1985) tested the impact of prior conviction evidence on mock jurors’ judgments of a defendant’s credibility and culpability in two criminal cases. Jurors in these studies used the prior conviction evidence entirely contrary to the FRE—when the judge gave a limiting instruction, credibility ratings of the defendant were not influenced by evidence of a prior conviction, whereas judgments of the defendant’s guilt were higher.

(p. 400) In the civil realm, Tanford and Cox (1987) found in a product liability case that a prior perjury conviction decreased a defendant’s credibility with mock jurors, as predicted by the FRE. The perjury conviction also caused a higher percentage of jurors to find the defendant liable, however, potentially contrary to the FRE’s assumptions. Underscoring the possibility that limiting instructions might compound the inappropriate influence of limited-use evidence, the prior conviction had a stronger effect when the judge gave a limiting instruction than when the jurors merely decided how much weight to give it in deciding the defendant’s liability.

Investigations by Severance and Loftus (1982) indicate that these unintended effects of limited-use evidence result at least partially from juror confusion regarding what precisely the limiting instruction directs them to do. Half of participants (52 percent) in one study and a third of participants (34 percent) in a second study misunderstood the Washington Pattern Instruction on the proper use of a prior conviction to impeach a testifying defendant. In these studies, 44 percent and 37 percent of participants, respectively, incorrectly applied the limiting instruction to the facts of the case. Clarifying the wording of the instruction led to only small increases in understanding and correct application (2.5 percent for understanding and 6 percent for correct application).

Taken as a whole, this literature suggests that limited-use evidence, in the form of a prior conviction, often exerts a strong, inappropriate influence on jurors’ verdicts and that the traditional limiting instruction is unlikely to overcome this influence. In fact, the instruction can have an effect opposite that intended. Unlike with inadmissible evidence, researchers have yet to test nontraditional methods by which limited-use instructions might fulfill their policy objectives.

Similar issues arise when multiple defendants or multiple offenses are joined in one criminal case (Federal rules of criminal procedure, 2014). Research consistently demonstrates that jurors more often find a defendant guilty of a particular offense when they learn of evidence relating to at least one other offense (e.g., Greene & Loftus, 1985; Tanford & Penrod, 1984). The increase in guilty verdicts results most consistently from jurors’ confusion regarding which evidence they should consider for which issues and negative inferences jurors draw from the limited-use evidence about the defendant. Limiting instructions in these studies were generally ineffective at eliminating the inappropriate influence. Although less studied, multiple-defendant trials would be expected to involve similar psychological processes and outcomes.

Types of Evidence

A primary issue regarding admissible evidence—that is, evidence the judiciary deems appropriate for jurors to consider is that some types are more influential than others. Psychologists have investigated these differential effects primarily in the context of visually versus verbally presented evidence.

In Kassin and Dunn (1997, Study 1), the plaintiff claimed that her husband accidentally fell from a building at a construction site and the defendant insurance company was obligated to pay her the proceeds of the husband’s life policy. The insurance company argued that the husband committed suicide, thereby voiding its obligation to pay. Mock jurors watched one of two versions of a 30-minute videotaped trial; one slightly favored the widow, whereas the other slightly favored the insurance company. Jurors who only saw these trials rendered comparable verdicts (the difference was a mere 8 percent). Some jurors also viewed a 10-second computer-animated re-enactment of the husband’s death that corroborated either the plaintiff’s or the insurance company’s claim that had been made in the verbally presented evidence. This brief clip substantially altered jurors’ verdicts, magnifying the difference between the pro-plaintiff and pro-defendant versions of the trial to 59 percent.

Douglas, Lyon, and Ogloff (1997) investigated the impact of a different type of visual evidence—graphic autopsy photographs—on mock jurors’ verdicts in a criminal murder trial. The jurors read a 30-page trial transcript that included the medical examiner’s description of the victim’s body. Some of the jurors also saw three autopsy photos of the victim. These photos doubled, on average, the percentage of guilty verdicts, despite the fact that the trial transcript described the information the photos depicted.

This research suggests that visual evidence can exert a comparatively greater powerful influence on jurors (and perhaps other legal decision makers) than does its more commonly utilized verbal counterpart. Other studies indicate that confessions and eyewitness identifications also are quite influential (Kassin, 2014; Loftus, 2013).

Stealing Thunder

Cases that proceed to trial inevitably involve weaknesses on each side. These weaknesses might include undesirable characteristics of litigants, less than pristine witnesses, or ill-advised prior statements, for example. A fundamental question for trial attorneys is whether to allow opposing counsel (p. 401) to introduce these weaknesses to the jury or, instead, to take preemptive action, often referred to as “stealing thunder.”

Williams, Bourgeois, and Croyle (1993) assessed the consequences of stealing thunder in a pair of studies. In the first study, mock jurors decided a criminal trial. Supporting the effectiveness of stealing thunder, jurors’ probability-of-guilt scores were lower when the defense preemptively disclosed the defendant’s prior convictions than when the prosecution initially presented them. The defense attorney experienced an increase in credibility following acknowledgment of the weakness, which resulted in the more favorable outcome for his client. The second study, involving a civil case, corroborated the findings of the first. In both studies, stealing thunder reduced the negative impact of the weakness on jurors’ verdicts, by enhancing the credibility of the trial participant who employed the tactic.

Concluding that Williams, Bourgeois, and Croyle (1993) had placed a positive spin on the potentially damaging information, Dolnik, Case, and Williams (2003, Study 1) examined whether a positive spin is essential to stealing thunder or merely admitting a weakness is sufficient. The results indicate that trial participants can steal thunder without placing weaknesses in a positive light. Jurors in the stealing thunder–no framing condition rendered fewer guilty verdicts than jurors in the thunder condition, and the stolen thunder-framing condition fell between the two, differing significantly from neither. The researchers acknowledge, however, that while their particular framing of the weakness was not particularly effective, well-crafted framing could potentially outperform no framing. Curiously, in contrast to their previous studies, the relationship between stealing thunder and perceived guilt was not mediated by enhanced credibility of the acknowledging person.

The absence of credibility mediation spurred Dolnik, Case, and Williams (2003, Study 2) to investigate another potential mediator of stealing thunder—a change in the meaning of the revealed information. The researchers posited that stealing thunder can cause jurors to interpret the admitted weakness consistently with what they expect the affiliated party to be willing to reveal. Supporting this hypothesis, jurors in the stealing thunder–no framing condition judged the weakness to be less damaging than did jurors in the thunder condition. Credibility once again did not mediate the effect, perhaps because when jurors view the weakness as less damaging, they give the person who reveals it less credit.

Dolnik, Case, and Williams (2003, Study 2) also investigated a method opposing parties might employ to counter stealing thunder—an accusation that the acknowledging party employed the tactic to manipulate the jurors into believing that he is more honest than they naturally would. Mock jurors’ verdicts demonstrated, as in the earlier studies, that stealing thunder reduced the negative effects of damaging information. Informing jurors that the defendant had stolen thunder in an attempt to manipulate them, however, negated the tactic’s benefit.

These investigations evidence the benefits of stealing thunder. They consistently find that stealing thunder at least partially negates the negative effects of weaknesses in the case on jurors’ judgments, unless the jurors perceive the revelation to be manipulative as opposed to indicative of a forthright presentation of the case.

Damage Award Anchors

In civil cases, litigants generally seek monetary awards as compensation for their claimed injuries. These injuries can be economic in nature, such as medical expenses and lost wages, or noneconomic, which consist mainly of the “pain and suffering” that accompanies physical injuries. Economic damages translate relatively easily into monetary awards. In contrast, no specific dollar amount corresponds to noneconomic damages. To guide jurors in making noneconomic determinations, plaintiffs’ attorneys propose substantial ad damnums—or specific monetary amounts—to compensate their clients, and defense counsel counter with correspondingly suppressed figures. Furthermore, plaintiffs’ attorneys sometimes attempt to justify, or minimize, their ad damnums by breaking them down into small increments. This might take the form of a per diem proposal, for example, which suggests that a plaintiff’s pain and suffering is worth a certain, relatively small amount per day multiplied by the days of suffering, which equals the requested ad damnum.

Marti and Wissler (2000) investigated the effects of ad damnums and defense counters on jurors’ damage awards. Mock jurors awarded higher damages when the plaintiff’s attorney offered an ad damnum versus merely presented the case without suggesting an appropriate amount of compensation for his client. Jurors’ awards increased as the plaintiff’s request increased, albeit not in proportion to the magnitude (p. 402) of the increased request. Defense counsel’s attempts to counter the plaintiff’s ad damnum were partially successful. When the defense countered with a comparatively quite low amount, the jurors rendered lower awards than when the defense offered no counter; in contrast, a higher counter was ineffective by this standard.

Marti and Wissler (2000) also investigated whether extreme ad damnums and defense counters might prove counterproductive (i.e., cause jurors to award less than they would without an ad damnum or more than they would without a defense counter). When the ad damnum was immense, jurors awarded less than when it was relatively moderate but still substantially more than when the plaintiff’s attorney offered no ad damnum. The defense rebuttal evidenced a similar trend. The researchers suggest that the failure of extreme ad damnums and defense figures to produce counterproductive effects is attributable to the ambiguity inherent in assigning a dollar value to pain and suffering. In the absence of an objectively appropriate amount to compensate the plaintiff, jurors might view extreme requests as legitimate and therefore be unmotivated to reject them (Brehm & Brehm, 1981; Wilson & Brekke, 1994).

McAuliff and Bornstein (2010) investigated whether the form of a damage award request, as opposed to its amount, influences jurors’ judgments. Mock jurors decided a negligence case in which the plaintiff sought compensation for two years of pain and suffering. The plaintiff’s attorney offered one of four equivalent damage award recommendations—$10/hour, $240/day, $7,300/month, or a $175,000 ad damnum—or suggested no amount. The pain and suffering awards were larger when the attorney requested $10/hour or a $175,000 lump sum than when he requested $7,300/month or did not state an amount, and the $240/day recommendation produced intermediate awards. In other words, as the dollar amount in the numerator of the “per” conditions increased, jurors’ awards decreased linearly; and the lump sum was as effective as the most effective “per” suggestion of $10/hour. A follow-up study revealed that these differential awards might have occurred because the jurors emphasized the dollar amounts attached to the “per” requests and perceived the larger dollar amounts to yield a larger award for the plaintiff even though the correspondingly larger time units rendered the awards equal.

These studies indicate that noneconomic damage award anchors can influence jurors’ judgments independent of the evidence in a case. They also indicate that the magnitude and form of the requests determine to a large degree the extent of this influence. A study conducted on actual jurors, without manipulating the ad damnum variable, suggests that, as with many psychological phenomena, a real trial context, with its greater complexity and variety of stimuli, might temper the persuasive power of these requests (Diamond, Rose, Murphy, & Meixner, 2011).

Verdict Options

Psychologists have recognized that jurors’ decisions also could be influenced by the range of verdict options that judges provide. Jurors might acquit a criminal defendant, for example, if the only options are murder and acquittal and the jurors conclude that the defendant’s blameworthiness falls short of murder. Jurors might be willing to convict the defendant if a lesser included offense such as manslaughter were also an option, however. Likewise, in the civil realm, jurors might find a defendant not liable for a plaintiff’s harm if the plaintiff asserts only strict liability as opposed to also making the less stringent legal claim of negligence.

In a study of verdict options, Kelman, Rottenstreich, and Tversky (1996, Study 2) presented mock jurors with a homicide case in which the parties stipulated that the defendant had purposely killed the victim. The jurors’ task was to determine what level of homicide the defendant had committed: special circumstances murder, murder, voluntary manslaughter, or involuntary manslaughter. Each juror was instructed on the elements of these four crimes, ensuring that they all possessed the same information when deciding the case. Some of the jurors were also instructed that the judge had ruled as a matter of law that special circumstances murder was not justified given the facts of the case. The other jurors were instructed that the judge had eliminated the involuntary manslaughter option. These different verdict options caused different verdict distributions. When the judge eliminated the involuntary manslaughter option, the majority of jurors voted for murder, whereas when the judge eliminated the murder with special circumstances option, the majority of jurors voted for voluntary manslaughter. The jurors gravitated toward a moderate, or compromise, verdict in each instance, and the legal charge corresponding to that verdict depended on the options available.

In a related vein, Greenberg, Williams, and O’Brien (1986) studied the effects of jurors considering the same verdict options—first-degree murder, (p. 403) second-degree murder, voluntary manslaughter, involuntary manslaughter, or not guilty—but in different orders. Jurors who were instructed to contemplate the options from harshest to most lenient rendered harsher verdicts than did jurors who were instructed to think about the options in the opposite order.

These studies support the idea that trial attorneys can influence jurors’ decisions by careful selection of the claims they make, regardless of the substance of a case, and the corollary that judges should be mindful of the manner in which they present the verdict options to jurors.

Judicial Decision-Making

While most legal decision-making studies focus on jurors, psychologists have begun investigating factors that influence judicial determinations. These judicial decision-making studies initially addressed two main aspects of the juror decision-making literature—inadmissible evidence and damage award anchors—and have recently investigated a broader array of topics.

Inadmissible Evidence

Wistrich, Guthrie, and Rachlinski (2005) investigated whether judicial decisions are influenced by inadmissible evidence, which judges as well as juries should ignore when making judgments. In a test of several different forms of inadmissible evidence (a settlement demand, material protected by the attorney-client privilege, the sexual history of an alleged sexual assault victim, the prior conviction of a plaintiff in a personal injury case, information that the prosecution agreed not to introduce against a defendant pursuant to a cooperation agreement, the outcome of a search when determining whether probable cause existed, and a defendant’s confession obtained in violation of his right to counsel), judges were inappropriately influenced by all but the outcome of the search and the confession.

Wallace and Kassin (2012) undertook a more narrow investigation—the effect of a defendant’s confession on judicial determinations. Judges read a murder trial summary that contained either strong or weak evidence implicating the defendant and one of three confession conditions—high pressure, low pressure, or no confession. As would be expected, the judges more often viewed the defendant’s confession as involuntary when it occurred under high pressure than low pressure (84 percent vs. 29 percent). Nonetheless, when the evidence in the case was weak, judges who learned of the high-pressure confession were markedly more likely to find the defendant guilty than when there was no confession (69 percent vs. 17 percent). This finding indicates that high-pressure confessions might influence judicial determinations despite their questionable legal and factual validity, contradicting the Wistrich, Guthrie, and Rachlinski (2005) finding that judges ignore a criminal defendant’s confession.

These studies, albeit preliminary, indicate that judges, like jurors, are often influenced by prejudicial inadmissible evidence to the detriment of the parties against whom this evidence is introduced.

Damage Award Anchors

In a study of the effects of damage award anchors on judicial decision making, Guthrie, Rachlinski, and Wistrich (2001) gave judges a description of a personal injury lawsuit in which the defendant had seriously injured the defendant. In the no-anchor condition, the judges were asked how much they would award the plaintiff in compensatory damages. In the anchor condition, the judges learned that the defendant had moved that the case be dismissed because it did not meet the minimum of $75,000 for a diversity case. The judges ruled on this motion—which was meritless because the plaintiff had incurred damages far greater than $75,000—and rendered a compensatory damage award. Judges in the anchor condition (all but two of whom denied the motion) awarded 29 percent less on average than those in the no-anchor condition. In other words, the $75,000 jurisdictional requirement—an irrelevant figure in the calculation of the damage award—apparently influenced the judges’ valuation of the case.

Guthrie, Rachlinski, and Wistrich (2009) replicated the anchoring effect in a wrongful termination of employment case. The researchers also tested whether requiring judges to explain the reasoning behind their compensatory awards, ostensibly for a reviewing body, can ameliorate anchoring effects. This attempted corrective failed to overcome the influence of the anchor on judges’ valuations of the case—despite any increase in higher order thinking or concern with accountability engendered by the explanation—suggesting that anchoring effects can be fairly resistant to countermeasures other than perhaps a competing dollar amount (see discussion of damage award anchors in the section on “Juror Decision-Making,” supra).

These initial studies of judicial decision making indicate that, although judges possess greater education and experience with legal decisions than (p. 404) the average juror, their reactions to environmental influences might be similar to jurors in many important respects. Subsequent studies explore an array of other potential extralegal influences on judicial decision making (Rachlinski, Wistrich, & Guthrie, 2013).

Legislative Decision Making

Psychologists have generally forgone investigations of legislative decision making. Demaine (2009), however, investigated US legislators’ practice of inviting celebrity entertainers (actors, musicians, and athletes, for example) to testify at congressional hearings on issues unrelated to their achievements. She found that celebrity entertainers testified before congressional committees about twice per month on average between 1980 and 2004, and that the frequency of celebrity testimony more than doubled between the 1980–1984 and 2000–2004 time periods.

To explain why celebrity testimony became an established part of the US legislative process, Demaine explored the psychology of celebrity appeal. She found that legislators’ motives for calling celebrity entertainers are multifaceted and include, for example, the magnified attention that celebrity-affiliated issues receive from key players such as the media, the public, and fellow legislators; the opportunity for legislators to bask in the reflected glory of the celebrities; and legislators’ personal fascination with celebrities.

Supporters of celebrity entertainer testimony deem the practice helpful, or at worst benign, under the presumption that celebrities merely bring attention to social issues and leave the substance of policy making to trained professionals. Demaine found, however, that the distinction between awareness and influence is mainly false. Legislators have limited time and attention, such that when they engage with celebrity entertainers’ issues, they necessarily neglect other issues and constituencies. Moreover, 497 (98 percent) of the 507 celebrities who testified between 1980 and 2004 either proposed a solution to their issue or endorsed or opposed a solution that the federal government was contemplating. That is the celebrities did not merely bring attention to social issues but, rather, actively participated in substantive policy discussions.

Demaine also considered whether celebrity entertainers’ participation in the lawmaking process fosters sound policy decisions. Only two of the 507 celebrity entertainer witnesses possessed formal education on the issues about which they testified, and there was no evidence that the celebrities had received similar training in policy analysis. Demaine concluded that while formal education is not the sine qua non of quality testimony, it is an important factor when evaluating congressional witnesses’ qualifications, and particularly the qualifications of unusually influential witnesses. Celebrity entertainers’ lack of formal education combined with their extraordinary public appeal renders their involvement in the legislative process generally problematic.

In brief, psychologists have made great strides with several topics in the realm of “social influence in the legal system.” They have learned much about eyewitness testimony, false confessions, and juror decision making; gained preliminary insights into how judges reach decisions; and recently begun exploring legislative decision making. While other topics on social influence in the legal system clearly exist, as do other social influence issues within the already explored topics, psychologists have vigorously (some would say relentlessly) pursued this area compared to the subjects that follow—the legal regulation of social influence in everyday life and law as an instrument of social influence. Few topics within these latter categories have been studied at all and rare is the topic that has received considerable psychological empirical attention, as the sporadic nature of the reviewed research will demonstrate.

Legal Regulation of Social Influence in Everyday Life

Following World War II, psychologists conducted groundbreaking studies of powerful social influences in everyday life (e.g., Milgram, 1974; Zimbardo, 2007). They sought to understand how large numbers of people were persuaded to commit atrocities under Adolf Hitler’s Nazi regime and how similar influences might operate frequently at less magnitude. Although these studies could have inspired sustained research activity that would foster effective and ethical government regulation of social influence, psychologists have left this area largely unpursued. This section represents our limited knowledge of social influences that the government currently regulates or that might be of sufficient magnitude to warrant regulation.

Deceptive and Unfair Advertising

At the turn of the 20th century, Congress created the Federal Trade Commission (FTC) and tasked it with monitoring deception and other forms of unfairness in commercial advertising (p. 405) (Federal Trade Commission Act). Since the 1970s, researchers have investigated myriad psychological issues that inform this regulatory framework. The studies explore children’s and adults’ vulnerability to deceptive commercial messages; the effectiveness of corrective advertising, which the government may mandate when it determines that an advertiser has deceived the public; and, more recently, the effects of direct-to-consumer advertising of prescription drugs on consumers and health care providers.

Directed at Children

Wilcox et al. (2004) reviewed the psychological literature on children’s vulnerability to advertising. These studies indicate that children under 4–5 years of age do not consistently differentiate television programming from advertisements. At 4–5 years, children generally distinguish between programs and commercials on fairly simple dimensions—for example, they find commercials shorter or funnier than programs. However, not until at least 7–8 years of age, and perhaps not until age 11–12, do most children attribute persuasive intent to advertising (see also Carter, Patterson, Donovan, Ewing, & Roberts, 2011). Kunkel and Castonguay (2012) point out that these studies might underplay children’s vulnerability to advertising, as they often fail to discern whether children who recognize advertisers’ persuasive intent also realize that this persuasive intent might cause advertisers to exaggerate or embellish product features.

Children thus process advertising claims more credulously than do persons with greater developmental maturity.

Researchers have considered ways to decrease advertising’s effects on children. Buijzen (2007), for example, found that factual and evaluative interventions reduced the susceptibility of children aged 7–10 years to advertising’s influence, whereas younger children received little benefit from the interventions. Other researchers have investigated children’s responses to disclaimers and disclosures that advertisers include to render otherwise deceptive claims legally permissible. These studies indicate that young children generally do not understand commonly used disclaimers and disclosures (e.g., “some assembly required”) and that rephrasing these statements in terms better suited to children (e.g., “you have to put it together”) substantially increases their comprehension (e.g., Kunkel & Castonguay, 2012).

The literature on children’s responses to advertising focuses on television commercials. Recent research comparing television commercials versus nontraditional advertising—such as movie and video game brand placement and product licensing—indicates that children possess an even less sophisticated understanding of the newer forms of advertising and are therefore less likely to view them critically (Owen, Lewis, Auty, & Buijzen, 2013).

Directed at Adults

Deception and Its Effects

An illustrative study of the effects of deceptive advertising on adults (Olson & Dover, 1978) showed participants three different ads for a new brand of coffee at 4-day intervals and assessed their perceptions of the product compared to other participants who did not see these ads. Each ad included the same false claim about the advertised product—that the coffee had no bitterness when it was actually quite bitter. All participants then sampled the coffee and assessed its characteristics, in order to discern the degree to which exposure to the product counteracted any effects of the deception. Participants who saw the ads reported that the coffee was less bitter than those who merely rated the coffee’s bitterness after tasting it, suggesting that the ads instilled a false belief about this product attribute. Further, these false beliefs drove purchasing behavior—participants who saw the ads were more inclined to purchase the coffee than were those who only tasted the coffee. Most intriguingly, the study suggests that consumers’ false beliefs and corresponding intentions to purchase can persist despite their use of the product, perhaps because false advertising creates certain expectations or positive views of the product that consumers subjectively confirm.

Explicit Versus Implied Claims

Whereas explicit advertising claims are generally straightforward, implicit advertising claims tend to be open to multiple interpretations. Shimp (1978), for example, investigated how consumers interpret incomplete comparisons of products. Participants reviewed a deodorant ad or an automobile ad, each of which contained an incomplete comparison. The car claimed to be “built better to give you more”; one of the deodorants claimed to help consumers “stay dryer.” Participants completed these comparisons in the manner the advertisers intended, with positive product attributes. (p. 406) For example, 53 percent of participants who viewed the car ad believed that the incomplete comparison might end with “luxury and sportiness,” and 66 percent believed that the “stay dryer” ad might end with “than any other antiperspirant on the market.” In fact, 28 percent and 64 percent of participants, respectively, mistakenly believed that the ad had directly stated these claims rather than implied them. This research suggests that consumers employ social conventions to finish incomplete comparisons in ways that render them potentially misleading.

Burke et al. (1988) focused on two common deceptive implications—expansion and inconspicuous qualification—and applied them to four product attributes in ads for ibuprofen-based pain relievers: headache and pain relief, side effects, low price, and speed of relief. For example, for side effects, the truthful statement read: “Fewer gastrointestinal side effects than aspirin”; the expansion implication read: “None of aspirin’s annoying side effects”; and the inconspicuous qualification implication read: “None of aspirin’s annoying side effects (causes fewer gastrointestinal side effects than aspirin).” Both implied claims created stronger beliefs on the attribute dimensions than did true claims or control conditions, which contained no information regarding product attributes. The same trend held for participants’ reported likelihood of purchasing the products. The erroneous beliefs carried over, at times, to other product dimensions. For example, participants with a stronger belief in the drug’s speed of relief more strongly believed that it was an effective pain reliever. Implied deception on one product dimension thus might color consumers’ perceptions of other product characteristics.

Puffery

The FTC and courts permit advertisers to “puff,” that is, to offer exaggerated opinions about a product or service that reasonable consumers recognize as false, and discount accordingly (Preston, 1996). Superlatives such as “the best” and “the finest,” and other hyperbole, fall within this category.

Empirical studies suggest that puffery influences consumers (albeit whether the consumers are “reasonable” is a legal determination). Rotfeld and Rotzoll (1980), for example, assessed the degree to which participants believed puffery claims in ads for products such as aspirin, shampoo, and cold cream. Participants believed 40 percent of the puffery claims, and this number rose to 49 percent for participants who reported that the ads had communicated the puffery claims, which provides greater assurance that they processed the puffery. These numbers obtained for a relatively highly educated sample. Persons with less education might be expected to view an even higher percentage of puffery claims as true.

Corrective Advertising

The government periodically requires companies that have engaged in deceptive advertising to publish corrective advertising designed to leave the consuming public with a more accurate view of the product or service. Armstrong, Gurol, and Russ (1979) investigated the ability of a corrective ad to counter Listerine’s deceptive claims that the mouthwash could prevent, ameliorate, and cure colds and sore throats. The corrective ad was attributed to either the Warner-Lambert Company, which produced Listerine, or the FTC. In both instances, the corrective ad decreased participants’ beliefs in the false claims, and the effects persisted at least 6 weeks (the last experimental measurement) (see also Mizerski, Allison, & Calvert, 1980).

In a study of an actual corrective advertising campaign, consumers were less likely to intend to purchase the product (STP’s oil additive) yet maintained their pre-campaign perceptions of the company and beliefs in the general efficacy of oil additives (Bernhardt, Kinnear, & Mazis, 1986).

These findings suggest that corrective advertising can decrease the attractiveness of deceptively advertised products or services while not overly punishing affiliated companies or inadvertently punishing other business firms in that market.

Direct-to-Consumer Advertising of Prescription Drugs

Congress and the Federal Drug Administration (FDA) place stronger constraints on direct-to-consumer advertisements of prescription drugs (DTCA) than on ads for products that consumers are deemed qualified to purchase without a professional’s approval. Proponents of DTCA argue that it educates consumers, thereby empowering them to take a more informed role in their health care. Critics assert that DTCA persuades consumers to request from physicians drugs that are medically unindicated or more expensive than equally effective generics.

(p. 407) Davis (2007) explored the possibility that DTCA provides consumers with an unrealistically positive view of advertised drugs, despite the FDA’s requirement that DTCA strike a fair balance of their risks and benefits. The study focused on qualifying language that pharmaceutical companies use to make potential side effects appear less threatening to consumers: “If … may” (“If side effects occur, they may include …”), severity/length (“Side effects tend to be mild and often go away”), and discontinuation (“Few people were bothered enough to stop taking [the drug]).” The qualifiers, individually and particularly in combination, caused consumers to believe that taking the drug would be a more pleasant experience and to be more inclined to request the drug from a physician. Kim and Park (2010) found that DTCA emphasizing the potential costs of not taking the drugs is more effective than DTCA that focuses on the drugs’ benefits, when consumers believe that they have limited knowledge about the drugs.

These studies suggest that DTCA’s success (Donohue, Cevasco, & Rosenthal, 2007) is at least partially attributable to downplaying the risks of taking the drugs while highlighting the risks associated with not taking them, which motivates consumers to request the drugs from physicians. These requests, in turn, influence physicians’ prescribing behavior (McKinlay et al., 2014).

Fraud

The legal doctrine of fraud captures misrepresentations and concealments of facts upon which targets may justifiably rely. Fraud occurs in myriad environments and ways, all of which pit the ingenuity and resolve of the perpetrator against unsuspecting targets. Psychological research of these dynamics is limited, however.

Pratkanis and Shadel (2005) analyzed more than 300 audiotaped calls between fraudulent telemarketers and law enforcement personnel posing as laypeople. These recordings indicate that fraudulent telemarketers employ powerful influence tactics to convince their targets to act contrary to self-interest. For example, the telemarketers created for their victims a new social reality—a “wonderland of the mind” involving excitement and reckless abandon—that facilitated their acquiescence to the scam. They offered phantom dreams—things that targets desperately wanted but were normally unachievable—that detached targets from logical reasoning. They established relationships with targets, in which they were often trusted authority figures, friends, or dependents. And they convinced targets that the options they offered were the only ones available. The telemarketers also used several classic principles of influence, including social proof (communicating that many others are participating in the investment), self-generated persuasion (subtly convincing the targets to generate reasons for doing what the telemarketer wants them to do), scarcity (underscoring that the opportunity to achieve the phantom dream is fleeting), reciprocity (offering targets information, advice, or prizes so that they feel compelled to do something in return for the telemarketer), and commitment and consistency (reminding targets that they previously took some action or said something that indicated their commitment to the telemarketers’ cause, such that to back out would reflect socially undesirable inconsistency in their behavior). The precise combination of influence tactics fraudulent telemarketers employ differs by target and scam (Pratkanis, Shadel, Kleinman, Small, & Pak, 2006).

Scheibe et al. (2014) found that discussing fraud with elderly persons who had previously been defrauded reduced their vulnerability to future scams, at least in the short term. Even following this intervention, however, almost a third of participants accepted without apparent reservation materials from a mock fraudulent telemarketer, underscoring the allure of these scams and the challenge of arming targets with means to resist.

Choplin, Stark, and Ahmad (2011, Study 1) investigated influence tactics that increase consumers’ acceptance of problematic contract terms. Participants were asked to sign a consent form for a research study that contained a provision substantially different from previously provided information about the study. Those who questioned the problematic provision received one of three responses: (1) confirmation that the provision would be enforced (simulating a bait-and-switch scheme); (2) assurance that the provision would not be enforced—that the form was old and inaccurate (a plausible explanation); or (3) assurance that the provision would not be enforced—that the form contained the provision because that was the way it was drafted (a senseless explanation). A substantial number of participants (40 percent) in the bait-and-switch condition signed the consent form, and participants in the plausible and senseless explanation conditions were even more likely to do so (87 percent and 80 percent, respectively). (p. 408) These results indicate that it can be fairly easy for fraudsters to convince targets to acquiesce to detrimental contractual provisions by first offering enticing terms. Given that the study participants were undergraduate college students, the results also underscore that young persons are vulnerable to at least certain forms of fraud.

Undue Influence

Courts have long recognized the doctrine of undue influence, which governs cases in which one person alleges that a second person exercised such powerful influence over the first person that the first person lost free agency. Little research has investigated the circumstances that create this extraordinary influence, however.

The few existing studies focus on one context (recruitment and retention of research participants) and one form of influence (monetary inducements). Bentley and Thacker (2004), for example, assessed participants’ willingness to engage in a high-risk (Phase I trial for a drug not previously tested on humans), medium-risk (bioequivalence study of a generic version of an already marketed brand name drug), or low-risk (salivary test of stress hormones) study for high ($1,800), medium ($800), or low ($350) payment. Higher monetary incentives increased participants’ willingness to participate by relatively equal degrees at each level of risk, suggesting that they did not exert undue influence. A similar study (Halpern, Karlawish, Casarett, Berlin, & Asch, 2004) produced comparable results and conclusions.

Implanted False Memories

Persons periodically claim to have recovered repressed memories of sexual abuse in their distant past. To investigate whether someone (such as a mental health professional) might implant in others (such as patients) a pseudomemory for an event that never occurred, Loftus and other psychologists expanded on earlier studies of the malleability of memory. Given institutional review board restrictions, they crafted experiments that tested whether mildly traumatic events could be falsely implanted in participants, following the logic that the results of these studies would provide empirical evidence to support or repudiate the prevailing presumption that recovered repressed memories are always actual memories.

In a classic study, Loftus and Pickrell (1995) investigated whether they could convince participants that they had once been lost in a shopping mall. Participants read descriptions of four events from their childhood that a relative had purportedly related to the researchers. In actuality, three of these events came from the relative, whereas the fourth event was the fabricated lost-in-the-mall story. After reading a description of each event, participants wrote down what, if anything, they remembered about it. In two follow-up interviews, participants also reported as much detail as they could about the events. Ultimately, 25 percent of participants “recalled” being lost in the mall and provided details of the event. Subsequent studies involving variations of this methodology obtained similar results (e.g., Hyman, Husband, & Billings, 1995; Porter, Yuille, & Lehman, 1999).

This research suggests that some individuals who claim to have experienced trauma in their distant past might actually have been influenced by others to create a seemingly real memory of an event that did not occur. It also supports legal claims against mental health care professionals who negligently or intentionally implant false memories in their patients.

Consent to Search and Seizure

The US Supreme Court has articulated an influence-based standard for determining when citizens’ encounters with the police and their consent to police searches are protected by the US Constitution. If a reasonable person would have felt free to terminate the encounter or refuse the search, the citizen is deemed to have acted voluntarily such that there can be no Fourth Amendment violation (Florida v. Bostick, 1991). The standard has provoked much debate and some empirical inquiry.

Kagehiro (1988) investigated citizens’ responses to variations in the phrasing of police requests to conduct warrantless searches. In all conditions, an officer knocked at the front door of a residence. Some participants were told that the officer asked permission to enter the premises to conduct a search, whereas others learned that the officer stated his desire to enter the premises to conduct the search. Moreover, some participants learned that the search would be warrantless, whereas others did not receive this information. Finally, participants took one of two perspectives—they were either the recipient of the police request or a third-party observer of the request.

The findings provide preliminary evidence that persons who interact with police and observers of these interactions, such as judges in suppression hearings, might view important aspects of the situations differently. Observers overestimated (p. 409) the degree to which recipients felt free to ask the officer to leave the residence, which suggests that legal decision makers could fail to grasp the coercive nature of police–citizen interactions as perceived by the average citizen. Observers also underestimated recipients’ likelihood of requesting more information from the officer and of requesting that the officer leave the residence, indicating that legal decision makers might attribute the officer’s request to accurate suspicions about illegal activities carried on by the residents. And observers who learned that the officer did not mention that the search would be warrantless believed that the officer had permission to search more of the premises than did the other participants, suggesting that legal decision makers might interpret a citizen’s grant of permission to search more expansively than the citizen intended.

The legal regulation of social influence provides a rich array of important issues ripe for psychological investigation. Existing studies of these topics offer insights into how key business–citizen, citizen–citizen, and government–citizen exchanges operate, which, in turn, can inform the judicious use of government checks on unfairness and disparities of power within these exchanges. The relatively sparse and scattered nature of the topics subjected to empirical study and the generally small literature on most of these topics underscore the potential for substantial further development in this area.

Law as an Instrument of Social Influence

Governments use law as a means of shaping citizens’ behavior in desired ways, such that citizens’ willingness to obey these laws is vital to the stability of society. Despite the importance of understanding law as an instrument of social influence, relatively few psychologists have investigated factors that support or undermine these efforts. Existing studies address the issue from three different vantage points: the degree to which citizens view legal authorities as legitimate and the law as moral, the human tendency to obey authoritative directives, and antisocial and prosocial influences operating in different social contexts.

Legitimacy of Legal Authorities and Morality of Law

Governments rely on punishment as a means to deter illegal behavior, following the logic that citizens are likely to obey the law if infractions result in incarceration, a fine, or some other negative consequence. While the threat of punishment does prevent some illegal behavior, this approach has inherent disadvantages. It requires vigilant enforcement of the law, which is financially costly. The main form of punishment—incarceration—imposes social costs on individuals and communities through lost productivity and strained relationships. And some modes of enforcement, such as surveillance, place the government and citizens in a combative relationship, fostering citizens’ distrust and resentment of government. Moreover, despite this immense investment, punishment exerts only a weak influence on citizens’ compliance with the law (e.g., Tyler & Rankin, 2012).

Tyler (e.g., 2006a, 2006b; Tyler & Rankin 2012) therefore proposed an alternative approach for enhancing citizen obedience, based on internal rather than external motivations. His empirical investigations indicate that citizens who perceive legal authorities to be legitimate are more willing to cooperate with them and comply with legal decrees, and that governments gain legitimacy through employing legal procedures that citizens deem to be fair. Furthermore, citizens are more likely to follow laws that they perceive to align with their own moral code, such that governments exert greater influence on citizens’ behavior when they frame public discussions of laws in terms that resonate with the target group’s morality.

Psychologists also have empirically explored the concept of restorative justice, which, like legitimacy and morality, focuses on citizens’ internal motivations to obey the law (Tyler, 2006b). Restorative justice was developed specifically to reduce recidivism, however, and centers on the reintegrative shaming of offenders through bringing them together with family, friends, and victims in an effort to convince them to take responsibility for their injurious acts and reconnect with their community (e.g., Braithwaite, 2002; Wenzel, Okimoto, Feather, & Platow, 2008). Several other, more narrowly conceived, empirically tested, psychologically driven programs designed to reduce recidivism also exist (e.g, McGuire, 2008).

Obedience to Illegal Directives From Perceived Authorities

In a widely known series of experiments, Stanley Milgram (1974) investigated the extent to which ordinary citizens would harm another person at the behest of an authority figure. In a primary study at Yale University, participants met the experimenter, who was dressed in a lab coat, and a confederate of the experimenter, who pretended to be another participant. The experimenter explained that the (p. 410) purpose of the study was to discern the effects of aversive stimuli on learning. He then “randomly” assigned the participant to be the teacher and the confederate to be the learner, and introduced the teacher and learner to a shock machine (which, unbeknownst to the teacher, did not actually administer shocks). Each lever on the machine was labeled with the amount of voltage it would dispense (15 to 450 volts), and verbal descriptors put the voltage numbers in perspective (slight shock to XXX). The experimenter strapped the learner into a chair and attached wires through which the learner would receive increasingly powerful electric shocks from the teacher when the learner failed to correctly recite pairs of words that the teacher read from a script. During the memory test, the learner gave progressively more alarming responses to these shocks. When teachers expressed concern about the health of the learners and a desire to stop the study, the experimenter dictated otherwise with replies such as “The experiment requires that you continue” and “You have no other choice; you must go on.”

All of the teachers in this study continued to 300 volts, and 65 percent administered the 450-volt, highest magnitude shock after the learner had screamed in agony and ceased responding. Subsequently tested variations in the experimental protocol—for example, conducted at a less prestigious location, with the experimenter dressed in everyday clothes, or with teachers instructing another person to administer the shocks rather than doing it themselves—resulted in more or less compliance with the experimenter’s request.

While changes in human subjects protection policies since Milgram conducted these classic studies preclude their exact replication, a partial replication (Burger, 2009) indicates that persons might be comparably vulnerable today to committing illegal acts such as assault, battery, or even murder while under the influence of (perceived) authority figures.

Antisocial and Prosocial Influences

A diverse array of powerful social influences can work with or against lawmakers’ attempts to shape citizens’ behavior. Psychologists have investigated some of these prosocial and antisocial influences, particularly as they relate to delinquency. These studies find, for example, that substance abuse prevention programs that address the social influences operating on youth are generally the most effective (e.g., Cuijpers, 2002). Similarly, the research indicates that antisocial peer influences play a pivotal role in adolescent gang membership (e.g., Gilman, Hill, Hawkins, Howell, & Kosterman, 2014). Taken as a whole, these investigations underscore that antisocial adolescent behavior is better understood and corrected when its considerable social influence origins are recognized.

To a lesser degree, psychologists have studied factors that increase the likelihood of successful crisis negotiations. Taylor and Thomas (2008), for example, analyzed transcripts of several actual hostage negotiations and found that police negotiators were more often able to diffuse situations when they matched their linguistic style to that of the hostage taker. Studies of this kind produce useful insights for influencing persons who are engaging in destructive illegal behavior, or threatening to do so, to accept a peaceful resolution to the situation.

More recently, terrorism gained the attention of psychologists following the September 11, 2001, World Trade Center attacks. Kruglanski and Fishman (2009) and Wilson, Bradford, and Lemanski (2013), for example, reviewed social psychological research that informs terrorist groups’ recruitment and radicalization processes and effective counterterrorism approaches. These inquiries are useful to understanding, and thwarting, extremist thought and action.

Recognizing that laws are instruments of social influence underscores the importance of psychological empirical studies on factors that affect compliance. Research to date has produced thought-provoking findings on a few topics, but this conceptual territory is largely undeveloped and holds the potential for substantial future inquiry.

A Reflection on the Social Influence and Law Literature

Some social influence and law topics—eyewitness testimony, false confessions, and juror decision making—are among the most heavily researched topics in the field of law and psychology. Moreover, a variety of other social influence and law topics, although researched through more circumscribed efforts or left uninvestigated to date, are central concepts within the law and psychology field.

The prominent place that social influence and law holds within the field of law and psychology renders previous critiques of the field relevant to our reflections on the social influence and law literature. The present chapter reveals that researchers continue to gravitate toward a few social influence and law topics, despite long-standing recognition that a broader approach to research is necessary if the (p. 411) field is to have a meaningful effect on the legal system. More than a decade ago, for example, Ogloff expressed the concern that “topics covered by legal psychology remain narrow and obscure from a legal perspective” (2000, p. 474).

Two primary considerations can explain the comparatively large allure of a small array of social influence and law topics. Haney (1993) noted that legal psychologists tend to investigate legal process over substantive law, which bolsters the appeal of eyewitness testimony, false confessions, and juror decision making, and engenders comparative disinterest in other topics. Legal process is easily translatable to psychological methods of empirical study, whereas substantive law can present greater methodological challenges (Haney, 1980). Moreover, whereas substantive law is rife with complexities and nuances that psychologists without formal training in the law can have difficulty mastering, legal process is more conceptually straightforward.

One might question whether the current skew in social influence and law studies merely reflects the presence of empirical questions within each area. In other words, perhaps “social influence in the legal system” is naturally richer in issues conducive to psychological study than are the “legal regulation of social influence in everyday life” and “law as an instrument of social influence.” Theoretical reflection and research activity in these latter areas suggests otherwise, however. While psychologists shied away from exploring big legal questions, other disciplines moved into their intellectual territory. In recent decades, legal commentators have increasingly used traditional psychological research in their scholarship, and economists have informed legal issues with “behavioral economics.” In both cases, much of this new literature addresses social influence (e.g., Kahan & Braman, 2006; Thaler & Sunstein, 2009). Law and psychology—and law and social influence, in particular—are, ironically, developing in significant ways without the benefit of psychologist-conducted research.

Conclusion

Since the 1970s, when the modern law and psychology movement began in earnest, the empirical study of social influence and the law has been a centerpiece of the field. Legal psychologists have actively investigated social influence as it intersects with particular elements of legal procedure and, to a lesser degree, substantive law. This chapter offers a framework for conceptualizing “social influence and the law” and reviews existing empirical studies. The framework reveals that whereas some areas of social influence have flourished, many others have floundered. Attention that researchers have paid to certain issues has eclipsed other equally or more important and interesting issues. While much has been accomplished, there remains great potential for future discoveries. We hope that the present chapter motivates and facilitates them.

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