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Courtroom Mentalization Matters

How the use of our mentalization abilities can provide us with the information we need to reach accurate conclusions about what is going on in the minds of others.

In the United States, the prosecution bears the burden of proving the guilt of a criminal defendant beyond a reasonable doubt. Thus, if the jury has reasonable doubt as to any material element of the crime, they are duty bound to find the defendant not guilty. There’s an old courtroom anecdote that illustrates this principle, and it goes something like this:

A man has been charged with first degree murder, even though the police never found the victim’s body. After a lengthy trial, the defense attorney concludes his closing argument by pointing to a clock on the wall and declaring: “Ladies and gentlemen of the jury, in 10 seconds the alleged victim is going to walk right through that door.”

He then theatrically turns his attention toward the courtroom door. Everyone in the courtroom waits in suspense for the dramatic entry, but the victim never materializes. Feeling very pleased with himself, the defense attorney continues by saying: “The very fact that you were all waiting for the victim to walk through that door establishes that there is reasonable doubt as to my client’s guilt.”

The jury retires to deliberate, only to return with a verdict in less than 30 minutes. The defense attorney is now more confident than ever that his clever ploy has worked to perfection. “What is your verdict,” the judge asks. “Guilty,” the jury foreman announces.

The stunned defense attorney rises in protest and challenges the jury: “But you were all looking at the door, waiting for the victim to appear! How could you possibly fail to have reasonable doubt?”

The jury foreman answers: “Well, almost everybody in the courtroom may have been looking at the door, but I was looking at your client, and he definitely wasn’t looking at the door, he was looking at us.”

What was it that made the jury foreman act differently than the rest of the jury members so that reasonable doubt evaporated? While it might have been tempting to follow the defense attorney’s clever misdirection, the jury foreman realized that the key to solving the case was understanding what was going on in the mind of the defendant. He knew that if the defendant looked at the door, as the rest of the jury did, the defendant might himself have been expecting the victim to walk into the courtroom.

The defendant, however, focused on the jury members to infer their mental states, hoping to determine if they had fallen for the courtroom theatrics of his defense attorney.

By watching the defendant’s reaction, the jury foreman concluded that the defendant did not expect the victim to walk through the door - knowing full well that the victim was dead. Instead, the defendant was looking at the jury members, hoping that they would find him not guilty, based on their own reasonable doubt.

This anecdote illustrates convincingly how the use of our mentalization abilities can provide us with the information we need to reach accurate conclusions about what is going on in the minds of others, a skill known as “interpersonal accuracy.” We can’t really read minds of other people in the “mystical” sense, and so we try to gather as many verbal and nonverbal social signals as possible to infer mental states. Premack and Woodruff (1) have labeled this phenomena "Theory of Mind" (ToM), and described it as the ability:

to attribute mental states to yourself and to others;
to understand that others have mental states that are different from your own; and
to understand that mental states can change, and can be changed by you.

Several other scholars in the field of ToM research, such as Baron-Cohen, Leslie, and Frith (2),

extended this view by stating that this ability - to make inferences about other people’s mental states - allows one to predict future behavior, or to clarify past behavior, and that this is crucial for everyday human social interactions. Whereas theorizing about mental states requires conscious mentalizing, mentalization can occur either spontaneously on a subconscious or a conscious level.

When we don’t have much time or energy, we generally base our state of mind inferences on heuristics or stereotypes. This isn't necessarily problematic when it comes to familiar, straightforward and inconsequential situations. The accuracy of these kinds of inferences, however, is often compromised since they don't involve any effort to gain the perspective of the other person. If the situation is new or complex, however, the chances for misinterpretation and miscalculation increase significantly. In situations such as the court case we described earlier, accurate mentalizing can be a matter of life or death (literally).

In the court case, the prosecution and the defense are competing for the jury’s assessment as to the defendant’s guilt or innocence. The prosecutor, the defense counsel, the defendant and the jury all play a role in the verdict.

Therefore, all of these influencers need to be able to apply their highest level mentalizing abilities - strategic mentalization - to formulate an accurate theory of mind.

On this level of mentalizing, we strive to gain insight into the full range of mental states: affects, desires, beliefs, knowledge and intentions, and we relate each of these data points to one another. These mental states are revealed by verbal and nonverbal behaviors that signal meaning and intent. These meaningful mental state inferences also need to be linked to situational and contextual factors in order to gain a comprehensive picture of what is going on in the minds of others. It is only then that we can accurately predict future behavior or explain past behavior.

With this core understanding of what mentalizing entails, what can we learn from this courtroom illustration? We can infer that the only person who really understood where to look for the right information, and also how to interpret the information correctly, was the jury foreman.

The defense attorney focused his mentalization efforts on building a case for reasonable doubt.

He predicted that he could achieve this result by redirecting the belief state and attentional focus of the jury from considering the culpability of his client to wondering how there could be any murder at all if the alleged victim might still be alive. In defense counsel’s calculus, if the jury believed that the alleged victim might walk through the courtroom door, the jury would have reasonable doubt that any murder had taken place (remember they never found the body).

The defense counsel’s mentalizing was too limited, however, as he did not anticipate that one of the jurors might focus on the defendant to gauge his reaction, instead of looking for the victim to walk through the door. If the defense attorney had devoted more time to taking the perspectives of all those present in the courtroom, he would have better prepared his client to be an active participant in his strategy.

Whether you are in the middle of a closing argument, or in an important meeting or negotiation, remember to survey the landscape and try to join attention with the people who might influence the outcome.

Think about what they might be focused on, listen to what they say, and look at their facial expressions, gestures and other behavior. You most definitely will gain a better perspective of what is going on in their minds.



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