Persuaders win by convincing decision-makers that their story is more “real” than the alternative. But what if the foundation for that choice, the notion that there is a “real” to aspire to, is eroding? If it is, then advocacy in all kinds of settings, including the courtroom, is in trouble. Based on recent technological developments as well as some disturbing hints of what is to come, that may be what is happening. A recent Article in Buzzfeed by Charlie Warzel, discusses the alarm raised by technologist Aviv Ovadya: “Our platformed and algorithmically optimized world is vulnerable — to propaganda, to misinformation, to dark targeted advertising from foreign governments — so much so that it threatens to undermine a cornerstone of human discourse: the credibility of fact.”

Ovadya and others are warning of what they call a coming, or present, “Infocalypse,” where a societal ability to deal with information and to separate the true from the false starts to collapse. Coining the term, “reality apathy,” a condition of not caring whether something is true or not, they describe the condition: “Beset by a torrent of constant misinformation, people simply start to give up.” Today’s jurors and future jurors face that torrent both inside and outside the courtroom. But the rational use of the jury trial system requires that they not give up. In this post, I’ll share a bit more on the problems that experts see worsening in the near term, and share three implications that they hold for courtroom persuasion.

While humans have lived with a fair share of false information forever, there are reasons to believe that it’s getting worse due to several unique factors:

  • Expanded social networks and an increasing portion of our lives lived online
  • Enhanced artificial intelligence and micro-targeting of individuals
  • Creation and monetization of pools of so called “human puppets” who will reliably share certain kinds of information
  • Technical tools allowing audio and video manipulation

That last one on the list is particularly troubling, as the technology to fake an audio or a video recording has already extended probably farther than you think. For example, there is a demonstration of how video of President Obama speaking can be synthesized to put words in his mouth, with the video still looking quite genuine. As this technology spreads, it will become easier to produce very credible video- or audio-recorded “proof,” and Ovadya cautions that we are looking at a day where home laptops can make it “appear as if anything has happened, regardless of whether or not it did.”

If that ability to create convincing “proof” of almost anything spreads, then it could be the concept of proof itself that ends up being set aside. And perhaps that is the point. With no fear of overstatement, Aviv Ovadya notes, “I think what you’re seeing now is an attack on the enlightenment — and enlightenment documents like the Constitution — by adversaries trying to create a post-truth society. And that’s a direct threat to the foundations of our current civilization.”

I see a few implications for legal persuaders.

Further Erosion of the Power of Evidence

To the extent that video and audio recordings become easier to fake, it is more likely that we will see these in our social media feeds rather than in the courtroom. Judges should be more interested in the provenance of these recordings such that their use in legal settings is still difficult and dangerous. However, fake video and audio recordings don’t need to make it into the actual courtroom in order to cause damage. Jurors may use just the fact that such fakes exist to reduce the credibility they place on what is real. The attitudes that are often applied to expert testimony, for example, “You can find an expert to support anything,” could end up being increasingly applied to physical evidence as well. Increasingly, legal persuaders shouldn’t expect evidence to speak for itself. It will need to be accompanied by the message, “This is important, this is novel, this is useful, and this is real.

Increased Risk of “Reality Apathy” within the jury

If a profusion of fake or difficult-to-verify information in the public sphere causes a “reality apathy” effect of people caring less about whether something is real or not, then we can expect a version of that to occur in a trial setting as well. The overload of information as well as a perceived difficulty in sorting the true from the false can be a feature of cases that are complex or have levels of conflicting testimony. Too much information or too little clarity can leave jurors looking for an easier way to come to a decision. And the easiest way is to go with their their current beliefs and default expectations. In addition, if an increase of fake-but-real-sounding evidence in the social sphere causes people to just rely less on evidence and more on their own personal preferences, we can expect that habit to find its way into courtrooms as well. This tendency to place less reliance on whether something can be shown to be true or not suggests that the attitudes of potential jurors toward proof and truth itself should be explored in voir dire.

Increased Need to Assess Cognitive Style

As with all trends, the increasing prevalence of false news and the growing difficulty in distinguishing the true from the false will not affect everyone equally. As one might expect, those with lower cognitive ability or preference are going to be more susceptible. A recent study (de Keersmaecker & Roets, 2017) demonstrates this. Based on a write-up in Scientific American, the research shows that even after a fake story is debunked, the story will continue to distort the thinking of those with lower cognitive abilities. Of course, there are limits to how well you can reliably assess intelligence during voir dire, but you can ask questions that address a potential juror’s cognitive preferences, something called the “need for cognition.” Those who have a higher need, who embrace rather than avoid a mental challenge, are likely to be better for a more complex case or a situation where their perceptions of what is true or real might be challenged.