October 2014 Bar Bulletin
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October 2014 Bar Bulletin

Watch out for Subliminal Messages in Trial Graphics

By Ryan Flax


A recent study by University of Arizona doctoral student Jay Sanguinetti confirmed that people's brains perceive objects and images in everyday life that we are not consciously aware of.1 Even if you never actually know you see something, your brain can "see" it and process the related visual information. Here's an example from the University's study:

When test subjects (that means human beings) were asked to look at abstract black silhouettes, their brains also perceived the real-world objects hidden in the negative space at the image border. In Figure 1, your brain perceives two seahorses, just as the test subjects' brains did during the experiment, even though there are no seahorses in the graphic.

Now, how can this be applied or abused in the courtroom? Well, I cannot give you a definitive answer, but I believe that if your brain is seeing seahorses in the image and if your subconscious has associated a certain emotion with seahorses, then that emotion will likely be evoked when you see the image, even without you realizing it. So, at trial, such a phenomenon might be applied or abused when designing trial graphics to evoke a specific emotion from jurors (or judges).

What emotions might help one win at trial? Well, for example, if the argument is that your client shouldn't be punished for a simple mistake, it would make sense to evoke sympathy in jurors when making this argument. If reason alone is not enough to do this, one could appeal to jurors' subconscious. What do you see in Figure 2 (on facing page)?

In my extension of the University's experiment, what you might consciously perceive here as a simple and abstract design choice and message: "Don't Punish My Client," your brain likely perceives as two babies bookending the message. The question then becomes: Did you recognize any emotional response in yourself when looking at the graphic? If you felt inclined toward sympathy for my hypothetical client, why? There's nothing really persuasive in the graphic other than my simple request in the text.

If the baby bookends didn't persuade you, how about the graphic in Figure 3? Do the unseen, yet subconsciously perceived puppies make your heart melt for my imaginary client? Hard to say.

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