My friend Eric Oliver is a communications specialist and trial consultant (www.Eric-oliver.com) at MetaSystems in Michigan. His publication News from the Mental Edge is always informative. His last issue (Winter 2008) reprints an article from the Washington Post "Difficulty in debunking myths rooted in the way the mind works." You may have read about the strange fact that no matter how often the truth that Iraq was not involved in the Trade Center disaster is repeated a majority of people continue to believe Saddam Hussein and 9/11 are connected. University of Michigan social psychologist Norbert Schwarz has done studies regarding denial. In an article published this year in the journal Advances in Experimental Social Psychologyhe points out that the more often people hear a false rumor, the more often they are to believe it even when it is repeated to deny it’s true.
The research shows that denials involve repeating the false statement and the more often it is stated the more it is reinforced even if coupled with a denial. Studies by Dr. Ruth Mayo, a cognitive social psychologist at Hebrew University in Jerusalem also found that the denial is lost in the memory over time. She says "if someone says: ‘I did not harass her’ I associate the idea of harassment with this person." Mayo found that rather than deny a false claim, it is better to express a new assertion that does not repeat the false claim. For example, one should not denySaddam Hussein was connected to 9/11 by saying: "Saddam Hussein did not attack the United States. Osaka bin Laden did." It is better to say: "Osaka bin Laden was the only person responsible for the 9/11 attacks" and not use Saddam Hussein’s name.
The reason for this is repetition. We tend to remember what we hear repeated, but our subconscious mind also tends to ignore negating qualifiers. When Richard Nixon said "I’m not a crook" everyone heard in their mind "I am a crook." That’s how our minds work.
But, you can’t use "no comment" or staying silent in the face of accusing either. Psychologist Peter Kim at the University of California’s studies indicate that when that happens the failure to respond is seen as an admission of guilt.
So when we are trying lawsuits or advising witnesses on testimony, we need to remember to state things without relying upon negating qualifiers. "Someone else had to have done it" is a better frame" than "I didn’t rob the store." But, "I am innocent" works too.
Trial lawyers should be spending more time in marketing, advertising and psychology research than they do in law books.