In The Ethics of Pathos, Part I I discussed Walter Olson’s ethical question, “Should lawyers trying cases make an appeal to jurors’ reptile brains?” While writing that post I came to the conclusion that it’s not unethical to use even the darkest of persuasive arts (I’m a student of hypnosis and other trial technologies) to convince a jury.
A jury comes into the courtroom to be persuaded. The process of jury selection, properly conducted, ensures that those jurors who have inflexibly made up their minds will be excused. Those who remain are willing to be convinced either way. More than that, they expect to be persuaded. The lawyers have a duty to the jury to give it what it expects, and to do whatever the law and ethics allow to persuade the jurors.
Not that it matters to me, since “giving a sucker an even break” is not part of my job description, but the science of persuasion is equally accessible to both sides of a lawsuit. So if I apply neuroscience, or neurolinguistic programming, or hypnosis, or psychodrama in trial I’m not doing anything that my adversary wouldn’t be able to do (at least after a few hundred hours of study). A lawyer doesn’t have an ethical duty to refrain from doing something just because his adversary chooses not to [edit: do it].
That doesn’t really answer the deeper ethical question, though.
People don’t like to be manipulated; the idea of lawyers who can push their buttons without them knowing it is scary. But pushing people’s buttons without the people knowing it is what advocates have been doing for thousands of years—advocacy (and advertising) is much less effective if the audience understands the techniques that are being applied.
I suspect that the idea of appeals to the reptilian brain is additionally scary because we like to think of ourselves as evolved, individually and socially, so far beyond lizards that a reptilian brain is of no use. But the reptilian brain is part of the whole, and it is no less important a part than the mammalian or simian brains. As long as the advocate tells the truth, it is no less ethical to direct an argument toward the lizard brain than to the ape brain.
Should lawyers make appeals to jurors’ reptile brains? The alternative is not only to forget a hundred years of brain research, but also to abandon 2,000 years of rhetoric. Lawyers have always made appeals to jurors’ reptile brains; doing so is not rendered unethical by the fact that they finally realize that that is what they are doing.