Posted By Sherry F. Colb
In my Justia Verdict column this week, I discuss New York Governor Andrew Cuomo's recent push for amending the state constitution to legalize casino gambling. Because opponents identify casinos as imposing a "regressive tax," I focus on the paternalism involved in banning casinos in order to protect poor people from their own voluntarily chosen, potentially irrational behavior. In this post, I want to discuss a different sort of rational failure: attentional blindness.
In her book, Now You See It, Cathy N. Davidson explains the many ways in which we routinely pay close attention to some features of our environment while completely missing other features that truly merit our consideration. You can be looking at something directly and simply not see it, if your attention is otherwise engaged. And even if you literally see something, you may not be able to absorb its emotional significance under some circumstances. If one understands this weakness, one can manipulate our behavior without our appreciating what has happened.
One of Davidson's examples that stays with me is a television commercial for a drug. The commercial offers the viewer a narrative in which the main character's life goes from miserable to joyous, all because of the advertised pharmaceutical. Toward the end of the commercial, the speaker lists an array of side effects that people have experienced when taking the drug. Such disclosures of side effects are required of the pharmaceutical company, and the point of the requirement is to alert the viewer to the downsides of taking the advertiser's advice.
As it turns out, however, the commercial is expertly designed to draw the viewer's attention away from the side-effects when they are being read. First, the inspiring pictures of the main character's new joie de vivre continue, uninterrupted, while the side-effects are read, thus pulling the viewer into the happy narrative and the accompanying positive emotions. Second, the narrator's tone and the rises and falls of the narrator's voice reading the side effects does not match the content of the words. As a result, even the viewer who hears and cognitively processes the list of side effects does not emotionally register them as relevant to him or to her. And because we rely on our own internal alarm system to "tell" us when we should find information troubling, we do not worry about what we are hearing.
In a similar but less diabolical sense, a police officer who reads Miranda warnings to a suspect may effectively provide the information required while simultaneously leaving the suspect feeling that the warnings (such as "anything you say can be used against you in a court of law") do not really have any implications for him. We have long known that suspects hear Miranda warnings and nonetheless routinely give statements to the police. This may be why police departments supported the pro-Miranda side of Dickerson v. United States, when the Court considered whether to overrule Miranda.
One theory for suspects' willingness to give statements after warnings is that police are intimidating suspects or otherwise pressuring them to talk, thereby nullifying the efficacy of the warnings. Another, contrary, theory is that people have a strong desire to talk and will do so even when they know it is not in their best interests. Think of a time on which you might have prefaced a story with the words "I really should not be telling you this, but..."
Attentional blindness offers us a third possibility, however. Police may not be pressuring suspects to talk, and suspects may not be knowingly disregarding their own best interests. What may be happening, instead, is that police officers are providing warnings in a tone of voice that downplays their alarming nature, so the suspect does not experience the warnings as a compelling reason not to answer questions. Most of us tend to believe we can explain our perspective more effectively than anyone else, so it is not surprising that a suspect would choose voluntarily to answer questions about his circumstances when Miranda warnings do not feel important.
Here is an analogy that might clarify the nature of the problem. Assume that you are driving down the street in the middle of the day, and a child suddenly leaps out in front of your car. At that moment, you would almost certainly slam on your brakes and otherwise try to avoid hitting the child. You would do that because your brain's alarm system kicks into full gear when you see a child in the road, and you are able to act immediately on what you see. Imagine, however, that your alarm system has been turned down or off. In that case, seeing the child in the road would have no more emotional salience than seeing some fallen leaves on the road. Your brain would take in the information, but it would not set in motion the cascade of nervous system activity that places the information at the top of the priority list, higher than keeping in mind your destination, for example, or figuring out what movie to see this weekend. Without a functioning alarm system, you might not hit the brakes until it is too late.
In this sense, the pharmaceutical company and police interrogators manage to bypass the alarm system, much like an intruder who knows the alarm code. If this accurately describes what happens to consumers and suspects, then it seems inaccurate to say that they have been truly "warned" about the side effects of their chosen course of conduct, even if the words are all there.
My own intuition about a solution to the problem is that if we are to have pharmaceutical advertising and police interrogation, it might be useful to provide a neutral party to convey warning information rather than leaving it to the person or institution that is invested in the listener's ignoring the warning. Perhaps we could require that prior to interrogation, a suspect must hear about their rights (and the downsides of waiving them) from volunteers. Like volunteers at the hospital who tell people about the "patients' bill of rights," Miranda volunteers would not have to be highly trained but would simply learn the warnings and their meaning and understand her job to be to prevent vulnerable people from paying inadequate attention to that information. A volunteer's warning about a drug might, for example, look like these:
We might worry that such warnings hijack our neural processes in a different way, but "unclean hands" should prevent a pharmaceutical company from complaining too much when their own manipulative advertising is corrected with an emotionally disturbing rendition of side effects. And perhaps photographs of miserable people who have lost all their money at casinos might be posted on the doors.