Be Relatively Cautious With Absolutist Jurors

By: Dr. Ken Broda Bahm –

When I heard that the world would be ending on May 21, 2011, I knew that I would be set either way: If the world didn’t end, I would have a good blog topic, and if it did, well then, no more worrying about blog topics. So, here we are, still unraptured, on Monday, May 23rd, and the jury-relevant lesson has to do with the extremes of human certainty, and the question of what litigators need to do with those who are absolutist in their thinking and prefer a “black and white” mindset.

One species of absolute certainty can be found in the beliefs of the evangelist Harold Camping and his followers who expected the earth’s end last Saturday, among them Robert Fitzpatrick, the Staten Island native who sank his life savings into billboard warning that the end is nigh. But another much more common species can be found in potential jurors who, even prior to trial, are certain of the appropriate verdict. A jury for the Casey Anthony trial has just been sworn in after ten days of selection, a delay caused in large part by the high number of potential jurors who felt sure that the Florida mother accused of killing her toddler is guilty. Based on discussion in the waiting room during voir dire, one dismissed potential juror noted, “They just said…in their opinion, she [Casey Anthony] was already guilty…everyone believes she killed her baby.” After that entire panel was, sensibly dismissed, one disappointed candidate even went so far as to note that she wished she could have been on the jury precisely because she was so sure of the defendant’s guilt, and Anthony “would have never got a fair shot at it” if her wish to be a juror had been fulfilled. While it is understandable the public could quite reasonably reach a presumption of guilt in the Anthony case based just on public information, when the venire’s mindset becomes hardened to the point that nothing could change their minds, it crosses the line from belief to dogma. To varying degrees, that is the type of certainty and absolutism that litigants need to watch out for during jury selection. Thankfully, there are a few ways to look for it.

Where does such certainty come from? How do people get to the point of believing in something so firmly that they’re willing to set aside independent judgement? One source can be found in a specific and well-studied dimension of personality. Since the period immediately following World War II, psychologists have written about the “authoritarian personality” as one that is dominated by a rules-oriented belief system, and a proclivity for following conventional values and strong leaders. The legal system has a parallel in the authoritarian juror. According to a recent study of this personality type (McFarland, 2010), those who fit the profile are quicker to exhibit prejudice and slower to get to empathy. In addition, though they may consider themselves more “moral” than counterparts, they are actually less equipped to engage in the kind of moral reasoning that comes with the task of evaluating a case. Because authoritarian jurors prefer clear, black and white certainty, there is less of a need to contend with ambiguity, perspective, and other areas of gray.

A mindset common enough that you’ll find at least a few in every pool, the authoritarian juror includes both the “Law & Order” types, beloved by prosecutors, and those who take a rigid approach in civil cases as well. Based on a comprehensive review of the research on authoritarian jurors contained in JuryWork, the Bible of our profession, there are several traits of authoritarian jurors that will influence the way they will see your case.

Authoritarian jurors are more likely to:

Give strong presumption to conventional beliefs
Adhere to a rigid, rules-oriented belief system
Fear new, unknown, or untried ideas
Focus more on punishment as a goal
Show hostility toward those in a perceived minority or deviant group
Give less support to civil liberties
Base decisions on the perceived similarity between themselves and a party (identifying with those who are similar, and distancing themselves from those who are different)
Convict in criminal cases, and apply the death penalty in capital cases
Place blame on a single-party, rather than apportioning blame in civil cases
Side with the party with the greater social prestige (e.g., an employer over an employee, a larger company over a smaller, etc.)
Rigorously follow jury instructions, even without personal agreement

In the title, I note that you should be relatively cautious with these jurors, because sometimes, of course, the absolutists can be on your side. But even when they are, authoritarian jurors will be less likely to engage jurors who disagree and less likely to persuade when they do engage. This is because persuasion itself requires a level of perspective taking that is less familiar to authoritarian personalities. So there is an important difference between those who will agree with you, but just state their piece and shut-up, and those who will engage others and try to persuade them to your side. The latter are more likely to be able to see shades of grey.

So how do you spot the authoritarian jurors? While there are some reliable demographic factors, like frequency of church attendance, in most cases you will need a way to discover their specific attitudes. If a survey is allowed, and if the judge is broad-minded in the kinds of questions allowed (that is, not authoritarian), then there are several questions that predict authoritarianism. Authoritarians are more likely to agree with the following:

Obedience and respect for authority are the most important virtues children should learn.
The police should not hesitate to use force to maintain order.
The right to private property is sacred.
If people work hard at their jobs, they will reap the full benefits of society.

In contrast, authoritarians will disagree with statements like, “The findings of science may someday show that many of our most cherished beliefs are wrong.” In addition, questions tailored to your case should also differentiate those prone to latch onto the clear rules-based answer, and those likely to give it greater mental work. It is also possible to observe jurors in court and note the deference shown to authority figures: usually including the judge and sometimes the prosecutor, but not other attorneys in the courtroom. Because authoritarians aim to please figures in authority, they will try hard to say what they think the judge wants to hear in voir dire.

Among all of the factors that play a role in jury selection, authoritarianism is one of the more important dimensions. For litigators, it makes sense to ask yourself a few questions: Which side benefits from rules-oriented conventional thinking, and which side asks people to think more creatively? Which side benefits from a black and white certainty, and which side is relying on jurors to see their way through shades of grey? While you won’t necessarily find absolutely convinced end-timers in your panel (especially not now), you will find some jurors who are primed to find or create a clear, simple, and certain answer to your case. For Casey Anthony, there is quite likely to be too many of those jurors. But in all cases, litigators should be asking what mental style from the jury pool is most likely to help or harm their case.

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McFarland, S. (2010). Authoritarianism, Social Dominance, and Other Roots of Generalized Prejudice Political Psychology, 31(3), 453-477 DOI: 10.1111/j.1467-9221.2010.00765.x

Photo Credit: nikkicookiebaker, Flickr Creative Commons

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Be Relatively Cautious With Absolutist Jurors

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