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(formerly the Persuasive Litigator blog)

Ask Your Potential Jurors: Do You Believe in the Legal Process?

By Dr. Ken Broda Bahm:

 

We live in a hierarchical society, and the courtroom replicates (some would say, entrenches) some of those hierarchies. The law is written in an opaque manner that only the educated can understand, the bar physically separates the attorneys and the players from everyone else, and the judge is literally lifted up above everyone else. And part of that hierarchy is an implicit message: “You should listen to some sources and some information over others because of its status.” The judge has a title, the attorney has a law degree, the expert witness has a Ph.D., so trust them.

But do jurors follow that authority? To some degree, certainly. The courtroom is still a place that inspires awe and obedience. But one feature of modern life has been a weakening of these kinds of institutional bonds. In what’s been dubbed the ‘Alt-Fact’ era, it feels more common that individuals will chose their own information, premises, and opinions, believing things not because the ‘proper authorities’ say so, but believing them because their ideology and their reference groups point them in that direction. In some cases, it may be critical to learn about potential jurors’ attitudes on the authority of the trial process, including their attitudes toward law, attorneys, witnesses, and the oath. In criminal cases, prosecutors will generally want the rule-followers while the defense prefers those at least potentially willing to stretch the parameters of that box. In civil cases, it is more of a case-by-case assessment of which side is going to emphasize the law and the proper process and which side is going to emphasize fairness and equity. In this post, I’ll share some quesitons for potential jurors on those themes.

Our intrepid research assistant, Katerina Oberdieck, recently came across a very old set of questions called the “Respect for Law Scale” (Rundquist & Sletto, 1936). The questions get at the issue of whether a respondent feels that the system is rigged or is a method of getting to truth. Each of the questions on the theme below are paired with binary agree-disagree response options, but it is easy so see how they could be used with a broader set of responses (e.g., “strongly agree” to “strongly disagree”), could be converted to open-ended options, or could be modernized (e.g., “lower income individuals” rather than “poor man”), but here is the set of questions.

The Courts

  1. Court decisions are almost always just
  2. In the courts, a poor man will receive as fair treatment as a millionaire
  3. Almost anything can be fixed up in the courts if you have enough money
  4. A man should tell the truth in court regardless of the consequences
  5. A person is justified in giving false testimony to protect a friend on trial

Legal Functionaries

  1. Juries seldom understand a case well enough to make a really just decision
  2. The sentences of judges in courts are determined by their prejudices
  3. On the whole, judges are honest
  4. On the whole, lawyers are honest
  5. On the whole, policemen are honest

Legal Compliance

  1. Violators of the law are nearly always detected and punished
  2. It is all right for a person to break the law if he doesn’t get caught
  3. It is all right to evade the law if you do not actually violate it
  4. A person who reports minor law violations is only a troublemaker
  5. All laws should be strictly obeyed simply because they are laws
  6. A person should obey only those laws that seem reasonable
  7. A man should obey the laws no matter how much they interfere with his personal ambitions
  8. Personal circumstances should never be considered an excuse for lawbreaking
  9. It is difficult to break the law and keep one’s self-respect
  10. A hungry man has a right to steal

Functions of the Law

  1. The law protects property rights at the expense of human rights
  2. Laws are so often made for the benefit of small selfish groups that a man cannot respect the law (agree)

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Other Posts on Attitudes About Law: 

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Image credit: 123rf.com, used under license

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Hope you enjoyed the post. I’ve been blogging on legal communication, psychology, and advocacy for more than a decade, earlier under the banner of “Persuasive Litigator,” and now at “Your Trial Message,” and have been recognized by the ABA Journal’s Blawg Hall of Fame and as a Lexology Top Influencer. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current area of litigation, or a question about your own case, contact me now.