By Dr. Ken Broda Bahm:
If the release of the Senate Intelligence Committee’s report on the CIA’s detention and interrogation methods following the September 11th attacks wasn’t depressing enough, the follow-up polling is sure to put an exclamation point on it: Americans, by a nearly two-to-one margin, support torture. Based on the belief that, despite the report’s conclusions, such methods “produced valuable intelligence,” it appears to be a case of the Machiavellian principle of the (perceived) ends justifying the means. Setting aside the robust evidence indicating that “harsh interrogation” does not work, or at least does not work as well as other methods, the public’s reaction illustrates a conflict between two main ways of deciding whether something is good or bad. You can base ethics deontologically on whether certain rules, principles, or duties were followed, regardless of the outcome. Or you can base ethics consequentially on whether the result produced a greater good for a greater number. A jury trial can be a setting for applied morality, as jurors are inevitably infusing their interpretation of what the law requires with their interpretation of what’s right. For that reason, it is often important for litigators to think about ways to encourage a particular frame of moral reasoning.
For example, I faced that kind of challenge in a recent case. The plaintiffs had been enrolled in medical trials that arguably produced a benefit to thousands of others, but in the process, they had been involuntarily exposed to risks that the researchers knew about but did not disclose. On its face, it was tempting for the plaintiffs’ lawyers to think, “Well, the benefits don’t matter, the researchers broke the rules.” But early mock trials suggested that jurors would have a hard time faulting the defendants when their work seems to have benefited so many. The challenge for the plaintiffs, then, was similar to the challenge for those arguing against torture: How do you encourage people to resist the pull of a consequentialist mindset? After briefly sketching out these two ethical views, this post will share some advice for those times when you need to tip your jurors in a moral direction.
The tug of war between principles and consequences marks a basic divide in ethics and philosophy. Civil and criminal cases, however, present a mix of both. The criminal setting involves a deontological breach of a basic principle (the crime), but also often includes a consequential focus on “victim impact” at the sentencing stage. A civil case frequently contains the same mix involving, for instance, a deonological lapse (a breach or failure to take reasonable care) along with a consequential result (causation and damages to another). Jurors are naturally going to look at both consequences and principles, and the law expects them to. Still, depending on how the case is presented and framed, they might place more emphasis on one framework or the other.
The Consequentialist Juror, for example, would look at outcomes even on questions like breach or negligence that are not supposed to be based on consequences. Instead of looking at the specific contract terms, for example, this juror might be tempted to focus on whether the parties had acted to their mutual benefit.
The Deontological Juror, on the other hand, would gravitate toward principles above all, even on questions that should be consequential. In looking at a doctor viewed as having breached the standard of care, for example, this juror would be reluctant to let the doctor off on a causation weakness. Liability alone would be a sufficient reason for placing responsibility.
Nudging Your Jurors Away from Consequences
In some settings and on some issues, litigators want to focus on consequences. But for those moments when you, like the critics of American torture, want to nudge away from a purely utilitarian mindset, here are a few ideas.
Change the Persona
As I’ve written before, jurors can be strongly motivated by their “temporary identity” as an impartial fact finder, and hold this persona to be somewhat distinct from their own normal evaluations. They can see themselves as “just enforcing the rules,” rather than determining the outcome. A sports referee on a critical call, for example, isn’t deciding who the better team is or who should win the game, they’re just deciding whether that ball was in- or out-of-bounds. While the death penalty may be an example of setting aside both principles and consequences, there is a parallel in jurors’ decision making. Jurors who would be personally reluctant to put someone to death can nonetheless be okay with just deciding whether the prosecutor has met his burden or not. If the state succeeds in making the case just about that principle, then the broader consequence is deemphasized.
Reinforce the Relevance
Jurors often appreciate knowing what isn’t on the table for them to decide, and what falls outside the bounds of relevance. Letting them know that the the consequences in a commercial case are important from a business perspective but not a legal perspective, for example, gives them permission to make their own job easier by setting those concerns aside. In a criminal case, it may be even more clear to reinforce to jurors that it is the legislature that has the job of deciding what the law ought to do, and it is the jury that has the job of just deciding whether the law was broken or not.
Apply the Certainty Heuristic
The bane of the consequentialist ethics is that consequences are murky and not always known at the time a decision is made. The same applies in law. The “certainty heuristic” is the rule of thumb telling jurors that it is better to go with what they know rather than what they don’t know. They know, for example, that the manufacturer short-cut the design, the contractor missed the deadline, and the employer failed to follow its own policy. The overall effects of those failures might be harder to determine, but a focus on the certainty of the failure itself can help jurors be confident about their decisions.
Appeal to Broader Consequences
If all else fails in trying to get your decision makers to favor a deontological over a consequentialist mindset, you can always return to the consequentialist frame and just try to broaden it. In the case I mentioned in the introduction, for example, the medical researchers may have actually learned something worthwhile in the study. But the Tuskeegee experimenters and — I’ll say it — the Nazis may have as well. And if we allowed the principle of not involuntarily harming research participants to be set aside, then one consequence is that all manner of horrors will follow and won’t be outweighed by a few good outcomes.
That same reasoning should apply to the question of torture by the U.S. government: Even if it did result in high-quality actionable intelligence, there are some lines that should not be crossed by a civilized country. Still, it is noteworthy that the Senate Intelligence Committee, in an apparent concession to the fact that this argument is not enough, laboriously reviewed each of the top 20 examples in which the CIA claimed that the techniques led to intelligence. In every case, the committee concluded, the asserted beneficial consequence simply was not there.
______
Other Posts on Ethical Worldviews:
- Account for Entitlement and Greed
- Don’t Advocate from a Position of Hate
- Avoid Condescension and Other Sins of Legal Argument: Know Your ‘Second Persona’
______
Photo Credit: Robert Scarth, Flickr Creative Commons