By Dr. Ken Broda Bahm:
As the potential jurors file into the courtroom, religious signs are often evident: crosses, headscarves, yarmulkes, T-shirts, religious books. Even without those explicit advertisements, religious views can often be inferred based on demographics, demeanor, or the venue’s statistics. Those religious beliefs can become an overt issue in voir dire in capital cases where members of the venire can count on being asked about their faith’s view on the death penalty. Religious views can also matter when churches or other faith-based organizations are parties, or when beliefs prevent potential jurors from taking an oath or sitting in judgment of another. But in the more typical case, do those religious views play a role? Our first impulse might be to say “Yes,” thinking that the highly religious are also more likely to be deeply moral or ethical. For example, knowing that Juror #18 is the church organist might lead us to believe that she is more likely in a contract case to focus on fairness and altruism rather than on the bottom line. So close is the connection between religion and ethics that there is a deep moral suspicion (Gervais, 2014) of people who are not religious.
But that assumption doesn’t square with research: The religious don’t seem to be more likely to be particularly moral, any more than the irreligious appear to be especially immoral. A recent study (Decety et al., 2015) found that, when measured by sharing behavior, children brought up in religious households were significantly less altruistic than children brought up in nonreligious households. The study looked at 5- to 12-year-olds in 6 countries (USA, Canada, China, Jordan, Turkey, and South Africa), and included 1,170 Christian, Muslim, and nonreligious families. The study found that the negative relationship between religiosity and altruism was similar across countries and grew stronger as the children grew older. That runs counter to the perception of the religious parents in the study who believed that their children were more empathetic and sensitive to the plight of others. As you might suspect, those parents also aren’t necessarily more moral than their nonreligious peers. Another study (Hofmann et al., 2014) asked 1,252 adults in the U.S. and Canada to use an app to record good and bad deeds witnessed, learned about, and performed throughout the day, and the conclusion was that the religious and nonreligious performed similar numbers of moral acts. That result applied to both sides of the political spectrum, and the only difference seemed to be that the religious were more proud when they did perform moral acts, and more ashamed when they didn’t.
Why would religion not increase morality, or in the case of the study on children, actually reduce moral behavior? The lead author of that study, University of Chicago professor Jean Decety, refers to the concept of “moral licensing,” or the idea that a belief in one’s own virtue can serve as a disinhibition toward selfishness. In other words, the person who perceives himself to be more moral than average might feel entitled to a little extra, a sentiment captured in the bumper sticker, “Christians aren’t perfect, just forgiven.” That same tendency can lead the highly religious to be more punitive, and that is also what Decety and company found: Those from religious households showed greater tendency to deliver harsher punishments for interpersonal harm in response to a number of accidental or purposeful injury scenarios.
What this research isn’t saying, and what I’m certainly not saying, is that religious people are immoral. Rather, the research provides an important reminder that when we talk about religiosity and morality, we are talking about two different variables. What this means for those assessing potential jurors in voir dire is this: Don’t make assumptions based on presumed religion. Instead, voir dire on the relevant moral attitudes.
Here are a few quick ideas for assessing the moral views of your potential juror.
Ask About Relevant Ethics and Morality
It seems obvious, but it is often omitted in voir dire: If you need to know, then ask. As I’ve written before, there is a well-known and largely universal set of moral principles that most people follow to varying degrees. Individuals will emphasize some principles more than others, and some moral issues will be more relevant to your case than others. So it is worth some thought. When assessing your case, ask yourself, “What moral or ethical principles would separate the hard-core pro-plaintiff from the hard-core pro-defense?” Once you’ve isolated those principles, find ways to ask about them in voir dire.
Ask in a Way Most Likely to Lead to an Honest Response
Because moral issues are likely to be close to individual identity and self-concept, it can be a challenge to find ways to ask that will yield an honest response. There is a strong pull toward “social desirability,” and if the question asked in open court seems to boil down to “Are you ethical?” then you can expect the answer to be “Yes!” from just about everyone, independent of their actual ethics. In most cases, a better way to ask will be through the use of a supplemental juror questionnaire that potential jurors fill out on their own. Not only does that format allow more detailed questions with greater nuance, it also has been shown to facilitate greater honesty.
Frame Moral Questions as Contrasts
Here’s another way to avoid telegraphing to jurors what the “right” answer is: Structure your moral question as a comparison. In a capital case voir dire, that might mean asking open-ended questions about the goals of retribution versus rehabilitation. Or in an employment case, that could mean asking what they think about equality in treatment versus equality in result. In each case, the goal is to get the panel talking in substantive terms without creating an expectation that one side is moral while the other side isn’t.
As always, the specific approach you take will depend on the moral issues that are most salient to your case. But just as attorneys are well-advised to avoid making assumptions about the attitudes that accompany race, age, or gender, they should also avoid making assumptions about the moral views that accompany religion.
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Other Posts on Morality:
- Find the “Universal Morality” in Your Case Story
- Adapt to Hair Trigger Moral Judgment
- Prime Your Jury for Moral Judgment
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Decety, J., Cowell, J.M., Lee, K., Mahasneh, R., Malcolm-Smith, S., Selcuk, B., & Zhou, X. (2015). The Negative Association between Religiousness and Children’s Altruism across the World. Current Biology, 2015; DOI: 10.1016/j.cub.2015.09.056
Hofmann, W., Wisneski, D. C., Brandt, M. J., & Skitka, L. J. (2014). Morality in everyday life. Science, 345(6202), 1340-1343.
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