By Dr. Ken Broda Bahm:
Consider for a moment what is going on in the minds of jurors. They’ve been asked to sit in judgment of the actions of another in a way that will have a direct and immediate effect on either the freedom or the fortunes of that party. It’s a setting that can disturb a juror’s comfort and disrupt a juror’s confidence. Where do they look in order to find strength and the sense of a foundation? They look to their upbringing, their values, their basic sense of right and wrong. They look to their ‘God-Thinking.’ As long as case judgments intersect with jurors’ worldviews, it won’t just be the law deciding cases. It will also be religion and morality as well.
A new book from Mathew Bender & Company and LexisNexis explores that reality. Written by Dr. SunWolf, the single-named former trial attorney and current litigation consultant and professor at Santa Clara University and School of Law, the book focuses on God-Thinking: Every Juror’s Moral Brain, Religious Beliefs, and the Effects on a Trial Verdict (2013). I read the book over the weekend and feel that it offers an original and valuable perspective. The author’s main messages are that the influences of religious and other morally-based thinking are very common, very powerful, and not very well understood by those who work within the law: attorneys, judges, consultants, and others. In this post, I’ll be reviewing Dr. SunWolf’s latest book by calling out three of the main takeaways that speak most directly to me.
A central premise of God-Thinking is that that a juror’s view of religion and morality create a landscape for that juror, and it is easier for the advocate to adapt to that landscape than to change it. In that way, the advocate is constrained. But, more broadly, a knowledge of the landscape can also expand opportunities by allowing the conscious advocate to implicitly travel on the same roads a juror uses for getting to “right” or “wrong.” Starting with that central focus, it is important to understand that this isn’t your typical book on trial skills. While SunWolf follows the highly-structured lawbook style (and fully reading the table of contents first will help you follow her chain of thought), she avoids the linear style of evidence, then implications, then recommendations often favored in legal sources.
The author’s approach often infuses discussions of demographics, social science, and neurobiology with a poetic style that could irritate a few, but I think more will find refreshing and unexpectedly illuminating. One example: “In the new field of neurotheology, neuroscience and philosophy meet, frolic, tease, and listen to one another.” To this, SunWolf adds a rich supply of evocative quotations ranging from John Milton to Ned Flanders (of The Simpsons). Rather than providing an authoritative ‘Final Answer,’ on any of these points, she offers an open-minded conversational style, frequently posing questions that are never answered within the text: many diverse threads with some left unconnected.
That means that there is a pretty wide variety of places that any reader could take this information. For me, three points hit home.
1. Take a Broad View
SunWolf does not stick to a compartmentalized view of religion as just a Sunday practice or as one demographic slice among many. Instead, the focus is on the girders underlying moral thinking: “Trials aim towards justice. So do religions. As a result, religion and justice are always intertwined in our thinking.” Beyond religion, the book covers a number of social science and neuroscience perspectives on practical morality that, while not dependent on religion, are often related to it. In a country where personal views are informed but not necessarily determined by one’s chosen or inherited faith, there is often a difference between what the church says and what a given follower will take from that message.
For that reason, it is important to broadly inquire into individual beliefs. “Every potential juror brings a personal moral compass to the courthouse,” SunWolf writes. “This right/wrong compass will guide not only how a juror may ultimately vote, but affects how that juror perceives, categorizes, attends to, and remembers the trial evidence.” The broad view is to consider, not just religious belief and practice, but also the juror’s broader moral foundations.
2. Recognize the Disconnect
SunWolf’s book proceeds from the view that “Lawyers, judges, and myriad consultants who need to understand jurors suffer from religious illiteracy, as well as a profound lack of information about the biology of moral thinking that everyone individually brings to the courtroom.” A quick review of the discussion, particularly Chapter 4 on the country’s religiosity and religious trends, should convince most advocates that the landscape is more complicated than we thought.
Add to that disconnect the fact that lawyers may be personally out of touch with their venue’s practice. Based on the observed tendency for greater education to be associated with a reduced chance of religious affiliation and belief, SunWolf points to her own data collection showing that trial attorneys tend to be largely in the “nonaffiliated” religious category, while the communities they speak to tend to be religiously affiliated at a very high level (83 percent nationally). So religion is one area where lawyers tend to be quite different as a class than the panels they are trying to persuade. That suggests a need for advocates to have a greater understanding of the beliefs and practices of those in their venue.
3. Use the Tools
Part III of God-Thinking leaves the philosophy and science discussion and focuses on practical trial tools the advocate can apply to learn more about their panels. The section provides a resource bank of voir dire questions, including a number of specific thematic categories (e.g., causation, credibility, compassion) so litigants can select those that are most relevant to their case. Not all will be applicable to all cases, nor acceptable to all judges, but reviewing and adapting these questions will be useful when preparing supplemental juror questionnaires or oral voir dire strategies with the goal of trying to discover how a fact finder’s religion or broader moral frame might intersect with their view of the case.
Prior to thinking about the issues in this book, I will admit that I thought juror religion mattered most when dealing with criminal and especially capital cases. At the media and appellate level, we hear the most about juries bringing religion into cases when it is someone quoting “an eye for an eye” during a death penalty deliberation. But that narrow view does not square with the extent to which a moral foundation infuses the entire act of deciding what is “good” in any given case. And SunWolf notes one other way we can see the courtroom as a moral arena:
Consider the remarkable similarities of a courtroom and a church: the bench as pulpit, the black robe as clerical garb, the jury box as choir box, instructions of law as commandments, a witness as saved or sinner, the defendant as penitent, the benches for the public as pews, the audience as worshippers, cross-examination as call-and-response, the opening and closing as preaching (homilies), the rituals (rising, sitting, oath-taking, designated seats), and the sacred objects.
It stands to reason that persuasion in a setting like that, and the mindsets of everyone there — judges, juries, and advocates — will be informed by whatever versions of morality and religion we each happen to carry. The better we understand and adapt to this reality, the more effective we will be.
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Other Book and Software Reviews:
- Leading Motives and Trailing Personal Stories: Lessons in Jeffrey Toobin’s “The Oath”
- Give Your Witness a Good Foundation: A Review of “The Perfect Witness” Online Training
- Don’t Select Your Jury Based on Demographics: A Skeptical Look at JuryQuest
- Tap Into Computer-Aided Jury Selection: A Video Review of Jury Box Software
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SunWolf (2013). God-Thinking: Every Juror’s Moral Brain, Religious Beliefs, and the Effects on a Trial Verdict. Mathew Bender & Company.
Note, this is an unsolicited review based on the purchased book. Persuasive Litigator does not accept consideration for book or product reviews.
Photo Credit: Sebastian Bergmann, Flickr Creative Commons