By Dr. Ken Broda Bahm:
A jury’s job is to judge the facts in a dispute in as neutral a fashion as possible. We expect them to give a party a fair hearing whether the party is just like them or completely dissimilar. The elderly conservative should be able to evaluate the dreadlocked artist as easily as a cash-strapped student evaluates the wealthy banker. The premise is that, under our system, we are able to look past personal differences and just focus on the facts. But is that true, or do individual differences create barriers to fair and equal justice? Both psychology and common sense would lean toward the latter. At the same time, however, there is new evidence of a shift: We are becoming more tolerant over time. According to a new analysis of opinions across the past four decades (Twenge, Carter & Campbell, 2015), “Americans have become increasingly tolerant of controversial out-groups,” reflecting what appears to be a long-term generational change.
The move toward greater acceptance of group differences is encouraging, both now and for the future. Still, it is important to note that the ideal of a happy melting pot (or even a comfortable mosaic) is not yet a reality. While the gaps in tolerance may be decreasing, the gaps in empathy are remaining, or even widening. In other words, we might respect your right to be who you are… but we still don’t understand or approve of it. The study authors also note that greater tolerance shows a negative correlation with empathy. The trade-off may not be as counterintuitive as it seems. A trend toward greater levels of individualism, the authors claim, is responsible for both an increase in tolerance as well as a reduction in empathy. In this post, I will look at what these trends might mean for the challenge of legal persuasion across the gulf of group differences.
The Study: Intolerance Crumbles, but Empathy Remains Elusive
The research team was led by San Diego State University professor Jean Twenge, best known for her Generation Me writings on the narcissism of the Millennial generation. The current study draws upon the massive General Social Survey database, including 35,048 respondents spanning the years 1972 to 2012. Looking at the responses from that group on a number of social tolerance questions, the team found that in more recent years, respondents are more likely to agree that a number of out-groups — communists, militarists, atheists, antireligionists, homosexuals, and racial supremacists — are more likely to be viewed as having a legitimate right to participate in society in a variety of ways: giving a public speech, teaching at a college, or having a book at the local library. Looking at the differences among these groups, the authors note that homosexuals have gained the most in terms of tolerance, while racists have gained the least.
As might be expected, the increased tolerance for this variety of groups is most pronounced among those with higher levels of education, although it is increasing at the fastest rate among those lacking a college degree. But the more important correlation noted by the authors is with individualism. The U.S. has become more individualistic over time, meaning that society, typically starting with younger generations, moves toward a rejection of traditional social rules surrounding gender, religion, race, and sex. “When old social rules disappear,” lead author Jean Twenge told Science Daily, “people have more freedom to live their lives as they want to, and Americans are increasingly tolerant of those choices.”
These greater levels of individualism translate to greater levels of tolerance, but interestingly, also to lower levels of empathy. Twenge explains, “Tolerance and empathy are not the same thing. Millennials believe that everyone can live their lives as they want to — thus, they are tolerant — but that doesn’t always extend to taking someone else’s perspective or feeling empathy.”
Recommendation: Measure Attitudes With Greater Precision
I have written before (here and here) about the challenges in promoting greater feelings of empathy. For this post, though, I want to focus on a different takeaway from the study: The need to distinguish what might seem like closely-aligned aspects of an attitude. For example, there might be a temptation to say, “We want jurors who are like my client,” but there are more layers to it. I’d say that there are three important dimensions.
Drawing from a recent case, let’s say you are representing a client who is a strong antigovernment conservative, an avid gun collector who participates in the “militia” movement. And let’s say he is being tried in an urban, liberal venue with a high proportion of folks who might have a hard time giving someone like that a fair hearing. Let’s look at three layers we might want to include in a supplemental questionnaire or in oral voir dire.
Similarity
How similar is the potential juror to your client? Demographic similarity matters, since it is always a little easier to identify with someone who is like us. But what matters even more is the attitudinal or behavioral similarity. Good questions in the case of our right-wing client above would be as follows:
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- What do you think about the role and responsibilities of the federal government?
- Do you own a gun?
- At what point do you think Americans should be free to take their security into their own hands?
Tolerance
How tolerant is the potential juror toward your client’s views and lifestyle? Even without similarity, support matters as well. Questions to assess tolerance in this case might include:
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- Do you believe the law should allow groups that oppose the government to exist?
- Do you have close friends with whom you fundamentally disagree on politics?
- Should Americans have a personal right to own guns?
Empathy
To what extent is the potential juror able to understand and empathize with those who are like your client? Even with tolerance, there might still be barriers to comprehending or identifying with these choices and views. Questions addressing empathy in this case might include:
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- What reasons might someone have for joining an antigovernment group these days?
- What reasons might someone have for trusting themselves rather than the police for their own security?
- Do you have any close friends or family members who collect firearms?
These three provide at least a good starting point in peeling back the question of what potential jurors think about a given issue. The list can serve as a tool for broadening the search and generating some good questions for oral voir dire. It is also a reminder that attitudes are complex: It is not a matter of one layer or the other being the key, but a matter of looking at the whole picture.
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Other Posts on Tolerance and Empathy:
- Account for Ideological Intolerance
- Know the Limits of Political Empathy
- Don’t Mistake Sociability for Empathy
- Switch Between Analysis and Empathy (Because You Won’t Get Both at the Same Time)
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Twenge, J. M., Carter, N. T., & Campbell, W. K. (2015). Time Period, Generational, and Age Differences in Tolerance for Controversial Beliefs and Lifestyles in the United States, 1972-2012. Social Forces, sov050.
Image Credit: Paul O’Rear, Flickr Creative Commons