Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

Divided

President Trump is doing great, keeping all his promises, even as he is beset with interference from dishonest investigations. He is also failing horribly, embracing  national callousness and international isolation while scandals drag his administration into chaos. Either can be treated as absolute truth, depending on who you’re talking to. The sides of the political spectrum have never been more divided, and polling backs it up: Conservatives and liberals are worlds apart. These sharpening distinctions create a situation where political leaning is one of the more salient things to know about a potential juror. It isn’t just the attitudes about specific policies that separate liberals and conservatives that matter. Rather, it is a difference in worldview. Conservatives and liberals can have markedly different foundational attitudes about the nature of community and the implications of individual responsibility. That frequently translates into different case-relevant attitudes. In criminal cases and some civil cases, the tendency for conservatives to be more punitive, for example, is well known. Those on the right are more likely to ascribe behavior to individual choice rather than to outside factors, and are more likely to support extreme punishments and verdicts that would potentially “send a message.” 

New research (Silver & Silver, 2017), however, shows that this relationship between political leaning and punitiveness might be a spurious correlation. The article, whose title asks the question, “Why Are Conservatives More Punitive Than Liberals?” suggests that it isn’t that political leaning causes the punitiveness that impacts your case, rather there is a third factor influencing both punitiveness and political leaning. That third factor is your preferred style of moral reasoning. In a study of 2,489 participants, controlling for other factors influencing punitiveness (like sex, race, ethnicity, and education), the authors found that support for greater punitiveness stems from participants’ moral foundations, and not from the associated political leaning. “The strong empirical relationship typically observed between conservatism and punitiveness,” they write, “may reflect individuals’ moral orientations rather than a causal relationship.” In this post, I’ll take a look at these results which have some practical implications for both jury selection and trial advocacy. 

What Makes a Juror More Punitive? 

Looking beyond their voter-registration cards, it comes down to their moral foundations, or specifically, five broad types of foundations. The construction comes from the work of Jonathan Haidt, the NYU professor and one of the developers of the “moral foundations theory,” that I have written about before. It turns out that within these five moral foundations, there is a split, with some being more group-oriented or “binding” values, and others being more individual-oriented or “distinguishing” values. It is the first group of values that sets the stage for greater punitiveness. 

Group-Oriented Moral Concerns: Greater Punitiveness

There are three moral foundations on the group-oriented side: 

Authority/Respect: Valuing obedience, deference to authority, and following rules. 

Ingroup/Loyalty: Valuing support for one’s own group more than others, and showing faithfulness to that group. 

Purity/Sanctity: Valuing standards of what is pure or sacred, reducing feelings of contamination and disgust. 

Individual-Oriented Moral Concerns: Less Punitiveness

The remaining two foundations are on the individual side of the ledger: 

Harm/Care: Valuing kindness and the protection of the vulnerable. 

Fairness/Reciprocity: Valuing equal treatment and justice. 

What Haidt and his colleagues have demonstrated is that the bulk of our moral thinking can be reduced to versions of these five values. Of course, nearly everyone values all five to varying degrees. But it is in the varying degrees that the interesting differences are seen. Conservatives tend to place greater emphasis on the group-oriented values while liberals will tend to place greater emphasis on the individual-oriented values. And when push comes to shove, or when one value trades off against another, we tend to break the tie in favor of the values most consistent with our preferences. 

Thinking in terms of these five foundations and two groups of foundations has some implications for both jury selection and trial advocacy. 

Selection: Are You Targeting the Right Risks? 

In jury selection, a good rule of thumb is to target attitudes as directly as you’re able to. In other words, if it turns out that blue collar workers are moderately more likely to harbor anti-corporate attitudes (they are), you wouldn’t just strike blue collar workers, because despite the averages, there will still be blue collar workers who support corporations. Instead of striking with a broad brush, your preference should not be to rely on the imperfect proxy but to instead just ask them what they think about corporations.

Instead of focusing on whether liberals or conservatives are going to be good for your case, it is generally best to ask about the more direct attitudes. If punitiveness is the value that is most relevant to greater risk in your case, for example, ask about that. Beyond the intuitive questions (Do you think that typical punishments for crimes are too severe, not severe enough, or just right?) there are validated questionnaires that focus on that attitude. If, on the other hand, you want to look directly at the moral foundations that might impact your case, the validated questionnaires used to determine which moral foundations we emphasize are also publicly available

Advocacy: Do You Have a ‘Multi-Foundational’ Appeal? 

In the likely event that jury selection doesn’t remove every risky juror, you will need to adapt to some who won’t be ideal for your case. In addition, there is also the reality that any given person can be reached on more than just one level. So the implication is to use many styles of argument, and keeping in mind the five different moral foundations is one way to do that.

A prosecutor, for example, can try to tap into group-oriented moral attitudes by framing the crime as a breach of the community’s rules and order (authority), as an act against his fellow citizens (loyalty) and a part of an epidemic threatening to contaminate the community (purity), while also tapping into individual-oriented moral attitudes by emphasizing the damage done to the victim (care) as well as the fact that the victim did nothing to deserve this (fairness). 

Similarly, a products liability plaintiff could focus on the manufacturer’s effort to skirt regulations (authority), failure to provide support and instruction to its customers (loyalty), or the errors that were allowed to infect its quality control process (purity), while also focusing on the individual-oriented moral attitudes of injuries caused by the product (care) and the fact that the company is profiting from its reduced standards (fairness). 

Of course, these aren’t push-button appeals, and the complete argument will always be more complex. However, keeping these five foundations in mind and recognizing their root as either community-based or individualistic can help to serve as a kind of check on whether you are making your case broad enough to appeal to all moral types. 

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Other Posts on Political Differences: 

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Silver, J. R., & Silver, E. (2017). Why Are Conservatives More Punitive Than Liberals? A Moral Foundations Approach. Law and Human Behavior 41:3.  http://dx.doi.org/10.1037/lhb0000232

Image credit: Johnny Silvercloud, Flickr Creative Commons