Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
“Entitlement” is the belief that one is deserving of privileges and special treatment. We’ve heard of entitled children, entitled Millennials, entitled wealthy, entitled college students, entitled new employees, entitled partners…. What about entitled jurors? Might there be some in the deliberation room who feel that they deserve to chart their own course, to take the legal instructions as guidelines and not rules, and perhaps to set aside the facts and the law to push for a nullifying verdict? Recent research suggests that there may be.
Social science researchers from Cornell University and Harvard University (Zitek & Jordan, 2017) looked at individuals with higher levels of entitlement and found that this attitude predicted a refusal to follow instructions. After first measuring entitlement and then looking at performance on a word-search task, the researchers found that it was actually quite hard to get the highly entitled participants to follow the rules. As described in a ScienceDaily release, they looked for factors that would reduce entitlement and get people to follow instructions, and found that not even punishment worked. “We thought that everyone would follow instructions when we told people that they would definitely get punished for not doing so,” Cornell’s Emily Zitek explained, “but entitled individuals still were less likely to follow instructions than less entitled individuals,” said Zitek. In this post, I’ll take a quick look on what this might mean for jurors in following or not following instructions.
It’s Not Just About Ability to Follow Instructions
In jury selection and during the instructions phase, the biggest emphasis is on the jurors’ and potential jurors’ ability to understand and follow the instructions. Perhaps the tacit assumption is that, as long as the law is clear enough, the jurors will follow it. But ability is just one part of the equation. Motivation matters as much, and potentially to a greater degree. Ultimately, do the jurors want to understand and adhere to the instructions? From my experience talking with jurors after trials, I think the answer is, “Generally, yes.” But not always. For some jurors, this research reminds us, their own personal code is going to be more important.
The Fairness of the Instruction Matters Too
One of the factors in determining whether jurors are going to let their own code take the lead over the law is going to be their perception of the fairness of the law. Perceived fairness was particularly important in the study results. Emily Zitek noted that the threat of punishment did not work: “Entitled people do not follow instructions because they would rather take a loss themselves than agree to something unfair.” So it has to seem fair. But this is where the practicality runs up against the judge’s attitude, which is often that it shouldn’t matter whether the law seems “fair” or not, because the law is the law. That may be enough for the judge to espouse from the bench or to use in deciding cause challenges, but for the counsel, it probably isn’t enough. If your side is the one depending on a correct understanding and application of the instructions, then it helps to make sure the jurors understand why the law is the law. For example, if jurors are expected to ignore the actions of a third party in assessing liability, then if you can, let them know why the law forces that focus: “It helps keep the system efficient to go with one case at a time, and in this case, we only have one defendant, so that is the only contribution you are looking at.”
And Leadership Is Tricky
In the voir dire setting, considering leadership is always tricky. This research adds another layer as well. Because leaders are more likely to be entitled (e.g., de Cremer, van disk & Rinders Folmer, 2009), they’re also less likely to follow instructions. So that strong and confident juror on your panel might also have a greater willingness to follow their own path instead of the law’s path to a decision. Given that attorneys probably won’t have enough strikes to target all leaders, that factor makes it more important to consider the leadership dimension alongside the factors that suggest higher risk to your party. When a potential juror has leadership traits (that is, when they’re verbal, confident, perhaps a teacher or someone who plays a leadership role at work, or have prior jury experience or subject-matter expertise), then it is all the more important to carefully look at any of their attitudes and experience to ensure that they aren’t going to be a high-risk candidate for you.
Other Posts on Nullification and Instructions:
- Treat Nullification as a Known Option
- Expect a Majority of Your Jurors to Commit Online Misconduct
- Address Fundamental Skepticism on Rule of Law
Zitek, E. M., & Jordan, A. H. (2017). Psychological Entitlement Predicts Failure to Follow Instructions. Social Psychological and Personality Science, 1948550617729885.
Image credit: 123rf.com, used under license