Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
The U.S. midterm elections are now in the rearview mirror, with the ballots counted and the races — most of them at least — settled. But with a mixed result, it is no surprise that we’re hearing complaints from both sides about possible corruption, with liberals focusing on online misinformation, purged voter rolls, and problems with technology at some majority-black polling locations, and conservatives focusing on illegal voting and the amount of “Hollywood money” pouring into races from out of state. The truth will vary in each of these cases, but the tendency to suspect corruption and to look for ways the game is rigged is a human tendency. It is a tendency to distrust power, and to suspect that “the system” is secretly or not-so-secretly working against you.
This skepticism toward the institutions of political power can apply in court as well. Some see the heavy doors, the wood paneling, the raised dais for the judge, and the flag and they’re pulled into a reverence for the history and romance of trial by jury. Others, however, will just see another arm of a powerful system that works for those in power. That can influence the ways they view the parties, the way they understand and assess the trial stories, and the ways they view the process itself. The subject of popular perceptions of corruption turns out to be a very well-researched one. In this post, I will take a look at a portion of that research and highlight some of the ways that a belief that the game is rigged might matter in litigation.
What causes large groups of citizens to believe that their country is corrupt? Researchers (Birdsall, Kenny & Diofasi, 2018) recently conducted a comparison of 117 countries and found that what generally drives perceptions is that country’s wealth or gross domestic product. The higher the GDP, the lower the perception of corruption. An exception to that, however, seems to be the U.S. The economy appears to be doing generally well, yet at the same time the researchers report that 76 percent of the U.S. public believes their political parties are corrupt, and that is essentially the same level of distrust you would see in Romania, Ghana, Pakistan and the Democratic Republic of the Congo. Generally, however, the connection to perceived well-being makes sense, even at an individual level. If you have more power within the system, then your tendency to believe in the justice of the system is likely to be greater.
It should go without saying that when it comes to driving attitudes, it isn’t the reality of corruption that matters, it is the appearance of corruption. And appearances can be very persuasive. One study (Robertson et al., 2016), for example, used trial simulations in a bribery context to show that jurors connect a perceived quid pro quo to many common behaviors, suggesting that the public is a bit ahead of the Supreme Court in their campaign finance decisions that have most recently ruled out only the most overt selling of favors. “If appearances of quid pro quo corruption run rampant,” the authors conclude, “then the Supreme Court’s three-decade project of dismantling prophylactic reforms has failed, under its own criteria for evaluation.”
Following an election in which a record number of women ran for and won seats in the U.S. Congress, we might wonder what the shifting gender composition has to say about perceived corruption. According to a recent study (Barnes & Beaulieu, 2018), people believe that women, and female politicians in particular, are less likely than men to be corrupt and to use a public position for private gain. Interestingly, the reasoning is not that women are seen as inherently more moral or ethical. Instead, the researchers showed that women are perceived to be marginalized within the institutions of power, and as a result, they are believed to be more constrained by the checks on abuse from these same institutions.
Collective Responsibility Matters
One interesting perspective on perceptions of corruption comes from the consulting organization, DOAR, in one of their recent “Sidebar” videos. In the short and easily-watchable clip, Roy Futterman shares the view that a perception of greater levels of corruption can mean that any given individual charged with corruption is less likely to be held responsible or convicted. The reason for that is that if corruption is seen as common, and characteristic of some large and amorphous “system,” then individuals are viewed as just cogs in a larger machine. The more corruption is seen as an aggregate phenomenon, the less individual responsibility matters.
Juror perception of a corrupt system will matter in some cases more than others. Obviously, if the parties to a case include institutions we already suspect — banks, energy companies, the government — or if the case narrative involves plots, hidden information, or deception, then corruption will be a more salient theme, and jurors attitudes about corruption will matter more. When it matters, explore it in voir dire.
In those situations, there is one scale we’ve come across that may be useful. The “Respect for Law” scale is an old one (Rundquist & Sletto, 1936) that measures attitudes about whether the trial process itself is corrupt or not. It includes agree/disagree questions based on statements like the following:
- Court decisions are almost always just
- On the whole, judges are honest
- Almost any result can be obtained in the courts if one has enough money
- The law protects property more than it protects human rights
These questions and versions of them could be adapted to oral voir dire or a supplemental juror questionnaire in order to assess the corruption-related attitudes that are likely to matter most in your case.
Other Posts on Perceived Corruption:
- Corporate Corruption: Expect Sensitized Jurors
- Don’t Corrupt Your Credibility
- Anticipate Antigovernment Attitudes
Barnes, T. D., & Beaulieu, E. (2018). Women Politicians, Institutions, and Perceptions of Corruption. Comparative Political Studies, 0010414018774355.
Birdsall, N., Kenny, C., & Diofasi, A. (2018). What Drives Citizen Perceptions of Government Corruption? National Income, Petty Bribe Payments and the Unknown. In Institutions, Governance and the Control of Corruption (pp. 285-334). Palgrave Macmillan, Cham.
Robertson, C., Winkelman, D. A., Bergstrand, K., & Modzelewski, D. (2016). The Appearance and the Reality of Quid Pro Quo Corruption: An Empirical Investigation. Journal of Legal Analysis, 8(2), 375-438.
Rundquist, E. A., & Sletto, R. F. (1936). Personality in the depression; a study in the measurement of attitudes. Bronson Press (March 15, 2007)
Image credit: 123rf.com, used under license, edited.