I’ve started reading the quarterly magazine of the American Society of Trial Consultants, The Jury Expert. It’s right up Defending People readers’ alley; it’s even subtitled “The Art and Science of Litigation Advocacy. I downloaded a stack of issues to carry in my bag for quiet times; there are several treasures in each volume. If you don’t try cases, you don’t need to read The Jury Expert.
In the most recent issue, for example, there’s an article by San Francisco litigation consultant Alison K. Bennett (no relation) about “Just World Jurors”:
The Belief in a Just World theory has proven to be a valid construct offering many useful applications for litigation strategy and jury selection. This article discusses how this theory can be applied to jurors, who can be beneficial or detrimental to a case depending on the strength of their BJW orientation and the motivation they have for maintaining those beliefs.
Just World Jurors are jurors who perceive the world as a fundamentally just and fair place. Bennett describes several variations of belief in a just world (BJW): BJW-Self (the world is fair to me but might be unfair to others) and BJW-Others (the world is fair to everyone); general belief in a just world, belief in ultimate justice (justice will ultimately prevail), belief in immanent justice (we get what we deserve and deserve what we get), and belief in an unjust world.
It appears that Bennett is herself in the last category:
“Belief in an unjust world” describes a category of people who do not view the world as a just, orderly, predictable or safe place to live. These are the people who believe “life happens,” demonstrating a strong external locus of control. This means they believe in the randomness of fate and do not define events as being inherently just or unjust. Interestingly, people in this category scored high on measures of anxiety, anger, depression, neuroticism, and displayed defensive coping mechanisms with a tendency to focus on negative events. They also exhibited lower levels of hope and optimism (Lench and Chang, 2007). Jurors in this category may not hold victims accountable for the outcome, but they may also project their negative emotions on the party with which they identify least, even if it is the victim.
As a believer in ultimate justice, belief in an unjust word doesn’t sound like much fun. It also doesn’t sound like the best survival strategy. But to each her own.
The article is written for those seeking restorative justice for victims, and Bennett seems unfamiliar with the criminal justice system (criminal jurors who believe in ultimate justice are “More likely to correct an injustice in a positive way by punishing the defendant”) but the article is equally applicable to criminal cases, at least those in which there is a complainant.
Research has identified the following individual characteristics of people with a strong BJW:
- Authoritarianism (e.g., Altemeyer, 1988)
- Conservatism (e.g., Skitka et al., 2002), including being more likely to admire political leaders and existing social institutions
- Endorsement of the Protestant work ethic (e.g., McDonald, 1972)
- Internal locus of control (e.g., Carroll et al., 1987), or the belief that people are responsible for the outcomes of their lives
- They reported fewer acts of personal discrimination against themselves (Lipkus and Siegler, 1993)
- They possessed a strong focus on long-term investments and a strong desire to obtain goals through socially acceptable means (Hafer 2000)
- They exhibited less anger and showed higher levels of self esteem (Daubert 2002)
Authoritarianism and conservatism are the kind of traits that a criminal-defense lawyer might look for when unchoosing a jury. (On the other hand, though, Bennett says that men with a strong BJW are more negative toward rape victims.) So (and recognizing that these traits may not apply to some categories of BJW jurors — for example, belief in ultimate justice jurors like me) how do we identify the BJW jurors?
Bennett briefly describes I.M. Lipkus’s Global Belief in a Just World Scale (GBJWS), getting people’s scaled answers to eight questions:
1. I feel that the world treats me fairly.
2. I feel that I get what I deserve.
3. I feel that people treat me fairly in life.
4. I feel that I earn the rewards and punishments I get.
5. I feel that people treat me with the respect I deserve.
6. I feel that I get what I am entitled to have.
7. I feel that my efforts are noticed and rewarded.
8. I feel that when I meet with misfortune, I have brought it upon myself.
Some of these might be useful scaled questions in jury deselection — possibly even better (and subtler) than the “circumstances beyond my control” scaled question that I proposed here and have used several times in trial.
In the even bigger picture, The Jury Expert is a scavenger’s delight; it opens the door to a world of possibilities for applying the social sciences to criminal defense trial lawyering.