Oklahoma Bar Journal
Authoritarian Jurors and How to Spot Them
By Rachel Farrar
Litigants in both civil and criminal trials have a constitutional right to an impartial jury. Voir dire is one of the few, and most critical, procedures we have to protect that right.1 The attorney’s goal during voir dire is to identify each prospective juror’s individual experiences, attitudes, beliefs2 and biases.3 It is critical to identify a juror who may be biased against your client before that juror has the chance to side with your adversary.
One of the biggest challenges in voir dire is uncovering prospective jurors’ world views4 and hidden biases.5 This is no small feat. Often times, people aren’t even aware of the biases they harbor.6There is also the problem of prospective jurors who are aware of their biases but conceal or minimize them during voir dire.
Prospective jurors know that one of the most critical tenets of our justice system is that jurors hearing a case must be fair and impartial. There can be immense “social/legal desirability” pressure7 for prospective jurors to give what they know, or believe to be, the “right” answer to questions they are asked during voir dire.8 Admitting to being unable or unwilling to be fair and impartial would feel wrong.9 A 2014 research study on juror bias concealment during voir dire found that people were over 250 percent more likely to admit to being biased when asked in an informal survey than they were during voir dire after actually being called for jury duty.10 In other words, when we need their honesty most, we are least likely to get it.
It is understandable, though. It is “human tendency on the part of jurors to want to portray themselves in the best possible light. This ‘social desirability bias’ serves as a standing encouragement for jurors to answer all questions with what they take to be the ‘right’ or ‘good’ answer. The courtroom itself, with its many trappings of official power and formality, can heighten for jurors a preference for an answer that they believe will satisfy the judge and the attorneys over an answer that honestly conveys a bias.”11 When prospective jurors do inform the attorneys and judge during voir dire of biases they hold, they generally cave to the subsequent pressure to say they can set the bias aside and be fair.12 Even if a prospective juror truly believes13 he or she can set aside his or her existing biases and worldviews, neuroscience has shown this to be nearly impossible to actually do.14 An assurance to set biases aside should not be reassuring.15
Instinctively knowing this to be true, many trial attorneys have developed theories and strategies for attempting to identify juror biases and worldview predict how each prospective juror will likely vote. Attorneys frequently form these theories around their own beliefs about a multitude of demographics: age, race, sex, occupation, income level, education. The assumption attorneys typically rely upon is that these characteristics will likely define or shape the prospective juror’s worldview, and thus how they will view the client in a certain predictable way. Some attorneys rely merely upon their gut feelings about prospective jurors based on their observations of the jurors’ mannerisms and body language. Regardless of the approach, the goal is the same: uncover the prospective jurors’ biases and worldviews and determine if they will benefit
or disadvantage the client to predict how the prospective juror is likely to vote. Unfortunately, studies have shown that attorneys are “not particularly good at predicting individual jurors’ decisions.”16
Psychologists, jury consultants and other social and legal experts have done a lot of research attempting to determine which, if any, individual juror traits are most likely to predict how that juror will vote at the end of the trial. Repeatedly, results of these studies have shown that the personality trait of authoritarianism frequently and consistently predicts juror verdict preferences in a broad range of case types17 more so than any other trait, characteristic or demographic.18
CHARACTERISTICS OF AUTHORITARIANS
Authoritarianism is a personality trait which people can be high in, low in or fall somewhere in the middle.19 As a personality trait, it has been shown to be remarkably stable.20 A longitudinal study on monozygotic and dizygotic twins showed that a person’s level of authoritarianism is influenced more by their genes than by their life experiences.21 Authoritarianism is not a political affiliation or limited to only people who identify as either conservative or liberal. Authoritarians can be found across the political spectrum.22
People who are highly authoritarian typically hold traditional values23 (such as family values, personal accomplishments, family and national security and conservative religious organization),24conform with conventional societal norms25 and idealize an orderly and powerful society.26Because of this, they typically identify with mainstream society,27 submit to authority,28 faithfully follow leaders they perceive to be strong29 and expect everyone else to do the same.30 Authority figures and strong leaders are not limited only to military, law enforcement or elected officials, but can also include anyone who is perceived to have a sense of authority or power: CEOs, doctors, teachers, religious leaders and other people or even companies that are generally regarded as well-respected and being of high status.31
Conformity, predictability and control within a community bring authoritarians a sense of safety.32They are frequently uncomfortable with social change (such as feminism, LGBTQ rights, immigration, etc.) because such change defies and disrupts the currently accepted social norms which make them feel safe. They view outsiders and people who challenge social structure as being the cause of all problems, believing that if they could just be shut down or removed that everything could go back to being fine. Many authoritarians believe their religious beliefs should guide our laws and morals; but not all authoritarians are necessarily religious.
For authoritarians, people are either one of “us” (in-group) or one of “them” (out-group).33Authoritarians view people who deviate from, question or defy authority figures or societal norms and rules (members of an out-group) as a threat to their sense of safety and respond to them with hostility and/or aggression.34 Minority groups are generally assumed to be deviating from or defying societal rules and will be seen as members of an out-group. For example, a transgender person is deviating from societal norms, and thus will not be in the in-group. A practicing Muslim may be seen as nonconforming to social norms and, therefore, not accepted as part of the in-group. A person receiving government assistance could be seen as violating the traditional value of pulling oneself up by the bootstraps to achieve the American dream. Authoritarians prioritize and demand conformity with social norms, comply with the demands of authority figures and try to force such conformity and compliance onto all who fail to fall in line. One psychological framework on authoritarianism categorizes each of these tendencies as falling into one of three facets of authoritarianism: authoritarian aggression, authoritarian submission and conventionalism.35
HIGHLY AUTHORITARIAN JURORS IN CIVIL TRIALS
In civil cases, highly authoritarian jurors tend to initially identify the higher status party as being more respectable and conforming with the ideals and values of mainstream society, and thus view them as a member of their in-group.36 Highly authoritarian jurors tend to be initially skeptical and cynical of underdog plaintiffs who bring lawsuits against individuals or organizations that are more powerful, making them often hesitant to find the higher status party to be at fault and reluctant to give large awards.37 The “reptile”38 approach used by some plaintiff attorneys works to change this first impression by showing it is the high status party who has violated the societal norms and rules, which could play to an authoritarian juror’s need for a sense of predictability and safety within the community and their reflexive instinct to punish those who threaten it.39
For highly authoritarian jurors, the character of the parties and witnesses can influence their decision just as much or even more than the evidence presented to them.40 Since their decisions are often based on feelings, authoritarian jurors are prone to black-and-white, all-or-nothing thinking and can struggle to see the shades of gray necessary
to determine comparable or shared fault.41
HIGHLY AUTHORITARIAN JURORS IN CRIMINAL TRIALS
In criminal cases, authoritarian jurors typically favor the prosecution, seeing the prosecutor, the police officers and medical examiners as respectable authority figures and members of their in-group.42 Highly authoritarian jurors have even been shown to have better recall of the prosecutor’s arguments and evidence and the testimony of the prosecutor’s witnesses than of the defendant’s.43Defendants in a criminal case are typically seen as members of the out-group.44 Authoritarian jurors are prone to convict defendants and give harsh sentences.45 One study found that highly authoritarian jurors were more likely to vote to convict even when the researchers had intentionally slanted the evidence to point toward innocence.46 Another study found that a jury panel made up entirely of highly authoritarian jurors recommended prison sentences more than twice as long.47
There is, however, an exception to these tendencies when the defendant is an authority figure, someone of high status or is some other well-respected member of mainstream society who the highly authoritarian juror identifies as being a member of the in-group.48 In these situations, the highly authoritarian juror may favor the defense over the prosecution.49
Researchers have developed a psychological instrument called the Revised Legal Attitudes Questionnaire-23 (RLAQ-23),50 an instrument with 23 likert-scale (generally, but not always, a scale of 1-7 wherein participants rate how strongly a statement does or does not describe them) questions designed specifically to measure authoritarian attitudes and beliefs about our legal system.51 This fine-tuned measure of authoritarianism, referred to as “legal authoritarianism,”52predicts how a juror will vote more reliably than “traditional authoritarianism,” but only slightly more reliably.53
However, a 23-question-long written assessment with scales that must be individually scored and interpreted is of little use to an attorney standing in front of a group of prospective jurors trying to make evaluations on the fly. Fortunately for attorneys, psychologists aren’t the only professionals who have been assessing people for authoritarianism. Political scientists have been informally assessing people’s levels of authoritarianism since 1992 with a short and sweet four-question, either-or test that doesn’t push participants’ patience nor comfort levels.54 The test is simple:
When it comes to raising children, is it more important to have a child who is:
- Respectful or independent?
- Obedient or self-reliant?
- Well-behaved or considerate?
- Well-mannered or curious?
Selecting the first option on all four questions suggests the respondent is highly authoritarian. Because the topic of child-rearing is seemingly innocuous55 and each of the four questions includes a choice between two subjectively positive traits, there is little to no legal/social desirability pressure to give the “right” answer. As such, prospective jurors are more likely to give their honest opinion, increasing the likelihood of getting genuine responses that accurately reflect their values from which inferences can be drawn about their more general worldviews.
Highly authoritarian persons can be either beneficial or detrimental to have as jurors, depending on who the client is. If the client is a member of an “out-group,” it may be prudent to find and promptly deselect the prospective jurors who are highly authoritarian.56 Conversely, if the client fits squarely into their “in-group,” highly authoritarian jurors may be beneficial.
It goes without saying that keeping or eliminating highly authoritarian jurors is no guarantee of a favorable verdict. Juror authoritarianism is only one of many factors that should be considered when making choices during jury selection. It is critical to consider the overall makeup up of the jury panel. If there is another juror on the panel who authoritarians will likely see as influential or an authority figure, authoritarian jurors are likely to go along with the ideas that authority figure expresses57 and could be persuaded by them to change their vote.58 Nonetheless, juror authoritarianism is an important trait to assess for and consider during jury selection.
ABOUT THE AUTHOR
Rachel Farrar is an attorney with Farrar & Farrar PC in Tulsa. She has a diverse practice with a primary emphasis on criminal defense and family law. Prior to attending the TU College of Law, she studied and worked in the fields of mental health and social work.
1. Warger v. Schauers, 135 S.Ct. 521 (2014).
2. Susan Macpherson, “Why Do We Ask Jurors to Promise That They Will Do the Impossible?” The Jury Expert (Feb. 17, 2014),www.thejuryexpert.com/2014/02/why-do-we-ask-jurors-to-promise-that-they-will-do-the-impossible. (“If the juror perceives a prior experience, attitude, or belief as relevant, research demonstrates it will have some influence on the juror’s decision making by being part of the schema used to evaluate the evidence. Note that the juror’s perception of relevance is the only test that matters here.”).
3. Mykol C. Hamilton, Emily Lindon, Madeline Pitt and Emily K. Robins, “The Ubiquitous Practice of ‘Prehabilitation’ Leads Prospective Jurors to Conceal Their Biases,” The Jury Expert (Sept. 9, 2014), www.thejuryexpert.com/2014/08/the-ubiquitous-practice-of-prehabilitation-leads-prospective-jurors-to-conceal-their-biases.
4. Ken Broda-Bahm, “Getting Beyond ‘Can You Be Fair?’: Framing Your Cause Questions,” The Jury Expert (Aug. 15, 2013),www.thejuryexpert.com/2013/08/getting-beyond-can-you-be-fair-framing-your-cause-questions, (“The most pernicious juror biases are worldviews: frameworks that jurors will use to understand facts, reconstruct stories, and interpret testimony and other evidence.”).
5. Mykol C. Hamilton and Kate Zephyrhawke, “More Techniques for Uncovering Juror Bias Before It’s Too Late,” The Jury Expert(Jan. 31, 2017, www.thejuryexpert.com/2016/12/more-techniques-for-uncovering-juror-bias-before-its-too-late/, (“[T]he biggest problem – the real problem – is hidden bias. By design, human beings make rapid judgments about other people upon first sight; among them are trustworthiness and likeability. These judgments quickly transform into ‘gut feelings’, which lead people to unconsciously filter new information in a way that confirms their original, and often erroneous, impression. These processes come into play regardless of good intentions to be fair and open-minded.”).
6. Hamilton, “Practice,” supra, (“Most people are unaware of how much their attitudes affect their behavior in general, due perhaps to the introspection bias and the bias blind spot…”).
7. Hamilton, “Practice,” supra, (“[T]he voir dire process commonly places social/legal desirability pressure on prospective jurors through judges’ introductions and questions and through attorney questioning. With insufficient regard for accuracy, attorneys and judges exert pressure on prospective jurors to declare, even before they have revealed any bias, that they can be impartial, set aside pretrial information, and follow the law by presuming innocence. Given how clearly and repeatedly judges and attorneys communicate their expectations, it is not surprising that prospective jurors rarely admit bias.”).
8. Hamilton, “Practice,” supra, (“They say the juror faces ‘a judge perched high on a bench…; an armed deputy standing guard over the proceedings; a court reporter taking down every spoken word; a room full of lawyers dressed in suits; and all eyes focused on the jury box.’ How could such a setting not push a prospective juror toward the ‘right’ answers, toward trying to appear intelligent and responsible…?’”).
9. Hamilton, “Practice,” supra, (“To express such doubts is to say, essentially, ‘No, I can’t follow the law. I don’t believe in the American justice system. I’m not willing to set aside my prejudices. I’m a bad citizen. In fact, I’m a rotten person.’”).
10. Hamilton, “Practice,” supra, (“However strong the social/legal desirability pressure might be in a survey, we predicted that the pressure in voir dire would be measurably greater. Confirming the hypothesis, more than two-and-a-half times the proportion of COV survey respondents (57%) as venirepersons (22%) admitted that they believed Hall was guilty.”).
11. Broda-Bahm, “Framing,” supra.
12. Hamilton, “Practice,” supra.
13. Hamilton, “Practice,” supra, (“We are notoriously bad at preventing our biases from influencing us. Furthermore, we strongly but erroneously believe that we can control our biases, thus we are likely to tell judges and attorneys that we can be fair and open-minded even if we cannot…People are disturbingly unsuccessful at setting aside bias (assuming they are aware of their bias in the first place). Unconscious processes such as confirmatory information searching, belief perseverance, the backfire effect, cognitive dissonance, and plain old poor recall may all contribute to this lack of self-understanding.”).
14. Macpherson, supra, (“More recent neuroscience research dramatically illustrates how outside stimuli trigger immediate reactions in the brain and offer further proof that a request to ‘set aside’ a relevant experience, attitude or belief is asking jurors to do the impossible. Jurors simply cannot flip a switch and shut off the influence of their own life experiences or well-established attitudes and beliefs.”).
15. Broda-Bahm, “Framing,” supra, (“Yes, the juror has made a verbal commitment to try to set aside bias. But no, there is no reason to believe that the juror has in the process recovered from their bias…The average juror will tend to agree with you, to say they will follow the judge’s instructions, and promise to be fair to everyone in the courtroom, while still maintaining a biased worldview.”).
16. Caroline Crocker Otis, Sarah M. Greathouse, Julia Bussa Kennard and Margaret Bull Kovera, “Hypothesis testing in attorney-Conducted voir dire,” 38 Law and Human Behavior 392 (2014).
17. Margaret B. Kovera, “Voir dire and Jury Selection: Personality Traits as Predictors of Verdict,” Forensic Psychology 639-640 (2d ed. 2013).
18. Gayle Herde, “Take Me To Your Leader: An Examination of Authoritarianism as an Indicator of Juror Bias,” The Jury Expert(March 25, 2011), www.thejuryexpert.com/2009/01/take-me-to-your-leader-an-examination-of-authoritarianism-as-an-indicator-of-juror-bias.
19. Philip Dunwoody and Friederich Funke, “The Aggression-Submission-Conventionalism Scale: Testing a new three factor measure of authoritarianism,” 4 Journal of Social and Political Psychology 571, (2016).
20. Authoritarianism is not one of the “Big Five” personality dimensions (Openness to Experience, Conscientiousness, Extraversion, Agreeableness, and Neuroticism), but it correlates with “Big Five” scores which are both low in Openness to Experience and high in Conscientiousness. See Kovera, supra.
21. Steven G. Ludeke and Robert F. Krueger, “Authoritarian as a Personality Trait: Evidence From a Longitudinal Behavior Genetic Study,” 55 Personality and Individual Differences 480, (2015).
22. Matthew MacWilliams, “The One Weird Trait That Predicts Whether You’re a Trump Supporter,” Politico Magazine (Jan. 17, 2016), www.politico.com/magazine/story/2016/01/donald-trump-2016-authoritarian-213533.
23. Kovera, supra.
24. Herde, supra.
25. “How Does Jurors’ Authoritarianism Affect Criminal Verdicts?” Online Jury Research Update (November 2008),www.kkcomcon.com/OJRU/ROJR1108-4.htm.
26. Herde, supra.
27. Herde, supra.
28. Herde, supra.
29. MacWilliams, supra.
30. Online Jury Research Update, supra.
31. Ken Broda-Bahm, “Look Out for the Authoritarian Personality,” Persuasive Litigator (January 2016),www.persuasivelitigator.com/2016/01/look-out-for-the-authoritarian-personality.html.
32. Ludeke, supra.
33. Herde, supra.
34. Herde, supra.
35. Dunwoody, supra, (“According to Altemeyer , authoritarian aggression is intentional harm [physical or psychological] toward another person [or group] if the aggressor believes that ‘proper authority approves of it or that it will help preserve such authority’. Authoritarian submission is ‘a general acceptance of the statements and actions [of those in authority] and a general willingness to comply with their instructions without further inducement.’ Conventionalism is ‘a strong acceptance of and commitment to the traditional norms in one’s society.’”).
36. Broda-Bahm (2016).
37. Broda-Bahm (2016).
38. David Ball and Don C. Keenan, Reptile: The 2009 Manual of the Plaintiffs Revolution, (2009).
39. Broda-Bahm, “Personality,” supra.
40. Herde, supra.
41. Broda-Bahm, “Personality,” supra.
42. Herde, supra.
43. Online Jury Research Update, supra.
44. Herde, supra.
45. Kovera, supra.
46. Herde, supra, (“[A] study of authoritarianism in the legal setting concluded that persons prone to convict, even when the evidence was deliberately slanted toward innocence, scored higher in authoritarianism than persons who acquitted, confirming previous studies showing that high authoritarians tend to be punitive. Authoritarian jurors are more likely to convict in criminal trials and are more severe in their punishments.”).
47. Dennis J. Devine, Laura D. Clayton, Benjamin B. Dunford, Rasmy Seying and Jennifer Pryce, “Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups,” 7 Psychology, Public Policy, and Law 622, (2001), (“[J]uries composed entirely of high-authoritarian jurors recommended prison sentences over twice as long.”).
48. Online Jury Research Update, supra.
49. Online Jury Research Update, supra, (“Authoritarian jurors are less punitive in cases in which the defendant was an authority figure (e.g., a police officer) or when a defendant committed an obedience-oriented crime (e.g., such as a Marine following a superior officer’s order or someone who committed murder while disciplining a disobedient son)…In sum, authoritarian jurors are generally more prosecution-oriented. However, when the defendant is similar to the juror, of high status or is acting in obedience to authority, authoritarians generally lean more toward the defense.”).
50. Jennifer L. Skeem and Stephen L. Golding, “Describing Jurors Personal Conceptions of Insanity and Their Relationship to Case Judgments,” 7 Psychology, Public Policy, and Law 561, (2001).
51. The Revised Legal Attitudes Questionnaire-23 (RLAQ-23) is an assessment which asks respondents to rate how much they agree or disagree with 23 statements regarding attitudes and beliefs surrounding the effectiveness of our legal system. See, David A. Kravitz, Brian L. Cutler and Brock Petra, “Reliability and Validity of the Original and Revised Legal Attitudes Questionnaire,” 17 Law and Human Behavior 661, (1993).
52. Herde, supra, (“The following are a few of the statements from the Revised Legal Attitude Questionnaire, which, when jurors are in agreement, have been found to effectively identify persons high in legal authoritarianism: Too many obviously guilty persons escape punishment because of legal technicalities; The law coddles criminals to the detriment of society; and, Upstanding citizens have nothing to fear from the police.”).
53. Devine, supra, (“Narby [et al] conducted a meta-analysis of studies that measured juror verdict preferences and two forms of authoritarianism: traditional and legal. They found that both forms of authoritarianism were reliably but modestly associated with juror verdict preferences across 20 studies, with legal authoritarianism a somewhat better predictor than traditional authoritarianism.”).
54. MacWilliams, supra.
55. Child development experts have studied authoritarianism as it relates to parents and parenting. Upon comparison, it is easy to see the commonalities between the descriptions of highly authoritarian jurors and the descriptions of highly authoritarian parents. For example, see: Nancy Darling, “Authoritative vs. Authoritarian Parenting Style,” Psychology Today (Sept. 18, 2014),www.psychologytoday.com/blog/thinking-about-kids/201409/authoritative-vs-authoritarian-parenting-style/, (“Authoritarian parents believe that children are, by nature, strong-willed and self-indulgent. They value obedience to higher authority as a virtue unto itself. Authoritarian parents see their primary job to be bending the will of the child to that of authority – the parent, the church, the teacher. Willfulness is seen to be the root of unhappiness, bad behavior, and sin. Thus a loving parent is one who tries to break the will of the child…Authoritarian parents… exert control through power and coercion. They have power because they exert their will over their children.”).
56. Herde, supra, (“If your client belongs to an ‘out-group’ [e.g., racial or ethnic minority; sexual orientation; ‘adult’ industry or other questionable employment], especially if it is relevant to the trial, you want to locate and eliminate the high authoritarians.”).
57. Herde, supra, (“High authoritarians are likely to acquiesce to the perceived attitudes in the jury room [of]…others who have superior knowledge of and/or experience relating to the subject, no matter how tangential.”).
58. Devine, supra, (“[A]uthoritarian jurors are more susceptible to group conformity pressure as well as influence of authority figures…[H]igh-authoritarian jurors were more likely to change their verdict preferences during deliberations.”).
Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 13 (May 2018)