Getting Jurors to Reveal Taboo Truths
A recent NY Times article examined the fact that Donald Trump polls better in online polls than in polls conducted with a live interviewer, most likely because embarrassment is preventing people from openly sharing their real opinions and preferences. Embarrassment about opinions that are generally perceived as socially undesirable, even taboo, is not confined to politics. We all know from experience that trials often involve some facets that jurors are reluctant to discuss openly and honestly in open court (or even in a written questionnaire). So what do you do when your case includes topics—racism, gender biases—that you know will influence how jurors perceive the case, but that jurors will not cop to in jury selection? Are you stuck with simply guessing which jurors you believe and which you don’t?
Thankfully, no. When confronted with identifying socially undesirable attitudes, it is tempting to default to familiar strategies: asking the question repeatedly in slightly different formats, imploring jurors to be honest in spite of their embarrassment, or instructing jurors that those attitudes are improper considerations when deciding the case. Unfortunately, jurors don’t decide which of their attitudes influence their decisions, nor do they have the ability to ignore specific attitudes when making those decisions.
However, most taboo attitudes co-exist with more socially acceptable attitudes, so identifying and questioning jurors about those attitudes allows them to reveal their biases without stigma or embarrassment. In cases where useful information is unlikely to be discovered using a direct path (“Do you have negative feelings about people of other races?”), there are indirect paths that can lead you to the same endpoint (“Have you ever experience reverse discrimination?” or “Do you believe that minorities are given special treatment that adversely affects you?”).
The key to a successful jury selection in such cases is identifying the indirect paths that are most closely related to the target belief system, and are therefore, predictive of that belief system. This requires an in-depth analysis of the interplay between juror beliefs and attitudes, which can be done relatively quickly and inexpensively using online surveys. Online surveys also provide the anonymity required to coax participants into revealing taboo beliefs—because in jury research, just as in jury selection, people reveal the most when they think they are revealing the least. And that is something we would encourage you to capitalize on.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.
