Is Trump Changing How Juries Think?
For years, attorneys have questioned jurors about their political affiliation and tried to intuit how that affiliation would color their view of the case at hand. But political preference alone has never been a good indicator of juror leanings. Despite the persistent belief that a jurors’ political party must be a strong verdict predictor, no research has borne out that belief. Instead, studies have always shown jurors to be much more defined by their long-standing attitudes and experiences than by their party affiliation. But are times changing in that regard? Has the current political climate created a shift in juror thinking?
In some ways, the answer to those questions is “yes.” Although juror value systems and life experiences remain the best predictors of their verdict decisions, jurors aren’t making those decisions in a vacuum. Because verdict decisions are made within a group, we must pay special attention to factors that groups will be especially sensitive to or find particularly divisive—and currently, there are few topics more divisive and pervasive than President Trump. If you go to any news story that is not about President Trump—hip implants, the opioid epidemic, the #MeToo movement, or even the birth of Kim and Kanye’s new baby—and look in the comments section, you will find explicit references to President Trump, sometimes in the first few comments, with others joining in on either side in a loud and uncivil chorus.
As a result of the political polarity in our country and the constant inundation of political accusations, President Trump has come to represent certain things to certain people—supporting or denouncing him is shorthand for a person’s political identity. That kind of shorthand is very accessible to jurors as schemas or heuristics when processing information. And because politics are currently such a hot topic, they may be the first thing that will come to many jurors’ minds as they generate examples or analogies. Once politics enter the discussion, it is easy for jurors to fall back on their political prisms, divide along those lines and become entrenched in that thinking. This not only prevents them from processing and analyzing the case as they normally would, but it makes juror behavior more unpredictable and jury selection much more difficult.
So how do we deal with the fact that while political beliefs don’t inform jurors’ decisions on the case, they are notions that jurors are so heavily invested in right now that they control where their alliances fall and therefore, potentially affect case outcomes? Below are some recommendations:
-Don’t make any political references regardless of how harmless they may seem.
-Be wary of any juror who spontaneously mentions Trump or politics in jury selection in response to non-political questions.
-Research whether the case has aspects that draw political comparisons and see how those comparisons affect deliberations.
-Appeal to jurors’ fundamental—not political—beliefs and focus on how the opposing side’s behavior violated those beliefs. This will encourage jurors to make decisions based on their sense of justice—not based on political allegiances.
While political affiliation was previously an ineffective shortcut used by attorneys to categorize jurors, it has now become a minefield that must be trod with great care. As the country has become more divided along political lines, those topics have the power to derail almost any discussion. Because deliberations involve a group of diverse and unfamiliar people, they are particularly susceptible to this phenomenon—and we must take deliberate steps to keep those discussions on track.
_____________________
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.
