Surangama Sutra once uttered that things are not what they appear to be, nor are they otherwise. These words personify the motivation behind a myriad of techniques available for the trial lawyer. Some of these techniques are grounded in peer-reviewed research while others are derived from years of successful trial experience. No matter the genesis and promulgation of those techniques, the consistent underlying motivation centers on predicting the unpredictable. Attempting to identify and control for all of the possible internal (psychological) factors that influence a juror and jury is virtually impossible. This is why many consultants turn towards pop psychology and other factors like demographics to predict jury behavior. Those techniques are inconsistent at best. There are, though, some findings from peer reviewed research that are giving us a window into predicting jury behavior.
Some years back we were tasked by one of our clients to devise a method for identifying certain jurors with specific behavioral archetypes. We decided to look solely at a juror’s moral reasoning patterns during voir dire. We ended up with a particular juror that normally would appear, through demographics, as a very poor choice. I can only assume that opposing counsel did not seek to remove this juror because of their demographics, yet the moral reasoning patterns of this particular juror was an exact match to the issues in that case. The juror was not the foreperson, yet was a driving force behind how the jury formed as a group and was instrumental in guiding that jury to giving us a favorable verdict. So even though things may never really be the way we perceive them as Sutra wisely informs us we can still abide by the words of Phaedrus:
“Things are not always what they seem; the first appearance deceives many; the intelligence of a few perceives what has been carefully hidden”.
Litigare does not take the stance that jurors are actively hiding information. Jurors, in general, are good people who when tasked with one of the greatest responsibilities we have as citizens act accordingly. So what we believe is hidden is a juror’s moral reasoning patterns. How a juror reasons morally lets us know if and how the drama of the story will play out for that juror and how they will behave once deliberations begin.
A sound body of research has explored, in and out of the court room, moral reasoning. As the number of research studies has increased over the decades certain patterns begin to emerge. One pattern which has been documented in both civil and criminal juries is principled moral reasoning (PMR). In 1998, Rottenberg, Hewlett, and Siegward examined principled moral reasoning as a predictor of jury verdicts and foreperson election. Their findings were published in the journal of “Basic and Applied Social Psychology”. Rottenberg, et al. posited that individuals who were identified with high principled moral reasoning had the greatest influence on jury deliberations and verdicts. Unlike others, we do not promote that one type of technique is predictive for all trials. Just like in life, we must be flexible and utilize varying techniques for varying situations. In general, though, the discovery and retention of high PMR jurors is helpful.
Rottenberg et al. (1998) replicated previous research which indicated that individuals with high PMR guide the jury to particular conclusions that fit within their belief patterns. These belief patterns include the following:
· Laws are a social contract between individuals and society
· High PMRs believe in justice, equality, respect, and dignity
· High PMRs believe it is a personal responsibility to uphold and guide others to adhere to these values
Individuals who practice higher levels of principled moral reasoning when examining legal issues understand that sometimes their beliefs are in conflict with existing laws. So what does that mean? When a high PMR is confronted with laws they perceive are unjust and promote inequality they fight for justice and push for a jury’s adherence to the social contract even if it conflicts with existing laws. If the laws promote the social contract and are designed to ensure justice and restore a person’s dignity then high PMR’s will push for adherence to the letter of the law. Principled moral reasoning levels correspond to stage 5 and 6 of Kohlberg’s stages of moral reasoning. These two stages are the highest levels of human moral development according to Kohlberg.
Rottenberg et al. (1998) reported using a sample size of 226 participants. Out of the 226 a useable sample of 171 subjects remained. The authors reported that the reduction of participants occurred because a portion of the research subjects failed to follow research protocols during the study. Keeping those who did not follow the research protocols would render the study invalid and unreliable. The 171 remaining subjects participated in mock trails that were recreations of actual trials. The research respondents underwent a series of psychological evaluations, and for our purposes the most salient of these was the DIT or Defining Issues Test, which has been peer reviewed and shown to be a valid and reliable measure. The DIT was used to determine the research participants’ stage of moral reasoning. The research respondents represented varying stages of moral reasoning from low to high (high meaning stage 5 and 6 of Kohlberg’s theory).
Rottenberg et al. (1998) reported that mock jurors identified certain members of their group who were leaders and guiders. These individuals identified for the jury the moral and ethical issues embedded within the evidence. In each case, the leaders and guiders of each jury were those who scored the highest on the DIT; they were the high PMRs. An interesting outcome from the research findings was that the jury verdicts matched the desired outcomes from the higher PMRs. This can be explained in two ways:
(a) the higher principled moral reasoner has a greater ability to identify violations of the social contract or
(b) that higher principled moral reasoners have such a strong influence over the jury that they are able to sway the jury towards their views.
A question that emerges from this latter finding is how is this possible. The researchers reported a commonality that indicated how high principled moral reasoners presented their views to the jury. The non and/or low PMR jurors reported that the high PMRs presented legally relevant thoughts and opinions in a manner of edification and advisement to the group. High PMRs were more behaviorally dominant yet not authoritarian. Lastly, in the majority of juries the high PMR was the foreperson. In group dynamics there is a notion that one person becomes the ‘heart’ of the group. This person is not necessarily the leader; this role guides group formation and norm creation based upon the social contract. The person who is the ‘heart’ of the group offers advice, suggestions, instructs, and sometimes commands. These are the same traits that the research subjects identified as the traits of high PMR jurors. The research findings indicated that the high PMR’s communication style influenced the jurors to a particular verdict. In other words, high PMRs did not dominate or intimidate; they offered comments, suggestions, instructions on how to debate, and advice. The style in which the high PMRs presented their views encouraged and empowered the other jurors during deliberation; empowerment is a very potent persuasion technique. As we discussed in an earlier journal article, empowerment is a key technique for increasing your persuasive power.
For Your Trial:
1. Identify your high PMRs with specifically designed questions;
2. The questions used to identify all levels of moral reasoning can help to polarize the jury;
3. Use elements from the DIT to formulate your questions. We recommend using a consultant who has a terminal degree (Ph.D.) in psychology with training and experience as a researcher. Incorporating elements from assessments means alterations to the assessment; this can affect the reliability of the questions. A trained researcher will have the experience to preserve the reliability and tailor the questions to your case theme.
4. Utilize a consultant who is an expert on Kohlberg’s stages of moral development (this expert must be versed in the strengths and weakness of this theory and Kohlberg’s research).
5. High PMR’s affect civil and criminal juries equally.
Sutra’s guidance on the incompleteness of our perceptions is a valuable lesson to keep in mind. Rottenberg et al. (1998) echo’s Sutra when they remind us that even with the powerful effects of high PMR’s on a jury there are other factors that may influence jury verdicts like race, gender, and socioeconomic characteristics related to the parties. Other factors not mentioned by Rottenberg et al. include how the jury perceives expert and lay witnesses, strength of evidence, and preexisting assumptions about the legal system.
The aforementioned factors and Sutra’s words of advice are very clear reasons why evidence-based and peer reviewed psychological research into features like PMR are essential to trail strategy.