Updated: Feb 10
I was picking a jury with a client who had 12 co-defendants. My client told me that at the conclusion of voir dire he needed me to get all co-defendants on the same page when it came down to which potential jurors to strike. No pressure right? (since attorneys aren't really known for having strong opinions). Once voir dire ended and it came time to discuss our peremptory strikes, surprise..., not all the defendants were on the same page. One juror in particular became the point of some disagreement between me and counsel for one of the co-defendants. The attorney in question had assessed the juror's high intelligence as a reason to keep her – an understandable position. In his words, "She's smart, and I could teach anyone with half a brain why my client wasn't negligent." As a graduate student at an Ivy League university she was smart to be sure but I still wanted her struck.
So why would I want to strike a smart juror on a case that could benefit from smart jurors? One word: Ideology. What do I mean?
While the construct "ideology" has been described by researchers as “the most elusive concept in the whole of social science" (McLellan 1986), it's nevertheless useful to define the term as succinctly as possible for purposes of our discussion.
Ideologies function as prepackaged units of interpretation that spread because of basic human motives to understand the world, avoid existential threat, and maintain valued interpersonal relationships (Jost, Ledgerwood, and Hardin, 2008). And, Ideology implies a selective interpretation and understanding of the data that come to our senses in terms of a general emotional picture of how things should be rather than an objective and rational evaluation of the evidence (Walsh & Ellis, 2004). These descriptions outline important features of ideologies, e.g., fixed thinking and predetermined notions of how things are or ought to be. In other words, ideologies act as filters for incoming information and a lens through which people view the world. As such, it follows that two people of the same intelligence but different ideologies can arrive at wildly different conclusions and opinions when faced with the same set of facts.
Think about it. Have you ever wondered how someone you thought was smart could have possibly voted for a particular candidate? Or how someone could possibly hold a certain opinion or point of view in light of the available information? Or more specifically, how a jury could have possibly rendered a particular verdict in light of the facts? It's tempting to attribute these "wrong" decisions or opinions to a lack of intelligence, ignorance, bad motives, or downright stupidity. But that's a cop out. Ad hominem attacks on those who think differently than us serve a purpose (we feel morally or intellectually superior to them), but they ignore the reality. Smart people, good people, and moral people can arrive at divergent conclusions based on the same information. Human decision-making is much more complex than 1 + 1 = 2.
This is where ideology comes into play. If you ignore a person's ideology, you will be tempted to believe that person will interpret information the same way you do. Or you will believe he or she will evaluate the evidence more like a computer than a human being (e.g.,
Fact 1 + Fact 2 + Fact 3 = Correct Verdict). That isn't how human beings work. When you map ideology onto someone's intelligence, you get a clearer picture for how that person will use his or her intelligence to make decisions, evaluate information, and justify certain conclusions. This is because ideologies don't form as a result of a person's level of intelligence – they form and operate despite their level intelligence. In the context of a jury trial therefore, we see how one juror can adamantly support a plaintiff and another juror of the same intelligence on the same jury can adamantly support the defendant, even when presented the exact same information, at the exact same time, in the exact same forum. The process goes something like this: Fact 1 + Fact 2 + Fact 3 → Ideology + Confirmation Bias = "Right" Conclusion.
With all this in mind, let's go back to the story of the jury selection and the juror in question. In open court this prospective juror said she likes to make decisions based on evidence and facts and would like to hear both sides before making a judgement. In a vacuum these are good things to hear from a defendant's perspective. However, background and social media searches revealed that she was born and raised in one of the most liberal cities in the country, she supported Bernie Sanders, she was a graduate student in a liberal arts program at one of the most liberal Ivy League universities in the country, she was a creative writer who had published pieces about tattoos and photography, and she was a contributing writer for a local modern art museum. In sum, this juror's background and interests painted the picture of potential ideological framework that made her risky for the defendants. And, if I was right about her ideology, her intelligence would be a detriment rather than a benefit to the defendants throughout trial and during deliberations, i.e., she would use her intelligence to convince herself and her fellow jurors to support the plaintiff and apply a "redistribution of wealth" approach to the damage calculation – a risk I wasn't willing to take and therefore I stood by my opinion that we needed to exercise a peremptory challenge on this juror.
Ideology is not the only variable that will determine a jurors' final decision; jury decision-making is a complex process. Other important variables are obviously at play, e.g., attorney persuasiveness and advocacy skills, group dynamics in the deliberation room, witness performance, admissible evidence, judicial rulings, venue-specific attitudes, etc. But it's vital to keep in mind that everything a juror is presented with at trial will be filtered through his or her ideological framework, which usually takes place subconsciously. This means that when perspective jurors say they will be "fair" to both sides, that doesn't mean they will be unbiased. What it means is they will mete out justice in a way that feels fair according to their ideology, which by definition is biased. So, next time you are faced with deciding whether to keep or strike any particular juror, remember that ideology + intelligence is a better predictor of a juror's propensities than intelligence alone.
Jost, John T., Ledgerwood, Alison, & Hardin, Curtis D. (2008). Shared reality, system justification, and the relational basis of ideological beliefs. Social and Personality Psychology Compass, 2, 171–186.
McLellan D. (1986). Ideology. Minneapolis Minnesota: University of Minneapolis Press.
Walsh, A, & Ellis, L. (2004). Ideology: Criminology’s Achilles’ heel? Quarterly Journal of Ideology, 27, (1&2).
For more helpful information about jury selection, check out this post:
For witness preparation advice, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135