There is a bit of alchemy, and always a leap of faith, involved in voir dire, but lawyers rely upon proxies to dramatically reduce the amount of guess-work involved in selecting a favorable jury. Proxies are ‘substitute’ bits of information, about jurors, that function as indicators of tougher-to-know but essential insights that signal a juror’s preference or bias for, or against, a client and the characteristics of a case. Age, education level, income, gender, partisan preference, ideology, and prior experiences, in particular, function as go-to proxies that can signal a juror’s likely response to a client and case.

 

Juror personality, though, is equally critical to the success or failure of a case, and you must position it centrally in your voir dire practice. Jurors may be leaders or followers, extroverts or introverts, closed or open in disposition, vocal or quiet, and narcissistic or empathetic. All of these traits matter. Scholars, however, focus increasingly on a lesser-recognized dimension of juror personality that can play a big role in your civil or criminal case: juror authoritarianism.[1]

 

The Authoritarian Juror

 

“Authoritarian” is a loaded word, one associated with the anti-democratic fascist (right wing) or socialist (left wing) programs of Hitler’s Germany, Mussolini’s Italy, Kim Jong-Un’s North Korea, and Stalin’s Russia, and a growing cohort of strong-armed authoritarian leaders in France (Le Pen), Brazil (Bolsonaro), Turkey (Erdogan), Hungary (Orbán), and the United States (Trump).

 

Social scientists, however, speak of “authoritarianism” as a personality trait—a trait that can be characteristic of a Donald Trump voter or a Bernie Sanders voter (and Trump or Sanders, as candidates). Research by sociologist Theodore Adorno, in 1950, provides some compelling initial insights into, what he called, the “authoritarian personality”: deference to authority that is recognized as legitimate, a preference for polemical argument, a tendency to assign blame to clearly identifiable and articulable enemies, a tendency to view the world in terms of ‘good’ people and ‘bad’ people, a stark moral universe (black/white, good/bad, no middle ground), a generally pessimistic view of people, feelings of rage that are displaced onto a clearly identifiable ‘enemy’ group, and a belief that people who disagree with me are (morally) bad people.[2]

 

People with authoritarian personalities, in short, are rule-driven personalities. They are inclined to obey the orders of authorities they recognize as legitimate, make rigid distinctions between “in” groups (favored, high-status, esteemed) and “out” groups (unfavored, demonized, low-status), and tend to “respond aggressively” to people who violate their understanding of the operative, or desired, rules.[3]

 

As personality traits, these authoritarian preferences function as latent forces that can be activated in the right situation. Perceived conflict, emergency, crisis, and a threat to values function as catalyzing conditions in which the “activation” of authoritarian-minded responses—and even the mobilization of support for political elites who promise solutions the authoritarian-minded voter seeks in times of perceived threat—is more likely.[4] Traditionally, scholars have focused on authoritarian preferences as a right-wing phenomenon[5] and track, especially since 9/11 in the U.S., the Republican party’s embrace of politicians, and policies, that promote law and order, the demonization of the out-group “liberal,” and policing and punishment of the immigrant “outsider” in response to demographic shifts and changes in socio-cultural values and practices.

 

More recent research affirms, though, that authoritarian preferences are not a purely right-wing phenomenon. Indeed, early research conflated ideology (conservatism) and authoritarianism.[6] Weiler and Hetherington note that voters with authoritarian preferences were, until the early 1990s, as likely to vote Democrat as Republican, but that they have steadily, since the Democratic Party’s embrace of a pro-civil rights agenda, migrated to the Republican party. Social psychologist Lucian Conway and colleagues, too, find that authoritarian-minded political liberals can display the same qualities—prejudice, dogmatism, likelihood of persuasion by threat-based messages, higher perceptions of threat, attitude strength, intolerance for those who are hostile to desired norms—as authoritarian-minded conservatives.[7] Conway, et al, note that there is a difference in the political/policy manifestation of authoritarian preferences between Left and Right; nonetheless, there is reason to think that authoritarian attitudes are broadly distributed across, if differently activated by, the partisan Right and Left. Political scientist Matthew MacWilliams found, for example, in a national survey of 1,800 registered voters, that 39% of the self-identifying Independent voters and 17% of the self-identifying Democratic voters displaced “strong authoritarian” attitudes.[8] MacWilliams’ research also found that 49% of Republican respondents displayed “high authoritarian” traits.

 

 

 

 

How do I discover authoritarian preferences in a prospective juror?

 

As we explored in a previous post, it is critical that you, the trial lawyer, identify the liberal or conservative ideological commitments that motivate your jurors. You need to understand, in other words, if your juror is motivated by the values and interests of the rights-bearing individual or by the stability and order interests of the community. Equally important, however, you must tap into each juror’s personality and find out if they are authoritarian or non-authoritarian in disposition.[9] In short, you want to discover 1) the underlying ideological commitments that motivate your jurors and 2) how each juror is likely to respond when he/she perceives those values and commitments to be under threat.

 

How do you get at the second set of preferences? Deliver proxy statements on a standard five-point (strongly agree, agree, neither agree nor disagree, disagree, strongly disagree) scale:

 

• Sometimes other groups must be kept in their place.
• Democracy matters, but some preferences are more valid than others.
• Strong leaders, more than laws, are necessary to securing this country’s best interests.
• No difficulty can hold us back if we have enough willpower.
• As challenges to the American way of life emerge, force may be necessary to preserve it.
• It is better for children to be well-behaved and respectful of authority than

independent and creative.

• It is important to always follow the rules.
• Sometimes other groups need to be kept in their place.
• Deviations from the rules need to be taken seriously.
• Words like discipline, accountability, and consistency describe me well.
• I get upset when I’m put in a situation without knowing what to expect from it.
• I am pretty uncomfortable in situations where things are ambiguous or unpredictable, or where I don’t know what the people around me think.
• I tend to have opinions about everything.
• I stick with my opinions, even if, or when, they are not popular with other people.
• I have a pretty settled sense of the accuracy of my beliefs; I can’t imagine doubting them.

 

Note, first, that the statements elicit the possibility of an authoritarian disposition among jurors who identify with either the partisan Right or Left. These questions are not ideologically coded. Second, and importantly, answering “yes” to any of these questions does not mean that a juror actually wants, or will advocate for, a left-wing authoritarian or right-wing authoritarian (fascist) government. Instead, the degree or intensity of preference people yield in response to these questions can provide you with insight into how they are likely to respond when they find themselves—and their perspective—on defense. Will they dig in and insist upon their perspective, when they find that perspective challenged, or will they be amenable to negotiation, compromise, or steering through presentation of evidence and jury deliberation?

 

To elicit partisan (Right/Left) authoritarian personalities (i.e., the direction of the authoritarian leaning, not merely its intensity), you might deploy the following statements:

 

• Too many obviously guilty people escape punishment due to legal technicalities.
• If the police have charged someone with a crime, it’s probably because they’re guilty.
• Evidence obtained illegally should be admissible in court if such evidence is the only

way of obtaining a conviction.

• The law coddles criminals to the detriment of society.
• Upstanding citizens have nothing to fear from the police.
• The freedom of society is endangered as much by overzealous law enforcement as by

the acts of individual criminals.

• Wiretapping by anyone, for any reason, should be completely illegal.
• People should be required, for public health reasons, to wear a mask in public.

 

People on the partisan Right and Left are likely to respond very differently to this set of statements—and the authoritarian personalities, right or left, will reveal a deep intensity of preference (i.e., the “strongly agree” or “strongly disagree”), and in a patterned way. These questions can be especially useful in criminal trials, but you want to be careful about using them, as they could elicit, from a prospective juror, a socially desirable response as much as an authentic one.

 

Your take-away insights: Trial Strategy and the Authoritarian Juror

 

1) Go beyond demographics. Age, race, sex, occupation, income, and education are often used as proxies to determine a juror’s biases. However, they are less trustworthy than a juror’s rank (high, low, middle) on the authoritarian scale.[10]

 

2) Go beyond ideology. Initial studies of the authoritarian personality made the mistake of characterizing authoritarianism as a distinctly, and exclusively, right-wing/conservative phenomenon. Newer research suggests that approximately 17% of self-identifying Democrats display high-authoritarian personality traits. It is not surprising, in this context, that 15% of Sanders supporters indicated that they would vote for President Trump, if Sanders did not receive the Democratic nomination.[11] The partisan policy goals seem distinct and incompatible, and indeed they are. The attitudinal disposition of the candidates, though—populist, anti-establishment, no-negotiation, clearly identifiable enemies, and simple answers to complicated questions (demonizing “corporate elites” vs. demonizing “immigrant outsiders”)—is continuous in a way that makes the apparent gap between Trump and Sanders supporters, in the jury box, much smaller than it otherwise seems.

 

3) Deploy your peremptory challenges to strike the vocal authoritarian-minded juror whose preferences you cannot readily discern. These are the riskier juror prospects. You should prefer a non-authoritarian who is skeptical about your case to an authoritarian whose preferences are unclear. The former is potentially amenable to the facts of your case. The latter is a gamble and could turn out to be a dogged source of resistance in the jury.

 

4) Be wary of the “absolutist juror.”[12] The absolutist juror, right or left, is rigidly rules-oriented, inclined to make strong distinctions between “in” groups and “out” groups, disposed to make decisions on the basis of “perceived similarity between themselves and a party,” inclined to stereotype, and to assign default credibility to the group to which they assign greater esteem and regard (the “in” group). You might, of course, benefit from having an absolutist juror who is disposed to favor of your client and case. Equally, though, that juror may not be an effective advocate for your perspective in jury deliberation; they are equally likely to be a bullying presence who cannot function as an effective persuasive agent in the deliberation room.[13]

 

5) Manage the authoritarian’s perception of threat. As political scientist Karen Stenner notes in The Authoritarian Dynamic, authoritarian preferences can be activated, or not, depending upon the context in which decision-making occurs.[14] Stenner predicts that authoritarian preferences are more likely to emerge from authoritarian psychological leanings when the individual “perceives that the moral order,” as that person understands it, is “falling apart.” What does this mean for the trial lawyer in a courtroom? If you have a vocal authoritarian juror who is hospitable to the claims of your case, frame that case, and the conclusion you want the jury to reach, as positing a rule that is essential to the good working of society. That person will do the work of advocacy for you, in the deliberations that occur outside of the jury box. If you have a vocal authoritarian juror who is inhospitable to the claims of your case, strain to frame your case as exceptional, unusual, or a strange deviation. The authoritarian’s trigger is a perception of disorder—of something out of conformity with that person’s most treasured values. Given invitation to view something specific as a more general, system-wide deviation from an agreed-upon rule, the high authoritarian will—perhaps to the disadvantage of your client and case.

 

6) Mind the authoritarian’s bias. A person who scores high on the authoritarian scale is more likely to favor cases involving people who are perceived to be members of their preferred “in” group, and they will allocate blame, credit, responsibility, and (punitive or lenient) punishment accordingly.[15] The right-wing authoritarian, for example, tends toward a tough law-and-order stance, for example, and will be disposed to siding with prosecutors and the police, even in the presence of information that suggests a defendant’s innocence.[16] Similarly, they are more likely to recall, and weight more heavily, a prosecutor’s message. Interestingly, though, a right-wing authoritarian may take a tough law-and-order stance that inclines them against criminal defendants, but research suggests that this bias does a 180-degree flip when the defendant belongs in a higher-status group.[17]

 

6) Tap into the authoritarian’s deference to rules. Your task, as the trial lawyer, is to frame the facts of your case, and the decision you want the jury to reach, as an important rule that is critical to the good working of society. Certainly, left- and right-leaning authoritarians embrace different understandings of operable, or desirable, social rules. What is critical, though, is the rule. According to Ken Broda-Bahm, authoritarianism can incline a juror to “set aside misgivings about the law and follow instructions they don’t personally support.”

 

Studies of jury selection often focus on the distinction between “leaders” and “followers”—and the need, during voir dire, to construct a jury that is populated with leaders who are amenable to the facts of your case and followers who can be pulled, or otherwise won’t object, to the way those vocal leaders steer them. This is wise advice. Importantly, though, the leader/follower distinction is a behavioral distinction; that is, it speaks to the likelihood that an individual will act upon his/her convictions by steering others toward them. The authoritarian/non-authoritarian distinction is a distinction that taps into the characteristic, patterned ways of thinking and feeling that structure a person’s actions, especially when that person feels uncertain or under threat. Add “juror personality” to your arsenal of legal tools, and give special attention to personality traits, like authoritarianism, that can predict a juror’s intensity of preference when the features of a case conform with, or bump up against, a juror’s settled sense of moral values, in/out groups, and social rules.

 

 

[1] See, for example, Douglas J. Narby, et al, “A Meta-Analysis of the Association Between Authoritarianism and Jurors’ Perceptions of Defendant Culpability,” Journal of Applied Psychology, vol. 78, no. 1 (Feb. 1993), 34-42.

[2] See Theodore Adorno, et al., The Authoritarian Personality (Verso Books, 2019).

[3] Matthew MacWilliams, “The One Weird Trait That Predicts Whether You’re a Trump Supporter,” Politico Magazine (January 17, 2016). Available at https://www.politico.com/magazine/story/2016/01/donald-trump-2016-authoritarian-213533. See, also, MacWilliams, The Rise of Trump (Amherst College Press, 2016).

[4] Karen Stenner, The Authoritarian Dynamic (Cambridge University Press, 2005).

[5] See, for example, Richard Altemeyer, Right-Wing Authoritarianism (University of Manitoba Press, 1981).

[6] See, for example,

[7] Lucian Gideon Conway, “Finding the Loch Ness Monster: Left-Wing Authoritarianism in the United States,” Political Psychology (December 2017). Available at https://doi.org/10.1111/pops.12470

[8] MacWilliams.

[9] Marc J. Hetherington and Jonathan D. Weiler, Authoritarianism & Polarization in American Politics (Cambridge University Press, 2009).

[10] See Gayle Herde, “Take Me to Your Leader: An Examination of Authoritarianism as an Indicator of Juror Bias,” The Jury Expert (January 1, 2009). Available at: http://www.thejuryexpert.com/2009/01/take-me-to-your-leader-an-examination-of-authoritarianism-as-an-indicator-of-juror-bias/

[11] William Cummings, “Poll: 15% of Sanders supporters will vote for Trump if Biden is nominee; 80% would back Biden,” USA Today (March 29, 2020). Available at:

https://www.usatoday.com/story/news/politics/elections/2020/03/29/bernie-sanders-supporters-vote-trump-over-biden-poll/2936124001/

[12] Ken Broda-Bahm, “Be Relatively Cautious with Absolutist Jurors,” Persuasive Litigator (May 23, 2011). Available at: https://www.persuasivelitigator.com/2011/05/absolutist-jurors.html

[13] Broda-Bahm, “Absolutist Jurors.”

[14] Stenner.

[15] “How Does Jurors’ Authoritarianism Affect Criminal Verdicts?” Online Jury Research Update, Issue 4 (November 2008). Available at: http://www.kkcomcon.com/OJRU/ROJR1108-4.htm

[16] Herde.

[17] Online Jury Research Update.