Should You Conduct Jury Research During a Pandemic? Yes!
Many attorneys are hesitant to continue jury research during the pandemic because they worry jurors’ attitudes currently do not reflect their “normal” attitudes. This is a valid concern as we know some attitudes are more connected to social context than others and will change and often polarize depending on the current zeitgeist. However, if we know which attitudes are most likely to be affected and which are not, we can account for this in data collection and analysis so jury research does not have to be put on hold. In addition, all accounts show the pandemic is not going away anytime soon. What we are experiencing now may be the “new normal” and with the adoption of remote trials (e.g., Texas), jurors are likely to serve on trials during the pandemic, thus knowing their current attitudes will be critical.
Which Attitudes and Worldviews are Likely Affected by the Pandemic?
The pandemic has created widespread uncertainty, which can cause attitudes to become unstable and open to change. However, not all attitude change will affect how jurors view cases. First, national polls suggest people have a stronger sense of solidarity during the pandemic, but it is unclear how long this will last. We can examine how attitudes were affected by the recession of 2007-2008. Many Americans developed anti-corporation attitudes and were angry that the government gave financial bailouts. This anger toward corporations predicted feeling vindictive, with 60% of people reporting that people leading the collapsed financial institutions should be imprisoned. However, unless a case involved a large financial corporation, these attitude changes did not affect verdicts.
Depending on one’s attitudes about responsibility for the pandemic, Americans may develop anti-government attitudes and more distrust of science and the greater medical community. However, since nurses and doctors are viewed as heroes working on the frontlines, attitudes may become more favorable towards them. There are also concerns and growing reports of xenophobia, and specifically racism, towards Chinese and Asian immigrants. Uncovering this type of bias in pre-trial research may prove critical to your case.
During a pandemic, many people feel helpless, angry, and have a decreased sense of perceived control. Some people become emotionally overwhelmed by the pandemic and have poor coping skills, resulting in greater risk for depression and anxiety. Social isolation merely exacerbates these effects. The pandemic is threatening, both to our livelihoods and literally to our health. When people experience threats, they tend to hold onto their attitudes more strongly. Many people’s attitudes become polarized, or more extreme. For example, people who are religious will become more devout, people with conservative ideologies will likely become even more conservative. Research shows that people can become more liberal (Eadeh & Chang, 2020) or more conservative (Beall et al., 2016; Schaller et al., 2017) during a pandemic, therefore conducting pre-trial research is essential to understanding how cultural attitude shifts may affect your case in your venue. There are regional differences in how societies have responded to the pandemic, thus knowing the current views of your community members is important rather than relying on national data. For example, Los Angeles and New York were harder hit by the pandemic than midwestern states (except perhaps Illinois given the infection rate in Chicago), therefore attitude change may be greater in these locations.
Which Factors are Not Likely Affected by the Pandemic?
Unlike attitudes, personality traits tend to be more stable. Personality traits like introversion or extroversion, conscientiousness, neuroticism, agreeableness, and openness do not change overnight but take many months or years to change as a result of life experiences. Personality traits are often highly predictive of jurors’ perceptions of plaintiffs, defendants, expert witnesses, attorneys, damages, and verdicts. Attorneys should continue measuring jurors’ personalities throughout the pandemic. However, during a pandemic, measuring personality is not enough. Attorneys seeking help with pre-trial research should discuss with their jury consultants what additional measures should be included to account for attitude and ideological changes due to pandemic. Next, we discuss what attorneys and jury consultants can do to make sure they are collecting the most accurate attitude, personality, and ideological data relevant to their case and venue during a global pandemic.
What Can We Do About It?
First, we need to determine which attitudes have been affected by the pandemic and whether these attitude changes are likely to predict verdicts in a specific case in a specific venue. One way to accomplish this is to measure attitudes we believe might be affected by the pandemic, and social science research can inform these decisions. Through conducting remote focus groups and community surveys, we can test whether attitude change or polarized attitudes sway perceptions of a client and bias verdicts. If attitude change shows a negative effect on a case, jurors with those attitudes can be screened and dismissed.
Judges are likely to become more lenient in allowing supplemental juror questionnaires (SJQs) due to hardships created by the pandemic. SJQs are the perfect opportunity for attorneys to assess the relevant juror characteristics and dismiss jurors based on scientific evidence. Because many citizens have experienced unemployment, economic hardship, health concerns, depression and anxiety, social isolation, and death among their loved ones, judges will likely be much more understanding and lenient in dismissing jurors from service. Given this pandemic-induced mindset of empathy and flexibility, judges will likely be more permissive in the use of SJQs and questions in voir dire to provide attorneys with more data and individual information to select jurors. Attorneys should include additional questions in SJQs and voir dire to assess how each potential juror has been affected by the pandemic and whether they are currently mentally fit for jury service. Questions to include in SJQs and voir dire include: “How have you been personally affected by the pandemic?” and “Have your experiences during the pandemic affected your ability to serve on a jury? If so, how?”
Another approach is to prescreen jurors and community members on their attitudes and only include respondents who show “normal” attitudes. Some people are less affected by the pandemic than others, for example, people who have not lost their jobs, who do not know anyone who has been infected or died from the virus, and who are optimistic about the United States’ ability to overcome the pandemic. People with “normal” levels of perceived control, who do not report feelings of anger or helplessness, likely remain good jurors for your case. Many jury consultants have pre-pandemic data for communities showing the “normal” range of relevant attitudes such as liberal or conservative leanings, attitudes toward corporations, and attitudes about karma, belief in a just world, and authoritarianism. If these attitudes were predictive in prior, similar cases, potential jurors can be assessed and compared to the pre-pandemic levels.
One way to assess how much an individual is affected by the pandemic is to simply ask them. If jurors report job loss, extreme economic hardship, poor health, or other hardships, they should be excused from jury service. Although selecting jurors who are less impacted by the pandemic will make juries less diverse, they will potentially have more stable attitudes, and therefore attorneys can maintain greater accuracy in jury selection.
Conducting business, as usual, is a challenge during a global pandemic; however, attorneys do not have to and should not sit idly and wait for the pandemic to go away. A vaccine is likely 12-16 months out and developing herd immunity takes a long time. It is more likely that state courts will opt for remote trials rather than waiting out the pandemic. In-person trials will also look quite different with social distancing, plexiglass barriers, and personal protective equipment requirements. Attorneys can leverage their resources and tap into social science research to examine exactly how the pandemic has affected their community members and how it may affect perceptions of specific cases within their venues.
Beall, A. T., Hofer, M. K., & Schaller, M. (2016). Infections and elections: Did an Ebola outbreak influence the 2014 US federal elections (and if so, how)? Psychological Science, 27, 595-605.
Eadeh, F. R. & Chang, K. K. (2020). Can threat increase support for liberalism? New insights into the relationship between threat and political attitudes. Social Psychological and Personality Science, 11(1), 88-96.
Schaller, M., Hofer, M. K., & Beall, A. T. (2017). Evidence that an Ebola outbreak influenced voting preferences, even after controlling (mindfully) for autocorrelation: Reply to Tiokhin and Hruschka (2017). Psychological Science, 28(9), 1361-1363.