When Are Jurors’ Sense of Fairness at Odds With the Law?

By Melissa M. Gomez
Special to the Legal

While presenting at a CLE seminar with a panel of litigators and judges about the psychology of jurors, I presented a piece of data I had collected over the years to the crowd. In my research, I have asked thousands of jurors to answer this question: In a trial, is it most important that the jury makes a decision that a) follows the rules set by the judge, or b) the jury believes is fair? While most of the lawyers on the panel were not surprised, some of the judges were no less than dismayed to see that 61 percent of the folks surveyed indicated it is more important that the jury makes a decision it believes fair.

A senior judge on the panel raised his hand and asked me a very legitimate question. “Well,” he said, “are they in conflict?” I pondered the question for a moment and responded, “That depends on who is making that decision.”

There are some cases in which the issue is really about the person listening to the evidence and his or her sense of justice. There are some folks who simply do not trust the system and so will not be compelled by what some man or woman in an official-looking robe tells them is right or wrong. Their life experiences and sense of justice will take precedent. This, needless to say, is an issue for jury selection.

Then, there is also the issue in which jurors simply aren’t properly educated on the law and the proper context around the case fact as they apply to that law. Without a deeper understanding of what it all means, fairness can be misinterpreted on its surface. For this issue, understanding how to properly educate without inundating is critical.

Then, there is the unfortunate reality that sometimes jurors do see the law and fairness to be in conflict simply because of what the case is. An example comes to mind in which an episode of molestation occurred between an EMT and a minor in the back of an ambulance. The EMT was in jail and the minor, through her family, was suing the ambulance company for failure to catch the abuse in time to prevent what was happening. The only legal issue, really, was whether the driver of the ambulance acted reasonably based on what he could perceive from the driver’s seat.

In our focus group, what we learned was that while the jurors did not see that the driver did anything wrong and felt sympathy for the position he was put in, they weren’t buying that the ambulance company lacked responsibility. The company hired a child molester. It didn’t matter what the law said. It didn’t matter that the perpetrator had neither a history of such behavior nor a criminal record. That company hired him and he molested a child. End of story. The case could not be settled and the team was forced to go to trial. Unfortunately, the real jury felt the exact same way.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Comments

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