This is Real Law: Thoughts and Prayers: The Role of Faith and Moral Beliefs in Jury Selection

This is Real Law: Thoughts and Prayers: The Role of Faith and Moral Beliefs in Jury Selection

Those “Twelve Angry Men” should not have surprised anyone with their verdict. That observation is made while acknowledging that anything substantially different in their story would deprive audiences of a powerful and thought-provoking drama.

Still, there is a legitimate point of instruction to be made.

Had either the prosecution or the defense in the case exerted more effort to discover and address the belief systems of those jurors, several of whom harbored clear personal prejudices, the narrative might have gone in another direction.

That’s hypothetical, of course, and it applies what-we-know-now thinking to a work of fiction from more than 50 years ago. But it’s also a fair comment in the context of considering what jurors can bring to their deliberations in both civil and criminal trials.

An Expert’s View

Two of the most significant ways that jurors are influenced are by their religious and moral thinking. “Citizens bring their religions to court, use their spiritual beliefs to judge the evidence or behaviors of witnesses and rely upon moral compasses during deliberations about verdicts,” explains Dr. SunWolf, a long-time trial and appellate attorney who is now a professor of communications at Santa Clara University.

She adds: “Everything a jury is asked to decide—what caused what, who’s responsible, whether it’s a case of a good person doing an evil act or an evil person doing an evil act, and so on—is really rooted in a moral value.”

Dr. SunWolf’s latest book, God-Thinking: Every Juror’s Moral Brain, Religious Beliefs, and Their Effects on a Trial Verdict, offers considerably more detail regarding the ways in which faith and moral beliefs should be expected to be factors in jury trials.

Drawing on her own observations as well as the latest scholarship regarding the psychology of good, evil, forgiveness and vengeance, and the biology of right/wrong thinking, Dr. SunWolf gives trial practitioners, attorneys, judges and jury consultants valuable insights and practical tips about how to evaluate a juror’s moral outlook and adjust their tactics accordingly.

Indeed, she argues convincingly that considering the potential impact of juror beliefs should be an essential step in every trial strategy.

The Legal Landscape

One way that’s often complicated is that many lawyers are unaware of the importance of religious and moral thinking, or they make assumptions based on their own beliefs or educated guesses derived from limited information.

How attorneys manage their in-court pretrial efforts can also affect how much insight they gather about jurors. At the same time, trial courts exercise wide latitude in how they limit voir dire. For example, judges might conduct proceedings themselves and not explore the range of issues, including juror biases, that attorneys might want to see examined.

Another significant factor is that the constitutionality of challenges to jurors based solely on religion is unsettled. There is no U.S. Supreme Court ruling on point, despite numerous opportunities to deliver a consensus and resolve the issue.

Granted, a framework exists in Batson v. Kentucky, which focuses on race-based challenges, later expanded to indicate that defendants need not be of the same race as excluded jurors (Powers v. Ohio), that challenges to strike African-American jurors on the basis of their race are not allowed (Georgia v. McCollum), and that the same rules apply to civil trials (Edmonson v. Leesville Concrete Co.).

The Supreme Court has also forbidden peremptory challenges based on gender (J.E.B. v. Alabama). In California, the prohibition extends to sexual orientation, and just recently the U.S. Ninth Circuit Court of Appeals was asked to rule that it should extend to sexual orientation in federal trials as well.

Two other influential cases provide further direction and perhaps foreshadow how the Supreme Court might rule if it ever decides to grant certiorari in a case involving religion and peremptory challenges. While on the Third Circuit, Justice Samuel Alito ruled in Bronshtein v. Horn that peremptory challenges based on religious affiliation are unconstitutional. Later, in United States v. DeJesus, the court expanded its ruling to indicate that the exercise of a strike based on religious beliefs should be allowed.

Also, in 1994 and only months after J.E.B. extended Batson to cover gender, the Supreme Court declined certiorari in a case that would have clarified the issue; however, in a dissent to the denial, Justice Clarence Thomas, joined by Justice Antonin Scalia, argued that religion as a basis for peremptory challenges should be unconstitutional.

The absence of a definitive Supreme Court holding leaves attorneys to contend with what states and federal appellate courts have deemed is permissible. But there the matter is no less entangled. Some courts have declared that peremptory challenges based on religious affiliation are unconstitutional, while others have indicated that challenges based on religious belief (or “religiosity”) are allowable, provided the latter are not pretextual.

Powerful Influences

Leaving aside the murky landscape surrounding peremptory challenges, there are voir dire strategies for mounting a successful challenge for cause, for which Dr. SunWolf points out there are three possible outcomes. Ideally, you are successful and the challenge is granted. Or, you are legally successful but the trial judge does not grant it, in which case it is preserved for appeal. Finally, the juror is diverted from the goal answer and no challenge can be made, but you gather valuable information that can be used during the trial.

All that serves to underscore the importance of understanding and weighing jurors’ religious, spiritual and moral beliefs, which can manifest themselves in many ways. Dr. SunWolf cites jurors asking if they can have their Bibles with them in deliberations. “We know that jurors have prayed together and have asked if they could talk to their priest or rabbi when they’ve been upset about a trial. One juror in a murder case actually brought an Ouija board and asked it, ‘Defendant, who killed you?’ Religion and spirituality influence people in powerful ways and their beliefs are profoundly woven into trials.”

Of Fate and Free Will

So what can or should attorneys do to gain the insights they need to mitigate trial risks posed by jurors’ belief systems?

“There are excellent voir dire questions that offer at least glimpses into a potential juror’s beliefs,” Dr. SunWolf says. “Consider, for example, the usefulness, in specific trials, of knowing the function of prayer for a juror, or what constitutes sin, whether there is life after death, whether charity extends to strangers, how to know the differences between good and evil, what God’s purpose is for our lives, the existence of miracles, who are recognizable infidels, practices of paying it forward, or the Bible as literal truth.”

Juror notions regarding fate and free will are another example of information that might be relevant in some cases. In her book, Dr. SunWolf cautions attorneys to be wary of what she describes as “the En’Shallah effect,” from the Arabic expression for “if God wills it.”

“If you believe that God wills everything,” she explains, “that’s going to change how you see a trial. As an attorney, you want to know if someone believes in fate or if someone believes more strongly in free will. With free will, a juror might look at a defendant and think, ‘Well, you made a choice and I’m going to hold you responsible for it.’ If it’s about fate, En’Shallah.”

The role of faith among jurors prompts an intriguing question that Dr. SunWolf says attorneys should be asking themselves: “Do we end up with more than twelve jurors in the jury room because God shows up as well?”

Exploring the Hereafter

Views regarding life and death are particularly important to know in trials where a defendant could be facing the death penalty. Dr. SunWolf asks attorneys to consider their own expectations while responding to the simple question, “What happens when you die?” Then she asks them to compare their responses to what others might think. That illuminates how incorrect assumptions about personal beliefs can lead to disastrous results in a trial.

“I might think death is just the bitter end, but someone else thinks you go to a better place and you get Grandma and Skippy the dog back,” she says. “That’s going to change things. An individual might be more willing to accept a guilty verdict, or a juror might contemplate a verdict that could result in a defendant receiving the death penalty, because it’s a way out of misery and an opportunity to be reunited with loved ones.”

“In any trial, there are going to be moral beliefs embedded,” Dr. SunWolf continues. “Attorneys who don’t explore those beliefs are going to get jurors who vote against them, and those attorneys are not going to understand why. A focus on law and facts, which is the training of an attorney, will ignore reasons you can win a trial that seems impossible to win on the facts alone.”

A corollary, she cautions, is that “people will lose more cases if they do not consider the moral beliefs of jurors.”

Practical Advice and a Call to Action

Dr. SunWolf offers a variety of practical tools that can help trial and appellate lawyers avoid the consequences of ignoring juror beliefs. “In the end, ignorance is what we wish to avoid,” she says. Those tools include questionnaires for uncovering the moral mindsets of jurors, questions and other tactics that can be used to discern a jury pool’s religious and moral thinking, and pretrial investigations that can reveal a community’s religious composition.

“Pausing to consider the role of religious thinking in every trial, from voir dire through verdict, opens our eyes to the reality of how a significant variety of moral compasses is sitting in every jury box,” Dr. SunWolf says. “No citizen can leave her/his moral compass behind when selected to be a juror. None can set it aside. As judges, consultants or trial advocates, our job is to deal with the variety of moral belief systems jurors are bringing to our courtrooms, in a manner that moves us towards fairer trials and more just verdicts.”

For those who enjoy law-inspired entertainment, that message might be safely ignored. But for those who work in real law, it’s a persuasive call to action that many in the legal profession should heed.

Related resources:

God-Thinking: Every Juror’s Moral Brain, Religious Beliefs, and Their Effects on a Trial Verdict

By Dr. SunWolf 

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