It's a theme of this blog that you don't have to read books or go to seminars to learn about juries. All you have to do is look around -- except in an election year, when you don't even have to look. It's all coming at you. Your newspaper, television, radio, dinner parties, and office break room are all focused on one question: how people choose which of two competing candidates they will support.
The 2008 election is not only a great reality TV show on its own. It's also a terrific voir dire workshop. Among the issues this class covers:
1. What do race and gender really mean? Most studies of jurors conclude that juror demographics don't directly affect verdicts -- with the important exception that jurors lean toward parties of their own ethnicity. (That's from Devine et al, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000)). But at the same time, we know that people of different races and genders often have shared experiences. Since experiences in turn shape attitudes, race and gender matter in ways that go beyond loyalty, but are difficult to define.
Trial lawyers have long wanted to understand this better -- and these days, so does every news organization in America. One fascinating piece of this is how individual one's group identity can be, as Newsweek explains in an article that's well worth reading in full:
Which candidate a voter identifies with is one of the most important gut-level heuristics, since it is tantamount to deciding that someone is enough like you to "understand the concerns of people like you," as pollsters put it. "If you feel a candidate is like you racially or by gender, you're more likely to believe that that candidate will support what you support," says [Harvard political scientist Pippa] Norris. But with a white woman and a black man vying for the Democratic nomination, where does that leave black women? Whom they most identify with depends on which aspect of their own identity dominates their self-image. For instance, in a study of whether black women believed O. J. Simpson guilty or not of the 1994 murder of his ex-wife and her friend, those whose identity as a woman trumped their sense of themselves as black were significantly more likely to believe Simpson guilty. But black women whose self-image was dominated by their race tended to believe him innocent.
2. How much do looks matter? We know they do, and new evidence comes in all the time. (BPS Research Digest today reports on a study suggesting that a company's profits are related to the CEO's facial appearance.)
Nearly every variation on this theme has come up in the election. When Hillary Clinton is photographed looking tired and wrinkled, the world responds. When this story came out in December, Ann Althouse said, "A picture like this of a male candidate would barely register." That's probably true, but men's faces matter too. CNN and others have wondered whether Mitt Romney is too good looking; but when you hear women gushing "He's perfect!" to radio reporters, you have to think his looks are a plus overall. So is Mike Huckabee's 100-pound weight loss. And one thing early drop-outs Bill Richardson and Fred Thompson may have had in common was that they didn't measure up to their opponents on the look-like-a-president scale.
3. What happens if you cry? Scooter Libby's lawyer cried in closing argument, and it didn't seem to help. Few lawyers would plan a teary outburst, but trials are emotional, and it can happen. Hillary Clinton is helping us figure out exactly where the line is when it comes to tears. By all accounts a little welling up was the most helpful thing she did in New Hampshire. When she wiped another tear away the other day, though, she lost some people, like the vehement QuizLaw, while Nicole Black (at her great new blog Women Lawyers - Back on Track) pointed out that we probably have a double standard here too.
4. Can you attack and still be admired? On both sides, candidates are struggling to find the line between pointing out an opponent's weaknesses and appearing nasty and mean. They're finding too that negative messages work better coming from some team members than from others: Bill Clinton, for example, didn't turn out to be the right guy to go after Barack Obama.
5. Do polling and focus groups help? Pre-election polling was highly predictive in New Hampshire -- if you were a Republican. The uses and limits of polling are a constant theme now, as campaigns and news organizations gear up for each new contest and then find out where and how they were wrong.
6. How can I improve my presentation style? It will be four years before you have another chance to see two or three major speeches, given by talented presenters and written by the best speechwriters in the country, every single day. Watch Barack Obama speak. Then watch him again. Watch Hillary Clinton in small groups, where she excels. If you agree with me that Mike Huckabee is able to strike a more personal note from the podium than either John McCain or Mitt Romney can, see if you can identify what he's doing to accomplish that.
(Photo by Joe Crimmings at http://www.flickr.com/photos/joecrimmings/2096982084/; license details there.)
