Legal Authoritarianism

In its broadest sense, legal authoritarianism refers to the constellation of beliefs held about the legal system that is relevant to juror decision making. Because jurors enter trials with preconceived notions about evidence, criminal conduct, and the criminal justice system in general, understanding these beliefs allows researchers to better understand how jurors process information and render decisions about the case. Furthermore, because one of the goals of the jury selection process and voir dire is to assess attitudes that individuals might hold that could affect their role as jurors, the study of juror attitudes is of great relevance to judges and trial attorneys, trial consultants, and researchers of jury decision making.

Early Measures of Attitudes Relevant to Juror Decision Making

Early attempts to measure attitudes relevant to juror decision making relied on measures generally not intended for those purposes. Some commonly used measures were internal or external locus of control, just-world beliefs, and authoritarianism. Of these constructs, authoritarianism was the most frequently used in conjunction with juror decision making and had the most success in predicting juror judgments. Individuals scoring high on measures of authoritarianism express stereotyped beliefs toward out-groups, support conventional norms and authority, and advocate harsh sanctions against deviates. These beliefs have obvious implications to how one might react to evidence presented at trial. And, not surprisingly, measures of authoritarianism have been shown to have a weak but positive relation to juror verdicts. A meta-analysis revealed the average correlation between authoritarianism and verdicts to be .11.

Measures of Legal Authoritarianism

As noted, measures of authoritarianism such as the California F Scale contain items removed from a legal context. Yet these same themes present in authoritarian attitudes (e.g., the tendency to support and trust institutionalized authority, the willingness to advocate harsh sanctions against deviates) are telling features about how one views the legal system. It was noted at the outset that, broadly, any measures of legal attitudes are frequently termed legal authoritarian measures. However, in a more narrow interpretation, because authoritarian beliefs are so central to how one views the criminal justice process, any measure of legal attitudes relevant to jury decision making must address these authoritarian themes to one extent or another. As a result, each of these existing measures of juror attitudes can be reasonably characterized as legal authoritarianism measures.

Although it was not conceived as a measure of attitudes relevant to jury decision making, Herbert L. Packer’s identification of the due process and crime control model provides an early example of legal authoritarianism. Packer articulated these two perspectives on the criminal justice system in the influential 1968 text The Limits of the Criminal Sanction. These perspectives reflect a series of attitudes one holds surrounding the legal system that have important consequences about how one views a criminal trial. According to Packer, individuals who hold strong crime control values regard the control and reduction of criminal conduct as the primary goal of the criminal justice system. To do so, one seeks efficiency in the criminal justice process to be maintained at all costs. They, therefore, tend to have greater confidence in law enforcement and other criminal justice actors to correctly and competently carry out their duties of apprehending and convicting criminals while acquitting the innocent. These individuals see the presumption of innocence and burden of proof as unwanted obstacles and encourage the power of institutionalized authority over the rights of the accused. Conversely, those holding due process values question the ability of the criminal justice system to properly carry out their duties in apprehending and trying offenders. They stress the rights of the accused, are fearful of innocent persons wrongfully convicted, and emphasize the importance of procedural safeguards in maintaining the integrity of the process, even at the expense of releasing persons who may be factually guilty. The crime control and due process models conceptually covary with legal authoritarianism. That is, those who place trust in the system and seek to apprehend and punish wrongdoers at the expense of their liberties demonstrate authoritarian values, whereas those who question unfettered police powers and seek to maintain procedural safeguards to protect the rights of the accused demonstrate antiauthoritarian values.

In the same year, Packer published his theory of the crime control and due process models, and Virginia Boehm published the Legal Attitudes Questionnaire (LAQ). The scale measures three constructs: authoritarianism, antiauthoritarianism, and equalitarianism. This 30-item scale was grouped into 10 sets of triads, each containing a statement reflecting each construct. Participants rank ordered agreement with the statements within each triad. Authoritarian items expressed unquestioned support for authority and limits on the rights of the accused (e.g., “Evidence illegally obtained should be admissible in court if such evidence is the only way of obtaining a conviction.”). Antiauthoritarian items reflected beliefs that challenged authority and expressed the need for procedural safeguards to protect the accused (e.g., “Wiretapping by anyone and for any reason should be completely illegal.”). Equalitarian statements reflected neither authoritarian nor antiauthoritarian values, but instead reflected beliefs that fell somewhere within these extremes (e.g., “Citizens need to be protected against excessive police power as well as against criminals.”).

Researchers later developed the Revised Legal Attitudes Questionnaire (RLAQ) in an effort to improve the psychometric properties of the scale. Ranked agreement within the 10 triads was abandoned in favor of Likert scoring for all 30 items. This led to a sizable reduction in items scored incorrectly. It also revealed some limits to the construct validity of the scale. For the RLAQ, significant negative correlations emerged for the authoritarian and equalitarian subscales, whereas the antiauthoritarian subscale failed to correlate with the others. Moreover, although the authoritarian subscale significantly positively correlated with a traditional measure of authoritarianism— the Balanced F Scale—it was scores on the equalitarian subscale and not the antiauthoritarian subscale that negatively correlated with this measure of authoritarianism. This finding suggested that equalitarian items on the scale are better conceptualized as antiauthoritarian and vice versa.

In 1983, Saul Kassin and Larry Wrightsman published the Juror Bias Scale (JBS). The goal was to create a measure of “generalized pretrial bias.” They noted that typical models of jury decision making assume that verdicts reflect two judgments—the likelihood that the defendant committed the crime charged, or probability of commission (PC), and a judgment of threshold necessary to convict, or reasonable doubt (RD). The authors surmised that jurors may differ along two theoretically independent dimensions (i.e., PC and RD). The scale contains 9 PC items (e.g., “Generally, the police make an arrest only when they are sure about who committed the crime.”) and 8 RD items (e.g., “If a majority of the evidence—but not all of it—suggests that the defendant committed the crime, the jury should vote not guilty”). Here again, these same elements of authoritarian beliefs (e.g., trust in authority) as well as antiauthoritarian beliefs (e.g., need for safeguards to protect the rights of citizens) emerge.

Researchers, in developing the most recent measure of juror attitudes—the Pretrial Juror Attitudes Questionnaire (PJAQ)—used a dual approach to item generation. Here, items were derived from a sample of participants in addition to using items present in existing scales. The initial pool of items was reduced to a manageable size based on a separate sample’s consensus that the items reflected attitudes that could bias a juror’s judgment in the case, along with factor analytic methods. For the final 29-item scale, the separate constructs of cynicism and confidence reemerged, along with additional constructs labeled social justice (e.g., “Rich individuals are almost never convicted of their crimes.”), racial bias (e.g., “Minority suspects are likely to be guilty more often than not.”), and innate criminality (e.g., “Once a criminal, always a criminal.”). Therefore, we see that even when relying on empirical means to generate items, constructs emerge that reflect these authoritarian and antiauthoritarian beliefs.

Legal Authoritarianism Measures as Predictors of Individual Verdicts in Criminal Cases

There have been multiple studies assessing the predictive validity of legal authoritarianism measures. A meta-analysis revealed that legal authoritarianism measures demonstrate an average effect size of r = .16. However, this correlation is somewhat reduced by the inclusion of studies that have used rape trial scenarios. Measures of legal authoritarianism appear to be poor predictors of verdicts in rape trials, and although researchers have offered some explanations as to why this might be, it has yet to be investigated. Moreover, many of the studies on which the analysis was conducted used college students and/or written transcripts and trial summaries. However, a general pattern is that as the ecological validity (in terms of sample used as well as presentation medium) of the study increases, so too does the relation between authoritarianism and verdicts.

In a recent study comparing the predictive validity of the JBS, a shortened version of the Revised Legal Attitudes Questionnaire (RLAQ-23), and the PJAQ, researchers found that the JBS and RLAQ-23 combined were able to account for approximately 4% of the variance in guilt judgments. By comparison, the PJAQ by itself accounted for approximately 7% of the variance in guilt judgments. Consequently, when we speak of the value of these scales as a predictor of guilt judgments, the relation remains relatively modest. Moreover, this relation is further weakened as the evidence against the defendant becomes less equivocal. In other words, attitudes that one carries to trial can influence final judgments, but evidence still provides the bulk of the explanation about how we decide cases.

Of course, examining the beliefs jurors hold about issues relevant to the legal system and their final verdict in a case ignores myriad ways in which these beliefs might indirectly affect verdicts. That is, the attitudes jurors hold concerning trust in law enforcement, for example, can influence the weight they assign to evidence brought to trial from these sources (e.g., police searches, confessions), or their ability to recall certain facts, or the sources of evidence at a later time when deliberating over the case. Researchers are just beginning to grapple with these issues, but it highlights the potential for the study of pretrial attitudes in general, and specifically measures of legal authoritarianism, to aid our understanding of how jurors decide cases. Because it is well accepted that jurors are not immune to the biasing role that these attitudes likely play in their decisions, no model of juror decision making can be complete without accounting for these attitudes and the role they play in the decision-making process. While researchers are probably correct in warning that these measures of legal authoritarianism can only have limited applied impact, as judges tend to place strict limits on the use of questionnaires submitted to members of the venire, their greatest impact may likely lie in their potential for researchers to better understand the decision-making process of jurors.

References:

  1. Kassin, S. M., & Wrightsman, L. S. (1983). The construction and validation of a juror bias scale. Journal of Research in Personality, 17, 423-142.
  2. Kravitz, D. A., Cutler, B. L., & Brock, P. (1993). Reliability and validity of the original and revised Legal Attitudes Questionnaire. Law and Human Behavior, 17, 661-667.
  3. Myers, B., & Lecci, L. (1998). Revising the factor structure of the Juror Bias Scale: A method for the empirical validation of theoretical constructs. Law and Human Behavior, 22, 239-256.
  4. Narby, D. J., Cutler, B. L., & Moran, G. (1993). A meta-analysis of the association between authoritarianism and jurors’ perceptions of defendant culpability. Journal of AppliedPsychology, 78, 34-12.
  5. Packer, H. L. (1968). The limits of the criminal sanction. Stanford, CA: Stanford University Press.

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