From Simple Justice:
People are scared to death of what will happen to them and their families, and they struggle to make sense of the mass confusion in Washington, Wall Street and the thousand pundit voices that tell a completely difference story every 30 seconds.
And so, in times of turmoil, we return to the work of Abraham Maslow, the Hierarchy of Needs. When people are deeply concerned that they will be unable to put food on their table, heat their homes, keep their homes, drive to work (if they have a job), obtain medical treatment for their children, guess what they aren’t worried about: Justice. You. Your client.
It’s an excellent point, and one that bears repeating: the need for self-actualization is secondary to unmet needs for safety.
Isn’t that, after all, what the government is trying to capitalize on when it seeks to make people afraid? If the government succeeds in making jurors afraid, then the defense’s arguments based on love, esteem, or self-actualization are addressing only secondary psychological needs.
I don’t, however, agree entirely with Scott’s prescription:
If there is any possible way to avoid going to a trial now, do it. Aside from some particularly quirky moments in history that had significant impacts on jurors (like the OJ Simpson murder acquittal, for example), I can’t think of a worse time to ask a jury to elevate the concern of justice, fairness, due process, above their personal concerns.
I don’t think “Justice” can be categorized, as Scott classifies it, as a self-actualization need, or indeed as any sort of need at all. Justice means something different to everyone. Anyone whose physiological needs are met might seek and feel strongly about justice. Or, more aptly, anyone might use the word “justice” to describe the conditions that he sees as satisfying his needs. To the person focused on safety, “justice” is security of body, of employment, of resources, and so forth. Look at how Lawrence Kohlberg’s six stages of ethical reasoning mesh with the four higher levels of Maslow’s hierarachy of needs.
When the government asks for “justice” it’s usually talking about safety. When a defense lawyer asks for “justice” she might be asking for fairness or due process or freedom — all of which are at first glance higher-order goals.
But when we talk about fairness and due process we can talk about security of morality (it would do violence to jurors’ sense of right and wrong to treat this man unfairly), and when we talk about freedom we can talk about security of everything else (because if you let the government take away this person’s freedom, your own freedom, and therefore the security of your family, property, employment, health, and resources is at risk).
Between the argument to jurors’ prioritized need and the argument on a higher (or lower) Maslovian level, the former has a distinct advantage. So lawyers need to recognize the spirit of the times, and present the case that appeals to jurors’ need for safety. Higher-order needs don’t matter at the moment.
Part of the zeitgeist is an intensifying distrust of institutions including government at all levels. Except in white-collar cases (it may be a good idea to get a continuance on that bank fraud trial. . . but then things are going to get a whole lot worse before they get better), this creates an advantage for the human being on trial. The people are scared and frustrated, and it’s not drug dealers or drunk drivers or murderers who have them scared; it’s the incompetent or avaricious businessmen and government officials (Spanish and Yiddish have words — pendejo and schmuck — describing a person who is both incompetent and unpleasant. Why doesn’t English?).
So, unless you’re representing one of those supervillains of the impending financial apocalypse, pull on your boots, recognize your jurors’ need for safety, get into court, and find a way to help your jurors fill that need. You may find that these are the best of times.