Abe Maslow, Jury Consultant

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.

0 responses to “Abe Maslow, Jury Consultant”

  1. Putting on my “how do I use this information” hat, I have come up with a few ideas. I suppose it would be helpful to put yourself in the shoes of the jurors during voir dire and attempt to see the world from the juror’s perspective. They may be worried about how long the trial is going to last and whether they will still have a job when the trial is over. They may be worried about whether they can afford to lose their incomes and survive on meager jury salaries. Some may not even show up to court for jury selection due to financial hardships. It is a sad state of affairs when the court system is unable to pay people an adequate jury service fee.

    I would consider filing a motion objecting to the jury selection system that fails to pay people adequate monies for jury service and that excuses most lower income and middle class people due to economic hardship.

    I would consider filing a motion requesting adequate pay for jury service and in the right circumstances when my client was able to afford to do so I would consider offering to pay money to the court fund to pay for an adequate cross section of the community for jury service.

    I would consider writing some brilliant voir dire questions informing the jurors about laws against terminating jurors for jury service and like anti-jury service discrimination laws. I would try to inform the jurors about how long the trial might last so that they would not have to worry about that issue.

    I would realize, that while my case is important to me and my client, that the juror has a life of their own and that while they may lie and say they can forget about their own life to listen to our trial, in reality, most jurors are going to worry about their jobs, their income, their children, their family, their medical issues.

    A juror that is diabetic is going to have medical issues. Most jurors over the age of 40 yrs. are probably going to experience some type of medical issue and many may be on prescription medications. If they excuse everyone with medical issues, family issues, job issues, and other issues, then the jury pool will be severely limited —- high income healthy people without children mostly under 40 years of age who don’t have a job to worry about or don’t have a work related issue or an income issue or family issues.

    Some attorneys extract promises from a jury that they will not worry about their life or their family or job or anything but the trial. People who promise things like this may not be answering in a totally honest way. But, who wants to disagree and incur criticism, when it is so much easier to answer the way the questioner wants you to.

    Role playing and trying to see things from the potential jurors point of view can be useful. If you cannot afford a mock jury, then asking a non-lawyer for their point of view about a case is a way getting another perspective on the case.
    Just a few ideas, I am still thinking . . .

    Yours in Defense of Fellow Human Beings,
    Glen R. Graham, Tulsa Criminal Defense Lawyer

  2. “A juror that is diabetic is going to have medical issues. Most jurors over the age of 40 yrs. are probably going to experience some type of medical issue and many may be on prescription medications.”
    I got this out of the post above. Jesus, how old is this person? 20? “Most” people over the age of 40 DO NOT have “medical issues” nor are we on prescription medications. I work with a group of healthy, robust late 50’s and early 60’s folks and we are all healthy as horses. Maybe things are different in Tulsa.

  3. As Will Rogers once said, “All I know is what I read in the newspapers (wink).” Agreeing with Will, but I would add, … and from Ann Reed, Sun Wolf, NLJ (Nat. Law Journal), Mark Bennett, Gerry Spence, Jon Katz, Scott Greenfield, and those internet bloggers — also known as the non-main stream media. Here’s where I got the information about medications and old people but I guess I could be wrong and so could my sources?

    Some consultants and lawyers now ask a general question about whether the potential jurors are taking any medications that might affect their jury service. Then, if the juror answer yes, the lawyer asks for a private sidebar with the judge and the potential juror to ask specifics in private.

    The National Law Journal story is here: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202423998014

    Singer, the jury consultant, noted that asking jurors about their use of medication is “quite controversial” due to the privacy provisions in the Health Insurance Portability and Accountability Act. “People have a right to privacy,” she said. “Usually if you ask such a question, the other side objects, you [anger] off the judge and it makes you look horrible.”

    A lawyer put the question to jurors on a recent, massive Medicare fraud case he handled in West Virginia. Of some 20 people in the jury pool, about five acknowledged taking drugs including Xanax, Prozac and OxyContin, a powerful painkiller. The lawyer said he didn’t care whether jurors were on Xanax or Prozac, but he moved to have the person taking OxyContin removed over concerns that the juror would have trouble concentrating.

    50% acknowledge medications (According to the Story) – Story could be wrong?

    At the recent Florida Bar annual conference, at a session entitled “Juiced Jurors,” SunWolf, an associate professor at Santa Clara University, passed around full-page drug ads torn from magazines listing a myriad of side effects for such drugs as Viagra, Claritin and Valium. The side effects can interfere with a jurors’ ability to sit and concentrate during long trials, SunWolf said. She urged lawyers to use the information to bounce jurors.

    Susan Powell, a jury consultant with Strategic Litigation Research in New York, said she, too, would feel uncomfortable asking jurors about their medications and then using that information to strike them.

    “You would wind up eliminating everyone over 40,” she said. “That strikes me as extreme.” {She could be wrong ? Where is the scientific research for her theories?}

    She added, “No one’s going to raise their hand and admit what drugs they are taking.” (I wouldn’t if some lawyer was going to criticize me — you can get a juror to answer the way you want them too if you will suggest the right answer or offer them the right opinion)

    Anne Reed, (Jury Deliberations trial blog) shies away from asking jurors about medications for an entirely different reason — fear they may be used to get excused.

    Still, the practice clearly has some validity. In 2007, a juror in a Cleveland murder trial was dismissed after it was discovered that he was not taking medication for a mental illness. The issue came to light after the juror fell asleep and appeared lethargic during trial. Ohio v. Lorenzo Collins, No. CR-06-482881-A (Cuyahoga Co. Ct. of Common Pleas 2007).

    In another case in 2007, a juror in a sexual harassment case against the city of Chicago disclosed during voir dire that he had taken medication for anxiety for six months but discontinued it. The juror said in a note to the court later that questioning by the plaintiff attorney started triggering anxiety and he wound up consulting his physician. Ammons-Lewis v. Metropolitan Water Reclamation Dist. of Greater Chicago, F.3d , 2007 WL 1544139 (C.A.7 (Ill.)).

    In an appeal decided in June, lawyers for a man convicted of murder argued before the Georgia Supreme Court that the verdict should be overturned partially because one of the jurors was sleeping during the trial. The juror acknowledged that she was on medication. But the trial court declined to ask the juror what medication she was taking or to excuse the juror.

    The Georgia Supreme Court ruled against the appellant, saying the trial court did not err. Smith v. State, No. SO8A0018 (Sup. Ct. Ga.).

    In 2003, a similar complaint was the basis for an appeal before the Michigan Court of Appeals. Lawyers for a defendant convicted of marijuana possession argued that the trial court erred by refusing to excuse a juror who did not disclose during voir dire that she needed anxiety medication. In fact, a police officer was sent to her home to retrieve her medication during the trial.

    Because defense lawyers themselves did not request a mistrial, the appellate court affirmed the conviction. Michigan v. Bradley Scott Lasco, No. 239278 (Mich. Ct. of Appeals.).

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