Are Jurors Overly Obedient to Authority?
I have long wondered whether Stanley Milgram's well-known experiments on the obedience to authority are a reasonable predictor of jury behavior. For those of you who cannot recall, Milgram conducted a series of experiments in which he offered volunteers $4.50 for an hours work participating in a psychology experiment. The volunteer met an experimenter in a white lab coat and a pleasant-enough co-subject, who was really an actor. Lots were drawn, in a fixed manner, and the actor was assigned the role of "student" and the subject the role of "teacher."
The student was connected, in another room, to a number of wires. The teacher was set before a panel with thirty switches on it, from 15 to 450 volts. The switches were labeled in groups, from "slight shock" to "danger" to "XXX". The teacher was supposed to give the "student" a shock whenever he got an answer wrong. The next shock would be at a higher voltage, until 450 volts was reached.
At some point, the "student" would start screaming, then quit answering, then fall silent.
Every single subject proceeded to at least the 300 volt level. Two-thirds of them went all the way to 450 volts. Their actions plainly left them distraught, and many of the subjects needed counseling to come to grips with what they were willing to do.
There are two lessons to be learned from the Milgram experiments:
1. People are willing to take actions that go against their most deeply held conscientious values when ordered to do so by an authority figure.
2. Ethics are situational: just because we personally feel something is morally wrong does not mean we are unwilling to participate in it if saying "no" puts us at odds with authority. The characteristics of the person are far less important in determining who obeys, and the characteristics of the situation are far more important, than most people believe.
The person who obeys malevolent authority must dehumanize both himself and his victim. He forgets that the victim is human; as one of Milgram's subjects put it "You really begin to forget that there's a guy out there, even though you can hear him."
Moreover, he sees himself not as an autonomous actor but "as the agent of another's will; someone who "has a job to do" whether he likes it or not. The obedient person sees himself as an instrument; by the same token, he sees the victim as an object. In his eyes, both have been dehumanized." Henry Gleitman, Psychology, 476 (4th ed. 1995).
SO WHAT ABOUT THE JURY?
So what does this have to do with the jury? I have long wondered to what extent jurors (especially in states in which juries impose punishment) act as Milgram's subjects. Do they convict people in cases in which they view convictions as unconscionable, yet do not wish to be at odds with the judge? Do they confuse jury "instructions" with "orders," and believe the instructions give them no choice?
Moreover, who are the authority figures in the courtroom? Plainly the judge and the prosecutor, but rarely the criminal defense attorney. Thus, the tendency to obey authority pushes the jury to convict, but rarely to acquit.
It appears that this tendency towards obedience to authority is the greatest stumbling block to obtaining jury nullification verdicts. Jurors must feel personally empowered and involved if they are to rise above their tendency to mechanically obey authority figures and deliberately act on their own judgment.
Jury nullification, when it occurs, appears to be more of a subconscious than a conscious phenomonon. That is, because of their discomfort with convicting, jurors creatively interpret their instructions, make disingenuous findings of fact, etc. Nullification may be seen as passive-aggressive. Instead of confronting the unjust or unconscionable demands of authority directly, the nullifying juror cloaks his aggression in the guise of disingenuous fact-findings or a feigned misunderstanding of his or her instructions.
In a future post I plan on discussing some of the techniques I've learned for breaking down this tendency to obey authority. However, as one jury researcher has suggested, jury deliberations themselves may dilute or break down this obedience by giving the jurors a peer group and empowering them to think independently. Whether this is true or not may depend on the composition of the jury, the personalities of the attorneys and judge, and the evidence and arguments the jurors have been given to take with them into the jury room.