Defense attorney Tom Martin1 had five days left to prepare and finalize his voir dire for a high stakes medical malpractice case. After over twenty-eight months of preparation, Tom was ready to rock and roll.
“I’ve covered the bases on past medical experiences with illness or injury, sick and disabled at home, attitudes about doctors, quality and access to health care, bad or disappointing medical outcomes, volunteer organizations, charitable involvement… Everything I can think of that will find the sympathetic walking wounded, liberals and bleeding hearts. Can you think of anything else I should include?”
“Tell me about your client,” I said. “We’ll start there.”
The mandatory litany of education and training and other lines from his curriculum vitae followed. There was nothing of particular interest or concern in his description, so I asked a simple question.
“What can you tell me about him as a person? That’s always important to jurors.”
His answer was unassuming but critical to the case.
“Oh, he’s a nice guy… um… he has an accent, though.”
“Accent? Tell me more.”
“His name is Sa’ed Abdul Bazir2.He’s originally from Iraq. Got his medical degree there. He was a medical officer and surgeon in Sadam’s Iraqi Republican Guard, but he escaped and brought his family to America years ago.”
The red lights on my jury alarm began flashing: Patriotic prejudice; anti-Arab/Muslim bias. Houston, we have a problem.
Negative Stereotypes and Juror Devaluation
Negative stereotypes lead to jurors short-circuiting the vetting process of a party or witness. Your client (or witness) can’t get an even shake if jurors’ first reaction is “terrorist”, “Islamo-fascist”, “suicide bomber”, “9/11” or “a Hadji like the ones that set an IED and killed my buddies/son in Falujah”.
If jurors feel your client or witness is not worthy of consideration they will devalue him or her. Some things can be changed or improved with most any party or witness, but race and ethnicity are not changeable or improvable features. Racial and ethnic bias and stereotypes carry a heavy toll and can convey attributes and characterizations that are insurmountable. You cannot change any juror’s stereotyped beliefs and, paradoxically, you could further plant their feet by trying to change their stereotypes.
On the other hand, there are trial strategies that can identify concretized bias, attenuate social and cultural differences and enhance your client’s unique positive personal, professional and familial characteristics. We address a few of those later in this article.
Bias against Arabs, Muslims, and Middle Easterners
Negative stereotypes and prejudice against Arab, Middle Eastern or Muslim individuals is not a new phenomenon. While many think of 9/11 as a seminal point in anti-Arab/Muslim sentiments, the origins of these feelings can be traced back decades. American foreign policy and network news coverage of the Arab/Israeli conflicts over the Palestine issues in the 1960s and 1970s and ongoing conflict in the Middle East for the past thirty years have influenced juror perceptions. The Arab Oil Embargo of the early 1970s is another point where emerging petro-politics directly affected the psyche and wallets of United States citizens.
Today’s anti-Arab/Muslim prejudice is simply an old resentment and distrust finding new expression in a more dire and dangerous fear. Dependency on Arab Oil now is co-mingled with fears of terrorism and with the reality of American deaths at home and over seas.
Generic prejudice relates to beliefs about certain classes or types of people that would affect the way a potential juror would view the evidence and parties in the case. For example, this might include the belief that all Arab-Muslims are murderers, have no regard for life or the rights of others, are demeaning of women, are religious fanatics, hate all Americans, reject democracy and Western values, and so on. It is generic prejudice that is most likely to be at work in cases where the defendants, parties or litigants are Arab and/or Muslim10.
How widespread and deep is anti-Arab/Muslim prejudice? In a paper3 presented at the American Society of Trial Consultants Conference in Chicago, June 2008, Sonia Chopra, Ph.D. of the National Jury Project-West reports:
“A recent Gallup poll reveals many Americans admit to holding negative views about people of the Muslim faith, with 39% saying they have at least some feelings of prejudice against Muslims 4. Less than half of those polled (49%) believe that Muslims living in the U.S. are loyal to the United States and 34% believe that U.S. Muslims are sympathetic to Al-Qaeda. In addition, substantial minorities perceive Muslims as being overly committed to their religious beliefs, less than respectful of other religions and disrespectful towards women 4. Nearly 4 in 10 Americans support stricter security measures for Muslims as compared to other U.S. citizens, including requiring U.S. Muslims to carry special ID (39%), and to undergo differential security checks before being allowed to board airplanes in the U.S. (41%) 5.
People who do not personally know someone of the Muslim faith hold even more extreme negative views than those who have such an acquaintance. For instance, 31% of those who do not know a Muslim person would not want a Muslim as a neighbor, compared to just 10% of those who do know someone of the Muslim religion. Amongst poll respondents who did not know anyone who was Muslim, 38% said they would be nervous if a Muslim man was on the same flight as them 6. Age also plays a factor in attitudes towards Muslims, with those over 65 holding the most negative views 7."
This pattern of bias speaks for itself: the prejudice is pervasive. In fact, more than pervasive. It may be “patriotic” to feel and express such feelings. The pervasive and perhaps patriotic expression of these feelings however, endangers the parties in litigation who may in fact bear these cultural and religious traits. A pattern of such zealously held beliefs may have been part of popular culture since the zenith of the “Red Menace” of the 1950s and 1960s, and the ubiquity of anti-Nazi/anti-Japanese propaganda during WWII. To hate and fear the “enemy” of all we hold dear is the highest order of protective communal feeling. It is “us” versus “them” at the highest order.
When events or situations threaten our sense of individual and/or group security the result can be a stronger sense of in-group loyalty and increased hostility towards members of the out-group. For instance, agreement with the statement, “It is clear which countries are enemies of the United States” is a strong predictor of a reluctance to interact with Arab individuals8. More generally, the best predictor of anti-Arab attitudes is evidenced by a juror’s verbal affirmation that they are a patriotic “Loyal American” and their belief that they are vulnerable to personal risk of terrorist attack. True prejudicial or stereotypical beliefs against Arabs and/or Muslims are probably much stronger than people are willing to admit, particularly in a situation such as voir dire where they may be held accountable for their answers.
Some have used the Implicit Association Test9 (IAT) to measure prejudicial attitudes by looking at automatic associations between group members and their personal attributes. Prejudiced individuals’ most common responses included references to terrorism and/or violence, followed by deep religiosity, discrimination against women, negative personality traits, and physical appearance. People who mentioned terrorism in their responses were more likely to demonstrate implicit bias against Arab-Muslims.
Dealing With Anti-Arab/Muslim Bias In Litigation
If you have a case where your client happens to be of Middle Eastern origin, here are some tips and strategies to cope with anti-Arab-Muslim prejudice in the jury:
1) Improve Your Jury Selection:
a) Request a Supplemental Juror Questionnaire and support its use by demonstrating potential bias in the venue.
Use well- known polls, surveys and evidence of prejudice gleaned from local news media such as: hate crimes, negative editorial comments, or frequency and availability of national and local news items portraying Arab-Muslims in a negative light. Educate the Court that compared to open court, many of us are more open about personal biases when responding privately in a written form.
b) Ask for additional time to voir dire potential jurors on this specific issue.
c) Create voir dire items specifically designed to elicit Anti Arab-Muslim bias.
Ask about Desert Storm, Serbia, Iraqi War military service, deaths and war-related injury, and servicemen in their family. Ask about discomfort when seeing apparently Arab people boarding your plane.
d) Fully explore “worthiness” if damages are an issue.
For instance, “Would your discomfort or suspicion of someone Arab/Muslim make it even a little difficult for you compensate them with money for their injuries?”
e) Follow up on the source and strength of prejudicial views in order to establish challenges for cause and to intelligently exercise peremptory challenges.
f) Remember that even a small group of biased jurors can alter the verdict and/or damage award.
g) Don’t assume that a Middle Eastern origin juror will automatically be on your side. Query them in voir dire as well.
h) Remind jurors that their feelings about your client’s cultural or religious background may lead them astray if they don’t stay aware of their biases.
When jurors are not reminded or pressured by situational cues to avoid prejudice, they are more likely to let down their guard and demonstrate bias.
2) Actively Prepare Your Witnesses:
a) Emphasize how your witness is similar to the jurors in order to minimize imposed or perceived differences.
b) Practice attaining a relaxed conversational style in question response.
c) Refine listening skills to overcome problems in understanding subtle nuance in meaning of questions which can result from both language and cultural barriers.
d) Minimize accent or comprehension issues (if problematic) with mild self-deprecating responses.
e) Work on the pace of verbal delivery to more closely match colloquial speakers in your region.
f) Practice Direct Exam narrative in depth.
g) Inoculate on likely Cross Examination effects by repeatedly exposing the witness to practice questions and ensuring each response achieves parity in style and delivery with responses to Direct Exam questions.
3) Refine Your Opening Statement:
a) If true, point out that the evidence and testimony shows that your clients’ cultural or religious background is irrelevant to the alleged acts, omissions or damages.
b) Remind jurors to stay aware of how their personal prejudices might affect the way they hear and use the evidence and testimony.
4) Credential Your Witness in Direct Examination:
a) Emphasize the similarities between your client and the local populace.
Values similarities are best expressed in the disclosure of tangible activities such as participation in family and family-related events, children’s and parents’ school and after-school involvement, social interests, community involvement, regular activities of profession, work, religious and home life, et cetera.
b) Encourage honest and/or emotional disclosures.
Arab or Muslim plaintiffs may be embarrassed by their victimization and losses. Focus them on the necessity to accurately disclose their suffering, harms and losses in a way that also demonstrates their emotional experience of such losses.
c) Engage juror empathy with sincere demonstration of feelings and explanation of your client’s emotional experience of events.
Engage your client’s colleagues, family and friends to vouch for his/her character. Try not to use your client as the main source of testimony about who they are and what they are like. Consider including non-Arab/non-Muslim witnesses who are personal friends of your client. This can further emphasize that your client is like the jurors and has friends who look like the jurors.
d) Make your client as physically attractive as possible.
e) Use stories and have witnesses give examples.
f) Remember, the case is about what you spend the most time discussing.
If Arab or Muslim culture is not salient to the case, don’t spend much, if any, time on it in your case in chief.
5) Protect Your Witness In Cross Examination:
a) Prepare your client to respond consistent with Direct Examination.
When bias creates a foundation for doubt and suspicion, your clients’ credibility is the virtue to be protected and enhanced. Make sure that your Arab or Muslim client responds to the rigors of cross examination without rancor or defensiveness and with relative equanimity. [See recommendations under Witness Preparation.]
b) Anticipate cultural barriers to effective responding.
Middle Eastern culture is patriarchal. Men with status of family or position are not used to being questioned. Make sure they understand that defending their honor by being confrontational defeats their purpose and allows the jury to see them in a negative (and stereotype-confirming) light.
6) Finish With a Strong Closing Argument:
a) Arm your juror advocates so they will not allow prejudice to influence deliberations.
Remind jurors that their feelings about your clients’ cultural or religious background may lead them astray if they don’t stay aware of their biases. Tell them how to go about dealing with such statements in the jury room and that they have the option of informing the judge if necessary.
b) Clearly explain the relevant jury instructions and verdict forms.
Most jurors misunderstand the jury instructions. Explain the law and the verdict issue simply and in plain language. Make sure they are comfortable calling upon the judge for clarification.
c) Give jurors an “out” for their verdict decision.
Help jurors respond to friends who may be angry about the verdict rendered for prejudicial reasons. Give them a concise “one liner” to use when and if confronted about their verdict after the trial.
The fact that a juror says he believes something does not mean he believes it deeply. The fact that another juror says she does not believe something bears the same but converse condition. To confront ethnic, racial and cultural bias in the venire requires that first you recognize its often hidden, subtle and pervasive presence. Arm yourself, your client and your jury with the awareness, guidelines and responses necessary to cope with bias.
Dennis C. Elias, Ph.D. [firstname.lastname@example.org] is a senior trial consultant with Litigation Strategies, Inc. based in Phoenix, Arizona. He does primarily civil work and consults in venues across the country. He specializes in pretrial jury research, witness preparation, jury selection, complex litigation cases, as well as medical malpractice, product liability, and insurance bad faith cases. [http://www.litigationstrategiesinc.com].
1 & 2 The names of the individuals in this article are fiction. No actual persons other than the author are referenced.
3 Chopra, S. (2008). “Anti-Arab and Anti-Muslim Sentiment amongst Potential Jurors: Underlying Psychological Constructs and Tools for Identification”. Paper presented June, 2008 in Chicago at the American Society of Trial Consultant’s annual conference.
4 Saad, L. (2006). Anti-Muslim sentiments fairly commonplace: Four in ten Americans admit feeling prejudice against Muslims. Gallup News Service. Retrieved fromhttp://www.gallup.com/poll/24073/AntiMuslim-Sentiments-Fairly-Commonplace.aspx.
5 Newport, F. (2006). Complex but hopeful pattern of American attitudes towards Muslims: Little change in opinions since 2002 survey. Gallup News Service. Retrieved fromhttp://www.gallup.com/poll/22021/Complex-Hopeful-Pattern-American-Attitudes-Toward-Muslims.aspx
6 Pew Research Center (2007). Benedict XVI Viewed Favorably But Faulted on Religious Outreach: Public Expresses Mixed Views of Islam, Mormonism. Retrieved from http://people-press.org/reports/display.php3?ReportID=358
7 Jones, Jeffrey M. (2008). Americans Have Net-positive view of U.S. Catholics. Gallup News Service. Retrieved from http://www.gallup.com/poll/106516/Americans-NetPositive-View-US-Catholics.aspx
8 Oswald, D. (2005). Understanding Anti-Arab Reactions Post 9/11: The Role of Threats, Social Categories, and Personal Ideologies. Journal of Applied Social Psychology, 35, 1775-1799.
9 Greenwald, A. G., McGhee, D. E., & Schwartz, J. L. K. (1998). Measuring individual differences in implicit cognition: The implicit association test. Journal of Personality and Social Psychology, 74, 1464-1480.
10 Vidmar, N. (2003). When all of us are victims: Juror prejudice and “terrorist” trials. Chicago-Kent Law Review, 78, 1143-1178.