Understanding the COVID-Gamblers in Your Jury Pool

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Every jury selection involves a variety of issues relating to how potential jurors could feel about the specific case. But there is one issue that is relevant in every current jury selection for an in-person trial: What is the person’s comfort level in sharing relatively close quarters indoors for long periods of time while we are still in the extended throws of the coronavirus pandemic? Some will be vaccinated and others won’t be, but all face at least some risk of receiving or transmitting the virus due to jury duty. Jurors’ subjective perceptions of that risk matters because few parties or judges will be callous enough to force jury duty on someone who is clearly and vocally uncomfortable. It also matters, because that selectivity has an influence on the makeup of the jury pool that remains. One factor that matters to that comfort is tolerance for risk. So what do we know about those who are more willing to take that gamble?

A group from Clemson University has an answer in the form of a study recently released in PLOS ONE, the open-access journal (Bryne et al., 2021). Conducted last Spring, the study looked  at individual differences in decision-making on the pandemic, including mask wearing and social distancing. Conducting a correlational experiment with 400 participants, they found that three factors explained a majority (55 percent) of the variation in those behaviors, and interestingly none of those factors were health status, demographics, or even political leaning. The three factors ended up being:

  • Risky decision-making behavior: the gambler profile of preferring a high-risk/greater benefit scenario;
  • Temporal discounting: preferring immediate rewards over distant (and potentially greater) rewards; and
  • Risk perception: seeing risk as lower when it seems to be in their control, or when it is related to anything pleasurable. 

In this post, I’ll share what we know about the risk profile, as well as the general profile that separates the “COVID gambler” from the others in your jury pool.

The General Profile of a COVID-Minimizer

Citing prior research, the research article provides a useful list of items on the general profile of those who are less concerned with COVID-19 and with situations, like indoor, close-quarters jury duty, that come with a risk of exposure. The general characteristics are:

  • No first-hand experience with the virus
  • Low on pro-social values (community, sacrifice, etc. )
  • Low knowledge of the virus
  • Low fear of the virus
  • Low trust in medical recommendations
  • Belief in the subjectivity of science
  • Conservative or libertarian political ideology
  • Low on “conscientiousness” trait
  • Younger

The Risk-Tolerance Profile of a COVID-Minimizer 

Adding to this list, the researchers focused on attitudes and behaviors regarding risk. Specifically, they used a regression analysis to show that most of the variability in masking and distancing behaviors is explained by the factors of risk behaviors and perceptions, as well as a preference for immediate over distant rewards. It is easy to see how views on risk could play a role in evaluating legal cases. Those who favor a higher risk and higher reward might also tend to excuse or normalize risk-taking by a party in litigation. Those who focus on immediate, rather than delayed, gratification might also prefer the instant impression, rather than the one that builds over time.

One implication is that COVID risk attitudes are now one thing that should be measured every time in jury selection, in the context of your own venue and case. National trends are useful, but ultimately the trends that will matter will be those in your own venire. The role of greater risk tolerance is something to be assessed and researched in the context of your own case. So rather than taking a gamble with your panel, it makes sense to ask your judge to allow a pretrial jury questionnaire.

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Byrne, K. A., Six, S. G., Anaraky, R. G., Harris, M. W., & Winterlind, E. L. (2021). Risk-taking unmasked: Using risky choice and temporal discounting to explain COVID-19 preventative behaviors. PloS one, 16(5), e0251073. URL: https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0251073

Image credit: 123rf.com, used under license, edited by the author

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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