The COVID-19 pandemic touched nearly every aspect of modern life. Our families, schools, workplaces, religious institutions, and healthcare providers were all affected by the worst global healthcare crisis in 100 years. Even though the worst of the pandemic is (hopefully) behind us, some of its effects are just now becoming clear. One example is jurors’ altered attitudes towards scientific evidence, experts, and institutions. Jurors are more skeptical—and sometimes even hostile—to broadly accepted scientific principles and mainstream scientists. This article will examine why the pandemic has given rise to what we have called “QAnon Jurors,” how to spot them, and how, if at all, to persuade them.
A. The COVID-19 Pandemic’s Effect on our Decision-Making and Worldview: the Rise of “QAnon Jurors.”
Research shows that when people are confronted with death and their own mortality, they often gravitate toward their pre-existing belief system and worldview as a way to manage anxiety.[1] Known as “Terror Management Theory,” social scientists have found that, in times of prolonged turmoil and uncertainty, this desire to seek comfort in one’s own worldview can promote ideological extremism in individuals and, on a societal level, increased polarization.[2] During the COVID-19 pandemic, this natural tendency to lean into extreme versions of one’s pre-existing belief system led some people to minimize the threat of the virus and ignore the warnings of public health professionals.[3] These same people grew distrustful of scientists and other experts, eschewed expert opinions in favor of “doing their own research,” and ultimately resorted to conspiracy theories when faced with evidence of sky-rocketing COVID infection rates and death.[4]
The pandemic’s existential threat to global public health and the related economic and social upheaval pulled most people from their routine face-to-face interactions with community institutions and public events and drew many into online communities. While widely available digital communication allowed a remote-work revolution that saved the economy, it also allowed online fringe conspiracy groups to thrive.
One of the most highly publicized online fringe groups is QAnon, which emerged in 2017 among far-right Americans. QAnon revolves around a core belief that a cabal of Satanic and cannibalistic pedophiles operate a global child sex-trafficking ring that supports the Democratic Party and opposes Donald Trump. It is fed by anonymous postings of an individual (or individuals) called “Q,” ostensibly a federal government insider willing to leak the deepest secrets about the United States government and the Democratic Party. Consumers of Q’s posts then spread its salacious conspiracy theories among their social and political networks, a process that takes a life of its own and creates dozens of different versions of each post and can reach tens of millions of people.
Although QAnon preceded the pandemic and it is unlikely that, even today, a large percentage of any jury pool fully embraces all that QAnon promotes, the pandemic helped QAnon and other online extremist groups gain a previously unimaginable level of acceptance. Two in five Americans say that it is, at least, probably true that “regardless of who is officially in charge, there is a single group of people who secretly control events and rule the world together.”[5] Many elected officials and even members of Congress trade in QAnon conspiracies and solicit the support of QAnon adherents. This is consistent with a more polarized social landscape that appears less like a bell curve and more like a barbell.
For purposes of this article, a “QAnon juror” is not someone who shows up to jury selection wearing a QAnon t-shirt and chanting “Hang Mike Pence!” More broadly, the shorthand label defines jurors who are not merely conservative or liberal but extreme and almost unreachable. They exist on both ends of the political spectrum, and their numbers are growing. But our focus tilts to those on the far right because they have traditionally been considered defense-friendly in civil trials, whereas the far-left juror has always been considered reliably plaintiff-friendly.
B. The Importance of Identifying the “QAnon Juror.”
Post-COVID research shows that belief in conspiracy theories is the strongest predictor of a plaintiff-friendly juror.[6] Other influential factors include a general distrust of institutions, anti-corporate sentiment, low levels of education, and a willingness to rely on one’s intuition as opposed to facts.[7] Combined, this makes identifying potential “QAnon Jurors” critical to defense counsel’s litigation success.
Further complicating matters, the “QAnon Juror” has upended the conventional wisdom about political affiliation and defense-friendly views. It is no longer the case that conservative or Republican jurisdictions are reliably defense-friendly. Jury consultant Nick Polavin’s research shows that only when the conspiracy theory variable was controlled for were Republicans significantly more likely than Democrats to side with the defendant.[8] When belief in conspiracy theories was factored in, Republicans became more likely to side with the plaintiff than Democrats.[9]
In fact, far-right Republicans were found to be almost as plaintiff-friendly as far-left Democrats.[10] This makes sense given the importance of the above factors. Not only are far-right Republicans most likely to believe in conspiracy theories, but they are also most likely to have less formal education and, post-COVID, most likely to distrust medical science.[11] Lower-educated conservatives also harbor the strongest anti-corporate beliefs of any potential jurors.[12] All in all, learning how to recognize and avoid the “QAnon Juror” could fundamentally change a trial.
C. Using Voir Dire and Social Media to Identify “QAnon Jurors.”
Social media and background research can be very helpful when evaluating potential jurors, but post-COVID the inquiry must be more nuanced than simple political orientation.[13] The good news is that conspiracy theorists typically disseminate their beliefs. If social-media research into potential jurors is feasible and permitted, look for posts supporting far-right political candidates, posts spreading COVID misinformation or expressing distrust for public health officials, or posts expressing support for other conspiracy theories.
Through voir dire or a juror questionnaire, information about the following factors should be sought to the extent possible:
- Unvaccinated for COVID-19
- Lack of trust in government institutions such as the EPA or FDA
- Lack of trust in scientists or public health institutions
- Belief in an intuitive ability to tell if information is true or false
- Less formal education
- Low income
- High religiosity
- Ingroup loyalty (i.e., importance of loyalty to the groups with which one identifies)
These factors have been most closely identified with a belief in conspiracy theories.[14] By adjusting previously held beliefs about political affiliation and plaintiff-friendly jurors, and by looking for signs of conspiracy theorists, it is possible to spot and strike “QAnon Jurors.”
D. What to do if a “QAnon Juror” Slips Through
Jury selection is not foolproof and is admittedly reliant on snap judgments that factor likely associations between limited pieces of a potential juror’s biographical data and the juror’s likely views about the case. The key is realizing which data points are reliably helpful and which are unhelpful misconceptions; a conspiracy-minded juror can slip through the most careful selection process. Fortunately, once a “QAnon Juror” is seated, there are ways that defense counsel can tailor their trial strategy accordingly.
One tactic defense counsel may choose is an appeal to the processing style of the “QAnon Juror.” Research has identified two general processing modes, logical and intuitive.[15] People in logical processing mode carefully analyze facts and evidence to arrive at a rational conclusion. Intuitive processing, on the other hand, relies on “gut feelings,” emotional reactions, and heuristics. The “QAnon Juror” is more likely to engage in intuitive processing, relying on their instincts and weighing feelings over facts.[16]
Defense counsel can tailor their approach to appeal to intuitive information processors. Carefully constructed, fact-intensive refutations of the plaintiff’s allegations will not be effective.[17] Rather, a simple, relatable narrative that focuses on the conduct of the key parties is essential.[18] So is timing. Defense counsel cannot wait until after the plaintiff’s case to introduce their message. The narrative and should begin immediately, during voir dire and opening statements.[19]
Another tactic defense counsel might choose, particularly in liberal jurisdictions, is to lean into the remaining jurors’ belief in scientific consensus and government institutions. Emphasizing the importance of embracing evidence-based scientific principles and resisting emotional decision-making can give liberal jurors a way to feel good about supporting the defense.[20] Themes leveraging this belief in science have proven particularly persuasive among liberal jurors since the pandemic.[21]
Conclusion
The pandemic changed everything, and litigation is no exception. Much of the conventional wisdom about defense-friendly jurors has expired. Now, identifying and striking “QAnon Jurors” is crucial to defense counsel’s litigation success. If, despite social media research and careful voir dire questions, a “QAnon Juror” ends up on the jury, defense counsel must tailor their litigation strategies accordingly. Counsel must choose whether to appeal to the intuitive processing of the “QAnon Juror” or appeal to the remaining jurors’ belief in evidence-based, scientific analysis.
NOTES
[1] Pyszczynski, Tom, et. al, Terror Management Theory and the COVID-19 Pandemic, J. Humanist Psychol., 2021 March; 61(2); 173-89.
[2] Lorie Sicafuse, PhD., Impact of the COVID-19 crisis on jurors’ attitudes & decisions, Part I of IV, available at https://www.courtroomsciences.com/blog/litigation-consulting-1/impact-of-the-covid-19-crisis-on-jurors-attitudes-decisions-133 (last visited Sept. 3, 2023).
[3] Pyszczynski, supra note 1.
[4] See Chris Barncard, During pandemic, proponents of ‘doing your own research’ believed more COVID misinformation, University of Wisconsin-Madison News (Aug. 15, 2023), available at https://news.wisc.edu/during-pandemic-proponents-of-doing-your-own-research-believed-more-covid-misinformation/ (last visited Sept. 3, 2023).
[5] https://today.yougov.com/topics/politics/articles-reports/2022/03/30/which-groups-americans-believe-conspiracies
[6] Nick Polavin, Who Needs Evidence? The Rise of Conspiracy Minded Jurors, For The Defense, May 2023, at 39, available at https://digitaleditions.walsworth.com/publication/?m=55594&i=791404&p=40&ver=html5 (last visited Sept. 4, 2023).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. According to a Pew study, Republicans’ confidence in medical scientists fell from 83% in 2016 to 66% in 2021. The number is likely far lower among far-right Republicans.
[12] Stratton Hores, et. al, Jury Selection is Critical in Preventing Shock Verdicts, Reuters, Aug. 3, 2022, available at https://www.reuters.com/legal/legalindustry/jury-selection-is-critical-preventing-shock-verdicts-2022-08-03/ (last visited Sept. 3, 2023).
[13] Polavin, supra at n. 5.
[14] Id.
[15] CSI-Courtroom Sciences, Inc., Impact of the COVID-19 crisis on jurors’ attitudes & decisions, Part III of IV, available at https://www.courtroomsciences.com/blog/litigation-consulting-1/impact-of-the-covid-19-crisis-on-jurors-attitudes-decisions-134 (last visited Sept. 3, 2023).
[16] Id. Some research suggests that, in the wake of the pandemic, jurors are generally more likely to make decisions using intuitive processing. Defense counsel may want to consider adopting some strategies for persuading intuitive processors regardless of whether there is a “Q-Anon Juror” present.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
This article originally appeared in the newsletter of the ABA Toxic Torts and Environmental Law Committee.
Carrie Williams is a member of the firm's Appellate Practice Group. She represents clients across the firm's many practice groups in pre-trial and appellate matters. She can be reached at cwilliams@gdldlaw.com.
Derek Stikeleather is Chair of Goodell DeVries's Appellate Practice Group. He practices primarily in appellate advocacy and complex litigation, often in commercial disputes or defending product liability, medical malpractice, and class action claims. He can be reached at dstikeleather@gdldlaw.com.
