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October 05, 2004

Judging Juries Judging Risk

Posted by John Adams

The SAU has long taken an interest in how issues surrounding the perception of risk are used to justify calls for increased government regulation. Perhaps the leading academic writer on attitudes to risk is Prof. John Adams, the author of the seminal Risk. Professor Adams will be writing regularly for the SAU on risk. Here he examines how attitudes towards risk by members of a jury, both of the traditional and 'citizen' variety, can affect the outcome of their deliberations.

In the United States the tort system is redistributing $200 billion (2% of GDP) annually from the 'guilty' (mostly big medicine and big business) to their 'victims'. Most of this money is redistributed by juries – or insurers in anticipation of jury awards – and of this sum, trial lawyers, operating on a no-win-no-fee basis collect $40 billion. [see Risk of Freedom Briefing, January 2004].

In the UK in the summer of 2003, as part of a large public consultation exercise called GM Nation?, two citizens' juries came down heavily against both the Government and the biotech industry. They accused the Government of paying "lip service" to their concerns and proposed banning the growing of GM crops and the sale of GM foods, and curbing the power of large agrochemical corporations.

What might these experiences with juries on either side of the Atlantic have in common?

Let us begin with the process of jury selection. In tort cases in the United States this has become a highly developed art, the object of which, on the part of the plaintiff, is the selection of the most ignorant and impressionable jury possible. Olson, explaining "why smart lawyers choose dumb jurors", observes that "even before selection begins, busy people often have dodged service, leaving a pool comprised disproportionately of retirees, the unemployed, and workers who can be spared from their jobs". Beginning with this promising material the rules of jury selection permit the weeding out of all those who might possess logic or relevant experience to bring to bear on the evidence in dispute.

We all view the world through perceptual filters constructed out of previous experience. Analysis of such filters sheds some helpful light on our jury question; it suggests that each of the actors in American tort cases and British GM debates can be assigned to one of four categories. [For book-length descriptions of this typology, and other applications see Cultural Theory, M. Thompson, R. Ellis & A. Wildavsky, Westview Press, 1990 and Risk, John Adams, Taylor & Francis, 1995]. They are:
• Hierarchists – the Government, the regulators and regulation enforcers;
• Egalitarians – environmental activists and the consumer champions whose motto is if you can't prove it's safe assume it's dangerous;
• Individualists – risk takers, the CEOs of big business in pursuit of the rewards of risk whose motto is if you can’t prove it’s dangerous assume it’s safe, and
• Fatalists – 'little people' whose lives are buffeted by large, incomprehensible forces beyond their control.

Most of us, most of the time, are Fatalists. The declining numbers of people who bother to vote suggest that the forces of globalization are rendering increasing numbers of problems beyond our power to influence. Some people – entrepreneurs, politicians, senior civil servants, NGO activists – still retain the belief (illusion?) that, in certain niches of their lives, they can make a difference. These are the people the jury selection process in American tort cases seeks to exclude. It targets extreme Fatalists – the smallest of the little people – and then empowers them. It offers them, on a plate, a chance to express their resentment at their helplessness.

In Britain there have been numerous surveys of public opinion about GM. Broadening the meaning of the word 'jury' to refer to any group rendering a verdict on some issue, we can conclude that British juries are hostile to GM. The jury selection process involved in the GM consultation varied: some juries consisted of self-selecting participants in public meetings, and others of groups selected to be representative of the general public.

Perhaps the most instructive of the juries consisted of 77 'representative' people co-opted to the 'narrow-but-deep' group. This selected-but-volunteer jury, on initial recruitment was presented with a questionnaire probing its attitudes to GM. It was then subjected to two weeks of immersion in the GM debate with information provided by all sides, after which the original questions were repeated.

The results were discouraging for the proponents of GM. Initial hostile attitudes were hardened by the educational experience. At the beginning 57% thought GM was bad for the environment and 28% were Don't Knows. At the end 85% thought it was bad and the Don't Knows had shrunk to 4%. The largest shift in opinion was in the view that GM represented an unacceptable interference with nature: 66%, up from 37%. Suspicion of the promoters grew; the number believing that they were profit driven increased from 69% to 88%. The Government also did not fare well; the number believing that GM was carefully regulated dropped from 21% to 18%. But all the opinions expressed both at the beginning and the end were embedded in great uncertainty – the number opining that not enough was known about the health effects of GM increased from 80% to 96%.

Although these results were reported as responses of 'the public', one can make a start in deconstructing this jury in terms of the above cast of characters. When confronted with great uncertainty, what one believes depends on whom one believes, and whom one believes depends on whom one trusts. Repeated surveys of trust in Britain by MORI reveal that big government (Hierarchists) and big business (led by Individualists) command large negative levels of trust. Environmental organizations (Egalitarians) command large positive levels of trust. Most trusted or all are family and friends. They are not trusted to tell the scientific truth about GM; they are trusted not to lie or spin.

Ignorance and powerlessness in the face of large hypothetical risks induces fatalism. A GM jury comprised mostly of Fatalists, and empowered by the prospect of having its views heeded, will be predisposed to have those views influenced by those it mistrusts least – the opposition to GM.

The exercise offered one ray of hope for the proponents of GM. When asked about medical benefits the exercise produced a 31% decrease in Don't Knows and a 28% increase (to 60%) in those who agreed that GM had the potential to be beneficial. Increases were also recorded in positive responses to questions about whether it had the possibility to produce cheaper food and to help developing countries. It appears that before the jury known as 'the public' is prepared to take risks, however hypothetical, it must be offered clear benefits by those it trusts.

John Adams is emeritus professor of geography at University College London.

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