By Dr. Ken Broda-Bahm:
If the release of the Senate Intelligence Committee's report on the CIA's detention and interrogation methods following the September 11th attacks wasn't depressing enough, the follow-up polling is sure to put an exclamation point on it: Americans, by a nearly two-to-one margin, support torture. Based on the belief that, despite the report's conclusions, such methods "produced valuable intelligence," it appears to be a case of the Machiavellian principle of the (perceived) ends justifying the means. Setting aside the robust evidence indicating that "harsh interrogation" does not work, or at least does not work as well as other methods, the public's reaction illustrates a conflict between two main ways of deciding whether something is good or bad. You can base ethics deontologically on whether certain rules, principles, or duties were followed, regardless of the outcome. Or you can base ethics consequentially on whether the result produced a greater good for a greater number. A jury trial can be a setting for applied morality, as jurors are inevitably infusing their interpretation of what the law requires with their interpretation of what's right. For that reason, it is often important for litigators to think about ways to encourage a particular frame of moral reasoning.
For example, I faced that kind of challenge in a recent case. The plaintiffs had been enrolled in medical trials that arguably produced a benefit to thousands of others, but in the process, they had been involuntarily exposed to risks that the researchers knew about but did not disclose. On its face, it was tempting for the plaintiffs' lawyers to think, "Well, the benefits don't matter, the researchers broke the rules." But early mock trials suggested that jurors would have a hard time faulting the defendants when their work seems to have benefited so many. The challenge for the plaintiffs, then, was similar to the challenge for those arguing against torture: How do you encourage people to resist the pull of a consequentialist mindset? After briefly sketching out these two ethical views, this post will share some advice for those times when you need to tip your jurors in a moral direction.