By Dr. Ken Broda-Bahm:
The sacred can sometimes find its way into legal evaluations. Apart from jurors using or quoting the Bible during deliberations (see Miller et al., 2013), sacred values can also take a broader role in the form of moral imperatives we are unwilling to compromise. One researcher (Tetlock, 2003) in a relatively young field of "sacred values psychology," defines these imperatives as "those values that a moral community treats as possessing transcendental significance that precludes comparisons, trade-offs, or indeed any mingling with secular values." While these would be most obviously religious values, they can also be political, philosophical, or even practical values that we are simply unwilling to balance against other interests. Those watching the current political debates in Washington, for example, could note the sacred cows of the right as no new taxes, no cuts to defense spending, no additional restrictions on gun ownership to name a few. And on the other side, the no compromise values of the left would potentially be full support to unions, no reductions in the social safety net, and unwavering defense of healthcare reform...no matter how beleaguered the rollout.
A recent review in The New York Times looks at what we know about the psychology of those beliefs that are taken to be sacred. Of interest to litigators is the finding that, when a sacred value is at stake, any argument that is even seen as an invitation to compromise, that value can backfire, causing an audience to dig in even deeper on their existing beliefs. That tendency will certainly be confirmed by any trial attorney who has tried unsuccessfully to talk some jurors out of very deep beliefs. In cases with obvious moral implications -- not only death penalty cases, but also cases that include the possibility of community condemnation in the form of punitive damages -- a juror's moral boundaries are relevant. Following up on a recent post in which I encouraged readers to consider evil, in the form of attitudes about the irredeemable, I thought I would offer a few thoughts in this post about the litigation implications to be found in other pole of the value spectrum