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Archive for the ‘Generation or Age of Juror’ Category

The Silent Generation: Who are they now?

Friday, August 1, 2014
posted by Rita Handrich

The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita


The US Department of the Census just released a report on what it is like to be 65+ in the United States and we are sharing some of the highlights with you. We recently wrote about our youngest jurors (the Millennials) and this report highlights our oldest jurors–those 65 years of age and beyond (the Silent Generation makes up the bulk of this group). The very thorough report is 192 pages long but here are a few tidbits about our oldest jurors.

The percentage of the population aged 65 and over among the total population increased from 4.1% in 1900 to 12% in 2010 and is projected to reach 20.9% by 2050. Of course, average life expectancy in 1900 was only until ages in the 40’s.

In 2010, Alzheimer’s was the fifth leading cause of death among those aged 65 and older. (While other causes of death were largely in decline, death from Alzheimer’s rose more than 50% between 1999 and 2007.

Almost 40% of those 65 and above had one or more disabilities in 2010. The most common issues were walking, climbing stairs and doing errands alone.

The older White living-alone population was less likely to live in poverty than the older Black living-alone, older Hispanic living-alone and older Asian living-alone populations.

States with the highest proportions of age 65+ residents were Florida, West Virginia, Maine, and Pennsylvania. Each of these states had above 15% residents aged 65+.

In 2010, internet usage among the 65+ population was up 31% points from a decade earlier.

This group was the only age group to have higher voter participation in the 2012 presidential election than in the 2008 presidential election.

Obesity is not just a problem of the young. Between 2003 and 2006, 28.7% of older men and 30.6% of older women were obese (BMI greater than or equal to 30).

In other words, they are a lot like every other mock juror in the room.

About the same time the Census Department issued their report on being 65+ in America, Gallup released a new report on confidence in physical appearance. And here’s something to help those of us on this side of 65 smile with anticipation as we age. We’re going to get better looking each day.

“Though many may pine for the physical appearance they had in their younger years, America’s seniors are the most confident in their looks. Two-thirds (66%) of Americans aged 65 and older “agreed” or “strongly agreed” that they always feel good about their physical appearance, compared with 61% of 18- to 34-year-olds. Middle-aged Americans (54%) are the least likely to report feeling good about their appearance.”

US Department of the Census. 2014 65+ in the US.



age_biasWe’ve written about the older juror before and the benefits of having them on your jury (sometimes). When it comes to actual trial practice, Prosecutors are more likely to use their peremptories to strike the younger potential juror while Defense attorneys are more likely to use theirs to strike the older potential juror. So, is it true that the older juror is more conviction-prone? Sadly, it would seem so

Researchers examined data from more than 700 felony trials in Florida’s Sarasota and Lake Counties from 2000-2010. They were able to collect data not only on seated jurors but also to gather the same data on the entire pool for comparison. The researchers found the voir dire pattern noted above (with Prosecutors striking the younger juror and Defense attorneys striking the older juror) but note that the protected categories of race and gender were not disproportionately struck. That is, prosecutors and defense attorneys were about equally likely to strike black versus white and female versus male potential jurors.

The researchers look at how the age composition of the jury pool (randomly selected to appear that particular day) is related to conviction rate. They found that the average age of the venire drawn for a case is highly correlated to the age of the seated jury. That is, when potential jurors are called for jury selection, if the average age is above 50 (which happens in about half the trials in these counties), the seated jury will also be older. If the average age of the jury pool is below 50, the seated jury will also be younger. Makes sense.

When the average age of the jury pool is greater than 50 years, there is a 79% conviction rate.

When the average age of the jury pool is less than 50 years, there is a conviction rate of only 68% (and yes, those differences are statistically significant).

 In other words, the older juror is more likely to convict. Conviction rates, say the authors, rise 1% with each year of increase in the average age of a jury. Specifically, “if a male defendant, completely by chance faces a jury pool that has an average age above 50, he is [snip] more likely to be convicted than if he faces a jury pool with an average age less than 50”.

Obviously, the age of the jury has nothing at all to do with the evidence you present, the quality of your presentation, or the merits of the prosecution. It is a randomly occurring event which, in turn, can mean that an acquittal or conviction can also be a random event. The authors question if this represents a “fundamental lack of equity with respect to the quality of true nature of the evidence in a case”. They believe this random conviction increase provides an argument for increasing the number of jurors in Florida from the current 6 required (except for death penalty cases) to a higher number in order to reduce the random variations in outcome that are independent of the evidence admitted and presented.

And until that happens (or if it happens), it probably makes sense to keep using peremptories to attempt to either increase or decrease the age of your jury.

Anwar, S., Bayer, P., & Hjalmarsson, R. (2012). The role of age in jury selection and trial outcomes. National Bureau of Economic Research Working Paper. DOI: 10.2139/ssrn.2014963


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meaningfullifeWe believe the negative press on the Millennials (our 20-somethings and early 30-somethings) is simply what happens to all of our young people as they are judged (and found wanting) by older generations. And mostly we eventually grow up, mature, and become something different than we started out as–at least when viewed through the eyes of our elders.

We’ve written a lot about generations, both on our blog in brief posts, and in longer, complete articles over at The Jury Expert. We were glad to see an article over at the New York Times this week on the new sense of the Millennial’s as in search of meaning. The authors say the old descriptors of Millennials as “narcissistic and flaky and selfish” in both their professional and personal lives is giving way to a very different picture as the generation matures. Well! Imagine that. They are changing as they mature. Go figure. We are especially glad to see that Jean Twenge, historically a research purveyor of negative stereotypes of the Millennials is also changing her writing as these young people mature and new and different realities encroach on their lives.  We found fault in her earlier conclusions, and are happy to see that the gap in our perspectives is narrowing. 

At the risk of beating a dead horse, we would comment that external societal factors shape us all and we become more aware of those factors as we enter our young adulthoods. In a recent mock trial related to subprime mortgage failures, there were several younger 20-somethings who listened intently to (what for them was barely recalled) information, and then all said variations on “I was very young so I am sure this hit my parents hard, but I didn’t really understand the implications”. As adults, looking back on these events without emotional memories, these young people were just as appalled as those who had lived through the beginnings of the economic recession as adults with mortgages that were under-water.

Coming back to the point, the NYT article focuses on the impact of the Great Recession on the attitudes of the younger Millennials who came of age during that time (after 2008). While young people have always shown more concern for others during times of economic hardship, this “new normal” is virtually all that younger Millennials have known in their fledgling adult lives. Thus, say these writers, they are more focused on making a positive difference in the lives of others than they are on making lots of money and being financially successful. This focus, say the authors, will lead them to a more meaningful life. (One of the authors of this NYT article has written on the differences between a happy life (more internally driven–”takers”) and a meaningful life (more externally driven–”givers”) that you can find here.) Of course, the drive to find meaning is a primary life-stage objective for someone in their late teens and twenties, so it shouldn’t come as a surprise. Yet it is bound to strike some critical elders as indulgent and self-centered, and some prickly Millennials as offensively obvious.

It’s a nice article and one filled with positivity and hope. The comments section is quite different. There are comments by Millennials asking for understanding as they age up and addressing economic realities–like this one from Kalidan.

Kalidan: So the article says Millennials are searching for meaning. Sure. This is about as meaningful a finding as one that would say the homeless are in the search for wide open spaces and freedom, and therefore different and unique in their outlook. Millennials’ outlook is not one of choice; it is default. If they cannot have, even after college graduation, financial security – of course they choose the next best thing.

There are many more negative comments from older commenters than there are positive ones. It’s a sad and cynical and (as Maureen says in her comment below) bitter picture.

Ross: Millennials and their loved ones are trying hard not to notice the giant “L” tattooed on their foreheads. The poor unfortunates are the most oversold generation in history. First they were oversold on their own special talents and uniqueness in grade school with the relentless campaign of self-esteem building. Then they were oversold as achievers by a middle school system dependent on standardized test scores for funding. They were taught to how to take the test and little else. Then they were sold on a six-figure college education as the necessary gateway to their rightful and fore-ordained place in society. Graduation is cold shower time. The shock is seeing themselves for what they are: economically superfluous generation of men and women with a future of little but endless college-loan payments.

Victor: Nah, you got it right the first time. They are the most self-absorbed, narcissistic generation ever produced and stand as an omen to the end of an age.

Maureen: We all love our children, we all do our best. So many righteous opinions. The bitterness is breathtaking.

Our belief is that as the Millennials age up, they will begin to write about themselves, their experiences, their economic realities, and they will eventually drown out the naysayers and show us who they become. Like Gen X. We all know how they turned out 

For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita

Roy F. Baumeister, Kathleen D. Voh, Jennifer L. Aaker, & Emily N. Garbinsky (2013). Some key differences between a happy life and a meaningful life. The Journal of Positive Psychology, 8 (6), 505-516 DOI: 10.2139/ssrn.2168436


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Me me me Time coverTime Magazine did it again recently and came out with a cover story on how Millennials are so much more narcissistic than any of the rest of us older and more mature people. Time deserves credit for knowing how to sell magazines and how to fan controversy.

This is a generation that would have made Walt Whitman wonder if maybe they should try singing a song of someone else.

Not surprisingly (especially with quotes like that one!) the Time article resulted in a lot of controversy and comments from readers like these over at It also spawned multiple cover imitators like these. In short, it’s a viral sensation. Apt for an article on the Millennials.

What’s intriguing is that all the irritation and outrage over this article simply shows most people didn’t read the entire thing. About half-way through the article, the focus shifts from “data” on Millennials to realities, and the message is very different from what is presumed from reading the first few pages.

While every Millennial might seem like an oversharing Kardashian, posting vacation photos on Facebook is actually less obnoxious than 1960s couples trapping friends in their houses to watch their terrible vacation slide shows. Can you imagine if the boomers had YouTube, how narcissistic they would’ve seemed?

And then Stein cites a really good TEDx talk by Scott Hess titled Millennials: Who They Are and Why We Hate Them.

The article also cites the YouTube video “You are Not Special” commencement speech for Wellesley High School in 2012. As you can see, this article really isn’t a hate piece on Millennials. Instead, it’s an eye-opening exploration into how all that “data” is simply misleading. Millennials are not just like us [Baby Boomers or Gen Xers]. They are different. Maybe they are better and maybe we are jealous. Much like Hess in his TEDx talk–Stein wonders if we can’t begin to see evolutionary advances as including the changes we see in generation after generation of young people throughout time. It isn’t a bad thing. It’s just what happens as we evolve.

So, yes, we have all that data about narcissism and laziness and entitlement. But a generation’s greatness isn’t determined by data; it’s determined by how they react to the challenges that befall them. And, just as important, by how we react to them. Whether you think millennials are the new greatest generation of optimistic entrepreneurs or a group of 80 million people about to implode in a dwarf star of tears when their expectations are unmet depends largely on how you view change. Me, I choose to believe in the children. God knows they do.”

After reading the internet reactions, we were primed to chew up this new Time article. As parents and boomers with good memories, we recall the natural narcissism of the 15-30 years. We’ve written a lot about generations and so we went, as usual, to the original source and found something refreshing and kind and thoughtful. If, of course, you actually read the entire article!

As an aside, there is an amusing video (at least amusing to a Boomer) on the 41-year-old (Gen X) author Joel Stein “being a Millennial for a Day”. Fail.

The New Greatest Generation. By Joel Stein and Josh Sanburn. Time. 5/20/2013, Vol. 181 Issue 19, p26. 8p.



left_right_political_spectrum_011As you have probably noticed, we read a lot of research here at The Jury Room. We are looking for nuggets of knowledge or pearls of wisdom we can apply to our day-to-day practice of litigation advocacy. If you’ve read our work on generations you likely already know there is a relationship between age and ethnic prejudice, with the multiculturally-immersed Millennials being the most open-minded among us. But here’s an interesting study that looks at the relationship between ethnic prejudice, age and right-wing authoritarianism.

Right wing authoritarianism had a research heyday some decades ago and has enjoyed a sort of resurgence in the current work of researchers. Fortunately (or unfortunately) questions like these, from a 2005 update of the Right Wing Authoritarianism Scale, are rarely heard in voir dire (even in the most conservative venues):

Our country needs a powerful leader, in order to destroy the radical and immoral currents prevailing in society today. 

God’s laws about abortion, pornography and marriage must be strictly followed before it is too late, violations must be punished. 

It would be best if newspapers were censored so that people would not be able to get hold of destructive and disgusting material. 

If the society so wants, it is the duty of every true citizen to help eliminate the evil that poisons our country from within. 

But they appear routinely in research and we try to learn what we can. Sample 1 was collected in the Dutch-speaking region of Belgium by “aggregating data from six subsamples” collected between 2000 and 2010. The researchers used data from 577 men and 644 women with an average age of 43.9 years. Sample 2 was collected in the Netherlands in 2010 by an online survey company. This sample included 426 men and 374 women with an average age of 49.5 years.

Participants completed the Right-Wing Authoritarian Scale, a cultural conservatism scale, and the 8-item Subtle and Blatant Prejudice Scale. (How blatant you ask? Here’s a sample question: “We have to keep our race pure and fight mixture with other races”.  Again, not a likely question for voir dire.)

There was a relationship between age and prejudice (both subtle and blatant)  with older age resulting in higher levels of prejudice as well as stronger endorsement of right-wing attitudes.

Interestingly enough, the strength of right-wing attitudes increase with age. The researchers think as we age, we may derogate outgroup members to affirm our own self-worth. It calls to mind the [in]famous quote falsely attributed to Winston Churchill: “If you are not a liberal at 25, you have no heart. If you are not Conservative by 35, you have no brain.

While we can’t use these measures themselves (or items from them) in voir dire–the findings of this research important. There is a tendency for us to become less tolerant of others as we age. However, that may have little to nothing to do with the senior citizen potential juror in your venue. Instead, your task is to glean what you can from their responses and what you know about them as individuals.

Do they sit quietly, isolated from others or are they chatty with diverse others? Do they appear stern and angry and bitter? Do they proudly wear a Confederate Flag pin, a Daughters of the American Revolution scarf, or an ACLU tee shirt? You may think that sort of comparison is ridiculous. So, we think, is assuming your senior citizen can’t be fair in deliberating, can’t keep up in a high tech trial, and can’t relate to/understand complex case narratives. It isn’t about the statistical aggregate. It’s about the individual when it comes to voir dire. And you know what assuming does…

Franssen, V Dhont, K Van Hiel, A 2013 Journal of Community and Applied Social Psychology, 23: 252-257.

Franssen, V., Dhont, K., & Hiel, A. (2013). Age-Related Differences in Ethnic Prejudice: Evidence of the Mediating Effect of Right-Wing Attitudes Journal of Community & Applied Social Psychology, 23 (3), 252-257 DOI: 10.1002/casp.2109