Legal Issues and Public Opinion Research Paper

This short review will of necessity be selective in its coverage. With respect to substantive legal issues, it will emphasize criminal justice, providing only passing references to tort litigation and no coverage of public opinion in the domains of contract law, family law, intellectual property law, and so on. With respect to methodology, it will emphasize quantitative public opinion surveys, statistical modeling of field data, and laboratory experiments, neglecting the rich but idiosyncratic literature using qualitative interviews and qualitative analyses of textual sources. Finally, the paper—like the English-language empirical literature—gives disproportionate emphasis to North American and British research, though some lines of cross-cultural research are noted.

1. Public Evaluations Of The Legal System: An Overview

1.1 Evaluating The Police

In the aggregate, Americans and Europeans evaluate the police favorably. For example, most Americans report confidence in the police as an institution, and about half have confidence in the ability of the police to protect them from violent crime (Bureau of Justice Statistics 2000). Such confidence is not inevitable. For example, in 1993, positive views of the police were expressed by a majority of French, Belgian, Dutch, and West German citizens but by fewer than half of East Germans (Reif and Melich 1996), and within the United States, African Americans consistently report more negative views of police conduct than the white majority; they are about twice as likely to report low confidence in the police or to express the view that the police have low ethical standards.

1.2 Evaluating Attorneys

Most adults know, or at least recognize, a few of the multitude of ‘lawyer jokes’ long in circulation (see Galanter 1998). We rarely tell jokes about physicians, whom we hold in high regard, or molesters, whom we loathe. This suggests that we are ambivalent about lawyers; we decry their ruthless mercenary adversarialism—except when they are representing us in a conflict. Thibaut and Walker (1975) asked Americans to imagine various hypothetical conflicts and various mechanisms for resolving them— including two-party mediation, third-party investigation and resolution by a neutral inquisitor, and a third-party decision based on investigation and arguments presented by advocates for each side. Importantly, the descriptions were stripped of labels like ‘lawyer’ or ‘judge’ and other overt references to actual legal systems. A strong majority identified the adversarial system as the fairest mechanism. Subsequent studies (see Lind and Tyler 1988) have replicated this finding in European nations with inquisitorial systems, suggesting that it is not an artifact of American socialization or familiarity with adversarial justice. (However, respondents in Asian countries tend to divide their support between the adversarial model and two-party mediation.)

1.3 Evaluating The Courts

A majority of Americans—of all ethnicities—rate the honesty and ethical standards of judges as high or very high (Bureau of Justice Statistics 2000). But this high regard does not translate into satisfaction with judges’ decisions. For several decades in the twentieth century, American public opinion polls showed consistent majority support for the view that the courts are too lenient in their treatment of criminal defendants, (Bureau of Justice Statistics 2000). Interestingly, African Americans are only slightly less likely to endorse this view, and the gap between racial groups has been closing.

Taken at face value, these statistics imply that the courts are either ‘out of touch’ with public views, or intentionally ignoring them. There is some basis for the latter interpretation, of course; Western systems of rights and protections evolved in large part to protect individuals from group tyranny. But a number of clever experiments reveal these citizen complaints are largely based on distorted perceptions of the justice system and its caseload (see Roberts and Stalans 1998). Citizens who view courts as lenient in the abstract have been found to recommend criminal sentences that fall below statutory mandatory minimum sentences or the discretionary sentences of judges. And citizens’ views in actual cases become significantly more lenient when they read lengthy trial descriptions rather than short trial summaries.

Most available survey evidence indicates that Americans hold much more favorable opinions of the jury system than of the courts more generally (Hans 1993). MacCoun and Tyler (1988) found that citizens strongly preferred trial by jury to trial by judge, and the traditional 12-person unanimous jury to smaller or nonunanimous juries. Relative to trial by judge and to smaller or nonunanimous juries, the traditional jury structure was seen as fairer, more accurate, more thorough, and more representative of community viewpoints. This was not blind enthusiasm; citizens preferred more efficient approaches (trial by judge or small nonunanimous juries) for trivial cases like shoplifting.

Proponents of alternative dispute resolution (ADR) mechanisms such as arbitration and mediation argue that traditional trials are too costly, too time-consuming, too complex, and too alienating. Indeed, many (but not all) ADR programs receive high marks from all parties ( plaintiffs, defendants, and attorneys), but contrary to the ADR movement’s rhetoric, disputants who actually participate in trials tend to view the trial process favorably, and to a surprising extent, this is true of ‘losers’ as well as those who prevail at trial (MacCoun et al. 1992).

2. Sources And Mechanisms Of Influence On Public Views

2.1 Direct Experience

The procedural justice literature documents the importance of direct personal experience in shaping the public’s views of law and legal authorities. Most citizens have had direct contact with the police; some have had contact with lawyers; fewer have participated in trials; and only a minority have direct experience with the penal system.

For many citizens, jury service is their major (or only) direct experience with the court system. Diamond (1993) has reviewed survey evidence on the effects of jury service on public attitudes, finding that a majority of jurors provide positive evaluations of the jury system, and of the legal system, after their service. Most jurors say their attitudes became more favorable than before their service, and attitudes are more favorable among those who are selected for a jury than among those who serve but are not seated.

2.2 Mass Media Effects

Clearly, citizens without direct contact with the legal system must base their views on other sources. But even those with direct experience are routinely bombarded with indirect, vicarious information. There is an enormous literature demonstrating that the mass media promote distorted views of crime, and the process and outcomes of the justice system (e.g., Roberts and Stalans 1998, Warr 1994). The presumed causal chain is _{ACTUAL EVENTS → MEDIA FILTERING AND DISTORTION → BIASED PUBLIC BELIEFS AND OPINIONS}, with these public views feeding back to the media via consumer choices.

The first part of the chain is well supported. Numerous content analyses over several decades show a consistent pattern: Media coverage provides a highly skewed picture of crime and the legal system, and this is true of newspapers, television news, ‘reality-based’ police shows, and fictional portrayals on television and in movies. In the criminal domain, reported offenses are disproportionately violent, defendants are disproportionately African American, police officers are disproportionately European American, victims are disproportionately female, and offenses disproportionately involve strangers (see Warr 1994). In the personal injury domain, reported lawsuits are much more likely to result in a jury trials and to produce a plaintiff victory than the typical or average lawsuits, and reported jury awards are 14 times larger than the average award in state courts, and 34 times the size of the median award (Bailis and MacCoun 1996).

There is also evidence for the second half of the causal chain. The prejudicial effects of pretrial publicity on criminal juror judgments are well documented (see Steblay et al. 1999). And numerous studies indicate that citizens’ views of court leniency are shaped by the mass media (see Warr 1994). Citizens tend to overestimate the severity of typical crimes and criminals (relative to official statistics), and these misperceptions reliably predict the propensity to see the courts as excessively lenient; e.g., citizens given actual newspaper accounts of trials supported harsher criminal sentences than citizens who read actual court documents from the same cases (see Roberts and Stalans 1998).

2.3 Hindsight Bias

Hindsight bias is the ex post tendency to overestimate the ex ante likelihood of an outcome, relative to what one would have actually guessed before the event. Because most legal judgments are made ex post, they are vulnerable to this bias, as documented in a variety of experimental studies (Rachlinski 1998). Hindsight bias also influences citizens’ ex post reactions to newsworthy legal decisions. Trial evidence appears more incriminating to people who believe a defendant has been convicted than for those who believe the defendant was acquitted (Bodenhausen 1990).

A pernicious example of this phenomena was the elite and popular reaction to the acquittal of actor/athlete O. J. Simpson at his criminal homicide trial in the USA. Because 9 of the 12 jurors were African American, a large number of commentators, including the lead prosecutor, ‘explained’ the verdict as a case of ‘racial nullification’—the notion that African Americans are more lenient when judging other African Americans. In an October 1995 Gallup poll, 48 percent of whites vs. 18 percent of African Americans said they had ‘less confidence’ that ‘jurors can reach a verdict in a trial without letting their racial attitudes affect their judgment’ (Moore and Saad 1995). In fact, the jury literature provides little support for ‘racial nullification’ as a general phenomenon (Kerr et al. 1995). The reasons for the acquittal will never be known with certainty, but it seems clear that pronouncements of ‘racial nullification’ reflected hindsight bias. Despite widespread knowledge of the composition of the jury, surveys during the trial showed that few trial attorneys and citizens expected an acquittal; indeed Sporting Index reported that most American gamblers were betting on a conviction (Los Angeles Times 1995).

2.4 Victim Blaming

Cognitive accessibility and hindsight effects are ‘cold’ cognitive mechanisms, but there is little doubt that ‘hot’ emotional and motivational factors influence public opinion as well. According to the just world theory (see Montada and Lerner 1998), it is psychologically threatening to believe that undeserving victims can suffer a horrible fate. Experiments show that we often alleviate this distress by searching for reasons why victims ‘got what they deserved.’

3. Underlying Dimensions Of Public Evaluations Of The Legal System

The history of theory and research on lay justice judgments involves a continuous branching process in which simple, unidimensional models have given way to more complex multidimensional models (see Tyler et al. 1997).

3.1 Outcome Satisfaction, Relative Deprivation, And Distributive Justice

Economics, behaviorist psychology, the social exchange tradition of sociology, and the public choice tradition of political science share a common emphasis on the explanatory power of outcomes and incentives. The mass media and the legal literature tend to perpetuate the view that outcomes—especially monetary outcomes—drive legal behavior, legal judgments, and evaluations of the legal system. An early refinement of this view was relative deprivation theory (see Tyler et al. 1997)—the notion that what matters to citizens are relative outcomes (mine vs. yours or theirs), rather than absolute outcomes. As a predictive theory, the relative deprivation approach has had only mixed success, in large part because the theory overpredicts resentment and rebellion. One problem is that the theory fails to predict which of many possible comparison standards the citizen will use; citizens do not invariably choose the source that provides the most invidious comparisons. Another weakness is the failure to predict whether outcome discrepancies will be seen as justified or not.

Descriptive (rather than normative) theories of distributive justice address this latter gap. In the 1970s, the most influential model was equity theory (e.g., Walster and Walster 1975), which models justice judgments as a function of the relative ratio of inputs to outcomes for each actor in a relationship. Indeed, in reactions to job-related conflicts, citizens in Eastern and Central Europe (Bulgaria, Hungary, Poland, Russia) are at least as likely to apply this equity standard as are citizens in traditional Western market democracies (France, Spain, the United States) (Cohn et al. 2000). But it has become clear that this model works less well in nonmarket contexts and relationships (Fiske 1992). Across various settings, studies have found support for allocation by equality, by need, or by more complex multidimensional decision rules (see Mellers and Baron 1993). In addition, judgments of distributive justice (and their behavioral consequences) vary by social level of analysis; for example, perceiving that one’s group has received unfair outcomes is more likely than purely individual deprivation to motivate anger and political action (see Tyler et al. 1997).

3.2 Procedural Justice

Outcomes are clearly linked to public evaluations of justice, but there is growing evidence that scholars have overestimated the importance of this linkage. Thibaut and Walker’s (1975) influential experimental research program provided considerable evidence that the processes by which outcomes are reached matter profoundly to citizens. Since the 1970s, this ‘fair process effect’ has been replicated across a wide variety of nations (in North America, Europe, and Asia), domains (criminal justice settings, tort litigation, private organizations, and the political sphere) and dependent variables (satisfaction with the legal system, acceptance of third-party decisions, compliance with legal authorities, and decisions to file lawsuits) (see Lind and Tyler 1986, MacCoun et al. 1992, Tyler et al. 1997). In a surprising number of studies, procedural justice judgments emerge as a stronger independent predictors than either objective or subjective measures of the outcomes citizens received.

Thibaut and Walker (1975) contended that procedures matter to citizens because fair procedures produce fair outcomes. The key parameters of their model were decision control and process control; the latter is important because it is rarely possible to resolve conflicts without relinquishing some decision control. The predominant determinant of process control in the Thibaut–Walker program was ‘voice’— the opportunity to control the presentation of one’s arguments to a third-party decision-maker. Even among tort litigants, popularly portrayed by the media as greedy plaintiffs and stingy defendants, the ‘opportunity to tell my story’ is the most commonly cited goal of both sides. Indeed, this voice motive helps to explain why ADR mechanisms have generally failed to streamline court dockets; because ADR provides a relatively cheap way to ‘tell my story,’ it diverts more cases from private settlement than from trial (see MacCoun et al. 1992).

Thibaut and Walker’s control-based account of voice effects has fared less well. Lind and Tyler (1988) have provided the most empirically successful account of voice effects. Their group value theory argues that voice effects are ‘relational’ rather than instrumental; they reflect citizens’ motivation to achieve a favorable and secure social identity. In numerous studies, relational concerns—the sense that authorities acted with benevolent and impartial motives, and that one was treated with dignity and respect—emerge as more important determinants than either outcome evaluations or perceptions of control (Lind and Tyler 1988, Tyler 1990, Tyler et al. 1997). Within the United States, these relational factors are found in judgments across gender, ethnic, educational, and occupational categories, and these findings have been replicated in Europe and even in more collectivist Asian societies (Tyler et al. 1997).

There are moderators and boundary conditions on the model. Procedural justice effects are weaker for citizens who identify strongly with a subordinate group, but weakly with a superordinate group (e.g., minority ‘separatists’ as opposed to ‘assimilationists’). Another is that procedures matter more when citizens lack clear objective criteria for evaluating outcomes (van den Bos et al. 1997).

Nevertheless, fair process effects are so robust that scholars fear they pose a threat of ‘false consciousness’—the notion that authorities can use the appearance of fair procedure (dignity, respect, voice) as an inexpensive way to coopt citizens and to distract them from outcomes that by normative criteria might be considered substantively unfair or biased (e.g., MacCoun et al. 1992). For example, an insurance executive requested a meeting with two procedural justice researchers to ask how he might increase the formality of meetings between clients and insurance adjustors, in order to reduce the rate of contested claims.

3.3 Retributive Justice

It is important to note that citizens’ departures from pure economic self-interest are not merely warm, sentimental, and benevolent. The behavioral game theory literature has provided ample evidence that people will often forgo personal gain in a spiteful attempt to harm others, and it is tempting to interpret the strong retributive streak in American public opinion in a similar way. During the 1990s, the USA has seen a dramatic escalation in the size of the prison population, especially relative to that of other industrialized nations. In an era when even liberal politicians decry ‘big government,’ the American public seems blithely unconcerned by staggering increases in the total share of the state and federal budgets accounted for by the prison complex.

Public misperception of crime rates is surely a partial explanation, but several lines of evidence implicate retributive motives, rather than an instrumental attempt at crime control. For example, many citizens overtly endorse a deterrence rationale for the death penalty, believing that ‘it will prevent crimes.’ Yet most do not change their views when asked how they would feel if there were unequivocal evidence that execution provided no marginal deterrence above and beyond life imprisonment (Ellsworth and Gross 1994). Indeed, attitudes toward capital punishment are relatively impervious to research evidence, showing little or no deterrent effect; proponents and opponents each interpret the evidence in a manner that preserves their pre-existing opinion (Lord et al. 1979).

3.4 Fear Of Crime

It is a cliche among academicians that fear of crime bears no relation to actual crime rates. In fact, between 1973 and 1987, American fear ratings moved in tandem with the violent crime rate (Warr 1994). But perceptions of crime trends are not very accurate; a growing minority (from 4 percent in 1993 to 35 percent in 1998) recognize that US crime fell in the late 1990s, but throughout that period, a majority (from 87 percent in 1993 to 52 percent in 1998) contended that ‘there is more crime in the US than a year ago’ (Bureau of Justice Statistics 2000).

In many surveys, the elderly and women express the most fear of crime; these patterns are called ‘paradoxical’ (because young males are the group at greatest risk of victimization) but only under the peculiar notion that fear should solely reflect relative statistical risk. It appears that these patterns reflect differences in the way women and the elderly conceptualize the question (Ferraro 1995, Warr 1994), but also the influence of media depictions that exaggerate the proportion of crimes in which the victims are white females (Chiricos et al. 1997). But the fear literature is plagued by inconsistent findings, perhaps due to a frequent reliance on crude, single-item ‘fear’ measures that may not measure the experience of fear (i.e., events in the amygdala and autonomic nervous system) and that surely tap other constructs, like perceived risk, attitudes toward the police and the courts, attitudes toward stereotypic offender groups (youth, males, ethnic minorities), and so on.

3.5 Fear Of Legal Sanctions

The general public tends to exaggerate the risks of arrest and punishment for many crimes, relative to actual risks and to the more accurate risk perceptions of active criminal offenders (see Paternoster 1987). These facts are consistent with either a deterrence interpretation ( perceived legal risk deters crime) or a learning interpretation (offenders learn that legal risks are low). But quasi-experimental studies of legal interventions and panel self-report surveys suggest that the certainty of sanctions does deter crime, and that the effects of sanction severity are weak and unreliable (Paternoster 1987).

3.6 Legitimacy

In a series of experiments, Robinson and Darley (1997) identified numerous discrepancies between the Model Penal Code and lay intuitions about legal liability. They hypothesize that a congruence between lay views and the formal law enhances both legitimacy and compliance. Tyler’s (1990) panel survey of Chicago citizens suggested that those who perceived laws and legal authorities to be fair were less likely to report having committed criminal offenses when surveyed at a later point in time. A re-analysis of data from the Milwaukee Domestic Violence Experiment found that the perceived unfairness of police interventions was a stronger predictor of subsequent domestic violence than was the initial decision to arrest or not to arrest the offender (Paternoster et al. 1997).

4. Conclusion

Public opinion research on legal issues has benefitted enormously from the increasing use of advanced multivariate analyses, panel surveys tracking individuals’ views over time, and factorial experiments. But there are far too few cross-national studies. The bulk of the English language literature describes the views of North American and British citizens in the late twentieth-century. Thus we still know far too little about how people judge laws and legal authorities outside of common-law systems in wealthy, advanced industrial nations. We do not know whether these Anglo-American views reflect fundamental psychological principles or simply the particular context in which they were expressed.

Bibliography:

1. Bailis D S, MacCoun R J 1996 Estimating liability risks with the media as your guide: A content analysis of media coverage of tort litigation. Law and Human Behavior 20: 419–29
2. Bodenhausen G V 1990 Second-guessing the jury: Stereotypic and hindsight biases in perceptions of court cases. Journal of Applied Social Psychology 20: 1112–21
3. Bureau of Justice Statistics 2000 Sourcebook of Criminal Justice Statistics Online, 1998. (Various tables) http://www.albany./edu/sourcebook/
4. Chiricos T, Eschholz S, Gertz M 1997 Crime news and fear of crime: Toward an identification of audience eff Social Problems 44: 342–57
5. Cohn E S, White S O, Sanders J 2000 Distributive and procedural justice in seven nations. Law and Human Behavior 24: 553–79
6. Diamond S S 1993 What jurors think: Expectations and reactions of citizens who serve as jurors. In: Litan R E (ed.) Verdict: Assessing the Civil Jury System. Brookings Institution, Washington, DC
7. Ellsworth P C, Gross S R 1994 Hardening of the attitudes: Americans’ views on the death penalty. Journal of Social Issues 50: 19–52
8. Ferraro K F 1995 Fear of Crime: Interpreting Victimization Risk. State University of New York Press, Albany, NY
9. Fiske A P 1992 The four elementary forms of sociality: Framework for a unified theory of social relations. Psychology Review 99: 689–723
10. Galanter M 1998 The faces of mistrust: The image of lawyers in public opinion, jokes, and political discourse. University of Cincinnati Law Review 66: 805–45
11. Hans V P 1993 Attitudes toward the civil jury: A crisis of confidence? In: Litan R E (ed.) Verdict: Assessing the Civil Jury System. Brookings Institution, Washington, DC
12. Kerr N L, Hymes R W, Anderson A B, Weathers J E 1995 Defendant–juror similarity and mock juror judgments. Law and Human Behavior 19: 545–67
13. Lind E A, Tyler T R 1988 The Social Psychology of Procedural Justice. Plenum Press, New York
14. Lord C G, Ross L, Lepper M R 1979 Biased assimilation and attitude polarization: The effects of prior theories on subsequently considered evidence. Journal of Personality and Social Psychology 37: 2098–109
15. Los Angeles Times 1995 They bet on it. Los Angeles Times, 25 October 1995, A6
16. MacCoun R J, Tyler T R 1988 The basis of citizens’ perceptions of the criminal jury: Procedural fairness, accuracy, and effi Law and Human Behavior 12: 333–52
17. MacCoun R J, Lind E A, Tyler T R 1992 Alternative dispute resolution in trial and appellate courts. In: Kagehiro D K, Laufer W S (eds.) The Handbook of Psychology and Law. Springer Verlag, New York
18. Mellers B A, Baron J (eds.) 1993 Psychological Perspectives on Justice. Cambridge University Press, New York
19. Montada L, Lerner M J (eds.) 1998 Responses to Victimizations and Belief in a Just World. Plenum Press, New York
20. Moore D W, Saad L 1995 No immediate signs that Simpson trial intensified racial animosity. Gallup Poll Monthly (October): 2–8
21. Paternoster R 1987 The deterrent effect of the perceived certainty and severity of punishment: A review of the evidence and issues. Justice Quarterly 4: 173–217
22. Paternoster R, Brame R, Bachman R, Sherman L W 1997 Do fair procedures matter? The effect of procedural justice on spouse assault. Law and Society Review 31: 163–204
23. Rachlinski J J 1998 A positive psychological theory of judging in hindsight. University of Chicago Law Review 65: 571–625
24. Reif K, Melich A 1996 Eurobarometer 40: Poverty and Social Exclusion. European Commission, Cologne, Germany
25. Roberts J V, Stalans L J 1998 Crime, criminal justice, and public opinion. In: Tonry M (ed.) The Handbook of Crime and Punishment. Oxford University Press, New York
26. Robinson P H, Darley J M 1997 The utility of desert. North- western University Law Review 91: 453–99
27. Steblay N M, Besirevic J, Fulero S M, Jimenez-Lorente B 1999 The effects of pretrial publicity on juror verdicts: A meta-analytic review. Law and Human Behavior 23: 219–35
28. Thibaut J, Walker L 1975 Procedural Justice. Erlbaum Associates, Hillsdale, NJ
29. Tyler T R 1990 Why People Obey the Law. Yale University Press, New Heaven, CT
30. Tyler T R, Boeckmann R J, Smith H J, Huo Y J 1997 Social Justice in a Diverse Society. Westview Press, Boulder, CO
31. van den Bos K, Lind E A, Vermunt R, Wilke H A M 1997 How do I judge my outcome when I do not know the outcome of others? The psychology of the fair process eff Journal of Personality and Social Psychology 72: 1034–46
32. Walster E, Walster W G 1975 Equity and social justice. Journal of Social Issues 31: 21–43
33. Warr M J 1994 Public perceptions and reactions to violent offending and victimization. In: Reiss A, Roth J A (eds.) Understanding and Preventing Violence: Volume 4. Consequences and Control. National Research Council, Washington DC