The Jury's Trials

Problems, Pitfalls, and Possibilities in Jury Decision Making

Stress in the Legal System

Using Law to Enhance Wellbeing

As I have written previously, jury duty can be stressful. Even in mundane cases, jurors are asked to perform a difficult, unfamiliar task in which they receive little guidance; and performing their civic duty disrupts their lives. Having been “summoned,” they also have little choice in the matter, and there are potential penalties for failing to appear, though such penalties are rarely enforced. On the other hand, the vast majority of jurors who do serve find the process rewarding, and the stress and disruption they experience is relatively minor in all but the most extreme cases.

Other participants in the legal system are not so lucky. Many are there involuntarily—even less voluntarily than jurors—such as crime victims, civil and criminal defendants, those involved in family court, and witnesses. On top of the circumstances that gave rise to these individuals’ involvement in the criminal or civil justice system, the process of investigation and adjudication can be an additional stressor. This is especially true for vulnerable populations like children, the elderly, and those with mental illness. For example, there are concerns that testifying in court can be every bit as traumatic for victims, especially child victims, as the crime itself.

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Those who do choose to be involved—such as civil plaintiffs, attorneys, judges, law enforcement officers, and community supervision officers (i.e., probation and parole officers)—are also not immune from stress. Telltale symptoms, such as depression, anxiety, absenteeism, and cardiovascular disease, are prevalent in all of these populations. Because these individuals choose to be a part of the justice system, either for professional reasons or as a means to resolve a dispute, they might be said to have “assumed the risk.” Nonetheless, for the system to work effectively and efficiently, it is imperative that it not create or add stress unnecessarily.

This is not to say that all stress can, or even should, be removed from the legal system. The courts make weighty, consequential decisions, and an awareness of that fact, along with the moderate level of stress that typically accompanies that awareness, is appropriate. But legal actors can still strive to maximize the positive physical, psychological, and social outcomes for all parties involved, while minimizing the negative outcomes. Doing so is the hallmark of therapeutic jurisprudence, which focuses on the legal system’s role as a therapeutic agent. It is the guiding principle behind the majority of “specialty” or “problem-solving” courts, which have been on the rise in recent years, such as special courts devoted to drug offenders, veterans, juveniles, and domestic violence. Although little data exist on the effectiveness of such courts, and what data do exist are mixed, their overarching goal of seeing that justice is served while simultaneously improving the situation of those involved—including offenders—is well worth pursuing. Therapeutic jurisprudence also informs efforts to accommodate vulnerable populations caught up in the justice system, such as children and the elderly (e.g., by using innovative techniques to make it easier for children to testify).

Stress is an unavoidable component of the legal system. The system poses a threat to participants’ wellbeing, whether they are there by choice or not. It is incumbent on those who set legal policy to do what they can to minimize that stress, and thereby to foster the wellbeing of the myriad individuals who play a part, whether they are there as “one-time players” (e.g., witnesses, jurors) or regular performers (e.g., judges, attorneys). To do otherwise would be, in a very real sense, unjust.

Recommended Reading

Miller, M.K., & Bornstein, B.H. (2013). Stress, trauma, and wellbeing in the legal system.Oxford,UK:OxfordUniversity Press.

Wexler, D.B., & Winick, B.J. (1996). Law in a therapeutic key: Developments in therapeutic jurisprudence.Durham,NC:Carolina Academic Press.

Brian Bornstein, Ph.D., is a Professor of Psychology in the Law-Psychology, Social, and Cognitive Psychology Programs at the University of Nebraska-Lincoln. more...

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