The Appeal to Common Sense

I have never heard a prosecutor’s summation that did not include the words, “use your common sense.”  These words echo the jury charge, instructing jurors to use common sense. I hate these words.  They present one of the most insidious threats to justice imaginable.

Common sense is used for one purpose only, to instruct jurors to ignore the lack of evidence and take an inferential leap over the gaps in proof.  These words reflect the plague of our jury system, and its pretense of making findings “beyond a reasonable doubt.”

Consider the following:  Why else would the defendant be present in a house where a substantial amount of narcotics are stored.  Do you think he would be there if he didn’t know about them?  Use your common sense.

These words implore a juror to fit the circumstances, and more particularly the defendant’s conduct, into their personal paradigm.  If they wouldn’t do it, why would anyone else?  There are so many answers to this question that it is pointless to even begin.  Suffice it to say that the jurors are not the defendant, don’t live his life or walk in his shoes, and the defendant is not required to conform his actions and thought processes to those of any particular juror.  Or prosecutor. Or judge.

An appeal to common sense is a shorthand way of telling the jurors, make your decisions here like you do out there in your world.  The problem is that people invariably make decisions, even important decisions, about their lives based upon little or no information.  There is only one way to get to the Island of Conclusion, according to the Phantom Toll Booth:  Jump.

Ordinary people assume constantly.  They have to, as there is no opportunity research everything they do, or sit back and withhold judgment until every detail is proven.  But that’s exactly what they should do at trial.  So the message is unclear:  On the one hand, we tell you to base your decision on the evidence in the case.  But on the other hand, where the evidence is missing, just resort to assumption as you would do otherwise. 

Most people believe that their common sense is pretty good.  They have some serious doubts that other people’s common sense is any good (or else they would be just like them).  But they feel confident that the conclusions to which they jump, based upon their life experiences, are the norm, and reflect sound and accurate thinking.  Of course, they are utterly wrong.  People make wrong decisions constantly.  If they didn’t, they wouldn’t need courts and lawyers.  Moreover, people make different decisions based upon the same data constantly.  This is what makes them “special”, but also proves their fallibility.  Reasonable people may differ, but they can’t all be right.

Getting a jury to stop assuming is difficult if not impossible.  It is simply how regular people think.  They are so used to making inferential leaps that they do it reflexively.  The prosecution knows this and exploits it.  They operate under the belief that most jurors are fairly law-abiding, and would not jump to the conclusion that  favors a defendant.  They prey on this tendency by their arguments of normalcy and regularity.  Occam’s Razor has its merit, but it’s not an ironclad guarantee.  On occasion, people do things outside the norm, and all questions of motivation cannot be answered by how you, Mr. Juror, would have reacted under those conditions. 

It has become my habit to try to use this prosecution weapon against them, by invoking common sense in my summation as well.  Unfortunately, it’s not always easy and sometimes just plain doesn’t work with the defense strategy.  I want the judge’s instruction to appear to relate to my summation, not just the prosecution’s, but there must be some credible basis to include this as part of my argument.  While there are some generic arguments that can always be made, fact-specific arguments that really nail down the issue are harder to come by.

One of the lines that I have used in the past is to tell the jury to anticipate that the prosecutor will tell them to use “common sense,” and that this is “prosecutor code” to ignore the lack of evidence and convict anyway.  I then implore them to use “UNcommon sense.”  Don’t jump to conclusions.  Don’t assume.  Don’t let the prosecution off the hook for failing to prove its case.  Expect more and demand it.  So when the prosecutor utters the words “common sense,” a bell should go off in the jurors heads that what she’s really saying is:  “This is where my evidence fails, and I’m asking you as good boys and girls to give me a free pass.  I’m the government.  Trust me.”


12 comments on “The Appeal to Common Sense

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