At the newly formed, and desperately needed, National Association for Public Defense website (at publicdefenders.us, which you should bookmark and support), my pal, Dr. Sunwolf, has posted a truly remarkable explanation of one of the most vexing aspects of trial work, persuading the predictably irrational juror.
As might be expected. Sunwolf starts out with the only reasonable premise: that jurors are not predisposed to believe the defense rather than the prosecution.
It turns out that presenting actual facts to a jury, or even challenging various facts presented by the prosecution, are not enough to actually persuade. Who knew? There are three realities of any juror’s mind that block persuasion when they are not taken into account. First, jurors (like all of us) start out with mental anchor points—beliefs, experiences, attitudes, or opinions that have a strong hold on them. Second, jurors (and the rest of us) also have blind spots—places in our brain that don’t allow us to see what is plainly there. Finally, jurors (and all people) have gut feelings that they value and regularly rely upon, notwithstanding contrary evidence in the world around them. In short, jurors (like all of us) are predictably irrational.
Sunwolf goes on to explain in detail what these mean, and her prescription for unearthing juror anchor points, blind spots and gut feelings. If you want to know, go read her excellent post.
The aspect that troubles me most are the “gut feelings.” which can be likened to the typical appeal to “common sense” used by prosecutors in summation, and echoed by most pattern jury instructions in charging a jury on how to assess evidence. As regulars know, my view is that the use of “common sense” is an appeal to ignore the absence of evidence, to leap over evidentiary gaps as people do normally in making decisions without the availability of all the facts.
Moreover, the appeal is premised on a sham. There is no such thing as “common sense,” that “thing” we all have and yet differs in each of us so that we believe we possess it and yet no one else sees it quite the same. The words are used when we lack any meaningful ability to explain why, to provide reasons for a view. It’s a fallback, something we are absolutely certain about, even though we can’t provide a reason to support it. It’s perhaps the most insidious phrase in the law or logic.
In explaining “gut feelings,” Sunwolf offers this explanation:
It turns out that we all get our happily-ever-afters in diverse and irrational ways. (You might find this comforting.) Throughout our lives, we are faced with myriad choices, involving both welcome and unwanted decision-making. (Jury duty always involves unwanted decision-making on the part of the jurors.) Research on deciding finds that the trick to good decisions may not be to amass information—but to learn to discard it.
And this is what makes gut feelings so problematic:
Our gut instincts are more often right than we realize.
This refers to the utility of gut feelings in out everyday life, where they generally serve us well. We make millions of decisions daily, most of which are made on grossly inadequate information to survive reasoned analysis. We have to do this, as it would be impossible to thoroughly research and consider each mundane choice we’re faced with, and we inherently tolerate the lack of information and forge ahead anyway.
When people have choices to make, some beneficial degree of ignorance is often helpful. When we aren’t given enough facts, we rely on intuition rather than good reasons. The recognition heuristic, for example, describes how we infer qualities based on name recognition. (Marketers rely on this instinct in promoting brands.) The truth is that the instinct to go with what we know has survival value in the natural world. By relying on the familiar, early humans were more likely to live to see another day.
This also allows us to perform complex tasks without going through the calculations that would be necessary to explain how and why we do so. Sunwolf uses the example of catching a ball, a remarkably complex mathematical task which most of us do without any thought at all, just instinct. And yet we manage to accomplish it quite well.
When we successfully perform complex feats without understanding exactly how, we get a glimpse of the value of gut instincts. We have evolved mental methods that operate below our level of consciousness, yet lead us to superior choices. Without gut instincts, our brains would painfully short-circuit, lost in a sea of data.
As Sunwolf convincingly asserts, acting on gut feelings is both pervasive and necessary for survival. We all do it, from the witnesses to the jurors to the judge and lawyers. The problem is that this decision-making mechanism operates either in the absence of facts or to the exclusion of facts. It’s the antithesis of proof and reason. It’s the assumption of outcome based on the same blind leap of faith that has allowed us to make decisions every day in our ordinary lives. And it can be exactly what convicts a defendant despite the absence of evidence of guilt, or despite evidence contrary to guilt.
There is no magic bullet to getting past the juror’s gut feelings. Sunwolf offers methods to ferret it out on voir dire, though that invariably depends on what the court permits you to do on voir dire, which isn’t always within a lawyer’s control. And indeed, there can be times when gut feelings can be used to the defense’s advantage, such as when outlier allegations are relied upon by the prosecution, and it’s in the defendant’s interest to have the jurors ignore them in favor of their gut feelings.
While the usual retort to posts like this is, “so what can I do about it?” the answer is almost always unsatisfying. There is no answer, but rather the art of persuasion in finding a way over, under or around gut feelings, or to use them to your own advantage. But if you don’t know about it, think about it, recognize it, you can’t do anything, and so it’s critical to be aware of the stumbling blocks hidden in the jurors’ minds that the lawyer must overcome.