For those who don’t know, I like to harken back to those academic days when professors used big words that we only had to remember until the test was over to explain human behavior.  Back then, the words didn’t mean a lot to us because we lacked any context or reason to consider how useful they could be in our own lives.  Years later, their purpose has become clear, but we’ve forgotten all about them.  Now that we’re older and wiser, these concepts have gone from boring to cool and sexy, right?  Okay, how about useful?

Cognitive dissonance is one such concept, and thanks to Jamie Spencer at Austin Criminal Defense Lawyer for reminding us of it.  Jamie’s definition, via Stephanie West Allen book review of Mistakes Were Made (but not by me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts by Carol Travis and Elliot Aronson appropriately titled Wrong? Me? No way! That’s not how I see it :

the feeling in your brain when you find that you are holding two inconsistent thoughts or beliefs; it’s like an itch that needs to be scratched.

It’s a good working definition.  Jamie discusses the phenomenon relative to how a jury squares away the lack of proof with their deep-seated bias that (1) the defendant must have done something wrong, (2) we should give cops the benefit of the doubt, and (3) the defendant was probably guilty, and if we have to make a mistake, we’d rather make sure that a bad guy isn’t put back of the street to commit more crimes.

The phenomenon of cognitive dissonance affects all of us.  We arrive at beliefs from independent experiences, and they make complete sense (to us) at the time.  But when we toss all of our beliefs into a big pile, we realize that they don’t all make sense together.  We’ve managed to come up with beliefs that are in direct conflict with each other.  And since we can’t possibly be wrong, our brain needs to make sense out of our conflicting beliefs. 

Doing so, however, may involve some serious mental gymnastics that result in some strange rationalizations.  In other words, really bad reasoning can result from cognitive dissonance. 

Aside from the jury, this flawed reasoning process applies to lawyers as well, and could be a prime reason why a strategy we belief to be utterly brilliant fails so miserably.  Steve Gustitis at The Defense Perspective has been putting together a fine series on building the persuasive case, and yesterday he wrote about brainstorming all the possible ideas to approach the defense (with the next installment about developing those ideas into a defense theory).

This is the juncture where we need to be on guard for cognitive dissonance on our own part.  The most obvious area for this to arise is where criminal defense lawyers, as law-abiding members of society, belief that crime is bad and that people who commit crimes should bear the consequences.  Yes, we really do believe this in our hearts.  We are not murderer-lovers, contrary to how the simpleminded may view us.

At the same time, we criminal defense lawyers are believers in due process and the rule of law, which tends to make us put a great deal of stock, often too much stock, into the significance of hard, clear, reliable evidence on the court and jury.  We tend to reject the Nancy Grace “where there’s smoke, there’s fire” view of the law because it’s ignorant and she’s a loud-mouthed twit.

Because of cognitive dissonance, we somehow arrive at a belief that the jury (like us) can distinguish between the desire to find and hold someone responsible and the often obtuse evaluation of evidence needed to arrive at a verdict.  To justify our own beliefs, we project them onto the jury.  Big mistake. 

Criminal defense lawyers need to come up with a mental solution that allows us to function as both a member of society and a lawyer.  Jurors do not share this need.  They are more than happy to take the path of law-abiding citizen and give up any thoughts of constitutional policy wonk.  It’s just not their problem.

Thus, in developing our own trial strategy, we need to be keenly aware of our own cognitive dissonance so that we can avoid projecting our “solutions” onto the jury and rationalizing our own inadequate stratagem.  The fact that we may be willing to accept a somewhat inconsistent or illogical explanation to close the gap between irreconcilable beliefs does not mean a jury will. 

Ask yourself, would a person with no particular reason to be concerned with the defendant’s rights, and who will feel no distress at the possibility that a person they believe is guilty, even if not exactly proven, will be convicted, find this strategy persuasive.  If you can’t answer that question without equivocation, then your strategy will likely miss the mark.