The Texas Tornado took a loss. Not being a kid in need of manufacturing a shiny internet persona, he used his loss as a learning, and teaching, opportunity. Good lawyers will do that. They don’t have to pretend that everything they touch turns to acquittal, though some detractor will eventually point out it and shout “loser, loser.” That guy will always be there, so all you can do is shrug and thank your lucky stars it’s not you.
It wasn’t an earth-shattering case. Not a high profile murder. Not a massive drug conspiracy. It was a DWI, but even DWI defendants deserve lawyers as good as Mark Bennett. The defendant’s BAC was tested 80 minutes after the stop, and rang the bell. The prosecution’s expert testified that “it was impossible to say what the BAC at the time of driving was from the blood test 80 minutes later.”
This was enough. Or it should have been enough.
I had argued to the jury that criminal court is the wrong place for common sense. The argument did not go over well—I got feedback that I seemed to think I was smarter than the jurors.
In deliberation jurors used their common sense, which flew in the face of the expert testimony in the trial.
Specifically, they said after the verdict that my client’s BAC at the time of driving “must have been” higher than 80 minutes later.
Bennett’s jury did what many juries do; they “outsmarted” the too-smart lawyer. Some jurors suppose there is something they’re not being told, and so they see their mission as trying to discern the “fact” they’ve been denied. They’re not going to let that smug lawyer pull one over on them.
In this case, they were told by the prosecution’s expert that it was impossible to determine what the defendant’s BAC was at the time he was stopped. It could have been higher, and lessened in the 80 minutes that elapsed between stop and blood test. Or it could have been lower, and increased as alcohol was absorbed into the blood.
The legal point was that it was the prosecution’s duty to prove which one it was, and their own expert testified that he could not do so. The jury was having none of it. So what if the expert couldn’t say. They put on their juror junior detective hats and came up with an answer. Guilty.
As an aside, for all those nice people who believe passionately that jury nullification is the cure to the disease of over-criminalization, over-incarceration, a broken legal system, what happened here is by far more likely. If given the opportunity to ignore the law, here the burden of proof and presumption of innocence, jurors will convict. Anyone who assumes that juries employing nullification will tend to acquit has never tried a case. Jurors, your friends and neighbors, want to convict. They nullify already, as reflected in the verdict here.
But what of Bennett’s contention that “common sense” has no place in a courtroom?
“Common sense” is not intelligence, reason, or even common knowledge. It’s what we use to justify decisions that we can’t (or can’t be bothered to) explain in terms of intelligence, reason, and knowledge. So “don’t fall back on common sense” is not meant as “you’re not smart enough, but rather as “you’re too smart for that.”
He is, of course, correct, but it’s a very hard sell.
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.”
People do this all the time, fill in the blanks in what they know, or believe they know, because it’s too hard to gain the requisite knowledge and too unpleasant to confront the consequences of its absence.
One of the maxims that characterize America is that everyone is entitled to their own opinion. I’ve never been able to agree with this, unless it includes the proviso that an opinion is based upon something, be it facts or reason. Thoughtless or baseless “opinion” isn’t opinion at all. It’s just facile conclusion. As my daughter once said in response to my challenging her assessment of American politics, “I hate thinking. It hurts.”
Bennett gave the jury credit for the capacity and willingness to take the risk of a headache.
It may be that this is too sophisticated an argument for normal people.
By treating the jurors as if they were smarter (and more knowledgeable) than they were, I both failed to educate them and came across as thinking I was smarter than them.
Since my first arguments here in 2007 about how the notion of “common sense” is merely a facile alternative to thought, people have chosen to spiral deeper into the welcoming arms of mindless beliefs, that there is no point to logical thinking when feelings will be more than sufficient.
Telling a jury not to use “common sense” is a sophisticated argument. Some people will get it. Some will not. Some will have a reflexive reaction to anyone suggesting they not do what they’ve done their entire life, and managed “just fine.”
As for Bennett coming across as thinking he was smarter than the jury, aside from the fact that he was, that too is a corollary of common sense. People who challenge your personal “wisdom,” the essence of how you decide important questions in your life, by telling you that you’re doing it wrong, are calling you stupid. They may not mean to be, or say the word, but that’s what’s heard.
In a country that places little stock in logical thought, rational discourse, the argument becomes increasingly harder to make. If you can achieve the outcome you desire without engaging in the real labor of thinking, why risk the headache? Common sense is always an easier path, as it requires no further explanation. What sort of juror is going let himself be tricked by some lawyer who thinks he’s smarter than him?
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A most interesting post.
I’ll omit my fascinating war stories, but will suggest that DUI juries are most impressed by evidence of driving behavior demonstrating the defendant was a menace on the road. Without that evidence, the State is fighting an uphill battle in the ‘War of Common Sense”.
Unless it was a checkpoint, it’s fair to assume the cops pulled the deft over for some reason, which if said with sufficiently somber tones, can be interpreted to mean “he was just about to kill your BABY!!!”
To quote SHG, 17April, 2018.
“That is yet another one of the unfortunate aspects of our beloved legal system. There are many.”
Dear Papa,
Ow. This post hurts, you sadist.
Can’t beat common sense, so making whatever sense is best for your client “common” seems best. It’s derivative of the ancient and renowned argument, “duh,” sometimes written as “duh, stupid.”
Best,
PK
Just to be clear, this is very different from when your mother said “because I said so.” That reply is irrefutable.
Yes, common sense is a bundle of assumptions, biases, and intuitions. Yes, that sometimes makes it wrong. But even by that definition, each individual’s common sense is unique, and most individuals’ common sense can be fairly easily updated with new accurate information – – if they aren’t antagonized.
Common sense tells me that, in most courtroom situations, Bennett would fare much better than me. But my wife was inordinately proud of her common sense, mostly, I think, for the simple reason that, as a child, she had it drilled into her (incorrectly) that she was stupid. So, when she managed to do well in life in most situations, she chalked it up to common sense. And “common sense” was a term she used quite often, to discuss good solutions that had it, and poor solutions (and errant individuals) lacking it.
With that background, I learned this particular lesson decades ago. It’s mostly a nomenclature problem. An attack on “common sense” as inferior to reasoning will not resonate with someone who actually reasons pretty well, but who equates their own reasoning capabilities with common sense. The worst corollary is then that expounding on the definition of “common sense” would violate the first rule of holes — everybody knows what common sense is, and you can’t directly challenge that.
I feel as if I’m staring at well-digested brisket swirling, swirling, swirling down the hole in the bottom of a toilet.
The beauty of a toilet is that it is essentially an infinite hole, requiring no shovel to expand its capacity.
You’ve obviously never lived in a house with an old leaching field.
Common sense says I was describing the ideal, spherical, perfectly smooth, weightless toilet connected to the infinite sewer.
I rest my case.
So the theory is that he didn’t break the law, he just drank a bunch of alcohol and tried to drive home before it could be absorbed into his bloodstream. It was the cops that interfered by making him wait.
Have you ever considered that there are times you would do well to resist the urge to comment and let people merely think about you as they will?
You think about me? I’m flattered.
Let’s not make this personal, k?
It is just a feature of the jury system that you can never know when some member(s) of the jury will assert completely wrong “knowledge” of something in deliberations, sending the verdict down a rabbit hole. It really isn’t possible to fence this risk out at trial, and to the extent there is any fix for it, it has to come via appellate review (e.g., where the resulting verdict is unsupported by the evidence as a matter of law). That isn’t always viable. The losing party may never even find out that a piece of nonsense drove the verdict. It adds to the randomness of litigation outcomes, but we accept it because it can’t be prevented.
Never know? Perhaps, but I assume it in every case. I can’t remember a jury ever reaching its verdict entirely based upon the right reasons, even when I won.
SHG,
Great post. Important post.
Karl W. Deutsch at the time of his death was a professor of government emeritus at Harvard University and a former president of the American Political Science Association. He received a law degree in 1938 from Charles University in Prague, where he was a leader of anti-Nazi students before he was forced to flee to the US.
In 1959, he wrote a seminal journal article on the subject of your post. It is entitled “The Limits of Common Sense.” While it now sits behind a paywall, for those of your readers who are interested in a brilliant scholar’s take on common sense the article is worth paying for and reading. In that piece, Deutch endeavors to investigate common sense “to see where it might deceive us.” Back in the days when I was a student, it made a huge impression on me.
All the best.
RGK
“for those of your readers who are interested in a brilliant scholar’s take on common sense…”
Well. I’ve been put in my place.
It’s been a few hours. Were you able to crawl from the corner and stand up?
And my shoulders had to shrug, as I crawled beneath the rug
And retuned my piano.
I can’t stand when the jury assumes facts not in evidence. Ugh. The burden of proof is a real thing, right?!?
We go through our lives assuming facts not in evidence. The prosecution relies on it.
I read this the day you posted it and thought… Wow. I have never thought of the “common sense” mantra like this…
So, I’ve been noticing when I say in my head “Well. Common sense will tell you *that*.” I do it a lot more than I realized before reading this post. And you are absolutely right.
I get to a point past which I have not given rational thought to my stance. It just seems “right” to me and and the dismissive “it’s common sense” is the pass I give myself to justify not thinking further and deeper. It’s the pass I give myself for intellectual laziness.
So far, thinking past “it’s common sense” hasn’t changed my mind (though I know at some point there will be something about which my mind is changed). But it has taken a lot of the negative emotion out of Twitter debates 🙂
Thanks for this post! I look forward to reading more and learning more from you!
Thanks, K. This is one of my foremost pet peeves. There are many things we do in life that take for granted as they’re just not worth too much thought. But when you realize how facile “common sense” is to cover up a lack of effort, it’s shocking.
And if you want to take it a step further, try putting your thoughts in writing rather than just thinking or verbalizing. Without seeing your argument in writing, you would be amazed the tricks we play on ourselves. But in writing, it won’t work. There’s the gap, the lie, the hole, staring you in the face.
I find people who use “common sense” to dismiss actual evidence to be frustrating. Now i have a reply, thank you very much. “Common sense” is intellectual laziness that allows you to dismiss a statement without thinking about it.
I really have a few things that I dislike in writing. The above is one, along with homonym misuse and not looking up things you WANT to be true before you publish them.
Thanks for an interesting and useful article.