Module 3: Inside the Mind of the Jury

Inside the Mind of The Jury

“We operate under a jury system in this country and, as much as we complain about it, we have

to admit that we know of no better system (except possibly flipping a coin).”

- David Barry“I was married by a judge. I should have asked

for a jury.”- Groucho Marx


• In banking, compliance officers are taught to “know their customer.”

• In the courtroom, trial lawyers must “know their jurors.”


THE BRAIN


• Left brain

– Intellect – Abstractions– Precision– Linear thinking (logic)– Intellectual expression– Examples:

»Making a grocery list» Listing elements of a tort» Legal Analysis: Applying facts to law


• Right brain

– Emotion– Creativity– Ingenuity – Examples» Painting» Acting


Debunking A Widely-Held Myth About How Juries Make Decisions

• As shocking as this might sound, no matter how many times a judge instructs a jury to view the evidence objectively and dispassionately, jurors do “not accumulate facts, one after another, in order to arrive at a conclusion.”

Inside the Mind of The Jury• They don’t deconstruct the jury instructions

like a scribe deciphering the “Dead Sea Scrolls.” They do not go through the jury instructions with a fine toothcomb applying facts to the law in order to reach a result in the same way that a mathematician substitutes numbers for unknown variables in order to solve a quadratic equation.


• Nor does the jury use the precise linear thought of a prodding brain to determine whether the government has satisfied all of the elements of the offense “beyond a reasonable doubt.”

• Instead, “they care about right and wrong.” • Studies show that the number one fear

that juries have is convicting an innocent person.


• As the great Gerry Spence once said, “Jurors make decisions with their hearts and then rationalize their way to a legal decision that is consistent with their feelings about the case.”


• “The heart has its reasons of which reason knows nothing.” – Blaise Pascal


• “Jurymen seldom convict a person they like, or acquit one that they dislike. The main work of a trial lawyer is to make a jury like his client, or, at least, to feel sympathy for him; facts regarding the crime are relatively unimportant.” – Clarence Darrow


Time Out!


This flies in the face of what my law professors taught me in law school!

My entire law school training was designed to sharpen the left side of my brain.


Who can forget the famous line from the movie, “The Paper Chase?” In the opening scene, Professor Kingsfield, played by John Houseman, told the class, “You teach yourselves the law, but I train your minds. You come here with a skull full of mush; you leave thinking like a lawyer.”


• Training lawyers to be objective non-feeling beings who apply facts to the law to reach a result has become – and continues to be – a fundamental tenet of legal education.

• Our ivory-colored institutions have taken from us the very qualities required to be good communicators: the ability to listen and the ability to feel.


• We’ve been taught to hold back, smother, suppress, and destroy our feelings.

• Having been stripped of these attributes, we wallow in litigation anonymity, unable to effectively persuade.

• Three years of law school have sucked the humanity right out of us!

Justice is an Emotion

• All of this “feeling” and “emotional” gibberish might seem hokey.

• But the feelings of defeat or of winning are not intellectual processes.

• Ask anyone who’s been to court as a litigant and lost.


• Ask the mother whose children have been torn from her or the worker who’s been wrongfully fired from his job and cannot feed his family whether being denied justice is an emotion.

• Ask the innocent person who’s been accused of a crime.


• A judge says, “There is no room for emotion in this courtroom.” He might have well as said, “there is no room for justice in a court of justice.”


• Fear not!• As the great Stella Adler said,

Law

Module 3: Inside the Mind of the Jury