In the real world, disputes are often settled by someone with more or better knowledge, or at least someone claiming to have more or better knowledge. The courtroom, however, is different. It is a setting that is designed to ensure equality of knowledge. When it comes to the information that should matter, everyone has exactly the same knowledge. It is this aspiration toward “epistemological egalitarianism” that makes courtroom persuasion so fascinating. In theory, it is a closed laboratory, and the differences come down to how each person makes use of the information in that common pool.
If you spend any time watching those jurors or mock jurors, however, you realize that access to this pool is not literally equal. Jurors will have different levels of understanding, different habits in using that information, and yes, they will bring in their external experience as well. After jurors receive the same instructions in the law, for example, they will still argue over it: what it means, how to apply it, and even how much it should matter. A recent article examples a case study of one jury navigating that legal terrain. UCLA Sociologist Mathew P. Fox (2019) drew from a unique data set, now many years old, of video-recorded deliberations. In 1996, CBS won permission to video-record actual deliberations in a handful of trials in Arizona. The case that Fox selected, Garcia, involved a charge of marijuana possession and transport, with the State’s evidence coming from a former co-defendent who struck a deal, and with the Defense framing it as a case of an unwitting accomplice who didn’t know the drugs were in the suitcase. The jury was split 6 to 2 in favor of conviction and deliberated for 10 hours before finally declaring themselves to be hung. Applying an approach called “conversational analysis” — a technique that involves closely observing and interpreting specific moves and functions in natural verbal exchanges — Fox looks at the ways the jurors in the case constructed, interpreted, applied, and argued over the legal instructions in this particular case. In this post, I’ll call out three lessons that are relevant to jurors’ use of the law in deliberations generally.
The Law Is a ‘Conversational Resource’
In theory, the law is what guides and determines jurors’ deliberations. In reality, it is one tool among many. In my experience, sometimes it doesn’t come up at all, and in other cases, its use is highly selective and incomplete. When it is used, it is used for a purpose and not just for general information. Specifically, instructions are used to resolve disagreements and to distinguish legitimate from illegitimate outcomes.
In many cases, jurors also supplement the instructions with their own folk wisdom. Jurors usually have little to no formal legal training, but their socialization has still left them with an idea of what the law is or should be — a constructed “legal consciousness” in Fox’s words. In the Garcia case, as I note below, that consciousness was contested, and that became a major focus in deliberations.
The implication for trial lawyers is to prepare for jurors’ use of instructions. Don’t simply assume that the instructions will stick after being presented. Instead, talk about them as much as the judge will allow: what they mean, how to apply them, ways to avoid common misconceptions, and what to do with differences of opinions. In the Garcia case, the judge allowed the written instructions to go back to deliberations with the jury, and the author notes that this seemed to help, but the jurors still primarily relied on their memories or default understandings of the instructions. So the more teaching you can provide, the better.
But the Law Doesn’t Persuade Everyone
The author describes an effect in which one reference to the law tends to lead to more references. Demonstrating this bandwagon using the transcript, the habit of the jurors is usually to repeat rather than to revise or expand upon that instruction reference. In the case of the Garcia deliberations, however, not everyone climbs aboard the bandwagon. The deliberations focus on a split between six jurors in favor of conviction, and two in favor of acquittal. The main voice for acquittal is referred to as Juror 1, who continues to stress the injustice of the accused receiving a greater punishment than the State’s witness who was actually more involved in the crime (having obtained the marijuana and packed the suitcase).
That perspective was contrary to the instructions, since the jury was told they should not consider the plea bargain, and in any case acquittal would not be justified due to another co-Defendant being “more guilty.” But Juror 1 was convinced and tried to emphasize a “justice-inclusive” interpretation in response to the majority’s “Letter of the law” approach: “As far as I know, two things: guilt or innocence is one, and justice is two, right?”
Ideally, a trial lawyer will persuade jurors that their preferred result is both legal and just. But the tension provides a reminder to attorneys who aim to teach the instructions: Focus on the why and not just the what of the law. In addition, since some attitudes are going to be difficult to set aside, assess these case-relevant opinions in jury selection as well. Do so not simply in the static sense of asking if they are willing to follow instructions, but in the practical sense of asking what they feel, why they feel that way, and how strongly they feel it.
The Interaction is What Matters
The final point is to think about interactions and not just reactions. If you are watching deliberations in a mock trial, for example, you’ll note that it is not a matter of opinions being provided like tokens, it is about the exchange. Deliberation proceeds through conversational moves and interactional moments. In particular, one thing to focus on in this research is the question of what behaviors and interactions lead jurors to change their minds? These levers, for or against you, are critical to understand and to address.
The importance of juror interaction is a reason to prefer a focus group or a mock trial to a survey. Jurors reacting individually to your fact pattern will not be the same as jurors who are discussing and interacting regarding a case. When you do have a chance to watch these kinds of interactions pretrial, don’t just think about and count the frequencies of the views and opinions that are shared. In addition, look at the interchange. In our own reports after mock trials, for example, we will frequently quote passages of dialogue: one juror’s argument, another juror’s response, a rebuttal, and the resulting change in the group’s focus.
Fox’s analysis of the deliberations also brings up the question of nullification, or whether jurors sometimes simply decide not to follow the law. They do, but as the article illustrates, it is not so clear-cut. Juror 1, for example, felt that the group should embrace a “justice-inclusive” understanding over a “letter of the law” approach but, still, ultimately felt that he or she was following the law. When pressed on the legal rationale for their decision, for example, that rationale shifted to one of “reasonable doubt.”
So I don’t think it is true that jurors ignore the law. In their own minds, they’re following the law. But that is what is critical to understand: their own minds.
