Better Instructions: Make Your Jurors Accountable Devil’s Advocates

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Traditionally, we might think about what happens in the jury room as a kind of “Black box,” an unknown process with jurors keeping their secrets on how they got to their verdicts. In practice, however, we know a fair amount about what’s in that “box.” Based on both scholarly research and the practical experience of running mock trials and talking with jurors after real trials, we have a window into what goes on once they’re on their own. In both the mock trials and the real trials, experience teaches that there’s a range in how serious and studious a jury is. Jurors might make the quick decision, going with their surface leanings, and being led by the biases they came in with; or, they might take the longer path, really dig in, and work through the evidence and argument. One question is, “What is the legal system doing to promote the latter?”

Within the last couple of years, the Jury Committee of the American College of Trial Lawyers has released some recommendations, “Improving Jury Deliberations Through Jury Instructions Based on Cognitive Science.” True to that name, the goal is to bring knowledge of social science to bear on the task of improving deliberations, so that juries are more deliberate than facile, more careful than lazy, and more broadminded than biased. The report is relatively brief and worth a read. In addition to reviewing some of the most applicable perspectives in the social science, they go on to propose three new model instructions: one on juror accountability, one on being a “Devil’s Advocate,” and one on participating fully in deliberations. In this post, I’ll look at the question of whether these instructions are likely to be worthwhile for jurors and parties.

Can Instructions Lead to Better Deliberations?

The Committee targets a few well-known biases that can influence deliberation, like the “confirmation bias” of considering and using only the evidence that supports your case, the “affect bias” of going with what you like, or the phenomenon of dominance with a group that gives a few members outsized influence. They discuss the “Thinking Fast and Slow” phenomena, popularized by Professors Daniel Kahneman and Amor Tversky, indicating that people can make a carefully considered decision if they want to, but also will selectively use a “quick and dirty” mode to save themselves the mental effort if they can. They also discuss the moral reasoning research of Jonathon Haidt (“The Righteous Mind“), as well as some other social scientists.

The authors also report on some research that shows that it helps in some cases to sensitize people to these biases and ask them to try to work against those tendencies. For example, in the field of eyewitness identification, courts have shown some willingness to follow the advice of social scientists aimed at weakening the unrealistic faith that is often placed on that testimony. In the case of implicit bias, courts are just now coming to understand that they should explore alternatives other than simply asking people not to be biased.

Generally speaking, to know if a specific instruction will do any good, you need to test it and see what happens. However, there is good reason to believe that instructions in a few situations will set the stage for better deliberations.

Accountability

The authors note that we tend to try harder when we know we will be accountable for a decision: “Studies have shown that if you tell a decision maker at the outset that at the end of the process they will be called upon to justify their decision to others, then they pay more attention to the facts needed to support their vote.” While it likely won’t work to force jurors to justify their decisions to anyone outside the courtroom, it probably is a good idea to emphasize that they are accountable to each other.

The model instruction on accountability (included in an appendix to the report) includes the following key language:

“You not only will have to vote ‘yes’ or ‘no’ on certain verdict questions; in order to do your duty as a juror, you will have to explain to your fellow jurors what evidence you believe supports your decision to vote a certain way.”

Devil’s Advocate

A second imperative they discuss is how to escape or minimize confirmation bias, to remind jurors that their job is not just to find evidence that supports their default leanings. Research on the request to “consider the opposite” when evaluating a claim shows some success. In the case of a Devil’s Advocate instruction, jurors are asked to play that role themselves, and to actively think of reasons why they might be wrong.

Key language from that instruction (also available in full in the report) is as follows:

“You will be asked to be your own ‘Devil’s Advocate’ meaning that you are asked to state a fact or facts that you believe would support a decision reaching a different result.”

Good and Thorough Communication

The final proposed model instruction has to do with simply reminding jurors to be good, inclusive, and careful communicators. For this model instruction (available in the final appendix) it strikes me that the advice strongly parallel’s the admonitions that litigation consultants like me typically give to research groups prior to sending them back for mock deliberations:

        • Be a backstop for each other (what one juror doesn’t notice, remember, or understand, another might).
        • No one should dominate the group.
        • Everyone should participate.
        • Everyone should both speak respectfully, and listen respectfully.
        • You should consider the pros and the cons of each point prior to voting.
        • Etc.

Do You Want Better Deliberations?

Occupationally, I feel compelled to consider this question strategically. Broadly, of course, we all should want good deliberations every time. As our society’s systems of dialogue increasingly seem to be breaking down, it seems important that the jury should stay strong, or even get stronger.

At the same time, it’s inevitable that some parties may be more interested in this thorough and carefully-deliberating body more than others. To me, the question is this:

Does your side of the case benefit from the quicker view or the more thorough view?

On the defense side, it is often (but not always) the case that you will want that more thorough process. When the top-of-the-head reaction favors the side with the simplest message (i.e. someone was hurt, they need help), that side may be less enthusiastic about a jury that really wants to dig into the details. But when your case benefits from that diligence — or when you are running a research project and wanting the most from mock deliberations — then you should be in favor of instructions that make it less likely that jurors will take the easy way, and more likely that jurors will take that careful and more thorough route.

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Other Posts on Deliberations:

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Image credit: 123rf.com, used under license, edited by author

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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