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  • Writer's pictureJessica Brylo

Dealing with Juror Misconceptions

The law is daunting.  Half the time, attorneys don’t even understand what legal writings mean and yet every day, we ask lay persons to decipher legalese.  The verdict on a case can greatly depend on jurors’ comprehension (or lack thereof) of the law as well as their preconceived notions regarding what the law is. 

Studies Show Judge’s Instructions Do Not Override Juror Preconceptions

There have been studies done on the effect of crime categories on the verdict.  If the legal (crime) category at issue is one for which the juror has no prior knowledge or experience, then they are faced with the daunting task of learning this abstract information.  Where jurors do have prior knowledge, as is often the case with legal categories such as kidnapping, murder, negligence, etc., such prior knowledge is likely to interfere with legally accurate decision-making. (Pennington & Hastie, 1991)  When mock jurors were asked to list features of various crimes, the features they listed were often incorrect, incomplete, or irrelevant under the law. (Pennington & Hastie, 1992)  This is understandable as many legal definitions of crimes are contrary to common sense.  For example, most people assume that kidnapping includes some sort of violence or prolonged capture while the legal definition requires neither.  Studies show the influence of these types of prior knowledge persists despite hearing judge’s instructions on the law.  The studies showed a tendency for mock juries to vote guilty more often for crimes that followed their preconceived notions of the crime definition than for crimes which legally met the definition of the crime but were atypical of common sense ideas of the crime definition.  Further, in evaluating evidence, mock jurors were more willing to accept evidence that was consistent with their knowledge of the crime category than they were to accept knowledge that was inconsistent.  Thus, expectations about what is typical of a type of crime influences the inferences jurors make to fill gaps in the evidence. (Smith & Studebaker, 1996)

What Can You Do About It?

What, as practitioners, can we do to combat this phenomenon?  The studies say that judge’s instructions did not alter the results.  But instructions from the judge are often as confusing as the original jury instruction.  During closing, you need to explain the pertinent portions of the laws relevant to your case in plain English.  For burden of proof, for example, show jurors the instruction and explain that all it means is “more likely than not.” 

This does not address the issue, however, of jurors evaluating evidence throughout trial based upon their preconceived notions about the law.  You do not want jurors seeing the case through a lens that is harmful to your position.  By the time you get to closing, it is too late; jurors cannot re-process all the case information to evaluate it under the correct lens.  Instead, start asking jurors about the laws in voir dire.  For example, tell them that in cases like these, they will be asked to decide on a verdict based on a standard of “more likely than not”, which is very different from “beyond a reasonable doubt.”  Ask what problems they will have with that.  This not only gives you valuable information regarding which jurors to strike, but also alerts jurors to the law of preponderance.

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