Monday, March 13, 2017


During the course of the Lovelace trial, I have had intense conversations with two friends, both experts in fields that require largely linear thinking and both really smart guys (although one is not a very good listener – you know who you are!). They both essentially asked the same question:

"When two experts testified to one conclusion and two other experts testified to the opposite conclusion, how is a non-expert jury or individual juror supposed to sort that out?"

The answer to that seemingly complicated question is simple but non-linear.

By design, a jury is an aggregation of individual human beings with diverse experiences, biases and observational skills. We ask, indeed, encourage, jurors to bring those experiences into the jury box with them. Implicitly, we asked them to use the same sensations that caused them to select a mate, a friend, a dentist, a pharmacist, lawn care company or even a product to trust. In a criminal case, we give them essentially three rules. First, the burden of persuasion is, at all times, upon the state. Second, and actually quite diverse from the first, the defendant is presumed to be innocent at each and every stage of the case unless they become convinced, from the evidence, beyond a reasonable doubt that he is guilty. Third, and this one is often missed, we asked them to consider each piece of evidence in light of the other evidence in the case. While they get a lot of printed jury instructions, the foregoing comprises only "roadmap" that they get.

So what do they do when they get into the jury room? They do what they have been doing their entire human lives, apply their worldly experiences to the experiences narrated in court. In this case they did not have to analyze whether Deputy coroner Keller was correct or whether the older two boys were correct. Because of the ground rules, all they had to decide was whether they had a reasonable doubt that Cory was in rigor that morning. They did not have to decide whether one pathologist was competent and another was not or one was truthful and another was not. They merely had to decide whether they had a doubt. In arriving at that doubt, each applied his or her life experiences. Probably at a nonlinguistic level, many of them made a decision as to what truthful posture look like or what confidence and certainty look like. How does it hold its head? How long and how firmly does it make eye contact? When is a polite response overly clipped and, therefore feigned?

Without even realizing it, potential lay jurors spend their lives gathering the very skills which will help resolve exactly these kinds of in court dichotomies.

I think my friends, experts in their own fields, are implicitly making the argument that it takes an expert to break the tie among experts. I respectfully disagree. I believe American lay jurors are uniquely suited to the task.

In that realization is an explanation of why our flawed, vastly imperfect system is the least crappy justice system in the history of mankind.


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