Fighting Back Against Common Sense

"Common sense" has nothing to do with it. The words do not appear in a Texas criminal jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.

If any of these concepts were common sense, everyone would have adopted them.

Every civilized country on  Earth would have had criminal jury trials for the last 200 years.

We would require proof beyond a reasonable doubt in disciplining our children.

We would, in our everyday lives, presume people to be innocent of any bad act or bad intent against us.

They don't, we don't, and we don't.This is why prosecutors love "common sense": because we don't, in our ordinary lives, presume innocence and require proof beyond a reasonable doubt. The appeal to common sense is a call to use everyday rules in a highly technical context. As Scott Greenfield points out:

Ordinary people assume constantly.  They have to, as there is no opportunity research everything they do, or sit back and withhold judgment until every detail is proven.  But that's exactly what they should do at trial.  So the message is unclear:  On the one hand, we tell you to base your decision on the evidence in the case.  But on the other hand, where the evidence is missing, just resort to assumption as you would do otherwise. 

So what's the antidote to prosecutors' "common sense" arguments? As usual, the antidote to a specious argument in trial involves pulling back the curtain and showing the jury what your adversary is trying to do (this is Scott's solution as well). We don't like to be tricked, and the "common sense" argument is—at least in Texas—a trick.

(In other jurisdictions, the "common sense" argument may be more problematic: sometimes "reasonable doubt" is defined as "a doubt based on reason and common sense," which is stupid—"reasonable" doesn't mean "based on reason," but rather "amenable to reason," which is different altogether; a reasonable doubt often is based not on common sense but on the government's failure to do its damn job.)

Juries' legal educations are mostly limited to what we lawyers manage to give them in the course of a trial; there is nothing wrong with educating them in closing argument on the principles behind the jury instructions. We have to have credibility at that point, of course, to convince the jury that our understanding of the law is correct, but if we don't have credibility with the jury by the end of the trial we've probably lost anyway.

We don't often hear arguments against common sense. Trusting common sense is. . . common sense. If in closing argument we have enough credibility, though, we can explain to the jury the role that common sense properly plays in a criminal trial (none) and, instead of sounding like cranks, be believed. How do we explain that common sense has nothing to do with it? I suggest something like this:

"Common sense" has nothing to do with it. The words do not appear in the jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.

If any of these concepts were common sense, everyone would have adopted them.

Every civilized country on  Earth would have had criminal jury trials for the last 200 years.

We would require proof beyond a reasonable doubt in disciplining our children.

We would, in our everyday lives, presume people to be innocent of any bad act or bad intent against us.

They don't, we don't, and we don't. . . .

9 Comments

  1. I gave up on common-sense arguments with parole officers. It usually makes them mad. I’d offer up a few examples, but my parole/probation isn’t up until August. So, I’ll bite my tongue for now. Ric

  2. I’ve often heard prosecutors talk about common sense in voir dire. Do you not recommend bringing it up then and inoculating the jury as early as possible? Or do you believe it would be offputting at that early stage?

    1. Though I know you’re asking Mark, I’ll give my take.

      I never take the common sense stuff on head-on during jury selection because it is a little to esoteric and you don’t want to be the person telling a roomful of strangers who probably already trust your opponent more than you “don’t use common sense!” What I do talk about is that being a juror is a job (being the judge of the facts and the applier of the law) and its a job that requires you to adopt some analytical tools that run counter to the way our brains tend to work in everyday life. The easiest example of this is the presumption of innocence because most jurors will freely admit that when they see someone sitting in the back of a police car there first thought is “what did he do?” I then talk about circumstantial evidence and PBARD in this same framework, that it is COMPLETELY different from the way we think about problems or decisions in our day to day lives.

      If you’ve set this up and your jury understands they are thinking about the facts of the case in special ways, its easy to say something in close to the effect of “the prosecutor keeps asking you to use your common sense, but you remember that we talked about the ways that being a juror requires you to think about thinks differently than you normally do.” Depending on how adversarial you want to be, you can point out that the prosecutor’s asking the jury to “not leave their common sense behind” is really just an appeal to ignore the law and instructions the court has given them.

      That’s my take.

      1. Thanks Lee.

        Anybody have any thoughts about objecting to common sense during voir dire or motions in limine?

      2. I think Lee’s right. Asking the jury to disregard common sense is not something you do till you have a history with the jury.

        And CJClawyer is mostly correct. You’re wasting your breath (and squandering your credibility) by objecting to the prosecutor talking about common sense.

        I’m not so certain, however, that (in Texas) a prosecutor saying that BRD=common sense would be legally objectionable. Risible, possibly, but we get to define reasonable doubt and if the prosecutor can sell a jury on that proposition, he’s not breaking any rules.

  3. Charilie, I think it depends on how it is said. If a prosecutor is saying that the burden equates to common sense, then that is certainly a misstatement. But if a prosecutor asks the jury to use their common sense when reviewing the evidence and determining whether there is/isn’t a reasonable doubt, I don’t think that is. Lee’s take on it sounded pretty good.

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