(Please forgive typos in this and surrounding posts. I’m traveling, and writing on an old iPad and a bluetooth keyboard, so there is some lag between the typing and the appearance of words on screen. I may come back and clean up later.)
What if there were a secret about the way that jurors decided cases, the knowledge of which would give you an advantage over almost any adversary. Would you want to know it?
What if using that secret to your clients’ advantage required you to believe it. Would you be willing to believe it?
And what if believing that secret required you to accept something uncomfortable about yourself. Would you accept it?
The stated premise of a criminal jury trial is that jurors are objective verdict-reaching machines. We tell them to wait and consider all of the evidence before reaching a decision, and not to be influenced by feeling or emotion.
Most lawyers who try cases treat these as realistic injunctions, and try their cases as though jurors will hold off making a decision until all of the evidence is in. This is how we are taught to try cases.
The problem, though, is that this is not how human beings work. We feel like we make objective decisions based on all of the facts, but the decisions are made subconsciously, and our careful consideration of the facts amounts to little more than post hoc rationalization of subconscious decisions.
It can be hard to accept that we are not actually doing what we feel like we are doing, especially since we have been taught that what actually do—making decisions at a layer beneath the rational—is beneath us as rational beings. It is … dirty.
We are cognitively repressed, and this cognitive repression leaves us slaves to the deep processes that make our decisions.1
More importantly, though, our cognitive repression makes it more difficult to see that the way we make decisions is the way everyone makes decisions, and using that vision to better defend our clients.
If we recognized what’s happening, we could counteract it and be more rational. Maybe. ↩