If you say the word \u201canalogy\u201d to a lawyer, I would guess we all instantly think of case analogies\u2014our minds, as we were trained, diving right back into the last trench from which we lobbed analogical grenades at some judge and her clerks.\u00a0 I suspect, however, that we might react differently to hearing the word \u201ccomparison.\u201d\u00a0 This latter word invites something more personal and less clinical.\u00a0 Perhaps even something more withering or acidic.\u00a0 Comparison is this ugly thing I do when I envy a colleague\u2019s publication list.\u00a0 When I feel like less of a neighborhood citizen because my neighbor\u2019s lawn looks like a Pebble Beach fairway while mine looks like a roadside driving range.\u00a0 Or when I start to feel abused by my circumstances because I see, through the green, corroded eye of social media, that my friend is on vacation at the beach\u2026again.\u00a0 But it\u2019s not all bad in the land of comparison.\u00a0 It is only through the dual-lens of comparison that I see a refugee fleeing across the border of Poland and I gain some perspective over every other trivial matter I\u2019ve brought into orbit around me.\u00a0 While analogies remain external to us, we almost always put the \u201ci\u201d in comparison.\u00a0 Unsurprisingly, our jurors apparently do this as well.\u00a0 In so doing, they go from applying law to fact, to applying fact to their most angelic selves and their most angelic neighbors; or perhaps just the neighbors with the best lawns.<\/p>\n
It is this language of comparison that provides the insights to this month\u2019s blog.\u00a0 A survey of jury decision-making research yields a raft of studies of mock jurors.\u00a0 Jules and I have written plenty in this space relying on mock-juror research.\u00a0 Though rare, courts in the long hallway of judicial time have occasionally opened the doors of their jury deliberation rooms for the scientific world to peek in.\u00a0\u00a0 In this study, the authors reviewed the deliberations of two juries in the 1996 trial and retrial of the same criminal case.[1]<\/a>\u00a0 The first jury deliberated for two days to an eventual impasse.\u00a0 The second jury came to a quick conviction on the same facts.\u00a0 The case involved a 26-year-old woman who was accused of drug trafficking after large amounts of drugs were found in her two suitcases upon her arrival at the Phoenix airport.\u00a0 She was traveling with a confederate and the two initially claimed they were flying to New Jersey, on one-way tickets, for a vacation in New York.\u00a0 Curiously, both were found to have traveled from Arizona to New York in the week prior to this arrest. \u00a0Between the two of them and their four bags, they were hauling over 128 pounds of drugs. \u00a0As most of the drugs were found in the defendant\u2019s two bags, prosecutors flipped the confederate who agreed to testify against her.\u00a0 The defendant, however, claimed that she was unaware her bags were filled with drugs, telling police that the bags were simply given to her on the way to the airport by some unknown associate of her confederate.\u00a0 The confederate denied most of the involvement, claiming that the defendant was the actual leader of their failed enterprise.\u00a0 The jurors were given other inculpating evidence which included some incriminating jailhouse recordings.[2]<\/a><\/p>\n In applying the scientific practices of communications analysis to the two juries\u2019 deliberations, the authors noted a curious rhetorical pattern recurring as the jurors dialogued.\u00a0 A juror who had the floor would glom onto a particular fact of the defendant\u2019s behavior or testimony and formulate a targeted argument of guilt based on a comparison with the juror\u2019s own conduct or the generalized conduct of that juror\u2019s friends or neighbors.\u00a0 Seeing this rhetorical device recur, the authors called it a \u201cConditional-Contrastive Inculpation\u201d or CCI.\u00a0 To put it as simply as I can in this small space, a CCI is an assertion or question in which the juror asserts their own innocent conduct (or the conduct of one\u2019s law-abiding friends, neighbors, or fellow jurors) as the gold standard against which the defendant\u2019s more suspect case facts or behaviors are compared.[3]<\/a>\u00a0 So, for instance, one juror opined \u201cEven if I know someone for three months I\u2019m at least gonna know where they live\u2026what they do for a living.\u201d[4]<\/a>\u00a0 A CCI question looks something like this:\u00a0 \u201cIf you\u2019re unemployed are you gonna buy a one-way ticket back to New York [a week after you were just there]?\u201d[5]<\/a>\u00a0 To be clear, most CCIs seem to be inculpating, but that was not always the case.\u00a0 In the first hung jury, the hold-out jurors also applied the device for the sake of arguing exculpation.[6]<\/a><\/p>\n Now for the fun parts.\u00a0 In the first trial deliberations, no CCIs were employed until one of the pro-acquittal jurors self-identified. Once the pro-acquittal minority self-identified, CCIs flowed out (overwhelmingly from the pro-prosecution majority) at an astounding rate\u2014147 instances in about 390 minutes of deliberation![7]<\/a>\u00a0 Remember, however, that this first jury failed to agree on a verdict and the case went to a second trial.\u00a0 The second trial resulted in a quick conviction in which all 8 jurors seemed to be of the same mind from the outset of the deliberations.\u00a0 That second jury deliberated for 41 minutes.[8]<\/a>\u00a0 With no holdout to persuade, they used only 9 CCIs.[9]<\/a>\u00a0 If you\u2019re curious, that\u2019s nearly half the average rate of CCIs per minute from the first trial to the retrial.\u00a0 In case you think just these two juries employed CCIs, the authors assure us that CCIs are present throughout other deliberations discussed in other studies of real juries.[10]<\/a><\/p>\n In a cursory review of some quotes online about comparison, I found this one from that old sage who is known by only one name: \u201cAnonymous.\u201d\u00a0 Anonymous apparently once said, \u201cHappiness is found when you stop comparing yourself to other people.\u201d\u00a0 It is sage advice. Perhaps it\u2019s also true that guilt is found when you start <\/em>comparing yourself to defendants. \u00a0If I were a juror, apparently I\u2019d be in a world of deliberation trouble if the defendant were a prolific author with a nice lawn and a tan from his last vacation.<\/p>\n <\/p>\n ———————–<\/p>\n [1]<\/a> David R. Gibson & Matthew P. Fox, Facts into faults: The grammar of guilt in jury deliberations<\/em>, 23 Discourse Studies, no. 4, 2021, at 474-496, https:\/\/doi.org\/10.1177\/14614456211001605<\/a><\/p>\n [2]<\/a> See Id.<\/em> at 479-80 for a more complete discussion of the case facts and arguments by counsel.<\/p>\n [3]<\/a> I am summarizing and condensing a good deal here due to the blog\u2019s limited space.\u00a0 CCIs can begin with an abstracted \u201cyou\u201d or a \u201cshe\u201d or a \u201cthey\u201d or even a hypothetical \u201csomeone\u201d who, in the offered comparison, behaves normally in comparison to the defendant.\u00a0 See Id.<\/em> at 483.<\/p>\n [4]<\/a> Id.<\/em> at 483.<\/p>\n [5]<\/a> Id.<\/em><\/p>\n [6]<\/a> Id. <\/em>at 482.<\/p>\n [7]<\/a> Id.<\/em><\/p>\n [8]<\/a> Id. <\/em>at 481.<\/p>\n