{"id":3710,"date":"2023-07-10T10:19:08","date_gmt":"2023-07-10T10:19:08","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3710"},"modified":"2023-07-10T10:19:08","modified_gmt":"2023-07-10T10:19:08","slug":"questioning-the-declaration-of-a-jurys-independence","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2023\/07\/10\/questioning-the-declaration-of-a-jurys-independence\/","title":{"rendered":"QUESTIONING THE DECLARATION OF A JURY’S INDEPENDENCE"},"content":{"rendered":"

I love teaching Barristers\u2019 Orientation. The only reason I can think that other faculty don\u2019t volunteer for this job is that they just want to squeeze the last possible drops out of their summer before they have to appear at the office for the start of the school year.\u00a0 I love teaching it because I love the newness of discovery in the eyes of the students.\u00a0 They\u2019re never more eager in the fall than they are in orientation and the first week or two.\u00a0 The law is so new and mysterious to them and they run after its riches.\u00a0 In our orientation, we do mock classes and teach them reading and case briefing by studying a few intentional torts.\u00a0 Offensive-contact battery always opens a few eyes.\u00a0 I\u2019ll ask them, \u201cWhy isn\u2019t the test for whether the contact is offensive a subjective one?\u201d\u00a0 There are often a few quizzical looks as some students try to work out the meaning of \u201csubjective.\u201d\u00a0 The ones who look a bit more assured in their knowledge of that word often start scratching their heads when I ask whether this certain contact we\u2019re reading about is \u201cobjectively\u201d offensive.\u00a0 I might hear something like, \u201cWell, I think it\u2019s offensive and I think I\u2019m pretty reasonable.\u201d\u00a0 Who, after all, really is <\/em><\/strong>this objective, reasonable person if it\u2019s not the plaintiff or the student who is studying her case? With that, we often have our first sticking point. \u00a0I assure them that the questions only get harder as we go.<\/p>\n

So, here\u2019s a question I\u2019ve been pondering for a while and which is wending its way towards a law review article.\u00a0 Before I get to the question, however, I need to dig out some dirt and clear off the bedrock.\u00a0 One need not conduct a month\u2019s worth of research on juror independence to uncover a basic truth in the case law:\u00a0 Jurors must be objective to in order to serve and lawyers cannot destroy that objectivity if the case is to make it through deliberations to a verdict.[1]<\/a>\u00a0 The prospective juror discovered to have some partisan bent may be struck peremptorily or with cause.\u00a0 An entire trial can be for naught if an attorney makes an impermissible \u201cgolden rule\u201d argument; effectively turning the jurors\u2019 collective thoughts toward her client\u2019s partisan, subjective view.\u00a0 We hold these truths be self-evident, right?\u00a0 Yet we know jurors are virtual constellations of personal preferences and biases.\u00a0 Knowing this, we persist in the idea that jurors must not only look at the evidence objectively, but this is something that they actually can<\/em> do.<\/p>\n

Boy, I don\u2019t know about that one.<\/p>\n

Perhaps what we really are shooting for are jurors that can be just objective enough<\/em>.\u00a0 But our brains are funny. Often times, our brains are funny without us evening knowing how funny they are.\u00a0 Take, for instance, a 2013 study showing that a brightly lit room could unconsciously increase the amount of coffee a person would drink.[2]<\/a>\u00a0 The same study found that dimmer rooms tended to prevent strong affective responses to certain stimuli\u2014which suggests, in turn, that bright lights tends to make us less objective and prone to taking a polarized view.[3]<\/a>\u00a0 As if the brightness in the jury deliberation room wasn\u2019t enough to worry about, there are a host of inherent and unconscious biases to contend with and Jules in particular has written about them frequently in this space.[4]<\/a>\u00a0 Some of them are downright ugly.<\/p>\n

But I said I was pondering a question and I have come to the part where I will invite you to ponder it with me.\u00a0 If we can prove that jurors can\u2019t ever look at evidence in a truly objective manner\u2014whether due to biases we suspect or biases science shows are beyond suspicion\u2014what should that mean for the juror selection and juror deliberation processes? \u00a0And what about other cognitive biases that lawyers permissibly exploit, yet have an unconscious effect of ruining objectivity?\u00a0 Take, for instance, the anchoring bias.\u00a0 A favorite of every plaintiff\u2019s lawyer everywhere.\u00a0 When we are given numbers, we anchor near those numbers as reference points and our ability to think toward some other number is now encumbered by this unconscious numerical bias.\u00a0 One might respond by arguing that both <\/em><\/strong>sides get to leverage that cognitive bias\u2014which seems like the courtroom equivalent of offsetting penalties.\u00a0 Fair enough.\u00a0 So why don\u2019t we do that with golden rule arguments and let both sides make their subjective pleas for empathy? \u00a0After all, we\u2019ve already permitted much stealthier assaults on objectivity! I know the various answers to this question, certainly.\u00a0 But I still like to think about it.<\/p>\n

The idea of bias in a courtroom is a practical minefield and a philosophical wonderland.\u00a0 Just think about all that subjectivity lurking in the hearts and minds of all the players present.\u00a0 Even the bailiff is suspect.\u00a0 It\u2019s a wonder that we as lawyers use the words \u201cobjective\u201d and \u201cobjectively\u201d as much as we do.\u00a0 However, I worry that one day, by the march of cognitive science, we might come to think of them as remnants of some romantic ideal from a by-gone era of trial practice.\u00a0 We are, after all, often subjectively biased to the new and modern.<\/p>\n