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Don’t Expect Deferred Judgment: A Lesson from Bowe Bergdahl

By Dr. Ken Broda Bahm:

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As jurors in the trial I’m monitoring were dismissed for the weekend, the judge gave them the reminder: “Keep an open mind. Don’t come to any conclusions, just let it rest until all the evidence is in and the time comes for deliberations.” That plea to the jury reminded me of one of the letters from Bowe Bergdahl, the recently released American P.O.W. held by the Taliban for five years. “If this letter makes it to the U.S.A., tell those involved in the investigation that there are more sides to the situation,” he wrote, “Please tell D.C. to wait for all evidence to come in.” Bergdahl’s request has been echoed by military spokespeople, with Rear Admiral John Kirby saying, “We need to reserve judgment.” For the army, for Bowe Bergdahl, and for the judge as well, my reaction was “fat chance.” There are strong barriers, in and out of court, to deferring judgment. We evaluate as a part and parcel of the processes of perceiving, understanding, and learning. So naturally, judgments are not deferred; they are continually supplemented and revised along the way. 

Taking the case of Sargent Bergdahl, there have been four stories so far in the short life of this event: The tragic prisoner who should be brought home at all costs; the soldier triumphantly freed from captivity; the deserter who was not worth the trade; and now finally — perhaps — a more complicated story than any of these. As the news cycle has churned, many of those opinions have been held at different times by the same people. The public hasn’t been able to wait on all the evidence, but at the same time, hasn’t been shy about revising their assessments as new information has come in. I believe that these same tendencies apply to juries as well: a similar need to evaluate early combined with a willingness to revise assessments along the way. Understanding and adapting to these shifting evaluations has implications to how you try a case. If you think of jurors continually revising and updating their opinions, instead of just waiting for the close of evidence, that is likely to improve your focus and trial strategy. 

It’s Tough to Defer Judgment

The advice to defer judgment is a staple for group processes. Think of those brainstorming sessions where “there are no bad ideas.” Except, if you’re like me, then it doesn’t take more than a few moments to realize, “Okay, there are some bad ideas.” You can try to tamp down your judgment-formation, but the advice to defer it all together is at war with human psychology. There are several reasons for that. One is that it is hard to separate evaluation from interpretation. In the active process of listening, we mix comprehension with judgment. As we understand something, we also begin to evaluate it in the natural course of deciding whether it is important and what it means to us. We are also likely to bring our own motivations to task of deciding what to listen to, what to understand, and what to remember. Our perceptions also have to pass through an ideological lens shaped by our own politics and worldview. That means that at least some level of judgment precedes the message, so there is probably no such thing as a wholly deferred judgment.

But that Doesn’t Mean Case Judgments Are Fixed From the Beginning

Courts ask for judgment to be deferred in order to prevent that judgment from being premature. I have written before about the widespread belief that most jurors (the most popular figure is 80 percent) make up their mind after opening statement and stick with that belief. That statistic has survived based mostly on repetition. The kicker is that the only “80 percent” study is quite old (Broeder, 1958) and shows only that eight out of ten form initial leanings after opening. While credibility judgments of specific witnesses can be very durable, leanings on the case as a whole can be surprisingly flexible. Subsequent research has shown that the great majority of jurors — as many as 95 percent (Hannaford et al., 2000) will change their leaning during the course of trial. So, in other words, we don’t defer our case judgments, but we don’t set them in concrete either. 

So Adapt to a Continuously Deciding Jury

The first step is to ditch the, what I call, the “two-stage” model: Stage One, the jury passively receives the information; Stage Two, the jury deliberates to a decision. That is a judge’s ideal, which is another way of saying that it is a fiction. Even an honest and hardworking juror can no more set aside their inclination to evaluate than they can set aside their bias based on a promise to do so in voir dire. When the legal persuader acknowledges that her audience isn’t waiting, but is instead forming and revising opinions constantly, that has a few implications. 

Every Day is a Mini-Trial. There are highs and lows in any trial, and in any trial day. One question I often ask when I’m monitoring trial is whether, in the eyes of the jury, I think we ‘won’ that day or not. Did we give more than we got? Were there more memorable moments that helped us rather than hurt us? I believe winning in trial boils down to creating more days where we won than days where we lost. 

Every Witness Wins or Loses. Contrary to the mindset of some witnesses, the point of testimony is not to get through it. The point of testimony is to create an overall impression through both direct and cross that does more good than harm to your case. Particularly in cross where jurors get to see the conflict between the parties directly, it is critical to ask the question, “Has the witness shown that he can withstand their best attack and still be strong?” 

Every Impression Counts. Jurors have a continuing impression of who has the upper hand, and many factors can contribute to that impression. Do you look like you’re winning for instance? One factor that can often be overlooked is the judge’s role. The parties are making objections to manage the information and tactics that are allowed, and making objections for the record. But every “sustained” or “overruled” from the bench can be seen by a jury as the judge’s vote on how you’re doing. Lose the balance of those objections and it is easy for a jury to conclude that you must not be doing that well. 

As Sargent Bowe Bergdahl returns to a deeply divided country, it will be interesting to see how the public’s stories about him are supplemented and revised. Those changes are likely, but that does not mean they’ll take place on a blank slate. In saying that public views and jury assessments are malleable, I don’t mean to suggest that they are like an Etch A Sketch: We can’t just shake them out and draw a new picture. Instead, our judgments are more like a chalk drawing on a sidewalk: You can brush a lot of the picture away, and you can change or add to it. But some remnants of the old picture will still be there — at least until the next big rainstorm. 

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Other Posts on Revised Perceptions: 

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Broeder, D. E. (1958). The University of Chicago Project. Nebraska Law Review, 38, 744-761

Hannaford, P. L., Hans, V. P., Mott, N. L., Munsterman, G. T. (2000). The timing of opinion formation by jurors in civil cases: An empirical examination. Tennessee Law Review, 67, 627-652.

Photo Credit: Global Panorama, Flickr Creative Commons. Image courtesy of U.S. Army, released into the public domain, Wikipedia Commons