By Dr. Ken Broda Bahm:
A ‘Golden Rule’ argument is one that encourages jurors to put themselves in a party’s shoes and think about what they would or wouldn’t have done. It leads to an objection because it encourages the juror to embrace a personal conclusion that isn’t necessarily drawn from the facts. The Golden Rule objection, however, is a limit on the attorney’s messages, not a limit on what jurors can do. And jurors will do it. When they encounter a new story in the courtroom, they’re armed not just with an understanding of what they hear in court, they’re also armed with a knowledge of themselves and their own stories. So it is often impossible for them to not project themselves into that story.
That is the common expectation: Jurors will compare the behavior of the parties by talking about what they themselves, or their version of a reasonable, normal, and non-guilty person, would have done or avoided doing. Would they have accepted that level of due diligence on a loan? Would they have used the product in that manner? Would they have said that to their boss? Would they have suspected that something wasn’t right? That juries routinely make these projections can be confirmed by anyone who has watched mock juries deliberate. We now have one of the first studies to confirm this practice in actual deliberations (Gibson & Fox, 2021). “Defendant’s actions are compared unfavorably to what a normal, innocent person would have done,” with the juror often explicitly or implicitly using themselves as an example of the prototype “normal, innocent person.” Focusing on a pair of criminal trial deliberations, the researchers demonstrate that these forms of personal reasoning are very common, and the authors also include insight into how these projections are made and used in the course of deliberations. This post takes a look at the research and its implications.
How Commonly Do Jurors Project Themselves?
The researchers focus on the conversational tools used in a pair of actual criminal trials, but they also cite research showing that these projections are likely to be used in civil trials as well, where the question of what is blameworthy and what is normal are just as relevant. While they give the tactic a fancy name — “Conditional-Contrastive Inculpations” or CCI’s — it really just amounts to projecting oneself into the situation and saying what “I” (or a reasonable, normal, non-guilty/non-negligent person) would have done.
For trial material, the team used two real criminal jury trial deliberation videos and transcripts created for a televised documentary many years ago, but not previously analyzed. The focus on actual deliberations is important, because even as mock juries can replicate many aspects of the deliberation process, what they typically don’t have is the duration, since real trial deliberations can last many hours or even days.
The researchers found that jurors projected themselves frequently. Describing the move as “ubiquitous,” they noted 147 examples in just one jury’s deliberations. For example, referring to an incriminating jailhouse recording, one commented, “If you’re an innocent little girl, you know you’re not gonna have that type of an attitude when you get on the phone.” Jurors shared many other projections as well: “She wasn’t carrying the kind of things you would normally pack to go on vacation with a friend,” or “If someone was buying me a ticket, I would know exactly where I was going.”
How Are Juror Projections Used?
Aside from the frequency of use, a more intriguing question is how these personal projections are used. The researchers applied the techniques of conversational analysis, looking not just at frequent use but also at their role in the interaction and conversation. Specifically, the researchers found that the ‘What-I-Would’ve-Done’ projection does three things. First, it “indexes” or categorizes an action, putting a spotlight of attention on a particular behavior and defining it. Second, it compares that action with what they, or another typical person, would have done. And third, it offers a judgment based on that contrast.
Interestingly, these projections are used most by those who are pushing for blame. More than 80 percent of the time, the function of the projection was to incriminate the defendant based on previous facts. The researchers also found that jurors in a pro-conviction majority tended to use these projections to bring the subject back to guilt, often in response to an assertion by the minority of pro-defense jurors that did not have easy rebuttal, or in response to a blanket statement of skepticism. “The pro-conviction majority needed a way to return the discussion to the most incriminating facts.” When used, the projections led generally to agreement and repetition. Sometimes they were challenged but were least likely to be challenged when expressed as “I” statements (presumably, because people are less likely to be seen as wrong about themselves).
What Are the Implications for Legal Persuaders?
Plan for the fact that jurors are likely to judge based on what they would or wouldn’t have done. Your case assessment and preparation should include a focus on what these projections are likely to be. When you are on the side that benefits from a focus on projections — generally that is the side pushing to place blame — you can’t directly ask them to do it but you can emphasize the conditions that make it more salient. Stressing how the party you’ve targeted has deviated from what is common, normal, and expected will help jurors see the contrast between that and what they would have done. You can also emphasize alternate and better paths that the story could have taken and make it more likely that jurors will place themselves, or other perceived reasonable people, on those paths.
When you are on the side downplaying blame, and don’t want jurors to fixate on these idealized projections, you probably can’t tell them not to do it — the instructions might back you up, but you are fighting human nature. What you can do is emphasize the separation between the party and the jurors — for example, the differences in social strata or life experience between jurors and the person being accused. In the study’s most frequently discussed case, some jurors responded to the fact that the accused was traveling for “vacation” without spare clothing or a swimming suit, noting that while they themselves wouldn’t do that, someone with very different life-habits might. The greater the perceived distance between themselves and the target, the more likely it is that jurors will be able to discourage or to answer those projected comparisons.
Ultimately, the law might expect that jurors will view a case only on the evidence, without a thought toward projections about what they would have done. But that is unrealistic. The best attorneys can do is plan for and manage those projections.
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Other Posts on Juror Deliberation Practices:
- See the Process and Not Just the Product in Deliberation
- Trust the Norming Effect of Deliberations
- Expect that Jurors Might Generate Their Own Fake News
Gibson, D. R., & Fox, M. P. (2021). Facts into faults: The grammar of guilt in jury deliberations. Discourse Studies, 14614456211001605.