by: Dr. Ken Broda Bahm
At the close of the corruption trial of former Illinois governor Rod Blagojevich for, among other things, trying to sell Barack Obama’s vacated Senate seat to the highest bidder, the defense surprised many by putting on no witnesses and by reneging on an earlier promise that Mr. Blagojevich would testify in his own defense, answering the prosecutor’s case. When the defense instead decided to rest on burden of proof (the prosecution “proved nothing,” attorney Sam Adam Jr. argued in closing), it was hailed as either a brilliant move or a shining mistake. Now that the Blagojevich jury continues to deliberate, or is potentially hung agreeing on only two of 24 counts, the question is whether the result will confirm the traditional wisdom that a reliance on burden of proof is the law’s equivalent of a “hail Mary pass.” Though the jury’s verdict in this case will relate to criminal charges, this traditional wisdom applies equally to the civil realm: burden of proof is a strategy best kept in your back pocket: as a tie-breaker at best, but rarely as a central component of what you are offering to the jury.
It was Ben Franklin who said, “nothing can be said to be certain except death and taxes.” Despite the fact that it often overlaps the categories of both death and taxes, litigation is nonetheless built on uncertainty. In a civil case, the Plaintiff aims toward a “preponderance of the evidence,” or some higher standard that still falls short of absolute certainty. And when the law gives you a tool that allows you to compensate for the faults of your case, litigators can certainly be tempted to use it. “Ladies and gentlemen of the jury, I only need to show that my case is more likely true than not…if you still have doubts, that does not prevent you from still finding for my client.” As a rhetorical fig-leaf, it may provide coverage, but is it wise strategy? In response to a recent article in The Jury Expert, I write that more often than not, it isn’t, and advocates are better off de-emphasizing uncertainty, perhaps just holding burden of proof in research as a tie-breaker briefly mentioned in closing. Why would it be dangerous to make burden of proof an important part of your strategy? There are three reasons. One, comprehension: it is quite likely that the jury won’t consistently understand the burden. Two, judgment: explicit burdens of proof are often at odds with our human habits for handling probabilities. And three, persuasion: a reliance on burdens can interfere with an advocate’s need to be clear and definite.
Looking at the first issue, juror comprehension, it is both common knowledge and documented social science that jurors tend to understand fewer than half of the instructions that they hear. That makes it likely that many of your jurors won’t understand the burdens, or know necessarily which burdens to apply to which claims and defenses. At the simplest level, eg.,, when the plaintiffs’ attorney holds her hands like a scale and emphasizes that the Plaintiff needs to prove (dipping one hand lower) just “a little more” than the defense, that is easy enough to understand. But a bit harder to apply: “A little more” of what? Items of evidence? Witnesses? Proof? The confusion is likely to set in once the standard is applied to the facts. Other standards like “clear and convincing” can be even worse. What is “clear” to one juror will be murky to another, and what leads a given proof to be “convincing” is just as subjective.
Even if jurors intellectually understand what the law is asking (and doing the ‘scale’ thing with your hands does tend to help), there is still the question of whether that approach fits with the style of judgment that humans naturally use. The difficulty in a “preponderance” or “more likely than not” standard is that asks jurors to implicitly quantify likelihood – something that logicians and statisticians are able to do before breakfast, but something that doesn’t tend to come naturally to the rest of us when we make judgments on a day to day basis. When looking to the past, those things that did happen seem certain to have happened, and when looking to the future, outcomes with widely varying probabilities can still seem equally possible, or are simply unknown. In the end jurors are likely to default to a more basic human sense of whether they believe it or not. If we see our jury, not as logicians calculating the relative probabilities of different conditions, but as story-consumers who hear two different narratives about the world and decide which one has the greatest consistency and which jibes the best with the jurors’ own world view, then it is a matter of affinity, not probability.
The final problem with an emphasis on burden of proof is a practical one for the advocate. No litigator wants to weaken their own case, and telling a jury that they are “probably” correct about where the evidence leads just is not a strong position. To the advocate, and to the world-view that the advocate invites the jurors into, our party behaved responsibly, and the other party did not, plain and simple. Certainly, the jury can, should, and often do rely on burden of proof and comparative probability to break any tie that is created either by the facts or by group dynamics within the jury, but when the advocates themselves on either side make their arguments explicitly probable by invoking burden of proof, it is generally a sign that their case is not going well.
Even in a criminal context, where one would hope that the State’s burden of proof would figure prominently in defense, it isn’t necessarily an ally. As one public defender writes, it is more likely in today’s criminal courtrooms that jurors will start out presuming guilt. While some emphasis on the burden may be necessary in that context, if only to counteract the incorrect presumption, prosecutors and defenders are still better off if they assume the burden to deliver jurors a certainty – they are either sending the guilty to jail or releasing the innocent back to society, and it doesn’t help for them to think that they are “probably not” making a mistake one way or the other. Like death and taxes, the world that you want your jurors to buy into should be certain as well.