By Dr. Ken Broda Bahm:
“Just follow the law.” That is the message jurors hear in various forms from jury selection through the final words before deliberations. In addition to being the legally appropriate charge, it speaks generally to the jurors’ sincere intentions as well. With relatively few exceptions, jurors don’t want to set policy with their verdict, and do not want to impose their own individual morality either. They want to understand and apply the law as the judge describes it. The viewpoint that places the jury firmly in the legal realm, and not the political or the moral realms, has roots that go all the way back to Aristotle’s distinctions between forensic, political, and ethical rhetoric. But when applied to the modern American jury, there is not a clean distinction. And a recent article from Robert P. Burns of Northwestern University School of Law (Burns, 2016) makes the argument that those walls were always meant to be permeable. In other words, the jury was envisioned as a broadly sovereign institution and it functions — as it is meant to — beyond the narrow confines of the law. As the embodiment of popular participation in the administration of justice, juries serve as a unique point where the legal, political, and moral frameworks all come together.
Burns’ article framing this broader role for the jury prompted in me the thought that it makes sense to act as though you are speaking to three juries at the same time:
- A legal jury that is asking what the law requires.
- A political jury that is asking what is best for society.
- A moral jury that is asking what is right or ethical.
By keeping all three figurative juries in mind, you’ll have a better chance of offering your real jury the most complete and satisfying case. Naturally, your jury will try to be guided by the law alone, but in the inevitable act of bringing their own experience and judgment to their decision, the final verdict will reflect aspects of all three. If we wanted the law alone, we would have to use a judge, and would need to find one who lacks influential life experience and worldview. Because that doesn’t exist, it makes sense to act as though you have three judges or three arbitrators as well. In this post, I will draw from some of Burns’ observations in order to share some ideas on separately appealing to that figurative trio of audiences.
Your Legal Jury
This is the jury that seeks to be guided by the instructions, asking “What’s legal?” in response to the facts at issue. Remember, however, that even this jury won’t be guided by the actual law as much as they’ll be guided by their own filtered understanding of the law. Whether comprehension is high or low, however, the jury will try to ground their decision in law, and will sometimes refer to the instructions as a way of answering other jurors who seem to be relying on sympathy, bias, or other extra-legal factors.
Some phrases to highlight the jury’s legal role are as follows:
- The law in this case is asking you to…
- The court has answered this question for you…
- This is a court of law, not a court of ethics/morality/business/fairness.
Your Political Jury
This is the jury that considers the ultimate consequences of the decision, asking “What’s best?” in terms of the overall result. This jury will consider the precedent set by a verdict, and will also consider the overall good (or bad) done by monetary damages. While there are limits to this consideration of societal benefit (e.g., a jury shouldn’t issue a decision that is factually or legally incorrect just because it brings about a good result), there is no realistic way a juror could effectively bracket out that consideration of benefit. And even if that pristine judgment were possible, it isn’t what we want from a system allowing citizen participation in the justice system. Burns in his article quotes the philosopher Hannah Arendt commenting on her own jury duty and noting that it is one of the few “places where a nonspurious public realm still exists.”
Here are some phrases to cue the jury’s political role:
- As a jury, you don’t just speak for yourselves. In a way, you also speak for the community.
- The founders wanted juries, and not just judges, because they understood that the public needs to have a voice.
- This trial is more than a record that ends up in the transcripts. It is a living reality that will affect the parties here and the society outside these doors.
Your Moral Jury
This is the jury that sees the trial as a morality play, asking “What’s right?” when evaluating the parties and the equities. Their decision will be guided by the law and a sense of overall benefit, but will also be made in a way that conforms to their own views of practical morality. In his article, Burns writes of a “‘Fairness of fit’ between the narratively constituted story that comprises the facts of the case and the legal rules.” Beyond the simple notion of fairness, however, it helps to remember that every juror is bringing a “moral brain” to the task, suffusing their understanding of the facts and the law with a basic sense of right and wrong.
Here are some phrases to evoke your jury’s moral role:
- It comes down to right and wrong…
- What happened to my client in this case wasn’t right.
- At the end of this case, you will need to look into your own heart and decide what is just.
Law school (appropriately enough) emphasizes the law. But experienced litigators know that success lies in not just reaching the jury at a legal level, but in reaching them at a broadly human level as well. That means accounting for their tendency to focus legally, politically, and morally as well. So your job isn’t to win just one, but to try to win all three.
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Other Posts on the Sovereignty of the Jury:
- Consider the Jury‘s Political Role
- Emphasize the Civic Role of Your Civil Trial
- Fight for the Civil Jury
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Burns, R. P. (2016). Popular Sovereignty and the Jury Trial. Oñati Socio-Legal Series, 6(2).
Image credit: Created by the author