Narratives create narratives. When you hear a story, it pulls up frames from other narratives you have previously adopted. A personalized story telling process occurs in your mind. You take the new story and mold it with your preexisting deep narratives to try to give it meaning.

You subconsciously tell yourself, your own subjective story of what the facts mean to you – regardless of reality. This subconscious reality is the reason jurors always remember more than the evidence.

Click to Enlarge

Ever feel like you are playing a rigged game?

The difference between a narrative and a story is a debatable. Many people use the terms synonymously. Here is my view of the difference. A simple story retells events (real or fictional). A narrative is more complex and narcissistic. A narrative recounts the events from a specific view point of a character (or even an inanimate objects) in a story. The narrator telling the story frames the events from their own world view.

Click to Enlarge

What is the real fight about in a jury trial? Jurors vote their morality. That is, their moral view of justice. We make the choice that makes us feel better about our world. We are given information and then we make up our own interpretation of what that information means based our preexisting worldview. Our worldview actually changes what we believe is going on around us. We are all addicted to the images we create in our minds eye, despite the facts. Moreover, since morality is not the same for every juror, the real contest in a jury trial is which side’s story better embraces the collective morality of the chosen jurors. Think about the implications of this:

• Jurors don’t vote rationally.

• Jurors choose a verdict based upon their personal view of morality.

• Learning how and what a juror believes is justice (which is a type of moral view) is perhaps the most important task of jury selection.

• Most courts will not allow you to thoroughly question jurors about these issues because they do not see the relevance (or think these lines of questioning are too invasive).

AN EXAMPLE

A typical line of questioning in a DUI case is:

COURT: Do you think you can put aside any issues you have with the crime of DUI and follow the jury instructions?

POTENTIAL JUROR: “I think so.”

COURT: “What if we told you that it was the law and you had to?”

POTENTIAL JUROR: “Ok”

These questions certainly have some value. If someone desperately wants to get out of jury duty all they have to do is answer “NO”. If they stand by this answer they get to go home early. For everyone else, it does not really tell us much. Other than any hesitation demonstrated when answering the question, we do not learn anything about how they view the world. In fact, most people believe that they follow rules even when they do not. We don’t always see the world as it is.

ANOTHER EXAMPLE

Now, how about this line of questioning?

ATTORNEY: “Good morning. Have you ever heard the phase ‘if you make your bed, you have to sleep in it?’”

POTENTIAL JUROR: “Yes I have”

ATTORNEY: “Can you tell me if this is an example of what that phase means to you? Let’s say I need to be at a meeting and I am running late. I get in my car and I see my gas gauge is on red – my tank is almost empty. I make a decision. I am going to not stop for gas and see if I can make it to my meeting. So, I get on the road and start driving. After a minute on the highway I feel my car slowing despite pressing on the gas. My car stops in the middle of the highway. Cars are now passing me. I am stuck. Is that, in your mind, an example of making your bed and having to sleeping in it?”

POTENTIAL JUROR: “Yes it is.”

ATTORNEY: “So, I deserve what happened to me there”

POTENTIAL JUROR: “I believe you do.”

Now let’s add some more facts. A few minutes after I am stuck in the middle of the highway, a semi-truck is traveling behind me. The truck driver was texting, didn’t see my car and hits me. I am severely injured and can’t walk anymore. In your mind, since I took the risk (made my bed) do I deserve any consequence for taking that risk. Do I deserve to lose my ability to walk because I decided to drive when I knew I might not have enough gas?

POTENTIAL JUROR: “I guess not. No, you don’t deserve that.”

ATTORNEY: Is it accurate for me to conclude, based on your answers, that you see the world more grey than black or white.

POTENTIAL JUROR: “That is correct”

Which line of questions tell us more about the juror’s moral views of justice? Which line of questions are you more likely to be permitted to ask in court?
_________________
Side Notes

I bought a back support for my office chair at Bed, Bath and Beyond. It works wonderfully. It even has a heating function. However, I still feel that there is something wrong with it.

The item I wanted was the last one on the self. The cardboard packaging was torn in several places. Someone had attempted to recreate the box with scotch tape and staples. It was a less than artistic repair job. I picked it up and brought it to customer service. I asked if they had any more of them without the broken box.

The customer service person kindly looked in the computer. A few minutes later, she told me this was the last one in stock. I inquired if she new why the box had been ripped open. She then relayed, as if memorized from a training manual, a story about what “probably” occurred. I asked if there was a discount based on the condition of the package. Without missing a beat, the friendly clerk replied: “No Sir. You are paying for the product not the packaging.” I smiled and bought the produced at full price.

If you are paying for the product, not the package, why does the company spend so much money on the artwork, the shape, and the messaging on the package? Why was the one I bought, with the damaged package, the last one left in the store? For that matter, why do placebo drugs work for some people? These questions all have the same answer: the package is just as important, and many cases more important, as the product. The package tells us a story about the product. We are buying how that story makes us feel about the product.

Writing the best opening statement in the history of law on paper is an accomplishment. However, if you deliver it to the jury in a wrinkled suit, unshaven, and with the smell of whiskey flowing from your breath, chances are you will not persuade anyone. The package you have placed your opening statement in has affected its value. Despite the training manuals at Bed, Bath and Beyond, the package matters.

_________

Side Notes

Science has hypothesized that the neuropathways in our brains actually change when we adopt narratives. Some narratives are so ingrained in people that our brains favor it. We put people into pre-existing roles. We understand people by fitting them into our pre-existing narratives. We are all living out our narratives. When you accept a narrative, you inevitably ignore or hide some of the realities that contradict it.

Deep Narratives are story patterns that are repeated so many times, in so many different forms, that they becomes part of our subjective reality (many times, regardless of their truth). Deep narratives become permanent structures in the brain. Scientists believe they actually affect our brain chemistry. Once their seed in planted in our mind, they grow by rearranging our synapses. Yes, a story actually change our brain chemistry.

We can activate several deep narratives at same time. This mental infrastructure contributes to the explanation of why several people can see the same event, and each believe something different occurred. For example, two witnesses see the same thing, but their recollection contradicts each other.

Deep Question during jury selection: can I activate the deep narrative I want in this potential juror? “No”, then get rid of her!

Has this ever happened to you?

Click to Enlarge

Click to Enlarge

People who lie, cheat and steal normally don’t admit that they lie, cheat and steal. Thus, it is reasonable to assume that a deceitful person, would act deceitful, when asked a question about how truthful they are.

So, what do you think would be the benefit of asking a deceitful person: “are you a liar?” That would probably be the “Number One” worst question you could ask a liar. Could you imagine how this would go during a trial.

Lawyer: Sir are you a liar?

Juror: Yes sir, I lie all the time. As a matter of fact, I have lied in almost all my answers to the court today.

Lawyer: Thank you for your honesty sir. Your Honor, move to strike for cause.

Unfortunately, I have never experienced such candor from a juror. While the above question seems like a ridiculous method to determine the truthfulness of juror, some courts commonly use the same type of questioning when trying to find out if a juror has the ability to be fair. The scenario usually plays out after a juror gives some indication of a bias. Upon further questioning, they say it would be really difficult for them to put aside their prejudice. Then they are asked something like:

Prosecutor: “If we tell you that the law requires you put aside your bias; That you are required to just consider the evidence presented in court. Could you do that?”

Juror: “If you put it like that, I think I could.”

Prosecutor: “Then you could be fair and impartial in this case?”

Juror: “Well, yes.”

What person is inclined to say in open court that they could not be a fair person? Our egos and vanity don’t want to conclude that we are not fair. On the contrary, most of us believe we can be fair (regardless of the reality of this belief).

However, there is a small group of people that will have no problem saying they could not be fair. This group primarily consists of two types of people: (1) people who want to get out of jury duty; and (2) people exceptionally honest about their prejudice. These outliers are not the concern. It is the remaining majority that we have to worry about.

If you wanted to find out if a person could be a fair juror, the worst question you could ask us is: “are you a liar?” The very nature of the question is somewhat offensive and will not provide a reliable answer. Consequently, The second worst question to ask a juror is: “can you be fair and impartial?”

Which case would you cause you more stress? A case you were supposed to win or a case you are supposed to lose?