Post No.: 0989
Furrywisepuppy says:
Picking up right from where we left off in Post No.: 0981 regarding jury trials – encouraging genuine dissent will reduce confidence in each juror’s initial verdicts and cause them to evaluate and elaborate upon them more carefully and thoroughly instead of relying on heuristic decision-making cues, thus promoting better decisions.
Dissent can decrease individual satisfaction with the task, group morale and cohesion, willingness to work with the same group of members in the future, and cause delays in decision-making. But this is less problematic if a unanimous decision is required rather than a majority one. It’s about sharing everybody’s hidden profiles and focusing on thoroughly evaluating the evidence.
So to encourage dissent, the procedure forwarded by the foreperson could be – getting everybody to publicly share all of the evidence for and against conviction, specifically asking every juror around the table if they have any additional yet-shared information to add, playing a ‘devil’s advocate’ position, then ending with a private (e.g. writing down) polling of everyone’s individual verdicts. For a fair verdict, one should avoid a public polling of individual verdicts, publicly stating the foreperson’s personal verdict, publicly identifying dissenters from the majority verdict, and avoid concentrating the discussion only on the evidence remembered by most jurors.
Repeat this process as necessary until a unanimous verdict is reached. It may help to move jurors so that all those favouring one verdict sit together and apart from those favouring the opposing verdict if the minority group is small so that they’ll feel a little more confident in presenting their arguments together – but don’t socially or physically isolate those who hold the minority verdict from discussion. Imposing a time limit if things drag on for days may be practical but it may result in hasty and poor decisions.
…In some jurisdictions, a bench trial, or judge-alone trial, can instead be the norm or otherwise be requested (e.g. when there’s been significant pre-trial publicity that could influence whether the accused receives a fair trial). The advantages of a bench trial are that it’s cheaper, juries may find it difficult to cope with complex evidence and lengthy trials (the lost work days that each juror sustains) and the accused may attempt to threaten or coerce jurors into deciding in their favour; although judges, as humans too, would need to cope with some of these factors also.
In bench trials, there’ll be less diversity of perspectives, wisdom and opposition to balance out the judge’s own personal biases, the judge may be out of touch with the rest of the ordinary community, he/she may be corrupt (or at least perceived to be), the workload may be too much for one individual to optimally carry, and there’s a greater risk of appeals. Jurors don’t need to explain or write down for the record the reasonings behind their verdicts thus appeals directly against their reasonings cannot be made. Juries cannot be made accountable for their decisions; although this is debatably an issue in itself.
Judges tend to acquit more than juries, mayhap because of the fear of appeals when a verdict is tight. But judges are formally trained in critical argumentation and analysis, and should understand more about forensics too, hence they should recognise when mere emotion and bias is creeping into their analyses when trying to reach a verdict.
Should it matter if someone appears in court not dressed smartly in a suit for example? Why should such superficial factors affect judges or juries? They do but really they shouldn’t. The question of ‘did this defendant commit this crime?’ has been substituted with the question ‘does he/she look like a respectable member of society?’ Not everyone can afford nice suits or borrow one. Moreover, people who wear suits commit crimes too! We need to beware of such judgement biases.
Members of the wider public may watch news reports, a documentary series or read social media posts related to a high-profile case and come up with their own strong guilty/not guilty verdicts – but these sources of information can be entirely biased in their editing or unintentionally incomplete in their explorations of the facts. A programme might be edited to maximise the mystery to keep us on the edge of our seats wondering who the culprit is, whereas in court it might be far clearer who it likely was. Whatever the case, the ‘court of public opinion’ can have a huge impact on the reputation of a person regardless of the verdict they receive in a criminal trial, or even regardless of whether they get charged for any crime in the first place. Meanwhile, judges and juries rely on the evidence and arguments presented in court, which are likely to be less one-sided, more complete, unedited and without extraneous details. Members of the wider public therefore cannot really say if the verdict in a particular trial was a ‘right’ or ‘wrong’ one.
However, ‘jury nullification’ or a ‘perverse verdict’ is when juries conclude that a defendant is guilty yet decide to acquit them anyway because they believe that the law and/or the potential punishment for breaking that law is unjust or harsh, the prosecutor has misapplied the law in the present case, or because of the favourable prejudices of the jurors towards the defendant.
Yet juries cannot be punished for reaching a ‘wrong’ decision. And, in most jurisdictions, defendants who’ve been acquitted cannot be tried for a second time for the same case (double jeopardy), which means that once they’ve been acquitted, that’s it. In cases where a defendant has been ‘found guilty’ despite no law having been broken though, such convictions are likely to be overturned on appeal.
You may have noticed that in this blog I don’t usually mention specific real-life people or cases as I try to find the general takeaway lessons and messages applicable to many people and cases.
But the Depp v. Heard saga was interesting as a particular case study. The trial, held in the US in 2022, was, according to many legal experts, one that was won and lost in a court of public opinion, which was heavily against Amber Heard. Johnny Depp won concerning all 3 of his claims of libel regarding a The Washington Post newspaper article written by his ex-wife, which was a jury trial – even though he had earlier lost in the UK in 2020 concerning a similar libel lawsuit made against The Sun newspaper, which was a judge-alone trial. This is despite the perceived wisdom that it’s more difficult to win a defamation case in the US than the UK due to free speech being enshrined in the US Constitution.
In the 2020 trial, the judge was probably aware of the strategy used by many alleged and guilty sexual abuse and domestic violence offenders of ‘deny (being the perpetrator), attack (the credibility of the accuser), and reverse victim and offender (by claiming to actually be the victim, not the offender)’, hence didn’t fall for it. The lawyers and judge dismissed any evidence that didn’t directly address whether Mr Depp had committed assault or not.
In the 2022 trial however, the above strategy can work on juries – they’ll start to try to answer the question ‘is the alleged victim believable?’ instead of the actual presented question that was ‘did the accused commit the alleged abuse?’ This means the tables get turned and it’s mainly the alleged victim who gets scrutinised instead of the alleged offender. Also, this Virginia state trial was televised and social media was all over it (with the number of fake accounts and bots as active as during any political election), with overwhelming support expressed for Mr Depp before even any evidence was presented in that trial, or even after the UK trial concluded that 12 out of 14 points made in the article written about Mr Depp being a wife-beater were “substantially true.” Laypeople have a mental schema concerning how victims of abuse behave, even though this perception is usually too narrow.
Although the jury was instructed to not read about the case online, they weren’t sequestered and were allowed to keep their phones. Ms Heard did win concerning 1 out of 3 claims of defamation against Mr Depp’s ex-lawyer though.
Men are sometimes victims/survivors of sexual or domestic abuse too, but what effect will this case have on female victims/survivors coming forwards against high-profile (richer, male, or richer male) individuals? Sexual offenders – if their victims threaten to report them – know now to counter-threaten with defamation lawsuits. Victim-blaming works. This will make genuine victims/survivors worry (even more) about going through a painful investigation and trial, just to possibly be disbelieved. Ms Heard’s mental heath received no sympathy either – instead she received daily death threats under a public mob rule on social media.
There may be an argument for balancing the right of the public to scrutinise the judicial process versus the right of the participants to a furry fair trial regarding high-profile cases. But here, the court of public opinion had, overall, seemingly already made up its mind and viewed any evidence (including evidence that there was mutual abuse in that relationship) through the lens of confirming the conclusion they had already decided before the trial had even begun (e.g. his abusive text messages were dismissed as ‘banter’ and when he was accused of acting in court too, it was rationalised as ‘well everyone acts a bit’).
Confirmation bias is a common and classic error of amateur, ‘expert’ and cod psychologists (including those claiming to be able to read people’s personalities via their handwriting (graphologists)). Many such ‘experts’ only get it right after they’ve been provided other, harder, evidence (like they already knew whose handwriting it was, or at least they thought they did). Or they might claim to be correct when there’s no way of categorically proving their guesses are correct or not. This is a problem with the profession of ‘body language expert’. It’s not that body language doesn’t betray our inner thoughts and feelings but we all express many ambiguous body language cues. We also know from our own daily experiences that we can stumble on our own words innocently.
Humans evolved to read body language, yet also fake it. That’s why convictions in criminal trials aren’t decided based on reading the body languages or vocal deliveries of the plaintiffs and defendants but on more solid evidence.
Whether the right or wrong verdicts were ultimately reached in the Depp v. Heard case, it was a trial by social media ‘experts’ who cherry-picked and edited footage to fit their own conclusions. Things get interpreted according to our own biases and desired conclusions – like if the side we already want to win and believed in confessed to their drug addiction then we’ll decide that this fact doesn’t matter and ‘it might even make them appear more human and relatable’, yet if the side we already want to lose and distrust had made the exact same confession then we’ll decide that ‘this makes them an unreliable, impulsive person who lacks self-control’(!) Or it’s like depending on whose side we’re already on, we’ll blame the person who carelessly spilled their coffee or the person who put their laptop on the kitchen table to do some work and ‘asked for it’.
So if a piece of evidence fits our agenda or worldview then it’s unquestionably the truth, whereas if it doesn’t fit then it must be a falsehood or was even planted there in a conspiracy. That’s how we ‘reason’ things.
Overall, trials aren’t about the truth prevailing as much as about which side can convince the judge or jury the best – hence why it’s about theatre and performance, including choosing which witnesses to present and what order to introduce the evidence for the most dramatic effect.
And that’s why having a good (which can mean expensive i.e. the relatively richer have better justice) legal team can be pivotal.
Woof.
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