Cognitive dissonance is a term used in psychology, that I have always kept in mind during jury trials. It is defined, generally, as the mental discomfort or psychological distress experienced by a person who simultaneously holds two or more contradictory beliefs, idea, or values. In “A Theory of Cognitive Dissonance,” published in 1957 by Leon Festinger, he operated on the theory that we, as human beings, strive for internal psychological consistency in order to mentally function in our surroundings. I know I’m going to blatantly dumb this down, but basically, I understand it to mean that we try to keep our beliefs and our actions consonant with each other.
Juries do not want to believe in a world where someone is falsely accused, arrested, indicted, and put on trial for a crime they didn’t commit. They also don’t want to live in a world where the “rules of the road” don’t work — they need to believe that the system works and that it protects them. This is the “reptilian” part of our brain that we unconsciously internalize. All of this, of course, sounds familiar to many civil plaintiffs attorneys, acolytes of David Ball and Don Keenan’s “Reptile” or Rick Friedman and Patrick Malone’s “Rules of the Road.” And those are good books. Books that have a lot to teach plaintiffs lawyers; I’ve learned a lot from reading them. And they talk about the same concept, generally, in the civil context.
But in the 14 years I’ve been trying cases, I’ve realized that we cannot overlook the jury’s reluctance towards cognitive dissonance in criminal defense cases. It took me some time to realize that, and mostly it came through talking to jurors after an acquittal. One time in particular, I remember sharing an elevator ride with a juror who was going to the clerk’s office for a per diem check after an acquittal. I didn’t say anything to her, but I’ll never forget what she said to me: “You tell your client to stop hanging around that crowd. He needs to straighten up and fly right– change his life around. I would never hang out with them.” I thought to myself, “Why did she acquit my client so quickly when she had these strong feelings about him?” Because she needed him to be different than her. “And why did he have to be different than her?” Because she needs to live in a world where she would never be sitting in the defendant’s seat in a jury trial. That is too scary a place for the average juror.
We don’t often think about our criminal cases in those terms, i.e. “What does the jury need to believe in order to acquit my client?” Instead, sometimes we only focus on our client and their cause, which can be a mistake.
We have to keep in mind what we’re asking the jury to do (acquit our client). But we seldom ask what we’re asking them to believe. Some attorneys go into trial extolling their client’s virtues and good deeds, which isn’t always a bad strategy, but I think they miss the mark. If we are asking the jury to embrace the idea that our client, John Doe, was simply walking down the street one day and the cops arrested him for nothing, then we’re asking the jury to believe in a world where that could happen to them. And no one wants to believe that. Contrary to our intention, it makes it harder for the jury to acquit our client.
If, on the other hand, we accept that our client may have made some mistakes, or may have even just been in the wrong place at the wrong time, then we aren’t asking them to believe in such a chaotic world. We are allowing the jury to believe that the system works, and that it generally keeps us safe. That “the rules” are intact. And the jury can more easily acquit our client because he or she is somehow different than they are.
I know this seems counter-intuitive, because we love and care for our client. But at trial our job is to secure an acquittal, regardless of whether or not the jury likes our client. In fact, an acquittal won’t win them any trophies or outstanding citizen awards… but it will keep them out of prison. As much as we care for our clients, at the end of any jury trial there are only twelve people that determine our client’s fate. And we have to keep them (and cognitive dissonance) in mind when we frame our cases.