How to Sway a Jury

I’ve been on jury duty twice in my life. The first time we found the guy innocent, the second time we found the guy guilty. (The second time I was on jury duty coincided with me writing the 11th issue of The JAMM, and I mention it briefly there.)

I want to talk about the first case I was on, where the guy got off. Originally, when we went into the jury room the first vote went 10-2 in favor of conviction. I was one of the two who voted for acquittal.

Because I’m pretty good at debating and making a point, and because there wasn’t any really solid physical evidence tying the person to the crime, after a couple hours of deliberating, the jury was split pretty much in half. But there were still five or six people arguing to find him guilty.

I couldn’t really argue my position any better than I already had. We weren’t really debating the facts of the case at that point. We all agreed on the facts. But some people felt like the confluence of a few bits of circumstantial evidence proved guilt, whereas I (and the others on my side) felt it didn’t.

For those outside the United States, here a jury must have a unanimous verdict, and they must find the person guilty “beyond a reasonable doubt.” Which doesn’t mean “beyond all possible doubt,” but just that there is no “reasonable” doubt. It’s this nebulous standard that was getting in our way.

I looked at the evidence and I felt like the guy was possibly guilty—maybe even probably guilty—but there was still a decent chance that he had nothing to do with the crime.

I don’t think the other group looked at the evidence and saw anything close to 100% chance of guilt, but they just had their minds sort of made up, so they were hard to sway.

After many fruitless hours of trying to get people to reconsider their initial assessment of his guilt, this is what I said that finally seemed to turn the tide in the room. I said, “Let me ask you, would you bet 3 months of your salary that he’s guilty? If somehow we could know for sure, would you take that bet now? If you’d hesitate to take that bet, why?”

Someone asked me, “Well, would you bet 3 months of your salary that he’s innocent.”

And I said, “No. But I wouldn’t bet that he’s guilty either. So if I wouldn’t bet either way, I have to vote ‘not guilty.’”

I’m not saying that’s the best logic in the world, but I think it sort of compels people to think of the situation a different way if they’re locked into a guilty vote. It takes a fairly hazy standard of “beyond a reasonable doubt,” and translates it to dollars and cents. Can you put someone away for years when the evidence isn’t strong enough for you to risk a few months salary?

I don’t know how much that argument played a part, but within in an hour of saying that, the jury had agreed to acquit.

The defendant would go on to rape and murder 62 people.

No, that’s not true. That part didn’t happen..

Footnote: I once told this story to a defense attorney. He said he liked that logic and that he was going to use it in a closing argument sometime. Apparently he tried but the judge stopped him. I’m not sure if there was some particular legal issue with what he was saying or if the judge just felt it was manipulative, not germane, inappropriate or something else. If you’re a defense attorney, feel free to give it a shot and let me know how it turns out.