A Loss

Common Sense addressed to the Inhabitants of AmericaI lost a DWI jury trial yesterday. (Most lawyers wouldn’t write publicly about their losses. Most lawyers don’t seem to find the generalizable lessons in their losses that I find in mine.)

I had argued to the jury that criminal court is the wrong place for common sense. The argument did not go over well—I got feedback that I seemed to think I was smarter than the jurors.

In deliberation jurors used their common sense, which flew in the face of the expert testimony in the trial.

Specifically, they said after the verdict that my client’s BAC at the time of driving “must have been” higher than 80 minutes later, despite expert testimony that it was impossible to say what the BAC at the time of driving was from the blood test 80 minutes later. I hadn’t presented the expert testimony well enough for the jurors to absorb it. I should have nailed it down better.

“Common sense” is not intelligence, reason, or even common knowledge. It’s what we use to justify decisions that we can’t (or can’t be bothered to) explain in terms of intelligence, reason, and knowledge. So “don’t fall back on common sense” is not meant as “you’re not smart enough, but rather as “you’re too smart for that.”

It may be that this is too sophisticated an argument for normal people.

By treating the jurors as if they were smarter (and more knowledgeable) than they were, I both failed to educate them and came across as thinking I was smarter than them.

That’s something to think about.

12 responses to “A Loss”

  1. Two thoughts:

    1) Perhaps those same remarks would have been regarded differently if provided before they’ve heard what the issue is going to be about (so it’s a warning not to apply common sense later) and after (when they can hear it as ‘surely you’re not one of those idiots who finds X persuasive while thinking in their minds that X is at least something to consider).

    2) Many people have the association that “common sense” is the kind of beliefs or thought processes that non-experts posses. Thus, attacking common sense doesn’t parse as saying: Normal intelligent people such as yourself should understand the importance of not reaching a verdict based on vague intuitions or guesses but only on solid evidence and scientific understanding. Rather, it parses as saying: Only experts really understand things and you should acknowledge this and defer to what they think no matter how unconvincing.

    I mean one could phrase the same idea in pro common sense rhetoric, e.g., it’s common sense that the kind of speculation or going with one’s gut that we might rely on in an argument at the bar are too unreliable for a courtroom.

  2. I completely agree with your understanding of “common sense” as a rationalization, Mark, but I also agree with Peter Gerdes’ second point. It does seem to me, relying (I admit) on common sense rather than legal training, risky to ask jurors to abandon their common sense (probably their most trusted tool for daily living) in order to accept what a lawyer with a dog in the fight has to say. The jurors seem to operate on sound scientific understanding when they say that the defendant’s blood alcohol level was doubtless higher 80 minutes before the test, but of course they would be badly wrong to assume or guess that the earlier reading exceeded the legal limit, in the absence of convincing expert testimony.

    • No: BACs increase (because absorption continues) for up to 90 minutes (depending on individual and circumstances) after drinking stops. So it is scientifically impossible to say that the BAC was higher 80 minutes before the test.

      Your common sense, which you label, with no basis, “sound scientific understanding,” is as wrong as the jurors’.

      And that illustrates the problem: common sense is not reason applied to facts. It is a vague handwavy impression that we deploy when reason and facts don’t guide us.

      Does it matter that your understanding of alcohol absorption is wrong? In most of your life, it does not, until you are on a jury.

      Common sense usually works (which is why it’s common) but you don’t want your brain surgeon, your tax accountant, or your jury making decisions based on it.

  3. I stand corrected. Did your witness, or your cross examination of a prosecution witness, seem to you at the time to make the absorption process clear? I wonder if you think the jury failed to understand the science, or chose to override it, with common sense as their rationale (perhaps out of a zealous desire to punish DUIs in general, or dislike of a defendant or the defendant’s ancestry, or liking/disliking one side’s attorneys.).

    • I thought at the time that we had made the process clear. I see now that this was part of my treating the jury as smarter (and more knowledgeable) than they really were.

  4. Hesitantly (since I don’t know the Prosecutor’s story), I have to think that the Prosecutor acted a bit unethically by not fully explaining the science to the jury. If the jury didn’t understand the concept you presented, why didn’t the Prosecutor hammer down the information? I can’t help but think that the Prosecutor may have mislead the jury by allowing them to use “common sense” which the Prosecutor knew was wrong, but also knew it would give him/her a win.

  5. Common sense, like incoming traffic in a restroom always has the right of way. No law. No scientific evidence. Everyone just knows. Not to be pissed about. ; )

  6. Mr. Bennett,

    I have been considering “common sense” for a while now, and I believe I have identified its primary failure mode, stated in such a way that groundlings like me can grasp it, hopefully without taking offense. Simply put, common sense can only lead you to the correct answer when it is obvious and follows straight-line reasoning.

    In its failure mode, however, the correct answer is not obvious, or it’s all the way to counter-intuitive. Those hi-top Keds that were popular when i was young? Everyone believed they were good for your ankles. Turns out, not so much. Common sense led us astray. Plenty of other examples out there, so you will no doubt be better at tailoring the message to your juries than I am.

    To mangle by paraphrase something Will Rogers, Jr. once said, it isn’t what you know that will really wreck you, it’s what you know to be true that just ain’t so. I hope you find something in this comment worth the time it took you to read it, if only as something that sparks an idea that you can actually use. Thanks for your time.


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