One of the best kinds of jurors you can get in a criminal case, from a defense perspective, is someone who is open minded and likes a “whodunit”. These jurors are interested and involved in the evidence. They are more likely to perceive and acknowledge holes in the prosecution’s case. This is in contrast to the majority of jurors, who go with the flow – which means a conviction.
But there’s a danger. What if, at the end of the day, you don’t really have an answer for the questions posed? The accusation has been leveled but you don’t know if it’s true or not?
It’s very clear under such circumstances that you find the defendant “not guilty”, but at the same time the jury’s determination is referred to as a “verdict”, meaning “truth”, and the not guilty verdict in those circumstances means that no one knows what the truth is. That’s the only truth you get.
On many levels this is a very unsatisfying result. It will leave even the most defense friendly juror unsatisfied. You cannot find the defendant guilty, but neither can you exonerate them.
One advantage when the defendant testifies is that a “not guilty” verdict at that point has all the appearances of a vindication for the defendant. But when the defendant does not testify, even a not guilty verdict, although a win for the defense, leaves the stain of the accusation hanging over the head of the defendant forever.
April has been a very active and intelligent commenter on many of the Casey Anthony posts on this blog and she comes from a pro-prosecution perspective. And she is also unusual in that she shows an ability and willingness to understand opposing arguments, without necessarily changing her opinion.
One interesting exchange and disagreement we have been having is over the significance of alternative theories of what may have occurred that led to the death of Casey Anthony’s toddler. April has taken the position that the prosecution’s contentions are obviously convincing, and the very fact that the defense, or me on this blog, feel compelled to offer competing theories is a concession to the strength of the prosecution’s case.
One objection to this reasoning is that offering a competing theory grounded in the same facts is probably the best way to call the original theory into question and render it unconvincing. Logically speaking, this is a very good and very effective argument to rebut an accusation. And in many cases it might be the only argument there is. Perry Mason, for those old enough to remember it, always delivered the real culprit at the trial. In real life, that is almost always impossible.
Yet while the competing theory argument is logically sound and intellectually effective, it is not a powerful argument, for want of a better word. It does not yield answers, but rather more questions. It leaves a big hole where the truth should be.
Justice Holmes accurately captured our collective character in the operation of our legal system many years ago: experience, and not logic, is the life of the law.
But how ironic. A jury trial is an event in which some people sit in judgment over other people and events and in which, by definition, they can have no experience whatever. Evidence gathered after the fact is presented to them, and they are asked to decide what the truth is – in light of logic, yes, but also in light of the experiences they have had in their lives, that will presumably help them evaluate the evidence they are given.
Are experience and logic in conflict, or in harmony?
The quote from Holmes implies conflict.
When the defendant doesn’t testify, the defense is really asking the jury to favor logic over experience. Because their experience tells them that where there’s smoke there’s fire; the government doesn’t bring criminal charges without cause, or frivolously, or without knowing that they are warranted; that “100% of accidental deaths are reported to authorities”; that innocent mothers don’t go out and party when their children have recently died or gone missing; that “duct tape” goes hand in hand with psychopaths; that pathological lying makes a person more likely to be an aberrant murderer.
It is only logic that leads one to question these assertions. The prosecution says: trust your experience. The defense says: question your experience with your mind, think it through.
Since the industrial revolution we have lived in a dogmatically empirical intellectual climate. Holmes was one of its most prominent representatives.
This is very much in contrast to the tradition of western thought. Western thought virtually began with empirical skepticism. Do not trust the senses, said Parmenides, because they can trick you. This started the intellectual discussion in ancient Greece.
We have a markedly different take on it now, but it’s the same discussion. And in a way that at least to me is profoundly interesting, the legal guilt or innocence of Casey Anthony hinges upon it.