Heroism and Motive
It appears that since motives in and of themselves are widely accepted and “excused” by juries, there must be some other factor that results in jurors’ acceptance of a defendant’s actions. Berman1 explains that non-alibi defenses must rely on either justification or excuse to explain a defendant’s actions. To examine the potential connection between these two elements, we must examine heroism with regard to how actions are viewed by a jury. The Story Model of Juror Decision-Making can be used to make a defendant’s action heroic in light of the lawyer’s overall story.
Pennington and Hastie’s Story Model2 is a highly regarded and accepted explanation for how jurors process trial evidence and make decisions. According to this model, jurors make up a series of stories based on the case evidence and facts, combined with the juror’s own world knowledge and experience. Throughout the trial, the juror will attempt to arrange the evidence into a chronological and cohesive narrative. Next, the juror will determine which story is the best fit by comparing the coherence and coverage of the story to the verdicts allowed by the court.
Heroism exists in many forms. What all of these forms have in common, however, is a certain noble struggle. One’s purposes must be considered noble to constitute heroism. However, actions can be seen as noble when taken in different contexts. Thus, the story an attorney tells at trial will set up the context for heroism to take root.
The final element of heroism comes in the context of struggle. Heroism is developed through a noble goal achieved in the face of an uncertain outcome. For instance, the battered wife who shoots her husband multiple times while he sleeps may be raging against evil beatings by her husband, and may fear death to herself (or her children) if she does not strike first.
Additionally, this definition is supported by extensive research regarding juror preconceptions and attitudes about professionals.3 For instance, doctors’ words are often taken as “gospel.” A doctor’s extensive training and experiences cause jurors to view doctors favorably. The heroic elements attributed to doctors can explain the implicit trust jurors give them at trial.
The Fundamental Attribution Error claims that people tend to focus on the internal traits of the person in question rather than any situational factors that may affect the person’s behavior. Even though this explanation may seem to oppose the concept of heroism, it is useful in explaining why developing heroism is vital to juror’s acceptance of motive.4
The situational context of the act is not enough for jurors. By creating a heroic character, the attorney can positively influence how the jurors will evaluate his or her client. However, the action’s context should not be dismissed. In order to create an image of heroism for the client, the context must be utilized to its fullest to create the necessary conditions for heroism. Creating this aspect is highly situational, but should not be difficult in any situation in which motive, rather than alibi, plays a key role in the defense. For situations such as self-defense, the struggle could most certainly result in injury or death to the defendant. In other situations that may not be so obvious, careful tact and subtlety is necessary when setting up action context.
As difficult as it can be to convince the juror of an action’s noble goals, if the process of storytelling excludes one of the jurors, the climb is truly uphill. At all times, it must be remembered that the Story Model dictates creation of a story within the framework of both evidence and an individual juror’s world experience. Analogies, phrases, or explanations that run against these experiences can set in motion a story that fits the other side.
Some pretrial elements can put the defendant in a hole before the trial even begins. Negative pre-trial publicity (PTP) can limit the ability to form alternate stories.5 In order to counteract PTP, a new framework for viewing the defendant must be established. Casting the defendant in a heroic light and fighting hard to establish the criteria or context of heroism, can help fight the damning effects of negative PTP. Creation of a heroic struggle with noble goals can begin to allow alternate stories to take hold, and if greater cohesion and coherence is established, the predominant story pushed by PTP can be overcome.
Therefore, heroism can ultimately “reverse-engineer” a positive spin on your case, regardless of the type of actions being discussed.
A Note for the Prosecution
This discussion most certainly true for the prosecution side, as well. To combat the creation of a heroic character, the prosecution must attack the two central premises of heroism: the noble goal and the struggle.
Which premise to attack is strictly dependent on trial conditions. Believability of nobility depends on the context of the actions. Thus, attacking the context of purpose is an effective method in discrediting the nobility of the goals. For other cases, it may be best to attack the concept of struggle in outcome.
The final element to remember comes from the Story Model itself. Creation of a heroic character for a defendant is well and good, but it does not guarantee a defense verdict. The evidence must be accepted with regard to both juror experience and verdict options given to the jury. A potential for failure is also well and good, but if it does not fit within jurors’ experiences, or is far outside what the jury instructions allow, heroic characterizations as may fall flat and meaningless.
1 Berman, Mitchell. “Justification and Excuse, Law and Morality.” Duke Law Journal v.53 n.1. 2003.
2 Hastie, Reid and Nancy Pennington. “A Cognitive Theory of Juror Decision Making: The Story Model.” Cardozo Law Review v.13 n.2-3. 1991.
3 Bartimus, James. “Weed Out Pro-Doctor Bias.” Trial v.39 i12. 2003.
4 Sobus, Mark. “Differences in Jurors’ Perception of Self and Others: Why So Many Plaintiffs Get the Benefit of the Doubt.” Trial Lawyer v.23. 2000.
5 Hope, Lorraine, Amina Memon and Peter McGeorge. “Understanding Pretrial Publicity: Predecisional Distortion of Evidence by Mock Jurors.” Journal of Experimental Psychology: Applied v.10 n.2. 2004.