COURTROOM DRAMA

Good stories can keep you out of prison

Imagine you are on trial, accused of some serious crime. Hardly a comfortable feeling, I know. A courtroom is an intimidating place and stern-looking fellows in wigs do not make for reassuring company, especially if they’re holding gavels. Even your entrance to the courtroom was probably quite overwhelming: there were grimacing guards, airport-style metal detectors, a labyrinth of corridors whose geography was known to everyone but you. How long did you have to wait before they even let you in to this horrible place? How long did you spend in the waiting room, under those cheap fluorescent lights? Longer than you’d anticipated, I bet.

Worst of all, though, is the fact that you’ve now put your fate into the hands of a bunch of strangers. There they sit, over there, looking suspicious, wishing they were somewhere else. Possibly they are disinterested, possibly they are stressed, possibly they are not even paying attention. They are going to decide what happens to you. They are going to hear your story and make their decision. Speaking of your story, you’ve been rehearsing it so long, it’s starting to feel like fiction.

Only one person can defend you from the jury. That’s your lawyer. You’re probably starting to wish you’d hired a better one. His demeanour strikes you as rather theatrical: that sombre look meant to indicate seriousness of purpose; that over-relaxed pose; all that sheet-shuffling and brief-bothering. Doesn’t he own a better tie? You can tell he’s looking forward to his hour upon the stage.

In fact, come to think of it, it’s all looking rather like theatre, isn’t it? The lighting, the rehearsed lines, the drama. That audience.

Soon your lawyer is going to tell the jury a story – a story that shows you weren’t there, never did it, didn’t mean to do it, and anyway you’re sorry. When he finishes, the prosecuting lawyer - that stage villain, your enemy - will tell his story. It, too, will be played for dramatic effect, but this time it will show that you were there, you definitely did it, you meant to, and you’re not even a little bit sorry.

You hope your lawyer’s pantomime is going to be better, stronger, more convincing than the other guy’s. The better performance is the one that’s going to get the good reviews. And good reviews, in this instance, mean you get to go home and sleep in your own bed. Bad reviews mean… Well, it’s best not to think about what bad reviews mean.

The scenario we have in mind here, (what with the brightly-lit room, the costumed judges, the defendant in the box, the jury waiting to return their verdict) – that’s called the adversarial system. Other systems exist, of course, but they are generally used in non-English-speaking countries. For that reason they are not Substack material, at least not for this psychologist.

Your jury will make its decision in two distinct, and very different, stages (that’s partly what makes jury decision-making so interesting to researchers).

In the first stage, decisions are made on an individual basis. While the jurors may all be physically close together, mentally each one’s isolated. Each juror must hear and assess the evidence and make up their own mind. It is only later, at the conclusion of testimony, that they will retire to the jury room and discuss their verdict as a group.

Right now, individual factors are important and social factors play a minimal role. When the jury retires, social factors will take over. We’ll take a look at each: individual factors today; social factors next time.

Psychologists talk about the Story Model of jury decision-making. At least, they have done since 1992 when a pair of psychologists called Pennington and Hastie published a classic paper[i]. According to the Story Model, individual jurors reach their verdict in three stages: story construction; learning verdict alternatives; rendering a verdict. We’ll focus on the first.

Jurors use the evidence to construct a story. They seem to do it spontaneously. That happens, of course, because not only do we human beings love stories for their own sake, we use them to guide our thinking.

Perhaps it is better to say that jurors construct two stories (at least): one from the defence; one from the prosecution. The story they find more persuasive is the one they come to accept as ‘true’. The other, well, that one’s ‘just a story’. It’s fiction. Next, the jurors learn about the appropriate verdict categories (first- or second-degree murder or manslaughter, for instance) and make up their minds which best fits the story they decided on.

Naturally, you need your lawyer to be a better, more skilful story-teller than the other guy’s (maybe you should recruit your favourite Substack writer).

Oddly enough, stories helped our ancestors to survive. After all, stories have the purpose of making the world comprehensible. As everyone knows, all the best stories have some sort of truth at their heart, something to learn, something that will sharpen our comprehension of that confusing and dangerous universe out there[ii]. And who doesn’t like a bedtime story, when the day’s confusions are over and the mind turns to making sense of it all? Every culture features its own version of drama in that bedtime slot, whether it’s Netflix or a novel; theatre or a round of story-telling next to the communal blaze.

Stories tell us how it is.

They have one other function, too. They provide explanations – by which I mean they make sense of what other people are doing. This is particularly important when other people do something odd or unexpected, such as commit a crime. In fact, one of the most reliable responses any of us makes to news of some horrific crime (Gary Michael Heidnik keeping six women captive in his basement; Andrei Chikatilo murdering, dismembering, and eating the flesh of his victims[iii]) is this: ‘What would bring a person to do that? Why did they do it?’ It’s our immediate, reflexive search for explanation. We want to know Heidnik’s story, or Chikatilo’s.

Stories about people contain a ‘because’[iv]. Consider a micro-story like this: ‘Because he was drunk, he jumped in the swimming-pool fully clothed’. Or this: ‘She slapped the host of the party because he had said something untoward’. Of course, if he’d changed into his swimming-trunks first, or she’d kissed the host on the cheek, no ‘because’ would be necessary. Such actions are perfectly ordinary. Hence they provide poor fodder for a narrative.

Good stories, we might infer, are those which provide solid, convincing explanations for really unusual events.

Lawyers heap a whole load of information onto jurors, more than they might usually be expected to process in a day, a week, or a month. Much of it may be complicated, obscure, or jargon-heavy.  A story is the string that holds the pearls together. It helps reduce the burden.

The string stretches through time as well as space. Jury trials can take months or years (they may last even longer than your favourite multi-episode, multi-season drama on your favourite streaming service). If the juror can link all the elements together with a story, they become easier to remember.

Of course, even the most watertight stories have gaps. It’s inevitable. Sometimes when jurors create a story, they fill the gaps in their own way. We all have our own prejudices, biases, assumptions, stereotypes, and heuristics. It’s too much to assume that we’ll enter the courtroom without them.

Let’s bear in mind the emotional toll of the trial. The jurors may bear a lighter burden than you, the accused, but the whole process is intimidating, inconvenient, and difficult for everyone. Emotions may affect each juror’s ability to process information in the objective way we’d prefer. This fact makes stories all the more useful as bearers of load.

Stories don’t appear out of nowhere. They are composed of three elements: the evidence presented by the lawyers, witness, and experts; the jurors’ pre-existing knowledge about similar crimes; and our shared understanding of how stories work. From these elements, it will be possible to build various different stories. It’s the jurors’ job to pick best.

Three so-called ‘certainty principles’ guide the decision. Psychologists call the first two 'coverage' and 'coherence'. They help jurors decide on the correct story.  A third principle, called 'uniqueness', affects how confident they feel about it.

Let’s take a look at these principles.

Coverage The story should account for all the evidence. No one likes loose ends. If your lawyer’s story fails to account for the fingerprints on the knife and the eyewitness who saw you running from the scene, it may be less convincing than the prosecutor’s alternative. Equally, if the prosecution raises an important point, you don’t want your lawyer to stand there looking stunned by the plot-twist, shrug, and say, ‘You’re right, that doesn’t make sense,’ or, worse, ‘I dunno’. The lawyer ought to be able to cover it.

Coherence, like a regular Hollywood movie script, comes in three parts. They are called consistency, plausibility, and completeness. To understand them, think about what makes for a good story: or, rather, what makes for a bad one. Have you ever driven home from the cinema discussing the film you just saw (Ghost Busters 85, perhaps, or Mad Max No One Cares Any More)? ‘That story didn’t make sense,’ you complain. ‘If the hero already knew about the unstable atomic neutraliser, why would she take a thermal taxi back into the haunted funfair in the first place?’ Perhaps the most famous example is from Star Wars: Why would the almighty Empire leave a bloody great big hole (or ‘thermal exhaust port’) in the Death Star along with a sign saying Rebels This Way?[v] That’s a matter of consistency. It makes for a poor defence strategy just as surely as (and precisely because) it makes for a poor story.

The next variable, plausibility, is just what it sounds like. Jurors do not enter the courtroom as naifs or babes in the wood. They have experience of the world. They use this experience as a template to assess the evidence they hear. Convincing evidence is evidence that fits their experience. Again, you’ll be familiar with the idea from novels or films. In one season of the crime show 24, for instance, Keifer Sutherland’s character, Jack Bauer, manages to cross the whole of central London in approximately twenty minutes. If you’re familiar with central London, you’ll know just how implausible that is. It takes twenty minutes just to get from here to that lamppost over there. (You can find an excellent and extremely humorous take on this here.)

Last comes completeness. It is the simplest of the three. It is ‘the extent to which the story has all of its parts’[vi]. It must have the elements that the jury expects of a story. No one likes it when the cinema projector breaks and you have to go home before seeing how it all turned out. (This happened to my wife and me once when the cinema caught fire about two-thirds of the way through Shawn the Sheep.)

To quote one paper on the topic: ‘it seems intuitively right that, even in the presence of some strong piece of incriminating evidence, one would feel reluctant to convict someone without being able to construct a coherent and plausible scenario of how the defendant could have committed the alleged crime’[vii].

The final variable (again this may remind you of what makes for a ‘good story’ in everyday life) is ‘uniqueness’. We all like a story that, if not unique, is at least original (I mean, does anyone watch or read Scandi noir any more? We were all crazy about it for a while, until we noticed they’re all the same.) Uniqueness means that ‘one good story is better than two rival ones’[viii]. Jurors are keen to settle for one, and only one, version of events. The less unique the stories produced by the adversaries in court, the less confidence jurors will have in either.

According to the Story Model, once the individual juror has decided which story they prefer, they have to decide on a verdict. Along comes a fourth ‘certainty principle’, known as ‘goodness of fit’[ix]. The story has to fit the ‘verdict category’. The juror’s choice of verdict seems to be an all-or-nothing matter. Goodness of fit between the verdict category and the story has to reach a certain threshold before jurors will feel confident in saying that the defendant is, say, Guilty.

That threshold, of course, is a matter of ‘beyond a reasonable doubt’. It’s a notoriously nebulous phrase, and its exact meaning is a matter of debate among legal scholars. That’s reassuring, isn’t it?

The winner of the story-telling competition will be whoever manages to Scheherazade their way to the end of the trial and come out of those big old doors saying ‘Justice has been done’. But before they can do that, there’s the matter of what happens in the jury room. We’ll take a look at that next time, Crime & Psychology fan. Meanwhile, could you blip, bleep, bop, or bap a blue button below? I really appreciate it!

Or think about buying me a coffee! That’d be nice.

Anatomy of a Murder image courtesy of Wikimedia Commons. References provided partly out of academic habit, but also so that you can chase up anything you find particularly interesting.

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[i] Pennington N & Hastie R: ‘Explaining the evidence – tests of the story model for juror decision-making’ Journal of Personality & Social Psychology, 62(2), pp189-205

[ii] Bordia P & DiFonzo N: ‘Psychological motivations in rumor spread’ in GA Fine, V Campion-Vincent & C Heath (eds) Rumor Mills: The social impact of rumor & legend, New Brunswick NJ, Transaction Publishers, 2005

[iii] Ashenden, Robin: ‘Russia’s”Red Ripper” Andrei Chikatilo was a uniquely Soviet serial killer’, The Spectator, 11^th February, 2004 The link is here.

[iv] Hutto, Daniel D: ‘The narrative practice hypothesis: origins & applications of folk psychology’, Philosophy, 60, pp43-68

[v] You can read about the Death Star Problem here.

[vi] Pennington N & Hastie R, op cit, p191

[vii] Vorms, Marion & Lagnado, David: ‘Cohernece & credibility in the story model of jurors’ decision-making – does mental simulation really drive the evaliuation of the evidence?’ Model-Based Reasoning in Science and Technology Inferential Models for Logic, Language, Cognition and Computation, 49, Springer, 2019, Studies in Applied Philosophy, Epistemology and Rational Ethics, ff10.1007/978- 3-030-32722-4_7ff. ffhal-03251758 p3

[viii] Vorms, Marion & Lagnado, David, op cit

[ix] In this context, the phrase refers neither to the statistical test nor the aspect of attachment theory. The phrase ‘goodness of fit’ needs a rest. It’s tired.