The story model of juror decision- making

tension arose because the prosecution did not, and perhaps could not, construct a story that organised and linked the available evidence to ‘the black hole’: a putative description of Hanratty the man, his motivation and his intentions. It was this tension that fuelled the nearly 40- year posthumous campaign to overturn his conviction and which, as we would see it, refl ected the importance of storytelling in constructions of guilt and innocence. To understand this better, we need to examine the story model of juror decision- making.

The story model of juror decision- making

The law does not often instruct jurors to think about stories (but see Griffi n, 2013 : 295– 8 for some counter examples from the US); rather, it directs them to focus on the evidence and to weigh up each item in terms of its contribution to establishing, beyond a reasonable doubt, the defendant’s guilt. Jurors are not told how to do this, but legal scholars have expended considerable eff ort to develop models of how it does or should work, based on the use of logic and inferences to link items of evidence to a decision about conviction or acquittal ( Wigmore, 1931 ; Anderson et al, 2005). This evidence- based model sees the role of evidence as ‘any tendency to make a fact more or less probable than it would be without the evidence’ ( Federal Rules of Evidence, cited by Griffi n, 2013 : 293). Thus, jurors are hypothesised to assess whether the prosecution or defence has the strongest evidence overall. The perspective might also be called the ‘mathematical approach’ because it usually involves statistical or algebraic computations; however, a key diffi culty is that jurors are unlikely to process information and evidence in this way ( Devine, 2012 ).

Over the last 40 years, an alternative perspective on jury decision- making has been developed which focuses on stories. In their infl uential 1981 book, Reconstructing Reality in the Courtroom, Bennett and Feldman set out to answer the question, how do lawyers present cases in a way that makes sense to judges, jurors, witnesses and other observers? They analysed data from more than 60 trials covering a wide range of off ences and concluded that criminal trials are organised around storytelling. That is, the jury compares and contrasts the competing stories of the defence and the prosecution and the story that is judged to be true or truer is that which is better organised, more coherent and more believable. The results of an experiment they conducted are particularly interesting. They asked college students to tell others a story about themselves, with some being instructed to make up a story while others were instructed to tell a truthful story. They found that a truthful story was no more likely to be accepted than a false one. Rather, what mattered was the coherence and structure of the story; that is, the more each element of the story connected with others in a clear and unambiguous way, the more likely the story would be judged to be true regardless of

whether it was in fact true or false. Thus, they argued, the more coherent a story that is presented at a criminal trial, the more likely it is to be accepted. Conversely, if jurors are presented with a jumble of information and isolated facts, they are likely to become confused and less accepting of the evidence.

We can think of two ways in which stories may be introduced in a trial ( Griffi n, 2013 ). First, a witness may be led to develop a narrative through the questions they are asked by whichever side (prosecution or defence) has called them to testify. Of course, this narrative may be questioned or partly disassembled in cross- examination, making it harder to identify a clear story from everything that was said. Second, because the evidence in a trial is introduced by calling witnesses to the stand, the cumulative testimony does not make a story. Rather, it falls to the prosecution and defence advocates to use opening and closing statements to weave the evidence into a story. It is this second type of story, about the whole case rather than the evidence of a single witness, which is of most importance if jurors do indeed focus more on the story rather than specifi c parts of the evidence.

Pennington and Hastie (1988 ) conducted some important research about how jurors make sense of evidence in a criminal trial. In a mock jury study, they presented college students with stories and evidence relating to a crime. Some participants received the evidence in a story order that was chronological; that is, it had a beginning, a middle and an end. The other participants received the same information but this time it was given in witness order meaning that the jurors read each witness’s testimony about everything that happened regardless of where the information fi tted into the actual chronological order of events. The study found that the participants were more likely to vote in favour of the prosecution’s case if their evidence was presented in story order and the defence’s evidence was presented in witness order, and vice versa. Pennington and Hastie’s (1991 , 1992) research also indicated that factfi nders compare stories about what happened and choose the one they fi nd the most believable. For a story to approximate the standard of legal proof, a good narrative is dependent on three components: consistency, plausibility and completeness. A consistent story does not have any internal contradictions; plausibility concerns how well the story fi ts with juror’s knowledge of the world; and completeness ensures that the story includes most or all of the evidence. When a story contains all three elements then it becomes a coherent one. Griffi n (2013 : 286) noted that each element of the story interacts in ways that ‘alter their individual signifi cance: each merges with what came before and fl ows into what comes after’. Thus, a single piece of evidence cannot be evaluated or understood in isolation. As Bruner (1990 : 43) noted, individual elements of a story do not mean anything on their own, and rather, meaning arises from ‘their overall confi guration of the sequence as a whole – its plot or fabula’. Burns (1999 : 222) suggested that each event must correspond

to the ‘beginning, middle, [or] end of a well- constructed story’. Indeed, Wesson (2006 : 343) observed that ‘every lawsuit begins and ends as a story’. As Griffi n (2013 : 297) suggested, most trial lawyers, at least in the US, begin their opening statements with ‘This is a case about … lies, greed’ and so on. For example, in the case of O.J. Simpson discussed in Chapter 6 , we shall see that the theme the prosecution advanced throughout was a story about the defendant as ‘a burning fuse’ and domestic violence that ultimately led to murder. Indeed, the notion that domestic abuse can lead to murder is possibly a view that resonates with a juror’s knowledge, common sense and world view. As Pennington and Hastie (1991 : 528) suggested, jurors evaluate facts based on their ‘knowledge about what typically happens in the world’.

Importantly, Griffi n (2013 ) argued that juror decision- making is not exclusively grounded in identifying with stories or in applying an evidence- based model. Rather, she argued that a story off ers structure, enabling jurors to build hypotheses and then the evidence- based model is utilised when jurors weigh up and assess those hypotheses. To this end, jurors not only consider which is the most compelling narrative and how it fi ts with familiar stories, but they also assess the plausibility of each account and interpret evidence according to which provides the most coherent theory ( Pardo and Allen, 2008 ). Stories are constructed and then jurors logically evaluate ‘which version was more likely to yield the evidence that has been presented in court, and by how much’ ( Friedman, 1991: 667 ). Developed by Pardo and Allen (2008) , the ‘explanation- based account’ means that, rather than simply making decisions based on the probability of guilt as each piece of evidence is presented, jurors make inferences based on how well each piece of evidence, if true, would explain what happened ( Griffi n, 2013 ). Explanationist theorists view criminal evidence in a trial as ‘a competition between stories, scenarios or explanations of what happened’ ( Jellema, 2020 : 2) and Griffi n (2013 ) argued that this perspective helps to overcome a simple reliance on either the story model or evidence- based model. Other explanationists include Wagenaar et al (1993), Josephson (2000) , van Koppen (2011) and Bex (2011) .

Although very infl uential as a description of juror decision- making, it is important to note that some legal scholars have criticised the story model as a prescription for what should happen. For example, Laudan (2006) argued that it is unclear at what point the prosecution have succeeded in demonstrating that their story implies the defendant’s guilt. Although criminal courts use the standard of ‘beyond a reasonable doubt’, Laudan (2006 : 295– 6) argued that the standard is ‘obscure, incoherent, and muddled’ and therefore encourages jurors to draw on their subjective intuitions. Griffi n also noted that jurors may fi ll in the ‘gaps’ in the stories told by the prosecution or the defence and thereby compromise the integrity of decision- making. If jurors process information in terms of stories rather than logic, then they risk being