Fighting Back Against Common Sense

 Posted on July 04,2010 in Uncategorized

"Common sense" has nothing to do with it. The words do not appear in a Texas criminal jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.

If any of these concepts were common sense, everyone would have adopted them.

Every civilized country on Earth would have had criminal jury trials for the last 200 years.

We would require proof beyond a reasonable doubt in disciplining our children.

We would, in our everyday lives, presume people to be innocent of any bad act or bad intent against us.

They don't, we don't, and we don't.This is why prosecutors love "common sense": because we don't, in our ordinary lives, presume innocence and require proof beyond a reasonable doubt. The appeal to common sense is a call to use everyday rules in a highly technical context. As Scott Greenfield points out:

Ordinary people assume constantly. They have to, as there is no opportunity research everything they do, or sit back and withhold judgment until every detail is proven. But that's exactly what they should do at trial. So the message is unclear: On the one hand, we tell you to base your decision on the evidence in the case. But on the other hand, where the evidence is missing, just resort to assumption as you would do otherwise.

So what's the antidote to prosecutors' "common sense" arguments? As usual, the antidote to a specious argument in trial involves pulling back the curtain and showing the jury what your adversary is trying to do (this is Scott's solution as well). We don't like to be tricked, and the "common sense" argument is-at least in Texas-a trick.

(In other jurisdictions, the "common sense" argument may be more problematic: sometimes "reasonable doubt" is defined as "a doubt based on reason and common sense," which is stupid-"reasonable" doesn't mean "based on reason," but rather "amenable to reason," which is different altogether; a reasonable doubt often is based not on common sense but on the government's failure to do its damn job.)

Juries' legal educations are mostly limited to what we lawyers manage to give them in the course of a trial; there is nothing wrong with educating them in closing argument on the principles behind the jury instructions. We have to have credibility at that point, of course, to convince the jury that our understanding of the law is correct, but if we don't have credibility with the jury by the end of the trial we've probably lost anyway.

We don't often hear arguments against common sense. Trusting common sense is... common sense. If in closing argument we have enough credibility, though, we can explain to the jury the role that common sense properly plays in a criminal trial (none) and, instead of sounding like cranks, be believed. How do we explain that common sense has nothing to do with it? I suggest something like this:

"Common sense" has nothing to do with it. The words do not appear in the jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.If any of these concepts were common sense, everyone would have adopted them. Every civilized country on Earth would have had criminal jury trials for the last 200 years. We would require proof beyond a reasonable doubt in disciplining our children. We would, in our everyday lives, presume people to be innocent of any bad act or bad intent against us. They don't, we don't, and we don't....