The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here.
In 1990, the Northwestern University Law Review published The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. Rev. 190 (1990). The Article conceptualized the jury “as a democratic representative of the community through its verdicts” and argued that because of this democratic role, it should be equipped for success. The Article suggested that a modern active jury model, where jurors under the proper circumstances should be permitted to take notes and ask questions, was preferable to the traditional passive model, particularly when both a cross-section of the community and verdict accuracy were desired jury parameters. That is because there is a natural conflict between the accuracy and cross-section objectives. If the cross-section of the community means jurors would be drawn from all persons in the community, the result would be to attract average citizens who may or may not have solid educational skills. Consequently, the accuracy goal would be easily marginalized, especially under a passive jury model where jurors are expected to remember evidence and arguments up to weeks—even months—at a time before they can discuss it. The argument in favor of the active jury suggested that it provided a way to improve jury efficiency and accuracy.
How have those arguments of 1990 weathered the storms of intervening decades? Fairly well, I think. This short post doubles down on these claims, arguing that neuroscience discoveries have shown that active, engaged thinkers have better retention and recall and therefore will be better jurors overall. The post makes four points about how advancing neuroscience, especially in the digital age, supports active jury functioning.
Point 1: Engaged Jurors Likely Retain Information Longer and More Accurately
Engaged learners generally are more effective than passive ones, according to the cognitive and neuroscientists (see, e.g. Design Learning and Technology for Educational Reform; Plugging In: Choosing and Using Educational Technology; Engaged Learning). Active and experiential learning add a dimension to the learning process that helps the brain retain and recall information better. As one commentator noted, “The more work you do with something that you are learning, and the more ways you engage with it—such as listening, talking, reading, writing, reviewing, or thinking about it—the stronger the connections in your brain become and the more likely the new learning will become a more permanent memory.” Applying these ideas to juries, it seems that a more engaged jury, namely one that permits note-taking and the asking of questions, should have better information retention and therefore more accurate verdicts.
Point 2: Active Jurors Will Use ‘Emotive Cognition’ as an Aid
The traditional model of legal reasoning focused primarily on cognition. Critical thinking was thought to be completely separate from emotion. The legal orthodoxy that uncoupled cognition and emotion applied to juries as well, with jurors depicted as having “clean slates” on which the evidence of the trial could be entered. Yet, the brain science indicates this conceptualization is inaccurate, and that the activities of emotion and cognition often are interdependent. In essence, there often are brain operations best described as “emotive cognition.” This teaches that learning is far from a cold and mechanical enterprise that inputs and then stores seemingly endless bytes of information like a computer. As the saying goes, “Education is not the filling of a pail, but the lighting of a fire.” Trials are filled with stories and emotion. The stories help people structure and retain information. Moderate emotion promotes cognitive thinking, particularly if included in the narratives or stories. Active jurors are going to use moderate emotion for better learning. The old premise of cognition-only functioning leading to better learning is without merit, and story-telling trial lawyers have implicitly known this for a long time.
Point 3: Jurors Who Pay Attention Will Remember More
Paying attention is an important predicate to learning. We all pay attention to something; the real question is to what? Asking people to sit and simply pay attention to testimony for long periods of time in the age of cell phone addiction and information overload is simply unrealistic. People often are distracted while driving, walking, and acting in all areas of their everyday lives, and mostly to their detriment. As studies have shown, multitasking is really doing multiple things poorly at the same time. Providing jurors with tasks on which to focus, such as taking notes or thinking of pertinent questions, helps them concentrate on the case.
Furthermore, Hermann Ebbinghous, who advanced the existence of the “Forgetting Curve” in 1888, was right about human memory. He found that memory is fragile. According to Ebbinghous, people forget on average fifty percent of what they learn within an hour of learning it, and up to seventy percent in less than one day. This is a very scary proposition for a jury tasked with remembering evidence for days, weeks, and even months on end. In essence, expectations of juror memory under the traditional jury system are entirely unrealistic. Instead, jurors who pay attention through such activities as note-taking and questioning will retain information longer because, as the neuroscience shows, they are strengthening neuronal connections to the information through their attention.
Point 4: Critical Thinking by Jurors is Difficult, Especially in the Age of Social Media
Trials often are filled with complexity. For example, civil business issues involving stock derivatives, crimes involving nuanced conspiracies and white-collar fraud, and entity tax issues can perplex even the most educated of jurors. Yet, today’s technological advances, as illustrated by Twitter or Amazon Alexa, often do not foster critical thinking but rather achieve the opposite by flattening complexity. Twitter promotes terse communications, no longer than 280 characters. Alexa and Google promote having technology do the thinking instead of a person. Thinking is difficult enough under the best of circumstances. According to one cognitive scientist, “[c]ontrary to popular belief, the brain is not designed for thinking . . . . Thinking is slow and unreliable . . . . People are naturally curious, but we are not naturally good thinkers; unless the cognitive conditions are right, we will avoid thinking.” The easy access to Google and opinions without facts exacerbates the ethos of non-critical thinking. Within this technology-assisted structure, jurors who have habitually let Google do the thinking for them are not going to naturally think critically about evidence and thematic concepts.
While not a panacea, the ability of jurors to take notes and ask questions will at least guide jurors and give them the space to think critically about the evidence.
So what does the neuroscience mean? At the least, curious and engaged jurors will be better able to perform their duties than passive and distracted jurors. Specifically, jurors will be better able to channel their attention and critical thinking if they are permitted under certain circumstances to ask questions and take notes. In addition to the neuroscience support for this proposition, most students who have experienced active and passive learning likely would agree with this assertion as well. While jurors may not get it right all of the time, active jurors can be relied on to become a more accurate cross-section of our communities. This is significant because accurate outcomes will maintain the jury as a formidable democratic component of the legal system for years to come.
Steven Friedland is a Senior Scholar and Professor of Law at Elon University School of Law in North Carolina. A former Assistant United States Attorney for the District of Columbia, he has authored multiple articles and books on Evidence, including Evidence Law and Practice (7th Ed. Carolina Academic Press) (with Bergman and Benham), and is a contributing editor on Evidence Law for the Criminal Law Bulletin. He holds a J.D. degree from Harvard University and LL.M. and J.S.D. degrees from Columbia University.