By Dr. Ken Broda-Bahm:
"Just follow the law." That is the message jurors hear in various forms from jury selection through the final words before deliberations. In addition to being the legally appropriate charge, it speaks generally to the jurors' sincere intentions as well. With relatively few exceptions, jurors don't want to set policy with their verdict, and do not want to impose their own individual morality either. They want to understand and apply the law as the judge describes it. The viewpoint that places the jury firmly in the legal realm, and not the political or the moral realms, has roots that go all the way back to Aristotle's distinctions between forensic, political, and ethical rhetoric. But when applied to the modern American jury, there is not a clean distinction. And a recent article from Robert P. Burns of Northwestern University School of Law (Burns, 2016) makes the argument that those walls were always meant to be permeable. In other words, the jury was envisioned as a broadly sovereign institution and it functions -- as it is meant to -- beyond the narrow confines of the law. As the embodiment of popular participation in the administration of justice, juries serve as a unique point where the legal, political, and moral frameworks all come together.
Burns' article framing this broader role for the jury prompted in me the thought that it makes sense to act as though you are speaking to three juries at the same time:
- A legal jury that is asking what the law requires.
- A political jury that is asking what is best for society.
- A moral jury that is asking what is right or ethical.
By keeping all three figurative juries in mind, you'll have a better chance of offering your real jury the most complete and satisfying case. Naturally, your jury will try to be guided by the law alone, but in the inevitable act of bringing their own experience and judgment to their decision, the final verdict will reflect aspects of all three. If we wanted the law alone, we would have to use a judge, and would need to find one who lacks influential life experience and worldview. Because that doesn't exist, it makes sense to act as though you have three judges or three arbitrators as well. In this post, I will draw from some of Burns' observations in order to share some ideas on separately appealing to that figurative trio of audiences.