9 - Evaluating Some Process Dissonances

Summary

[L]ike a flash of lightning in the clouds. We live in the flicker.

Joseph Conrad

Our brains make us angry, disgusted, fearful, jealous, or anxious, often in a very short fraction of time and often based on exposure to a narrow set of stimuli. The whole idea of an evolved emotional shortcut is to use limited information to be able to take quickly what was, at least 100,000 years ago, the action most likely to be favorable to our fitness. The architectures of our legal institutions, and of our trial systems in particular, must somehow accommodate the fact that we are creatures who are sometimes prone to act in this emotionally sudden fashion.

Blinking to Verdicts

In my introductory remarks to jurors, I spend lots of time and effort trying to alert them to the problem that a trial is a completely unnatural process, and that their biggest challenge will be to resist the temptation to jump to any conclusions. We simply are not built to wait passively until all facts are in before we start making judgments, let alone to do so in the artificially linear way that trials proceed – with one side submitting all of its evidence before the other side even starts. We make judgments constantly, on the smallest bits of information, and those initial judgments can drastically alter the way in which we receive and process additional information, especially information that conflicts with our initial judgments. The single most daunting problem for all jurors is how to transform themselves from continuous blinking judgment machines into patient receptacles of considered judgment.