Chapter 5

• Jurisdiction: United States

Chapter 5 The Science of Jury Education

Education is not to reform students or amuse them or to make them expert technicians. It is to unsettle their minds, widen their horizons, inflame their intellects, teach them to think straight, if possible.

—Robert M. Hutchins, university president and educational philosopher (1899-1977)

For there to be persuasion, the jury must understand your evidence and your argument. But, for there to be understanding, there must be education, which is now considered to be a form of science. This chapter will examine some of the ways of assisting jurors to understand and process the unfamiliar information that is presented at trial. The tools? Words, pictures, analogies, and metaphors.

How We Learn

A "learner" is anyone who is placed in a situation where they must comprehend something that was either completely unknown or that was known but not understood in detail. Jurors fit this definition. They may be exposed to both completely foreign concepts and things they never had to give much thought to. An example of something completely foreign: An industrial machine alleged to be unreasonably dangerous. An example of something vaguely known: That a concussion injures the brain, but not how, why, or to what extent. Jurors, as learners, will not be persuaded if they do not understand, absorb, and remember. Therefore, in order to persuade, trial lawyers must be teachers.

There are three cognitive elements necessary for learning: to understand, to absorb, and to remember. A failure to understand will prevent the ability to absorb, which, in turn, will result in a lack of recollection. The plaintiff's burden of proof is not achieved by presentation of facts and concepts; it requires understanding that becomes firmly planted in jurors' memory. In a post-trial discussion, if a juror explains that the other side was more convincing, it may be because your evidence was not effectively learned. Although learning begins with processing information, the capacity to process is far from unlimited. The key to making your evidence and your argument memorable is to present it so that it does not exceed limited capacity.

Memory

Memory has two aspects: working and long term. Working memory is used for temporarily holding knowledge. Long-term memory is a storehouse of knowledge that can be held over long periods of time. Cognitive processing of information requires that long-term memory be accessed so that working memory can be understood, absorbed, and join the learner's storehouse of knowledge. An example of purely short term, or working memory, is the ability to recall random words. Five random words is about the maximum that can be easily recalled. However, when the words are combined into a coherent sentence, about fifteen words can be recalled because long-term memory is also accessed.¹ Cognitive processing is the way people make sense of what they see and hear. But to integrate incoming information with other knowledge requires paying attention and organizing incoming information.

Paying Attention

The limitations on processing capacity force everyone's brains to make rapid decisions about which pieces of incoming information to pay attention to, the degree to which connections should be made among the selected pieces of information, and the degree to which those connections should be incorporated into existing knowledge. In other words, limited cognitive resources must be allocated. That allocation may be affected by a lack of interest. Listeners will not pay attention if they have no interest. Interest may be created by presenting the subject matter so it is personally relevant. But, more importantly, there can't be interest without understanding. Studies have shown that there is actually an emotional reaction when students understand lessons; when they make sense of lessons, they tend to enjoy the experience. The science-based techniques for capturing and keeping the attention of learners are explored in chapter 7 ("Attention, Memory, and Curiosity").

Organizing Incoming Information

There are three kinds of cognitive processing that will fill up cognitive reserves: extraneous, essential, and generative. Extraneous cognitive processing is that which does not serve the instructional goal. Examples include...