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The Advantage Blog

  • Tsongas Litigation Consulting


Updated: Jul 14, 2023

Nearly two-thirds of Americans believe that Casey Anthony killed her daughter, according to a recent poll. Furthermore, nearly twice the amount of women than men said they were, “angry about the verdict.” The gap between the court of public opinion and what the fact finders in this case, the jury, actually found can be mostly explained by something quite simple. The jury could not connect the verdict form with the evidence in the case other than in regard to the obstruction of justice claim.

In casual conversation, friends and clients I have spoken to both seem to suggest that a jury wouldn’t let a little thing like the verdict form and jury instructions stand in the way–particularly with the strong emotions that the death of a child creates. Sometimes, this is true. However, more often, it’s not.

The jurors wanted to find Anthony guilty but when they had to discuss among themselves what the evidence was to answer specific questions beyond a reasonable doubt, they could not do so without adding some level of “speculation” or “guesswork,”–two tools the jurors were specifically told they were forbidden to use by the judge. So with the anger these jurors felt over the death of a cute little girl, why didn’t they turn into the proverbial “lynch mob?”

There are two primary reasons: 1) The vast majority of seated jurors take their job seriously and want to do a good job, and; 2) A vote in jury deliberations is not like a vote in a political election. This first reason really concerns what “juror performance” is.

It would be interesting to find out how many of those upset at the jury in the Anthony case had actually ever served as jurors. Those who have served would know how the jurors take an oath to follow the law. To perform as the fact finder is essentially how to fill out the verdict form correctly. When the language in the verdict form doesn’t comport to the evidence, it creates the problem in the jurors mind of, “I want to vote to get a desired result but I can’t figure out a way to justify it.” This takes us to the second reason.

In a political election, “performance” is the act of voting one’s conscience. For some it may be simply voting at all. To vote, you have to give up some part of your day standing in line, you then go to a booth, close the curtain, and participate in representative democracy. In states like Oregon, you merely have to put a stamp on your mail ballot and put it in your mailbox. In jury deliberations, you cannot pull that curtain and vote your conscience. The state has given it’s power to you and you have to share in the dialogue and debate in the deliberation room. Reasons have to be given to support an argument or one’s credibility is at stake. To say openly, something like, “damn the law, this defendant deserves what’s coming whether we can ‘prove’ it or not” is to risk losing all credibility and being outed as the bad citizen when the judge polls the jury.

A few years back during a mock trial, I witnessed a high credibility mock juror stop and say, “Are we going to follow the law, or we going to do some justice?” and it worked. But many factors had to come together for it to work. The juror had very high credibility and the group was already following him. Futhermore, no innocent people were going to jail if the jury was wrong. If your strategy counts on the jurors putting aside the law, just know you are betting on the Longshot.


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