Reducing Uncertainty for the Jury

When we communicate, we must be 100% sure that our message is clear and our intended meaning understood. If you are like me, we can recount many times our spouses and partners missed the gist of our comments resulting is a messy situation. As valuable as communication is, it is an imperfect tool for conveying our ideas, thoughts, and feelings.

A variety of scientific fields have explored this question and developed a sundry of theories on the subject. In the 1950’s, as computer technology increased a group of psychologists took their whack at communication through the information theory. The information theory is a mathematical analysis measuring and mapping bits of information to reduce unintended outcomes inherent in information delivery. A body of research emerged describing four components of communication. They are:

1.      We must be clear on exactly what we want to communicate;

2.      We utilize symbols like tone of voice, body language, words, sounds, images, etc…;

3.      The listener must aggregate the symbols, meaning they must thoroughly understand and interpret the information;

4.      The listener must integrate all the received symbols and internalize them;

There are two moments during communication that can skew our intended meaning. The first area of divergence occurs because of the symbols we use to communicate our view and the second is the integration of those symbols. A lot can go wrong with expressing and listening. When these failures occur, unforeseen responses are triggered within the jury affecting their feelings and attitudes.

The information theory posits that we must focus, refine, and filter our message. We engage in this process because we want to reduce the exponential alternatives that occur when our message is not clear. According to the body of research, when two separate bits of information are conveyed, the listener decides among four equally likely alternatives. Four separate bits of information leads to 16 equally likely alternatives, five bits of information leads to 32 alternatives. Theoretically when 20 single bits of information are given the alternatives increase to 1,048,576. We can imagine the alternatives with 40 bits of information. What does this mean for trial? When five separate bits of information are delivered to the jury each juror will be evaluating 32 equally likely alternatives before they conclude on which alternative is correct. The juror is evaluating the alternatives through the conscious and preconscious mind, meaning they may not be fully aware of all the alternatives that are affecting their feelings and motivating their decisions. There are, though, some psychological processes that can reduce this uncertainty and it starts with voir dire.

Arguably, the separate bits information presented during trial increases resulting in less control because the jurors are forced to evaluate more and more likely alternatives. Our goal, then, is to create a system of information delivery that refines and shrinks alternatives as the trial progresses. We have all experienced the moment in trial when so much information has been delivered that the jury becomes as lost as our message. This is one reason why we see jurors go to sleep during complex expert testimony; there are just too many variables for the brain to process. So we want to help the jurors by not overwhelming them and controlling the exponential growth of alternatives inherent in information sharing.

Earlier, we explored the two areas where communication fails, in delivery and in receiving. Voir dire was mentioned as a helpful tool. Psychological and educational research provides concrete procedures we can follow to ensure we are methodically refining and narrowing the information the jury has to process as the trial progresses. This process is like a vortex coin drop, the funnel in malls used to collect coins for charity. The coin must travel to the narrowest point before completing its journey. This is why Lītigāre focuses so heavily on layering and interweaving techniques. From the moment we ask our first question in voir dire through the last words in our closing we have assisted the jury in refining the question to a simple yes or no answer. This is why the information theory focuses so heavily on clarity and refinement of information to a point where there is just a yes or no alternative.

There are 4 key processes within the information theory that helps to refine information, they are:

1.      The information must be complete and distinct;

2.      The message must be ‘coded’ in a manner that is transmissible;

3.      Creating controls for the different kinds of ‘noise’ that can distract from the information;

4.      In spite of the noise, the signals must be received and translated into a message that corresponds to the complete and distinct information;

Rest assured there is a body of research indicating that there is specifiable number of questions for trial lawyers that achieve refinement and visual imagery is an important piece. When the information theory is incorporated with other proven psychological methods you create a successful vortex with only one likely alternative, the coin drops.