There are many theories designed to explain how jurors understand and analyze trial-related information in order to reach a verdict. The most widely adopted approach to juror decision making is the story model (Devine, Clayton, Dunford, Seying & Pryce, 2000). The story model of juror decisions making explains that jurors reach a verdict by assembling “the evidence into a coherent whole that is consistent with the facts of the case and makes sense given their knowledge.” (Devine et al, p. 624)
The first time the story model concept found its way into the scientific literature was in 1978, when Lance Bennett reported his observations of more than 100 trials, including trial transcript review and juror interviews (Bennett, 1978; Bennett & Freeman, 1981). The story model has gone through a few changes since Bennett’s early writings. In the scientific arena, Pennington and Hastie are credited with analyzing and developing the story model (Pennington & Hastie, 1981).
Despite the widespread use and support of the story model, recent research in the neurosciences indicates that it is time to update the story model. Specifically, the traditional story model is out of step recent discoveries in the neurosciences and unless the traditional story model is replaced by an updated version, those who use the story model in mediation and trial may not be reaching the full potential of the story model.
In response to the recent discoveries in the neurosciences, Westlake Trial Consulting has proposed a new story model, the Neural Story Model. The Neural Story Model is based on the Two Process Theory, a neuropsychological theory that argues that at every moment of our waking life two independent, simultaneous processes are in control of our every thought, feeling and action (Kahneman, 2011). The Two Process Theory describes the two processes as systems. System 1 is the fast, intuitive and nonverbal process that is responsible for most of what we think, feel, and do. System 2 is a conscious process that is guided by logic, reason, and analysis.
To appreciate how the traditional story model fails to account for System 1, take a look at the components of the story model. In the traditional story model, it is argued that an individual listens to facts and argument and then creates a story to account for what she has heard. It is argued that the story created by a juror causes her to reach a verdict.
Traditional Story Model
In the traditional story model, the juror is depicted as using System 2 to create the story that leads to a verdict. The research on the Two Process Theory does not support the traditional view of the story model.
According to the Two Process Theory, something very important happens before the juror creates a story: the juror uses System 1 to create emotions and intuitions about the case facts and arguments. Then the juror begins to construct a story based upon the work of System 1.
As the juror constructs a story that resonates with her emotions and intuitions created by System 1, she feels a sense of comfort and equilibrium. As she elaborates her story, the juror ignores evidence and argument that do not resonate with System 1. Facts and evidence that resonates with System 1 are woven into the story. In the end, the juror has created a logical and rational story that leads to a verdict.
When asked to explain her verdict, the juror, explains her verdict by telling the story she has created, with no awareness that this verdict and story “feel right” because they resonate with emotions and intuitions produced by System 1.
Neural Story Model
> Facts and argument: The individual knows her job is to come to a verdict, so, she listens to the witnesses and attorneys.
> System 1: System 1 operates automatically and quickly, with little or no effort or voluntary control. In response to the facts and arguments, System 1 generates impressions, feelings, and inclinations. System 1 creates a coherent pattern of activated ideas in associative memory. The juror creates a picture of the facts and argument. This picture is linked to a verdict with a sense of cognitive ease.
> Personal story: Moved by the emotions, and intuitions created by System 1, the juror uses System 2 to sort though and organize input received from System 1. System 1 informs System 2 what decisions and organization “feels right.” The individual creates an outline of story using evidence and argument that fits the story and ignoring those things that do not fit the story. In order to fill-in the story outline, the juror adds facts and elements from her personal experience to make a cohesive, meaningful story.
> Verdict: During deliberations and at other times when asked to explain her verdict, the juror uses her story. She is able to cite relevant case facts and argument, and rely upon her personal experience. The juror believes in her verdict because System 1 tells her that her verdict “feels right.”
The recent discoveries in the neurosciences show that we don’t make decisions in the way that the traditional story model depicts. Even if we explain our decisions using System 2, the determinants of our decision can be found in System 1 functions, such as impression, intuitions, and emotions. There is nothing in the traditional story model that could account for the influence of System 1 and that is why we need the Neural Story Model. In future blogs, we will discuss how the practical implications of the Neural Story Model, including how to use the principles of the Neural Story Model in mediation and trial.
Bennett, W.L. (1978) Storytelling in criminal trials: A model of social judgment. The Quarterly Journal of Speech, 64, 1-22
Bennett, W.L. & Feldman, M.S. (1981) Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture. New Brunswick, NJ: Rutgers University Press
Devine, D. J., Clayton, L.D., Dunford, B.B., Seying, R. Pryce, J. (2000) Jury decision making: 45 years of empirical research on deliberating groups. Psychology, Public Policy and Law, 7, 622-727
Kahneman, Daniel (2011). Thinking, Fast and Slow. Farrar, Straus and Giroux. Kindle Edition.
Pennington, N. & Hasty, R. (1981) Juror decision making models: The generalization gap. Psychological Bulletin, 89, 246-287