Conscious Mendacity

From my recently kindled copy of Eating the Dinosaur, Chuck Klosterman is interviewing Errol Morris, the documentary filmmaker, on the subject of interviewing people:

What’s more interesting to you: someone who lies consciously, someone who lies unconsciously, or someone who tells a relatively mundane version of the truth?

Here’s a snippet of Morris’ answer:

…I read a piece about modern forms of lie detection – methods that go beyond the polygraph. The writer’s idea was that we can actually record activity inside the brain that proves who is or who isn’t lying.

It suggests that the brain is some kind of ‘reality recorder’ and that we know when we are lying. But I think those lies represent a very small piece of the pie.

I think the larger sects of liars are people who think they are telling the truth, but who really have no idea what the truth is…

Let’s say you’re voir diring on punishment in a felony sexual assault case. Assume that, despite the proscription against “talking about the specifics of the case”, it’s pretty obvious to everyone by now that this ain’t no statutory rape case, and that if the defendant is guilty, he’s guilty of sexually assaulting a young child.

You’re asking the potential jurors about whether they could consider probation. All yes and nos fall into 4 groups (I think):

  • Group A: says yes, although they know they would never give probation (traditional liars)
  • Group B: says yes, but they just don’t know they would never give probation in this type of case (lying to themselves)
  • Group C: says yes, and in some cases they would consider probation (honest)
  • Group D: says no, means no (honest)

Of course, Group A includes all people who have figured out they won’t be on the jury if they say “no”, and who would prefer to sentence your client to prison right now before the evidence even begins.   Some want to hear the evidence, then sentence.

All other things being equal*, who’s a better guilt/innocence juror, the one that says yes or no? Group B isn’t a whole lot better than Group A, except perhaps for compromise verdicts.  Group C includes your best jurors, but distinguishing them from Groups A & B (besides asking better questions, see below) is uncertain at best.

Group D seem like your worst jurors. And your client is scared to death of all of them. But couldn’t some be better guilt/innocence jurors than the combined group of A, B & C? If all you knew about them was this yes/no answer, they’d almost certainly be better than Group A alone.

Conventional wisdom is to strike all jurors who say they can't follow the law regarding low end of the punishment range.  They are double whammies, bad for G/I, bad for punishment.  Is there room here for an exception?  I don’t know the answer to this question, I’m just asking.

[*All other things being equal, which they never are. The hypothetical demands that you ignore there are other factors to color your good/bad juror decisions, or you’re not doing a very good job in voir dire. Also, “Would you consider…” is a poor way to phrase the question to the venire in the first place. It’s just easier to frame my hypo that way; you can change the example, and still end up with the same quandary: for guilt/innocence purposes, is a Group B juror that lies to himself, or to the lawyer, about being able to sentence on the low end of the punishment range worse overall than a juror who is honest about not being able to do so?  And how big a percentage of the overall population is Group C?]

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RWBoyd - November 8, 2009 3:25 PM

Group E: They say no even though they would in some cases grant probation. Why would they say no? To get kicked off the jury (for any number of reasons).

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