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A Loss

I had argued to the jury that criminal court is the wrong place for common sense. The argument did not go over well—I got feedback that I seemed to think I was smarter than the jurors.

In deliberation jurors used their common sense, which flew in the face of the expert testimony in the trial.

Specifically, they said after the verdict that my client’s BAC at the time of driving “must have been” higher than 80 minutes later, despite expert testimony that it was impossible to say what the BAC at the time of driving was from the blood test 80 minutes later. I hadn’t presented the expert testimony well enough for the jurors to absorb it. I should have nailed it down better.

“Common sense” is not intelligence, reason, or even common knowledge. It’s what we use to justify decisions that we can’t (or can’t be bothered to) explain in terms of intelligence, reason, and knowledge. So “don’t fall back on common sense” is not meant as “you’re not smart enough, but rather as “you’re too smart for that.”

It may be that this is too sophisticated an argument for normal people.

By treating the jurors as if they were smarter (and more knowledgeable) than they were, I both failed to educate them and came across as thinking I was smarter than them.

That’s something to think about.

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