Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-17T14:49:29.013Z Has data issue: false hasContentIssue false

“You Wouldn't Take a Seven-Year-Old and Ask Him All These Questions”: Jurors' Use of Practical Reasoning in Supporting Their Arguments

Published online by Cambridge University Press:  27 December 2018

Extract

In ordinary conversation, speakers are often called on to defend their assertions. In talk that takes place in institutional settings, speakers must often account for their claims as well. This study concerns the methods of argumentative support employed by participants in a particular institutional setting: jury deliberations. Micro-interactional analysis of transcripts of two actual deliberations—using the theore tical and methodological perspectives of ethnomethodology and conversation analysis-reveals that when jurors present defenses or accounts of their positions, they often reference mundane experience and practical reasoning. Jurors do not, then, merely weigh strictly “legal” considerations. Three of the jurors' discursive methods are scrutinized: Normative assertions, claims of expertise, and declarations of knowledge. These techniques serve not only to establish “evidence” in support of a juror's position but also to deflect other jurors' disagreement

Type
Research Article
Copyright
Copyright © American Bar Foundation, 1994 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Marilyn R. Whalen & Don Zimmerman, “Practical Epistemology in Calls to the Police,” 19 Language in Soc'y 465 (1990).CrossRefGoogle Scholar

2 Id. at 467.Google Scholar

3 Harvey Molotch & Deirdre Boden, “Talking Social Structure: Discourse, Domination, and the Watergate Hearings,” 50 Am. Soc. Rev. 273, 273 (1985).Google Scholar

4 Douglas W. Maynard, “How Children Start Arguments,” 14 Language in Soc'y 1 (1985).CrossRefGoogle Scholar

5 Anita Pomerantz, “Giving a Source or Bias: The Practice in Conversation of Telling ‘How I Know,’”8). Pragmatics 607 (1984); Deborah Schiffrin, “Everyday Argument: The Organization of Diversity in Talk,” in Teun A. van Dijk, ed., Handbook of Discourse Analysis, vol. 3: Discourse and Dialogue 35 (London: Academic Press, 1985) (“Schiffrin, ‘Everyday Argument’”).Google Scholar

6 19 Language in Soc'y.Google Scholar

7 Schiffrin, “Everyday Argument.”Google Scholar

8 Walter F. Abbott, Flora Hall, & Elizabeth Linville, Jury Research: A Review and Bibli' ography§ 6.00-6.11 (Philadelphia: ALI-ABA, 1993).Google Scholar

9 See, e.g., Finkel, Norman J. & Handel, Sharon F., “How Jurors Construe ‘Insanity,’ 13 Law & Hum. Behav. 41 (1989); Irving A. Horowitz, “Jury Nullification: The Impact of Judicial Instructions, Arguments, and Challenges on Jury Decision Making,” 12 Law & Hum. Behav. 439 (1988); Reskin, B. & Visher, C., “The Impacts of Evidence and Extralegal Factors in Jurors' Decisions,” 20 Law & Soc'y Rev. 423 (1986).CrossRefGoogle Scholar

10 H. Garfinkel, Studies in Ethnomethodology (Englewood Cliffs, N.J.: Prentice-Hall, 1967) (“Garfinkel, Studies in Ethnomethodology”); J. Heritage, Garfinkel and Ethnomethodobgy (Cambridge, U.K.: Polity Press, 1985) (“Heritage, Garfinkel and Methodology”).Google Scholar

11 H. Garfinkel, “On the Origins of the Term ‘Ethnomethodology,’” in R. Turner, ed., Ethnomethodology 15 (Harmondsworth: Penguin, 1974).Google Scholar

12 Douglas W. Maynard & Steven dayman, “The Diversity of Ethnomethodology,” 17 Ann. Rev. Soc. 345 (1991).CrossRefGoogle Scholar

13 Bittner, Egon, “The Police on Skid-Row: A Study of Peace Keeping,” 32 Am. Soc. Rev. 699 (1967).CrossRefGoogle Scholar

14 Aaron Cicourel, The Social Organization of Juvenile Justice (New York: Wiley, 1968).CrossRefGoogle Scholar

15 A. J. Meehan, “Record-keeping Practices in the Policing of Juveniles,” 15 Urban Life 70 (1986); id., “Assessing the ‘Police-worthiness’ of Citizens’ Complaints to the Police: Ac-countabilty and the Negotiation of ‘Facts,’”in D. Helm et al., eds., The Interactional Order: New Directions in the Study of Social Order 116 (New York: Irvington, 1989).Google Scholar

16 J. Atkinson & P. Drew, Order in Court: The Organization of Verbal Interaction in Judicial Settings (Atlantic Highlands, N.J.: Highlands Press, 1979).Google Scholar

17 Douglas W. Maynard, Inside Plea Bargaining: The Language of Negotiation (New York: Plenum, 1984).CrossRefGoogle Scholar

18 Garfinkel, Studies in Ethnomethodology ? Google Scholar

19 James Holstein, “Jurors' Use of Judge's Instructions,” 11 Soc. Methods & Res. 501 (1983).CrossRefGoogle Scholar

20 Douglas W. Maynard & John Manzo, “On the Sociology of Justice: Theoretical Notes from an Actual Jury Deliberation,” 11 Soc. Theory 171 (1993); John Manzo, “Jurors' Narratives of Personal Experience in Deliberation Talk,” 13 Text 267 (1993).Google Scholar

21 Cf. Barkan, Steven E., “Jury Nullification in Political Trials,” 31 Soc. Prob. 28 (1983).Google Scholar

22 One goal of this analysis is to preserve the details of the social interaction analyzed. The data displays here have been simplified for clarity in presentation, without phonetic spellings and using only a reduced set of the transcription conventions developed by Gail Jefferson. The appendix provides a glossary of the transcript symbols used here.Google Scholar

23 Heritage, Garfinkel and Methodology 232-92 (cited in note 10).Google Scholar

24 H. Sacks, “Notes on Methodology,” in J. Maxwell Atkinson & John Heritage, eds., Structures of Social Action 21, 54 (Cambridge: Cambridge University Press, 1987 [1973]).CrossRefGoogle Scholar

25 Douglas W. Maynard, “How Children Start Arguments,” 14 Language in Soc'y 1 (1985).CrossRefGoogle Scholar

26 Id. at 19.Google Scholar

27 G. Jefferson, “Sequential Aspects of Storytelling in Conversation,” in J. Schenkein, ed., Studies in the Organization of Conversational Interaction 219 (New York: Academic Press, 1978).Google Scholar

28 It is notable that, although Jl's argument is not a narrative in a strict sense (he relates hypothetical, not actual, events), this technique of prefacing personal references with generic references is also employed in jurors' narratives of personal experience. Manzo, 13 Text. Google Scholar

29 Analysis of the criminal jurors' opening statements shows that most of those jurors stop short of voicing a particular vote, even though nearly all imply a preference in one direction or the other; cf. John Manzo, “The Social Organization of Talk and Experience in Jury Deliberations” ch. 3 (Ph.D. diss., University of Wisconsin-Madison, 1993).Google Scholar

30 Manzo, Text (cited in note 21).Google Scholar

31 The defendant received a copy of the complaint from the plaintiffs' attorney, drew a line across it, wrote, “Thanks a lot, (attorney's name),” and returned it to the attorney. The plaintiffs claimed that this action constituted a breach of contract.Google Scholar

32 Emanuel Schegloff, “Discourse as an Interactional Achievement: Some Uses of Uhhuh' and Other Things That Come between Sentences,” in D. Tannen, ed., Georgetoum University Roundtable on Languages and Linguistics 71 (Washington, D.C.: Georgetown University Press, 1982).Google Scholar

33 G. Jefferson, “On Exposed and Embedded Correction in Conversation,”in G. Button & J. Lee, eds., Talk and Social Organisation 86 (Clevedon: Multilingual Matters, 1987).Google Scholar

34 Again, “the plaintiffs” are a husband and wife.Google Scholar

35 Which is not transcribe in detail. The use of nonstationary cameras and microphones in the taping of the criminal deliberation caused the “audience” in this talk sequence to be “off-mike.” Consequently, their responses are impossible to hear and transcribe accurately.Google Scholar

36 Cf. Steven E. Clayman, “Booing: The Anatomy of a Disaffiliative Response,” 58 Am.Soc. Rev. 110(1993).CrossRefGoogle Scholar

37 J3 is an elementary-school teacher.Google Scholar

38 Zeno Vendler, Res Cogitons (Ithaca, N.Y.: Cornell University Press, 1972).Google Scholar

39 Whalen & Zimmerman, 19 Language in Soc'y (cited in note 1).Google Scholar

40 Cf. id. at 467.Google Scholar

41 Schiffrin, “Everyday Arguments” (cited in note 5).Google Scholar

42 Id. at 41 ff.Google Scholar

43 19 Language in Soc'y. Google Scholar

44 Although there are several examples of jurors using such knowledge as a means of “offensive” argument, among which were most of the excerpts presented here.Google Scholar

45 Manzo, 13 Text (cited in note 20).Google Scholar

46 L. Hardwick & B. Ware, JUTOT Misconduct: Law and Litigation (New York: Clark Boardman, 1989).Google Scholar