Today I’d like you to consider the over used phrase “common sense” which we use all the time in our daily communications and in trials. You’ve heard the insistence that the answer is simple because it is just “common sense” The claims are: “Everyone knows it.” “It goes without saying.” “It makes total sense.” “Even my little sister could understand that.”“It’s just common sense.” “What do you mean? It makes total sense!”“How do I know? It’s obvious! Even a child could understand it.” Everyone talks about common sense as if there were a agreement of understanding among all rational people on one subject or another.
We find common sense in law as well. Defense attorneys in civil cases and prosecutors in criminal cases invite the jury to use their common sense. The idea that some conclusions are so obvious that everyone would agree is too often found in our jury instructions as well. For example see the Seventh Circuit pattern criminal jury instructions. Pattern Criminal Federal Jury Instructions for the Seventh Circuit which read:
“1.04 WEIGHING THE EVIDENCE-INFERENCES You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life.”
So, what’s wrong with that you ask? Well, the first problem is that there is no such thing as “common” sense. The word common, by definition, suggests that the idea in question is held by a large number of people. In fact, one person’s common sense is another’s total fallacy. In addition, the suggestion that if most people think something makes sense then it must be sound judgment has been disproven time and time again. Further, it is often people who are accused of not having common sense who prove that the idea being argued is completely wrong.
Albert Einstein has said: “Common sense is the collection of prejudices acquired by age eighteen.”
As sociologists are fond of pointing out, common sense isn’t anything like a scientific theory of the world. Rather it is a hodge-podge of accumulated advice, experiences, aphorisms, norms, received wisdom, inherited beliefs, and introspection that is neither coherent nor even internally self-consistent. Not only that, these are personal and individual to each of us and not common to all.
Therefore, since common sense isn’t common and isn’t reliable, arguing it to the jury or instructing the jury to use it in decision making amounts to nothing more than inviting jury nullification. Jury nullification was introduced into America in 1735 in the trial of John Peter Zenger who was tried for libel. His lawyer, Alexander Hamilton, argued that the law was unfair and invited the jury to nullify it which they did. A more recent example happened in 2013 when a billboard in the nation’s capital stirred controversy. It told jury members to forget the law and vote their conscience. It read – “Jury duty? Know your rights. Good jurors nullify bad laws.” It tells the jury it’s Okay to ignore the law and evidence by applying their own individual ideas under the label: “common sense.”
When we instruct or tell jurors to use their common sense, we are saying they are not bound by the law and can instead use their mutual common sense to arrive at their verdict. That is the essence of jury nullification. Using their “common sense” is a frequent invitation of prosecutors and we have proven examples of innocent defendants convicted of crimes as a result. A judge who in a civil case, instructs the jury in addition to the law that they are to use their common sense and a defendant’s attorney who argues for the same thing are inviting the jury to ignore the law that the burden of proof for plaintiff is only that it is more probably true than not true – 51%. It gives approval for the jury to ignore the law they may not like or approve of and to apply their own sense of right or wrong based upon their personal idea of common sense.
That is nothing less than anarchy We are a nation of laws and not men. Jurors who say they will not follow the law are excused for cause. Yet, we they instruct them it’s Okay to use their idea of common sense. The ideas are in total conflict. Since common sense isn’t a uniform, common or definable concept we have no business instructing the jury to use it in their decision making or argue it as a device to arrive at a lawful and fair verdict. It should be considered prejudicial error to do so.