Article contents
“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
- Information
- Copyright
- Copyright © American Bar Foundation, 1994
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
- 10
- Cited by