Commonsense justice, psychology, and the law: Prototypes that are common, senseful, and not.

Abstract

Jurors' "commonsense justice" (CSJ) in general and their specific prototypes have been under indictment, as the charges (i.e., the critics' prototypes) have grown more strident and public of late. The critics' and jurors' prototypes are examined to see which are senseful, insubstantial, and unsubstantiated, and to forward this aim, prototypes are disaggregated as to type: prototypes about criminals, specific crimes, and broad societal goals and values. The prototypical picture expands further, as social science's prototypes are brought under scrutiny, along with the question of whether those methods and even the "science" (i.e., nomothetic or idiothetic) are right for the assessment task. Do researchers capture the depth and breadth of CSJ or do they leave but a "prototype of the prototypes" standing in its stead, as easily toppled as a straw man? In the end, prototypes are left standing but with greater objectivity bolstering their subjective roots, offering psychology and law a more comprehensive theory and law and public policy more enriched notions of human nature, specific crimes, and justice principles.Prototypes-both a recurrent topic in this special theme issue and a constituent element of commonsense justice (CSJ)-seem to germinate and generate so casually and carelessly, as to appear almost profligate. Although they "be fruitful and multiply," it is not their fecundity that places them in the dock but growing concerns about their genesis, their very substance, and their consequences for law and public policy. Some critics of CSJ have already transmuted their concern into conviction that something is terribly wrong in this garden of prototypes, and decidedly wrong for law and public policy about following this sort of garden path.Specifically, these critics see jurors' prototypes as nonsensical, caricatured distortions at best. And then there is worse. For standing behind or contained within these prototypes, the critics see shadowy sentiments-superficial, prejudicial, base, and off-base sentiments-that they believe ought to be nipped in the bud, rather than given room to flower in courtroom deliberations. For when such prototypes and sentiments do flower and invade jurors' decision making, the critics frequently judge the latter to be wrongheaded and judge their resultant verdicts to be frequently wrongful. In summary, the indictment concludes that CSJ is an empty oxymoron, a path that will not lead law and public policy anywhere but in exactly the wrong direction.I begin this article with prototypes and CSJ in the dock, where criticisms, charges, and an indictment have been leveled, hurled, and brought. I analyze those specific charges, as to whether they stand on fact or whether they are, at base, only prototypes themselves, gossamer and empty. Throughout this article, I offer rebuttal evidence for CSJ, sometimes invoking my own work and sometimes citing from the articles in this issue. But I go further than analyzing charges and

Describing jurors' personal conceptions of insanity and their relationship to case judgments.

“…service (Finkel, 1997). Individual differences must be assessed and represented in future research, as they are in Study 3.…”

“…Thus, despite legal assumptions, "jurors do not so much find reality as construct it" (Finkel, 1995, p. 63). Although jurors' application of "commonsense justice" may often result in well-reasoned, highly contextualized case judgments (Finkel, 1995(Finkel, , 1997, it is likely, under some circumstances, to result instead in legally incorrect or even highly prejudicial ones (English & Sales, 1997;V. Smith, 1991).…”

Personality, belief in a just world, and attitudes toward criminal responsibility defenses: a preliminary study

“…However, this impartiality can be severely tainted by pre-existing negative attitudes or biases that the juror may hold, including those pertaining to the NCRMD defense. It has been demonstrated that jurors place more emphasis on their own personal perceptions than on formal legalities when making decisions related to a verdict (Finkel, 1997;Skeem and Golding, 2001) and that they often disregard judges' instructions when forming legal opinions (Adjorlolo et al, 2017). It has been further demonstrated that negative attitudes regarding criminal insanity can hinder juror impartiality (Adjorlolo et al, 2017).…”

Commonsense justice: Old roots, germinant ground, and new shoots.

“…Are jurors' prototypes (Finkel & Groscup, 1997;Smith, 1991Smith, , 1993Smith & Studebaker, 1996;Stalans, 1993) simplistic, distorted caricatures, or do they reflect, to a fair degree, the wide variety of human, psychological, and legal dramas that play out? Is it the social scientists, with weak methods and limited levels of analyses, who are missing the bigger commonsense justice picture, or actually distorting it (Finkel, 1997)?…”