Montana Lawyer April/May 2025

What is Post-Truth Jury Decision-Making? THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS In recent years, we’ve read and heard many describe

This directly translates to the decline of experts and authori ties because people no longer trust the kinds of institutions at the core of expertise and authority. On top of that, people are simply overwhelmed by the amount of information available to them. The internet gives us an endless source of informa tion and while everyone knows it is full of misinformation, most people struggle to differentiate the credible information from the less-than-credible information. Siloed media results in the common experience of one news story reporting on the “facts” of the event, while another news story from reports on how none of those facts are true. The end result is that people do not know what to believe and struggle to understand what is real. In the face of this overwhelming uncertainty, it is only sensible that people defer to their personal experiences and beliefs. Personal experiences and beliefs have become the most “real” and reliable tools people have available to them to try to understand what is true and what is not. This has two immediate implications. First, our long-held focus on jury de-selection is more important now than ever before. A juror’s prior personal experiences and their beliefs about the way the world works will be the primary filters through which they evaluate the arguments and evidence put forth by each side. They will reject evidence that goes against their personal experience and embrace that which is consistent. We see this in action in almost every mock jury we watch. We once watched a mock juror reject key defense evidence in a foodborne illness case because of her own experiences with get ting sick from restaurant food. While the evidence was over whelming that the initial symptoms of foodborne illness do not appear until 6-8 hours after the meal was eaten, this mock juror had an experience where she was certain a particular restaurant was the source of her illness even though she became ill only an hour after she left that restaurant. She rejected the defense Personal experiences and beliefs have become the most “real” and reliable tools people have available to them to try to understand what is true and what is not.

American culture as having entered a “post-truth” era. The headlines are numerous, often with references to the rise of misinformation and blind political partisanship. But it doesn’t stop with politics. We’ve seen this label applied to jury deci sion-making as well, but too often it tends to come in the form of a casual reference to capture the general perceived “crazi ness” of jury decision-making these days with no meaningful explanation or discussion of its very practical implications. Looking back, it seems the recent proliferation of this label started with the first election of Donald Trump in 2016 and then ramped up during COVID as the nation debated the sci ence of coronavirus, vaccines, and medicine in general. Oxford Dictionaries nominated “post-truth” as the “word of the year” in 2016. The definitions vary but most reference the blurred lines between facts and opinions, disregard for truth, and the general decline of facts and evidence in debates and discussion. Truth, in many regards, no longer matters. Many writers speak of it with great disdain, some describing it as a big step toward narcissism and others suggesting it signifies the end of civil society. Ultimately, the most common use of the phrase seems to be in the form of a complaint about the ways things are these days. In this column, we take a deeper look at the forces behind our “post-truth” culture and examine the practical implications for trial strategy. The central tenant of the “post-truth” label is society’s pri oritization of personal beliefs over facts and scientific evidence. While most of the “post-truth” literature focuses on the eleva tion of personal beliefs, we would add that it is also the eleva tion of personal experiences. But why is this happening? There are two primary reasons. First, there has been a well-document ed decline in trust in just about everything: government, large corporations, religious institutions, police, schools, hospitals, small businesses, and many more. The central tenant of the “post-truth” label is society’s prioritization of personal beliefs over facts and scientific evidence.

73 RD ANNUAL

October 24-25, 2025

20 MONTANA LAWYER

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