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The Louise Woodward Trial

Why Louise Woodward Was Convicted

Lawrence M. Solan

Brooklyn Law School

Judge Zobel's reduction of Louise Woodward's second degree murder conviction to involuntary manslaughter has comforted many observers by demonstrating that the system has safeguards against seemingly unjust jury verdicts in criminal prosecutions. At the same time, it has led some to worry about whether judges should exercise this prerogative as boldly as Zobel did in this case. But the case presents a more important question. Members of the jury repeatedly said after the trial that they wished they had been given the option of manslaughter, since they were not comfortable labeling Woodward's actions as murder. If the jury really did not believe that Woodward committed murder, why did they convict her of that crime instead of acquitting her?

The answer to this question is that Louise Woodward was convicted because, as linguists and cognitive psychologists have taught us, it is extremely difficult to apply the notion of reasonable doubt the way the system of justice intends it to be applied. For this reason, Massachusetts v. Woodward is not only a very sad case of an improper murder conviction for a tragic death of an infant -- it is an illustration of a big hole in our legal system.

The jurors believed that Woodward really did do something wrong that day, and that whatever she did contributed to the baby's death. Perhaps they also thought she lied on the stand about "popping" and not "dropping" Matthew Eappen, even if they also believed that the child's most serious injury -- a fractured skull -- was some three weeks old, as the defense attempted to prove. The rules say that without more, they must acquit, since these facts do not constitute murder. Then why was Louise Woodward convicted?

To answer this question, it is helpful to conduct a thought experiment. Pretend that you are participating in a study in which the experimenter shows you a set of pictures, and you have to label each of them either as a rabbit or a fish. You have no other choices. In addition to showing real rabbits and real fish, the experimenter shows you something that looks a little like a rabbit, but is clearly not a rabbit. Nonetheless, it certainly looks more like a rabbit than a fish. Given the experimental choices, you will no doubt call this a rabbit because it is closer to being a rabbit than a fish.

In everyday life, we make these sorts of choices all the time. If, for example, the red traffic lights in a town you are driving through are a slightly different shade from the ones that you are used to seeing, you will generalize the off-red signals to the red ones that you know so well, and stop your car. Our ability to fit new situations into categories characterized by prototypical situations is not only commonplace, but is a human strength. It is what allows us to apply our knowledge of the world to unfamiliar problems.

Now let us alter our experiment by adding one new instruction. In addition to telling you that you will be asked to call each of the pictures either a rabbit or a fish, you are told that unless you are certain that the picture is a rabbit, you should call it a fish. Now when you are shown the same picture - - the picture of the fictional animal that resembles a rabbit but isn't a rabbit -- you become uncomfortable. You have in front of you something that looks an awful lot like a rabbit, but have been told to call it a fish.

The problem has two solutions. The first is to call it a fish. The second is to convince yourself that those features of the picture that made you think that the picture is not of a rabbit really are not terribly important. Over time, you may become happy enough to call it a rabbit. That's certainly better than calling it a fish as far as you're concerned.

This thought experiment explains why Louise Woodward was convicted. If the jurors really believed that she did something wrong, it is harder for them to acquit (the fish) than to convince themselves that she committed murder (the rabbit). The problem is made more difficult by the fact that the prosecution goes first, making it as easy as possible for the jury to fit the facts into the "guilty" category before they hear evidence to the contrary. Criminal defense lawyers all know that going second is a disadvantage, just as lawyers who do civil litigation all know that there is an advantage to getting to court first as the plaintiff, and getting to tell their story first. The way we categorize -- finding a familiar niche for the new things that we meet in the world -- explains why this is so.

With training and practice, we can get better at ignoring our cognitive preferences and using the concept of reasonable doubt the way the system intended it. Judges do it all the time. The media provided the public with that training in this case, pointing out the extent to which the defense had met its obligations to create doubt. That explains how it is that the jury voted for conviction for murder while television viewers could not imagine how anyone could have done so. But the untrained jurors should not be blamed. They were only being human.

Then who should be blamed? Some blame the defense team for not seeing all of this and agreeing to a manslaughter charge in the first place. This is unfair. The only gamble that the defense team took was that the system would work as it was designed. They should be able to take such a gamble. In truth, the verdict in this case reflects a design flaw in our system of criminal justice. The jury system fails to take into account cognitive biases that favor improper conviction when a defendant demonstrates reasonable doubt, but no alternative explanation that fully explains all the facts. Defense lawyers know to heed the findings of cognitive psychologists who say that the best way to win a case is to give the jury an alternative narrative to the prosecution's. Judge Zobel's opinion rightly observes that the concept of reasonable doubt contains no such requirement, however.

The rules permit judges to throw out verdicts when they are not supported by the evidence. Given our cognitive design, judges should exercise this discretion more often than they do to compensate for the cognitive blind spot that I have described here. Our system provides an important corrective. Let us not be afraid to use it.

In addition, we can reduce the extent of the problem by training jurors to deal with it prior to their deliberations. Reasonable doubt instructions as currently presented to juries do nothing to instruct them of this cognitive bias. Instructions that deal with this problem forthrightly may lead to fewer convictions, but should also lead to fewer acts of injustice. Maybe then we will have less need to rely on the courage of judges to overturn jury verdicts that do not reflect an appropriate application of reasonable doubt.

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