Jurors’ Case Analyses: “The Extraordinary Fact As The Cynosure” Approach™ – by NEIL S. SISKIND

“The Extraordinary Fact As The Cynosure” Approach™ (herein, for convenience, “The Extraordinary Fact Approach™”) is an approach to a criminal prosecution or civil lawsuit that requires that if there is an “extraordinary” fact in a case- not an opinion or a theory- but an “undisputed” or “proved” fact pointing to a likelihood of guilt or liability, one not sufficiently contradicted or rebutted or offset or overpowered by another fact, then a juror should use that “extraordinary” fact as that juror’s premise for finding a defendant to be guilty or liable. The “extraordinary” fact(s) in a case, a fact that, taken alone, and not contradicted or neutralized by some other fact(s), indicates guilt or liability, should be the starting point for a juror from where that juror works backward to find factual contradictions or rationales that make the “extraordinary fact” of lesser value towards that juror’s opinion of guilt or liability.

Rather than rely on a prosecutor’s or a plaintiff’s counsel to list a litany of facts and arguments that counsel intends to prove, and rather than allowing counsel on both sides to define the vital and material facts, it is the juror, who, following opening arguments, should define, for himself or herself, as early on in the case as possible, the material fact(s), that, if proved, alone, point(s) to a likelihood of guilt (if a criminal case) or liability (if a civil case). Just because counsel on both sides take on the job of and seek to control the narrative, it is the job of a juror to define, for himself and herself, what fact(s) is/are material to guilt or liability, despite counsels’ attempts or desires to define that which is or should be material for a juror. While the law that applies to a case is to come from the respective court and counsels, which facts indicate a violation of law, and whether there was a violation of law is up to the juror.

A prosecutor or plaintiff’s counsel will allege, and then present, as many facts and storylines as possible on which it can potentially hang its hat to prove guilt or liability. Defense counsels will attack evidence, deny responsibility, present excuses and explanations, blame others, and offer character traits and behaviors that point to a defendant’s lack of propensity to commit an act.

“The Extraordinary Fact” Approach is a thought process designed to help jurors to develop clarity in cases that are filled with facts and theories, and that are rife with, seemingly, contradictory scenarios, by identifying the “extraordinary” fact, that, if not neutralized, points, strongly, to guilt or liability. It is a process for breaking down the complexity of case presentations. “The Extraordinary Fact” Approach aids jurors to isolate and focus on fundamental and undisputed or proved extraordinary “facts”, that, in and of themselves, alone, point to a likelihood of guilt or liability- and then to determine if any other fact diminishes that “extraordinary” and proved fact.

“The Extraordinary Fact” Approach requires that the “extraordinary” fact be directly addressed by the defense, rather than the defense using unrelated facts, theories, and/or arguments about and related to other matters. The Approach helps jurors to keep focused on the cause of the “glow of guilt” or the “glow of liability”, if there is one, and not be confused or distracted by irrelevant matters, distractions, off-point facts, or crafty lawyering.

The “extraordinary” fact should be identified as early on and as accurately as possible so that the juror’s thought-map for the case is intact from start to finish, providing for consistent and clear thought about evidence and arguments as they unfold and as they are presented. Early identification of the “extraordinary” fact of the respective case can provide for linear analysis of otherwise non-linear presentations. Prosecutors and plaintiff attorneys play a role, in the opening statement, throughout the case, and in the closing argument, in helping juror’s to identify the “extraordinary” fact; though, each juror is a free-thinking individual and may have his or her own idea as to what the “extraordinary” fact, if any, is.

In criminal cases, defendants are presumed innocent. In civil cases, liability must be proved by the applicable legal standard. These are always the starting points of any case. In a criminal case, The “extraordinary” fact is, likely, the fact (potentially, among or along with other facts) that led to an indictment, and is the fact that stands out in the case at the outset in the mind of the state, and, likely, in the minds of jurors. “The Extraordinary Fact” Approach is not intended to upend, supplant, suppress, or substitute for reasonable doubt[1] or the presumption of innocence in a criminal case, or for the applicable legal standard in a civil case; it is not a proposed legal standard. It is intended to create a starting line for a juror to process and analyze forthcoming and incoming information.  It provides a juror with a  thought-structure for a case that should guide the juror’s analysis and thought-process throughout a case. “If” a juror has identified an “extraordinary” fact at the outset that begins to chip-away at the presumption of innocence in a criminal case, or the yet to be presented evidence to establish liability in a civil case, it helps that juror to create a mental path or a cerebral framework for working through a case’s facts, dicta, theories, hypotheses, and evidence. Whether there exists an “extraordinary” fact will determine the mental path a juror takes to reach his or her result. A case may have an “extraordinary” fact from where a juror’s path starts, or it may not. That said, an “extraordinary” fact may, in an of itself, prove guilt beyond a reasonable doubt if it is not disproved or outweighed by any other fact, interpretation, or explanation. If the fact is truly an “extraordinary” fact, it would be true that the defense might have to create reasonable doubt of that specific fact – or about its extraordinary nature, in order to prevail.

The “extraordinary” fact can be one determined either intellectually or emotionally. An “extraordinary” fact must, logically and objectively, put suspicion in a juror’s mind. This could be through the power of reason or through an emotional response. It is important, however, that in the latter case, feelings be as objective as possible. If a juror focuses on an “extraordinary” fact that is determined to be “extraordinary” through his or her “feelings”, he or she should examine those feelings to make sure they are resulting not, solely, from his or her own biases or experiences. While this can be difficult to do or to ensure, if an “extraordinary” fact is in focus, in order to find reasonable doubt, that fact must have, objectively, been determined to be “extraordinary” to a juror, otherwise the final opinion and vote would not be based in reason.  A fact must be determined to be an “extraordinary” fact based on objective review and objective interpretation, and not on subjective elements, alone. Naturally, the subjective mind plays a role in any analysis that is not based in numerical or scientific data- or on fact-based images. An “extraordinary” fact must be an “undisputed” fact- but the “extraordinary” element may still contain subjective influences. This should be avoided as best as possible. It must more than a feeling.

Inherent in “The Extraordinary Fact” Approach is that a fact must be objectively “extraordinary”. It can’t be just an objectively “interesting” fact, or just an objectively “compelling” fact, or just an objectively “persuasive” fact- it must be “extraordinary”. It must show a likelihood of guilt or liability; it must provide the “glow of guilt” or the “glow of liability”.

“The Extraordinary Fact” Approach shifts the burden to the defense (intellectually, not legally).

An “extraordinary” fact that is not rebutted, or neutralized, or offset, or contradicted, or in any other way diminished, is still not, necessarily, enough, alone, for a juror to determine that no reasonable doubt exists and that a respective defendant is guilty as charged, or that a party is liable. An “extraordinary” fact, as defined by “The Extraordinary Fact” Approach, is only meant to identify the core, or the crux, or the central cause(s) for the “potential” to find a respective defendant to be guilty as charged or liable. The basic elements of a case still need to be proved beyond a reasonable doubt in a criminal case, and up to the applicable legal standard in a civil case. For instance, in a murder trial, even if it is perfectly clear that a defendant wanted to kill his wife, and that he owned a gun, and that he told a friend of his plans for his wife’s murder (the “extraordinary” fact)- the fact that the wife is, in fact, dead, the manner of death, her time of death, and the lack of a verifiable alibi for the husband are still necessary elements to establish in order to prove or accept his guilt beyond a reasonable doubt. In a civil case it may be perfectly clear that a party failed to perform the most important part of the contract, despite any excuses and explanations, but the plaintiff would still need to show that it resulted in damage or loss, or else there is no liability.

A fact, once disproven or contradicted, under The Extraordinary Fact Approach, can no longer be an “extraordinary” fact.

Nothing about The Approach is to suggest that if the “extraordinary” fact is disproven or somehow neutralized by the defense, a juror can not still find guilt or liability based on other evidence.

So let’s put “The Extraordinary Fact As The Cynosure” Approach to the test using some well-known criminal cases.

The Murder of JonBenet Ramsey

The “extraordinary” fact in this case could be a father who never shed a tear, ever, in any interview, no matter if it was soon after, or long after, the death of his daughter. Any reasonable person would think that any other reasonable person under such a circumstance would be emotional, if not sad, if not depressed. Yet John Ramsey was cool and poised as a cucumber in every interview he gave.

This fact can easily be considered an “extraordinary” fact based on emotions, while also being objective. A reasonable person could find this extraordinary. In other words, it would not take an extremely or overly-sensitive person to find this bothersome, and it would not require someone to have been a victim of a similar crime in order to be moved.

In the JonBenet case, there was another “extraordinary” fact: There was no person, other than the family members, ever shown, to any degree at all, to have been present in the Ramsey home on the night of, immediately prior to, or immediately following the murder.

This is an fact that can be determined by “intellect”- as opposed to emotion- to be “extraordinary”.

Neither of these “facts” are anything less than “facts”. They are not controverted in any way.

There is no fact that contradicts or overpowers these facts. John Ramsey was never shown to be depressed, tearful, or dismayed by the murder of his daughter while he slept. No other person was ever shown to be in the home.

Indictments are easier to obtain than are convictions. In the Ramsey case, there were no indictments, despite the old adage- You can indict a ham sandwich. In the case of an indictment based on the “extraordinary” facts above, it still would not lead to a conviction, unless a jury, too, felt that the person indicted was guilty based on “extraordinary” facts that are not contradicted or disputed, and are not outweighed by greater facts that prove the “extraordinary” fact wrong, irrelevant, or of lesser consequence.

The Murders of Nicole Brown Simpson and Ron Goldman

The “extraordinary” fact in this case was that O.J. had beaten up Nicole on numerous occasions, as proven by photographs and admissions by O.J.. This was a known fact. Ron Goldman was at Nicole’s house while she was murdered and was caught up in the act. This is a known fact.

A bloody glove was found at O.J.’s house soon after the murders that matched another bloody glove found a the murder scene.

There is no fact that contradicts these facts.

O.J. enters the courtroom innocent- until proven otherwise. The “extraordinary” facts provide great weight otherwise, and shifts the burden to the defense (intellectually, not legally) to counteract the “extraordinary” facts. No facts were shown that O.J. did not have significant violent tendencies towards Nicole or that any person saw O.J. elsewhere during the murders. No facts contradict that Ron Goldman was on the scene by happenstance. Facts were entered into evidence that the officer who found the bloody glove at O.J.’s home may be racist. Jurors had to decide if this was true, if it mattered, and if there were enough other facts entered into evidence to render this scenario unimportant. Using “The Extraordinary Fact” Approach, a juror would have predetermined which facts are the most important to the case and gave O.J. the “glow of guilt”, if any. By the time of the evidence of the officer’s racism, a juror, using The Extraordinary Fact Approach, would have already known if this aspect of the case- the finding of the glove- was one, or any, of the “extraordinary” facts that needed to be addressed by the defense. The outcome of a juror’s thoughts on the officer would have some or no influence on such juror’s final opinion of innocence or guilt depending on that juror’s initial thought-construct of the case using “The Extraordinary Fact” Approach.

The Murder of Caylee Anthony

While Caylee was missing, the “extraordinary” fact is that her mother was at bars partying and having a blast while Caylee was missing. This is a fact.

Another “extraordinary” fact is that Caylee was not reported missing for a month.

There is no fact that contradicts or diminishes either of these facts.

An emotional response, through objective thinking, leads one to believe that Caylee’s mother did not care- making her look guilty, shifting the burden to the defense (intellectually, not legally) to prove these “facts” wrong, through an undisputed or a proved fact(s), thus, dispelling the mother’s suspicious activity and possible motive.

In order for a juror to convict the mother, they would still need to know the manner and time of death and that the mother had no verifiable alibi.

The Assassination of President Kennedy

A rifle with Lee Harvey Oswald’s fingerprints, was, allegedly, found at Oswald’s place of work, from where the shots, allegedly, came.

This is not an undisputed or proved fact. Therefore, there can be no “extraordinary” facts. These are all reports and/or allegations. Moreover, there was no one who knew Oswald to want President Kennedy dead. There was no motive. Without an undisputed or proved fact for a jury, there can be no “extraordinary” fact upon which to assume a likelihood of guilt, and, thus, there is no need for the defense to show a contradictory or overpowering fact. If, however, for example, “at trial”, an expert(s), who was cross-examined, made a good case that the fingerprints on the rifle were Oswald’s, that the rifle was owned by Oswald, and that the chain of custody from the finding of the weapon until it was logged in at the police station until it was brought to trial was intact, it could be said that this fact, Oswald’s ownership and last use of the weapon, was an “extraordinary” fact that meets the standard of “The Extraordinary Fact” Approach, thus putting the (intellectual, not legal) burden on the defense to show contrary or overpowering facts.

Donald Trump vs. Stormy Daniels

Donald Trump and Stormy Daniels entered into an agreement where Daniels, by her signature to the agreement, agreed that she would not disclose her relationship with Trump, or any details thereof, to anyone, ever. Yet, she disclosed it to many people, including on television. As a consequence, Donald Trump is suing Daniels for breach of contract.

The “extraordinary” fact in this case will be that Daniels, after signing such a settlement agreement where she agreed not to disclose the relationship, nevertheless, disclosed it. If this fact is undisputed or proved, there is reason, despite any other facts, to find Daniels liable. The defense will present reasons and excuses for the disclosure, but, if the defense does not “factually disprove” disclosure, then, using “The Extraordinary Fact” Approach, there is a strong likelihood of a juror finding Daniels liable.

 

“Compounded” facts can, together, indicate a scenario ripe to implement The Extraordinary Fact Approach. There may exist no single fact, alone, that provides a juror that potentially pivotal and concise starting point. But, several facts that are compounded, fact upon fact, can, together, provide a juror the starting point of the “extraordinary” facts which must be rebutted or overpowered by the defense in order to be removed as a potential cause of that juror’s vote of “guilt” or “liability”. Combining several or numerous undisputed or proved facts may be necessary where no one undisputed or proved fact is strong enough to persuade a juror that such fact, alone, is the proper starting point for that juror to start his or her line of thinking, processing, and analyzing the respective case with an “extraordinary” fact.

Here’s an example:

In the case against American novelist, Michael Peterson, in 2003 in North Carolina, for the murder of his wife, Kathleen Peterson, the following undisputed facts, among others, were presented: Kathleen Peterson was found bloodied and dead at the bottom of her staircase in her home; Michael Peterson had been the last person to see his wife alive; the two were home alone at the time of her death; there was an unusual amount of blood on the walls of the stairwell for a simple accidental fall; Michael Peterson had written a novel where a man murdered his wife and made it look accidental; and many years earlier, Michael Peterson’s friend, Elizabeth, was found dead at the bottom of  staircase after he left her home (it was ruled an accidental fall after he had already left and Peterson was not charged). Any of the above facts, while interesting, strange, and or curious- each fact alone may not be “extraordinary” under “The Extraordinary Fact” Approach, but all of these facts compounded upon one another seem to rise to the level of “The Extraordinary Fact” Approach’s “extraordinary” standard.

 

“The Extraordinary Fact As The Cynosure” Approach is not limited to legal analysis. The Approach also can apply to business analyses and business strategy. Here’s an example:

If a company is deciding to offer a consumer product or create a brick and mortar retail concept, the “extraordinary fact(s)” to be identified and isolated would be that people shop by using Google, and their first instinct is to look for the best prices and options on Amazon. These are the undisputed facts that are of the first and foremost considerations for retail sales, and that are undeniably true. The next step is to determine what facts contradict or rebut these facts, or overpower these truths, such that the product or retail concept can either go in a direction without consideration for Google or Amazon, or can proceed without the threat of Google or Amazon, or should determine how the concept can be designed to best benefit from these extraordinary truths. The thought process about selling a consumer product or products should begin with the “extraordinary fact or facts” that people’s shopping, by and large, and more and more, begins in these places. Likewise, the product or store concept itself should be analyzed in light of its target customers and its commercial potential by beginning with an “extraordinary fact” about the target customer and the utility of and competition for the new product or store concept.

 

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[1] Reasonable doubt is doubt that would be reached by a reasonable and typical juror when hearing or seeing such evidence. In the absence of reasonable doubt, a defendant must be found “guilty”. If reasonable doubt exists, a defendant must be found to be “not guilty”.

endnotes

  1. The word “juror” is used throughout this paper. But, “The Extraordinary Fact As The Cynosure” Approach can, certainly, be applied by justices and judges (i.e. any finders of fact) in their case analyses, too.
  2. In civil lawsuits, as opposed to criminal prosecutions, it will be inherently more difficult for jurors to identify the “extraordinary” fact, because business matters, and, particularly, complex business matters, are not within the common experiences of the average juror, whereas criminal activities are more relate-able and occur within the parameters of daily life. This makes the use of “The Extraordinary Fact As the Cynosure” Approach to identify an “extraordinary” fact even more vital so that a juror in a civil lawsuit does not get lost in the “muck” of the case.
  3. While jurors and potential jurors (i.e. each respective state and county’s citizenry) must be educated on “The Extraordinary Fact As The Cynosure” Approach, whether it is the job or duty of the respective court to provide the necessary education would be a discussion point within legal communities, court systems, political parties, state legislatures, and societies, in general. 

 

“The Extraordinary Fact As The Cynosure” Approach™, Copyright 2018 Neil S. Siskind. All Rights Reserved. Copyright under Berne Copyright Convention, Universal Copyright Convention, and Pan-American Copyright Convention. No part of this paper may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, digital, mechanical, photocopying, recording, or otherwise, without prior permission of the author and publisher.

 

 

 

 

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