Discussion Week 5
Initial Post: Your initial post should be at minimum 250 words. Your initial
post should be up by Thursday.
In your post accomplish the
following: Briefly state whether you think the results of your personality
assessment were highly accurate, accurate, minimally accurate, or missed the
mark. Explain why you think that is. You want to frame your response in
terms of the content within Chapter 19. In brief, the discussion focuses on
categories and members of categories. Note how the questions in the
Getting Started Assignment are categories and the personality traits are
categories are well. What you don’t know is how those categories overlap.
For example, suppose you said you would feed the rabbit (this is the category
of all who would feed a rabbit) and your personality test said you were willing
to meet new people. If you thought it was accurate explain why you think that
is (and if inaccurate, explain why you think that is).
Reply to others: Reply to two students below. Each reply should be at
minimum 150 words. Challenge one or two of the explanations offered by
the student. Formulate it as either a deductive or inductive argument (please
label which one it is).
I found that my test result for my personality to be almost accurate.
Sometimes, I think I don't have a good understand of myself. Doing the test
can assist to know myself. I am usually curious and an individual always
delving into new areas, but often quickly becoming bored and moving on,
leaving unfinished projects in their wake. If it comes to mind, then I would do
it, such as learning to play piano, play guitar and so on. Before long, I felt
bored to stop learning. Therefore, I only know a little.
Chapter 19 talk about the four different categorical propositions and relating to
people. For example, the question about the rabbit walking in winter. I
answered that I would take a photo. I think it replied to my personality test.
That showed that I am forthcoming and direct. In fact, in many places, I
usually have a feeling which is a sense of shame and self-consciousness that
permeates every personal interaction. Once I got familiar with, there would be
no problem in communicating with each other.
overall, I think the statement of personality is almost accurate. In the work
place, I believe that I could do well if i am interested in.
I am not totally agreeing with the test result. According to the personally test, it
is said that I am a curious and an individual always delving into new areas,
but often quickly becoming bored and moving on, leaving unfinished projects
in their wake. It is truth that I am a curious person, I am curious about
everything and I would like to try new and different life. However, I am not
often quickly becoming bored and moving on, leaving unfinished projects in
their weak. On the contrary, when I start to do things, I always stick to the end
and never give up. I believe this analysis to be imprecise, because many
people like me are very curious, and they do things never give up, I think this
result is fallacy. The suppose said I would feed the rabbit (this is the category
of all who would feed a rabbit) and my personality test said I were willing to
meet new people. Actually it is not accurate, I do not like to make new friends.
Therefore, the suppose is not correct and this is the category of all who would
feed a rabbit cannot represent the people were willing to meet new
people. According to the another results of personally test that
I am forthcoming and direct. I don't generally have hidden agendas or ulterior
motives. I agree with this point that I don't generally have hidden agendas. I
believe honest and direct is good personality in daily life. I do not agree with
the result of test that I do well if I find jobs in which I can work on my own
terms. Because I am a poor self-control ability and I will not do well. This
suppose of people will do well if they find jobs in which they can work on they
own terms is not accurate, because it is can not represent everyone.
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Consider the Verdict
Bruce N. Waller
Youngstown State University
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Library of Congress Cataloging-in-Publication Data
Waller, Bruce N.,
Critical thinking : consider the verdict / Bruce N. Waller. — 6th ed.
ISBN-13: 978-0-205-15866-9 (alk. paper)
ISBN-10: 0-205-15866-8 (alk. paper)
1. Critical thinking. 2. Verdicts. 3. Logic. I. Title.
10 9 8 7 6 5 4 3 2
Student Edition ISBN-10:
À la Carte Edition ISBN-10:
Critical Thinking in Everyday Life
Seating a Jury
Jury Research: Eliminating or Selecting Bias?
Impartial Critical Thinking
Adversarial Critical Thinking
Cooperative Critical Thinking
2 A Few Important Terms
Premises and Conclusions
Deductive and Inductive Arguments
Deduction, Validity, and Soundness
Induction, Strong Arguments, and Cogent Arguments
3 Ad Hominem Arguments
The Ad Hominem Fallacy
Nonfallacious Ad Hominem Arguments
Ad Hominem and Testimony
Distinguishing Argument from Testimony
Tricky Types of Ad Hominem
Bias Ad Hominem
Inconsistency and Ad Hominem
Psychological Ad Hominem
Inverse Ad Hominem
4 The Second Deadly Fallacy: The Strawman Fallacy
The Principle of Charity
The Strawman Fallacy
Special Strawman Varieties
Limits on Critical Thinking
5 What’s the Question?
Determine the Conclusion
What Is the Exact Conclusion?
Relevant and Irrelevant Reasons
Premises Are Relevant or Irrelevant Relative
to the Conclusion
Irrelevant Reason Fallacy
The Red Herring Fallacy
Assumptions: Their Use and Abuse
The Burden of Proof
Who Bears the Burden of Proof?
Appeal to Ignorance
The Burden of Proof in the Courtroom
Presumption of Innocence
When the Defendant Does Not Testify
Juries and the Burden of Proof
Language and Its Pitfalls
The Fallacy of Ambiguity
10 Appeal to Authority
Authorities as Testifiers
Conditions for Legitimate Appeal to Authority
Popularity and Tradition
Cumulative Exercises One
(Chapters 1 through 10)
11 Arguments by Analogy
Deductive Argument by Analogy
The Fallacy of Faulty Analogy
Analyzing a Deductive Argument by Analogy
Deductive Arguments by Analogy and Cooperative Critical Thinking
The Fallacy of Analogical Literalism
Caution! Watch for Analogies That Look Like Slippery Slopes!
Inductive Arguments by Analogy
12 Some Distinctive Arguments and Potential
Pitfalls: Slippery Slope, Dilemma, and Golden
Separating Slippery Slopes from Straw Men
The Slippery Slope Fallacy
Genuine Slippery Slopes
Dilemmas, False and True
False Dilemma Combined with Straw Man
Consider the Possibilities
The Golden Mean Fallacy
Constructing Golden Mean Fallacies
13 Begging the Question
The Problem with Question-Begging
A New and Confusing Use of “Begs the Question”
Subtle Forms of Question Begging
Synonymous Begging the Question
Generalization Begging the Question
Circular Begging the Question
False Charges of Begging the Question
Cumulative Exercises Two
(Chapters 1 through 13)
14 Necessary and Sufficient Conditions
Distinguishing Necessary from Sufficient Conditions
Necessary and Sufficient Conditions in Ordinary Language
Alternative Ways of Stating Necessary and Sufficient Conditions
Both Necessary and Sufficient
Valid Inferences from Necessary and Sufficient Conditions
Fallacies Based on Confusion between Necessary and Sufficient
The Fallacy of Denying the Antecedent
The Fallacy of Affirming the Consequent
Detecting Argument Forms
15 Scientific and Causal Reasoning
Distinguishing Causation from Correlation
The Questionable Cause Fallacy
The Method of Science
Randomized Studies and Prospective Studies
When Predictions Go Wrong
Faulty “Scientific” Claims
Scientific Integrity, Scientific Cooperation, and Research
16 The Truth, the Whole Truth, and Nothing but the Truth
Potential Sources of Eyewitness Error
Judging the Honesty of a Witness
The Whole Truth
Are the Premises True?
Digging for Truth
Consider the Source
Cumulative Exercises Three
(Chapters 1 through 16)
17 Thinking Critically about Statistics
All Children Are Above Average
Finding the Appropriate Context
Caught Off Base
Statistical Apples and Oranges
Sample Size and “Statistical Significance”
How to Make Your Study Yield the Results You Want
18 Symbolic Sentential Logic
Testing for Validity and Invalidity
The Truth-Table Method of Testing for Validity
The Short-Cut Method for Determining Validity or Invalidity
19 Arguments about Classes
Types of Categorical Propositions
Relations among Categorical Propositions
Translating Ordinary-Language Statements into Standard-Form
Reducing the Number of Terms
Consider Your Verdict
Comprehensive Critical Thinking in the Jury Room
State v. Ransom
Judge Schwebel’s Summation and Charge to the Jury
Answers to Selected Exercises
Critical thinking is a valuable skill: whether you are deciding which courses to take or
career to pursue, what toothpaste to use or what stocks to buy, which candidate to vote for
or which cause to support, which reports to believe or what claims to reject, critical thinking can be very useful. One of the most important places for careful critical thinking is the
jury room. Serving on a jury is one of the most significant and basic ways that citizens
actively participate in their government, and jury service makes strong demands on citizen-jurors. Jurors must set aside any biases and judge the issues fairly; they must reason
carefully about what laws are involved and how those laws apply to the specific case at
hand; they must evaluate testimony and weigh both its accuracy and its relevance; and
they must give a fair hearing to both sides, distinguish sound from erroneous arguments,
and ultimately reach a just and reasonable conclusion. The courts offer fascinating cases
for examination and analysis, and the courts have long grappled with many of the key
issues in critical thinking: questions about burden of proof, legitimate analogies, distinctions between relevant and irrelevant reasons, question-begging arguments and unfair
questions, the weighing of testimony (including expert testimony and appeals to expert
authority), the distinction between argument and testimony, the legitimate and illegitimate use of ad hominem arguments.
The courtroom demands a high level of critical thinking skill, and it is also a fascinating place for studying and developing the key skills of critical thinking: determining exactly
what the conclusion is, and who bears the burden of proving it; separating false claims from
reliable information; setting aside irrelevant distractions and focusing on the question at
issue; and distinguishing between erroneous and legitimate arguments. The skills that
make you an effective juror will also make you an intelligent consumer, an effective planner,
and a wise citizen.
The sixth edition of Critical Thinking: Consider the Verdict uses the jury room as the
focus for developing basic critical thinking skills, but it does not stop there. Those skills
are also applied to the various arguments and issues that arise in our daily lives as
consumers, students, planners, and citizens. While the courtroom and the jury room are
valuable laboratories for learning and testing and applying critical thinking abilities,
those abilities must also be exercised when reading editorial columns, debating social
issues, making intelligent consumer choices, working effectively at a career, and
fulfilling one’s responsibilities as a thoughtful critical citizen of a democracy. Thus, most
of the exercises and examples are drawn from advertisements, social debates, political
campaigns, editorials, and letters to the editor. Critical thinking skills are valuable in the
jury room, but they are also valuable in the classroom, the boardroom, the laboratory,
and the grocery store.
Critical thinking is often regarded as an adversarial process, where the stronger
arguments triumph over the weaker. Adversarial critical thinking is common and is often
valuable: Cases in court usually proceed through an adversarial process, and that can be
a useful way of bringing out both strong and weak points in the arguments presented. But
not all critical thinking follows the adversarial model, and the sixth edition of Critical
Thinking: Consider the Verdict gives careful attention to the contexts when cooperative critical
thinking may prove particularly useful. Several factors enhance effective cooperative
critical thinking, and several argument fallacies are especially damaging to a cooperative
critical thinking process. Both the promise and the pitfalls of cooperative critical thinking
are examined in this new edition.
The sixth edition of Critical Thinking: Consider the Verdict contains a number of important changes and additions.
• Extensive new discussion of cooperative critical thinking (as distinguished from adversarial
critical thinking), and examination of its special strengths and the contexts in which it is
• New and updated exercises and examples in every chapter.
• A new section on definitions, including examination of misleading definitions.
• Extensive new material on statistical fallacies and deceptions.
• A new section on the importance of scientific integrity and scientific cooperation.
• Additional new exercises in the special-review sections (the sections of cumulative exercises).
Critical Thinking: Consider the Verdict, sixth edition, provides a solid introduction to critical
thinking; Chapters 18 and 19 offer introductory instruction in symbolic logic. Those two
chapters are self-contained, and you may do either or both at any point in the course, or
skip them altogether. The boxed exercises and examples throughout the text are not
essential to understanding the chapters, but they do present interesting material and
challenging questions. You can skip them, but you’ll miss a lot of the fun.
Support for Instructors
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Instructor’s Manual with Tests (0-205-15875-7): For each chapter in the text, this valuable
resource provides a detailed outline, list of objectives, and discussion questions. In addition, test questions in multiple-choice, true/false, fill-in-the-blank, and short answer formats are available for each chapter; the answers are page referenced to the text. For easy
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I have received help and encouragement from many quarters. The first edition of the
book was completed while I was teaching at Elon College, and my colleagues and students
there were generous in their support and aid. John G. Sullivan read several drafts of the
book, and provided insightful, challenging, and constructive criticism—while making my
work environment congenial and refreshing, and vastly extending my intellectual horizons. Anne Ponder read early drafts of several chapters, and her comments and criticisms
were invaluable. Barbara Plumblee was wonderfully patient in convincing my computer
to cooperate with me. Tom Henricks offered much excellent advice and many words of
encouragement, while regularly thrashing me at tennis. Teresa LePors, the omniscient
reference librarian, found the answer to every question I posed. Gayle Fishel helped
tremendously with design and structure of the book and suggested ingenious ways of
organizing examples. Lillian Pollock was astoundingly efficient in the laborious task of
securing permissions to reprint.
George N. Schlesinger encouraged me to write the book, gave helpful guidance
throughout, and contributed delightful examples. Allen Belsheim read the entire manuscript of the first edition, and made excellent suggestions for improvements.
All the later editions have been completed while teaching at Youngstown State
University, and my colleagues at YSU have built a wonderful collegial working environment.
Tom Shipka’s enthusiasm for the project has been constant, and as a remarkably efficient
department chair he smoothed my path in innumerable ways. Since my misfortune of
becoming department chair (following Tom’s retirement), Tom has been a generous and
wise source of counsel. Brendan Minogue, Charles Reid, Larry Udell, Stephanie DostBarnhizer, Jeff Limbian, Andrew Stypinski, and Martina Haines have used the book in their
classes, and their suggestions for improvements have been particularly useful. The YSU
reference librarians answer all my questions and make it look easy. Our student workers,
Hannah Detec, James Hamilton, and Gina Ponzio, have provided cheerful help on many of
the exhausting details. Our department secretary for several years, Joan Bevan, was remarkably efficient and unfailingly cheerful; I owe her a special debt for making my first years as
department chair run so smoothly. Mary Dillingham, one of the few people in the world
worthy of replacing Joan, has carried on a great tradition of efficiency and dedication; she
is the essential element in the smooth functioning and congenial atmosphere of the department. Many other friends and colleagues at YSU have given aid and advice, and have been
generous in both intellectual stimulation and warm friendship; special thanks to Nawal
Ammar, Chris Bache, Cynthia Brincat, Walter Carvin, Vince Lisi, Sarah Lown, Mustansir
Mir, Deborah Mower, Bernie Oakes, Dan O’Neill, Gabriel Palmer-Fernandez, Mark Shutes,
Charles Singler, Donna Sloan, Linda “Tess” Tessier, Alan Tomhave, Mark Vopat, Homer
Warren, Victor Wan-Tatah, and Robert Weaver.
My students at Youngstown State University have been of enormous help in the
preparation of the later editions. They have been kind enough to point out—often with
admirable candor—the flaws and difficulties of earlier versions; but of even greater
benefit has been their enthusiasm for the book: the times they have told me of actually
enjoying the reading of a textbook and sharing the book with their friends and families,
their fascination with many of the exercises, and most of all their reports of successful
analyses of deceptive advertisements, of political speeches, and of attorneys’ arguments
during subsequent jury duty. A number of students brought me examples from their own
reading and experience, and many of those examples are incorporated into the later
My friend Jack Raver has frequently been helpful as a computer consultant, and is
one of the most enthusiastic, energetic, and joyful arguers I have ever encountered. Lia
Ruttan has been a wonderful source of fascinating cases and examples, particularly from
the Canadian courts. Richard White has given me many very helpful ideas, especially in
the area of cooperative critical thinking in special courts. Lauren Schroeder and Fred
Alexander have been particularly helpful on arguments and issues related to politics and
Special thanks to all the wonderful people who helped in putting together the
photographs for the cover and to accompany the exercises: Judge Lou D’Apolito who
allowed us the use of his courtroom; two fabulous photographers, James Evans and Carl
Leet; Gabriel Palmer-Fernandez and Deborah Mower, who played the roles of attorneys;
Homer Warren, who looked wonderfully judicial; and all the jury members (many of
whom are current YSU students, together with my long-suffering sons and lovely daughterin-law)—Russell Waller, Adam Waller, Robyn Repko Waller, Zach Robbins, Cary Dabney,
Amanda Benchwick, Sarah Lowry, Rebecca Soldan, William Soldan, Gary Davenport,
Heather Carbon, and Mary Dillingham.
I also benefitted from thorough and insightful review of this edition by Victoria
Rogers, Indiana University–Purdue University Indianapolis; Eli Kanon, University of
North Florida; Glenn Sanford, Sam Houston State University; Jean Miller, Virginia Tech;
Chris Cayton, Portland Community College and from excellent suggestions made by
reviewers of earlier editions: Richard McCarty, Michael A. Principe, and Joan Esposito.
My editors at Pearson, Nancy Roberts and Kate Fernandes, have been everything any
author could ask for in editorial guidance and cooperation: it has been a genuine pleasure to work with them. Shiny Rajesh, the project manager for this edition, is meticulous,
professional, and unfailingly cheerful, and she smoothed the path of taking the book
from rough draft to finished text.
My wife, Mary, has advised on every aspect of the work, made many suggestions for
exercises and improvements, and her constant affection and support have been invaluable.
My sons, Russell and Adam, have read sections of the book, discussed many of the examples
with me, offered valuable suggestions, and have been the great joys of my life.
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Listen to the Chapter Audio on mythinkinglab.com
You evaluate arguments and assertions every day: when choosing your breakfast cereal,
evaluating reports on the effects of the caffeine in your coffee, reading your morning
paper, deciding how to cast your vote. And occasionally you will consider arguments while
serving on a jury. In the performance of your jury duty you will be expected to weigh
evidence, consider competing arguments, reason carefully, and decide impartially. Some
of your fellow jurors may disagree with your conclusion, so you must be able to evaluate
their arguments and argue cogently for your own conclusions. So as we practice critical
thinking, we’ll examine a wide variety of courtroom and jury arguments: arguments that
are interesting, important, and instructive. But we’ll also study political arguments,
advertisements, scientific claims, and a wide variety of other contexts where critical thinking
skills are valuable.
CRITICAL THINKING IN EVERYDAY LIFE
This book pays close attention to jury deliberation, but it is not exclusively or even primarily concerned with courtroom reasoning. Jury deliberation is profoundly important,
but it is only a tiny fraction of the critical reasoning you must do. Every day you are bombarded with advertisements, and to find any helpful substance in them you will have to
critically winnow out masses of chaff. You are a citizen in a democratic society, and thus it
is your responsibility to carefully and rationally evaluate the policies and programs of your
local, state, and federal government and to vote intelligently (and perhaps campaign) for
the candidates you consider most capable. You encounter advertisements, the evening
news, news magazines, opinion journals, scientific reports, editorials, textbooks—all
making claims that are sometimes contradictory and sometimes slanting the material
presented. Sorting these out, distinguishing fact from speculation, and weighing competing theories and interpretations require the same reasoning skills that are required of
an effective and responsible juror.
The subject of this book is critical reasoning in all its applications. The only way to
be effective at jury reasoning is to be good at reasoning, and good reasoning requires
practice. It is not something that can be turned on and off like a politician’s charm. Critical
thinking cannot be hoarded for use exclusively in the jury room. Use it or lose it.
A Strong-Willed Jury
In New South Wales, a defendant was charged with the
theft of several cows. The jury finished their deliberations, and returned to the court with this verdict: “Not
guilty, if he returns the cows.” The judge was outraged,
and ordered the jury back for further deliberations.
The jurors, deeply offended, soon returned with a
new verdict: “Not guilty, and he doesn’t have to return
The first requirement for examining arguments intelligently—whether as a voter, a consumer, a reader, or a juror—is to be fair in your evaluations. Bias and prejudice close minds
and stifle critical inquiry; the first task in good critical reasoning is to eliminate such bias.
At some point you will be in the jury box, and before the jury is impaneled you will be
asked a few questions: perhaps by the judge; by the district attorney, and by the defense
counsel if it is a criminal case; by lawyers for the plaintiff (the person suing the defendant)
and for the defendant in civil suits. The idea is to seat a fair and impartial jury. This process
is called the voir dire. (Voir dire is French, meaning “to see, to speak.” However, voir is a
corruption of the Latin verus, meaning “true”; thus the original meaning is “true talk.”2) The
voir dire process is supposed to detect any bias or narrowmindedness among potential jurors.
If the defendant is your lover, or if you will lose money if the plaintiff wins, or if the
defendant recently ran off with your spouse, then it might be more difficult for you to
remain completely impartial in considering the case. If from reading newspaper reports
you have formed an unshakable conviction concerning the guilt or innocence of the
accused, you will not be an open-minded juror.
Philadelphia Assistant District Attorney Jack McMahon
advises rookie prosecutors on selecting a jury:
My opinion is you don’t want smart people [on
the jury]. Because smart people will analyze the
hell out of your case. They have a higher standard.
They hold you up to a higher standard because
they’re intelligent people. They take those
words “reasonable doubt” and they actually try
to think about them. You don’t want those people. You don’t want people who are going to
think it out.3
SEATING A JURY
How far should the voir dire process go? That question is raised by the increased use of jury
selection specialists, who use sophisticated techniques in an effort to discover which jurors
are most likely to favor which side. A defendant being charged with drunken driving might
wish not to seat a teetotaler or a juror whose child was recently killed by a drunk driver. But
not all cases are so obvious. For example, in the famous trial of the “Harrisburg Seven” in
1971–1972 (in which Philip Berrigan and six other antiwar activists were charged by the
federal government with conspiring to kidnap Henry Kissinger and blow up heating tunnels
in Washington, D.C.), a group of social scientists did extensive research on the attitudes of
the population around Harrisburg, Pennsylvania, from which the jury pool would be drawn.
They discovered important information for the defense. For example, while one might
expect college-educated persons to be sympathetic to the antiwar defendants, that was not
the case in Harrisburg. As Jay Schulman, who directed the research, states, “Contrary to what
our lawyers expected, college-educated people were not likely to be liberal in Harrisburg.
Liberal college graduates, it seems, leave Harrisburg for other places, and those who stay
support conservative norms.”4 Thus the defense was alerted to be cautious of college graduates.
(That does not mean that in 1972 all college graduates in Harrisburg were conservatives.
It means only that Harrisburg college graduates were more likely to be conservative, and thus
more likely to be unfavorably disposed toward the defendants.)
Jury Research: Eliminating or Selecting Bias?
Is the use of social scientists to investigate potential jurors a good thing? It is certainly
legal, but that is not the question. Does it make a fair trial more likely, or does it subvert
justice by unfairly “stacking” the jury? That is a hotly contested issue. Opponents of jury
selection specialists claim that they rig juries to reach verdicts on the basis of the jurors’
biases rather than on the basis of the evidence and the arguments. Those who favor the
use of social scientific research during voir dire claim that it is essential in order to avoid
seating prejudiced jurors who cannot weigh the case fairly. After all, prejudiced jurors
cannot always be exposed simply by asking a few questions during voir dire. (Suppose a
potential jury member is asked by the lawyer for a black defendant: “Do you know of any
reason why you cannot consider this case honestly and fairly?” The potential juror is not
likely to respond: “Yes, I do; I have an irrational prejudice against blacks.” In fact, those
who are prejudiced are often unwilling to admit their prejudice even to themselves: “No,
I’m certainly not prejudiced against blacks; why, some of my best friends are black; I just
don’t want them moving into my neighborhood.”) Detecting biased and unfair jurors is
not an easy task. Not every prejudiced person has beady eyes and wears a hood.
There are obviously some serious problems in current methods of jury selection.
Procedures that exclude certain segments of the population—for example, systematically
excluding blacks from criminal juries through use of peremptory challenges—are unfair.
Such abuses are too frequent and are sometimes systematic.
Baseball and Juries
Bert Neuborne, legal director for the American Civil
Liberties Union, claims that in New York City during the
1950s (when New York had three major league baseball
teams—the Yankees, the Dodgers, and the Giants), lawyers
used a quick and easy method for selecting jury members:
Yankee fans, the defense dismissed; Dodger
fans, the prosecution dismissed. Giant fans were
acceptable to both sides because, Neuborne
says, they were “the only reasonable people
As Neuborne tells it, attorneys needed only one
question: “What baseball team do you root for?”
A handbook used in 1973 in Dallas County, Texas, gives the following instructions for
criminal prosecution attorneys:
You are not looking for a fair juror, but rather a strong, biased, and sometimes hypocritical
individual who believes the Defendants are different from them in kind, rather than degree; you
are not looking for any member of a minority group which may subject him to oppression—
they almost always empathize with the accused.6
But it is essential in a fair trial that at least some members of the jury be able to empathize
with the accused. Imagine how you would feel as a criminal defendant if all members of
your race or ethnic group or political party or religion or socioeconomic group were
systematically excluded from the jury that tried your case: It would hardly be a “jury of
Keeping Women in the Kitchen, on the Pedestal, and off the Jury
them (in some areas, they are still upon a
pedestal) from the filth, obscenity, and noxious
atmosphere that so often pervades a courtroom
during a jury trial.
In 1966, the Mississippi Supreme Court (in State v. Hall,
187 So.2d 861) ruled that women could legally be
excluded from Mississippi juries, for these reasons:
The legislature has the right to exclude women
so they may continue their service as mothers,
wives, and homemakers, and also to protect
In short: It’s for your own good, girls.
IMPARTIAL CRITICAL THINKING
The point of this chapter is that in your deliberations you must try to approach the case
with an open mind, free of bias and favoritism. There will be those who wish to exploit
your fears and prejudices and preconceptions: unscrupulous advertisers who play on our
fears of social stigma to sell us overpriced and often unnecessary “remedies” for bad
breath, body odor, and the terrors of “flaking and itching”; politicians who pander to our
fears to sell us dubious foreign policies; and lawyers who hope that prejudices will substitute for arguments. It requires constant vigilance to avoid substituting our biases for
rational reflection, but it is essential to do so if we are to reason well—in the jury room
and the laboratory and the marketplace and the voting booth.
It is natural to feel a special sympathy with those who have similar goals and interests. Thus if you are a feminist liberal arts major at the old home state university, you may
feel predisposed toward a defendant who is a feminist liberal arts major at the same
school. That may be a natural tendency, but it is not a fair one. There may be some rotten
apples even among the feminist liberal arts majors at state university, and the defendant
may be one of them. It may also be difficult to be fair and impartial toward a defendant
who is your exact opposite: a hard-nosed businessman who thinks the arts are a waste of
time and that a woman’s place is in the home. You may not feel sympathetic toward such
an individual, and you wouldn’t want to be stuck with him at a small dinner party. But if
you are to consider the issues clearly, you must try to set aside that distaste. The issue is
the person’s guilt or innocence of some specific charge, and that has nothing to do with
whether you like or dislike the defendant.
The same objectivity is required as you listen to the lawyers in the case. The district
attorney may be a pompous ass and the defense attorney a great human being. That is
irrelevant to which side has the stronger case, and you must set aside such personal likes
The Courtroom Is Not a Singles Bar
Ideally, jurors should start from a presumption of innocence, but without any bias for or against the defendant;
and try to remain neutral until all the evidence is heard.
One Canadian juror, Gillian Guess, failed to maintain
that neutrality. During the course of a murder trial in
which she served as a juror, she began sleeping with the
defendant. She was later sentenced to 18 months in
prison for obstruction of justice.
and dislikes in order to deliberate justly and accurately on the merits of the argument.
Difficult as it may be, it is vitally important to separate argument sources and styles from
ADVERSARIAL CRITICAL THINKING
Critical thinking is a useful weapon. People sometimes speak of skill in critical thinking as
“verbal self-defense,” or learning “how to win arguments.” And since you are daily bombarded with arguments from advertisers and politicians, and often by arguments
designed to deceive rather than enlighten you, learning how to protect yourself against
misleading claims and flawed arguments is a very valuable skill. Effective argument and
the effective critical analysis of argument can also serve a more positive function. Under
the adversarial system of justice—practiced in Great Britain, the United States, Canada,
Australia—lawyers on either side present arguments, and from that tough argumentative
contest the truth emerges: or at least, such a struggle, when it functions well and both
sides are represented by honest and skillful advocates, is often our most effective means
of seeking the truthful outcome. From the local courthouse to the Supreme Court, both
sides present their strongest arguments and probe for weaknesses in their opponents’
arguments, and—if all goes well—from this contest the truth eventually emerges.
In some ways science is also an adversarial system. Scientists present their theories
and the evidence in their support; and other scientists challenge those theories and seek
evidence to refute them. Karl Popper, one of the great twentieth-century philosophers of
science, saw this as the basic method of science: present bold theories, expose those
theories to scrutiny and criticism from scientific adversaries, and through this method we
develop better theories. Indeed, Popper thought that often the best scientific work was
done when strong theoretical conjectures were refuted by powerful opposing arguments.
A similar process often occurs in philosophy: Philosophers present their theories and
arguments, and those theories and arguments are subjected to examination and criticism—criticism that often finds flaws in the proposed theory and results in better theories
and better arguments.
The contest between adversaries—whether in the courtroom, the laboratory, or the
philosophy seminar—is often a valuable method for seeking better theories and finding
the truth. But the adversarial process is not a no-holds-barred, eye-gouging, ear-biting,
anything goes brawl. Or at least, it should not be, and—when it works effectively—it is not.
To the contrary, for the adversarial process to work well, it is essential that both sides play
fair and behave respectfully. Sadly, the adversarial system does not always function well;
and when it does not, that is usually because one or both sides have corrupted the
process, and the contest is not fair. Suppose you have a small software development company, and you have developed a really innovative program that is a big improvement in
some area of computer use, and that is likely to be very profitable for your company.
A software giant comes in and steals your innovation, and sells it as their own. You hire a
lawyer and sue the company that stole your product; and in a fair adversarial process, the
evidence will come out, both sides will present their cases and their arguments, and you
will win your case and recover damages. But the software giant has enormous funds at its
disposal, while you have very little money. If their lawyers file motion after motion and
cause one delay after another, then the legal costs for both sides will become enormous—
costs the large corporation can easily afford, but costs that soon take all your money and
force you to drop the suit. That sort of tactic destroys the effectiveness of the adversary
system. Or suppose you are a poor person who is charged with a capital offense, such as
murder. You cannot afford an attorney, so the state will appoint one for you. Unfortunately, in some cases, the state appoints a defense attorney for you who is grossly incompetent: in Texas, there have been several cases in which defendants were “represented” by
attorneys who showed up drunk, or who actually slept through much of the trial. When
one adversary is impaired or incompetent or asleep, it is hardly surprising that the
“adversary system” fails to function properly (and it is hardly surprising that a number of
criminal convictions in Texas have been overturned by later tests of DNA evidence). As
Samuel R. Gross states, “The American system of adversarial justice is predicated on the
assumption that both sides are competently represented and have adequate resources to
present their cases. That assumption is often false.”7
And, of course, there are other ways the adversary system can go wrong: if the jury
is racially prejudiced, or the judge is biased, or the evidence is falsified, or a juror is
bribed, then the adversary system cannot work well. But that is not because the adversarial process is flawed, but because one or both of the adversaries break the rules. A baseball contest is a good way of determining which team is actually better—but not if one
side bribes the umpire, and not if one side can afford top quality equipment while the
other side uses equipment that is falling apart. The adversarial process can also work well
in science, but that requires that the adversaries play by the rules. If someone falsifies
research, or covers up adverse results, then the scientific adversarial process can break
down: just as the adversarial process breaks down in criminal trials when there is perjured
testimony or one side has an incompetent attorney, and just as civil adversarial processes
break down when one side subverts the system by expensive delaying tactics.
For the adversarial process to work well, both sides must play by the rules. That is
hardly surprising: it is true of almost any contest. A football match is a good way of determining which team is superior— but not if the referee is bribed, or the star player on one
team has been paid to throw the game. But for the adversarial process to work at its best,
more is required than simply adhering to the rules; in addition, both sides must be
respectful of their opponents and of the process itself. When civility breaks down, the
adversarial process suffers. That doesn’t mean that the adversaries should be less energetic in their efforts to present the strongest case possible, and to find and exploit the
weaknesses in the positions of their opponents. But such efforts should be consistent with
being respectful toward one’s opponent. The importance of respect and civility in the
adversarial process is perhaps best observed in the British courts. There is a long and
glorious tradition of debate and adversarial contest in the British courts; and it is there
that the importance of civility and personal respect is quite clear; indeed, sometimes the
tradition of civility is so strong it seems almost quaint. As the judge enters the courtroom,
all present rise to show respect: a tradition that is found in many courts, following the
British model. But in the British courts, the judge then bows to the barristers, the barristers bow to the judge and to each other. Barristers address one another as “my learned
friend,” and when one barrister rises to make an objection, the other immediately sits
down; when the barrister has made his or her objection, the opposing barrister may then
rise and offer arguments in response to the objection; but they would never stand and
both talk at once. Remarks addressed to “the learned judge” are often preceded by “if
your Lordship (or Ladyship) pleases.” The barristers and the judge all wear white wigs
and gowns, and with all the bowing and the very formal address—“My learned friend
appears to have forgotten the evidence given this morning; perhaps I might refresh his
memory”—may appear quaint; and indeed, if you ever have a free day in London, a visit
to the Central Criminal Courts is wonderfully entertaining, and a better show than the
changing of the guard at Buckingham Palace. But quaint and a bit old-fashioned as this
elaborate formal courtesy may appear, it serves a very important function in the British
adversarial system. It is a powerful reminder that the advocates must present their best
arguments, and be zealous in looking for flaws in the opposing arguments; but that such
a process need not and should not involve attacks on the person giving the arguments.
And if the process is to work well, both sides must be attentive to opposing views, and
neither distort nor misrepresent them in attempting to refute them. The elaborate courtesy and deep tradition of civility is not merely a quaint British tradition; instead, it is a
vital element of an adversarial process that functions well, and that is genuinely interested
in seeking the truth. Anyone who remembers or has seen clips of the O.J. Simpson
criminal trial will recall the constant sniping and insulting and bickering between the
prosecution and the defense; and it is clear that the atmosphere of incivility and hostility
was a burden on the entire trial process. Whatever one thinks of the outcome, the nasty
atmosphere and personal animosity in evidence at the trial—not to mention the media
circus—made it difficult for anyone to feel confident that justice had been done.
Sometimes civility is strained, but the forms are generally maintained in the U.S. Senate:
“Will the gentleman yield for a question? Will the gentle lady allow a comment?” In an era
of political grandstanding, it seems almost quaint, like the wigs and the robes worn by
the barristers (lawyers) and judges. But this elaborate courtesy also serves an important
Cooperative Critical Thinking
Adversarial critical thinking —when both sides play fair and play nice—can be a very valuable way of finding the truth and testing theories and trying out ideas: valuable in determining guilt or innocence in the courtroom, valuable for testing theories in the sciences,
valuable for trying out new ideas and examining old beliefs in dorm room debates. But
valuable as adversarial critical thinking is, the adversarial approach is not always best.
Cooperative critical thinking is also valuable, and in some contexts is much more useful.
Consider some rather homely examples of effective cooperative critical thinking, offered
by legal scholar and legal ethicist Carrie Menkel-Meadow:
. . . consider two sisters, who both seem to be fighting about a single orange, when one really
desires the fruit for eating and the other the rind for cooking. Or, from my own personal
experience, when, with a single piece of chocolate cake left, I wanted the icing (frosting) and
my brother desired the cake, demonstrating that a horizontal, rather than a vertical, cut of
the cake would maximize both of our desires. . . . 8
Obviously not all problems yield such neat cooperative solutions; but by focusing on
finding common grounds and shared interests, it is often possible to reach a conclusion
in which no one loses, and everyone comes away satisfied. Notice that the solutions
gained through cooperative critical thinking are not always compromises. In the example
above, Carrie and her brother might have reached a compromise by splitting the piece of
chocolate cake in half, leaving neither very satisfied; by considering carefully what each
really desired, and how those desires could best be met, they found a solution that met
the goals of both.
Carrie wanted frosting, and her brother wanted cake. By considering the problem
cooperatively, they found a solution that worked for both of them. That brings out the
crucial first step in effective cooperative critical thinking: getting clear on exactly what
goals are in play. Getting clear on the goals is vital, but it isn’t always easy. Carrie wants the
piece of chocolate cake, and so does her brother. But in fact, that’s not quite accurate.
Carrie wants the chocolate frosting, while her brother wants the chocolate cake. Only by
examining more critically their actual goals can cooperative critical thinking be successful. Of course, sometimes the goals are basically incompatible: Her brother wants to eat
the entire piece of chocolate cake, frosting and all; and Carrie wants to eat the entire
piece of chocolate cake while her brother watches and suffers, because she is angry at him
for reading her diary. But perhaps even then careful consideration of goals can result in
a favorable outcome for everyone: what Carrie really wants is an apology from her
brother, and for her brother to understand that such an invasion of personal privacy is
wrong, and a commitment that he won’t do it again. In that case, it’s not impossible that
both might have their real wishes fulfilled. But again, that requires looking very carefully
at what their real goals are: in her justifiable anger at her brother, she desires to get even
with him; getting beyond that anger, and thinking carefully, she may gain a clearer
understanding of what her own desires really are.
Adversarial critical thinking is often beneficial, but in the case of the chocolate cake
cooperative critical thinking is likely to prove more helpful. In an adversarial contest, the
arguments would probably turn on questions of fairness: who got the last piece of the last
cake, who ate the most of this cake, who asked for the piece of cake first. Such arguments
might eventually lead to a result, especially if mom is acting as judge and jury. But the
loser is likely to feel resentful, and the winner may not get what he or she really wants:
Carrie’s brother gets the cake, but he has to eat through all that frosting to get to the part
he really likes. The cooperative solution would have been better for everyone, including
the winner of the adversarial contest.
The benefits of cooperative critical thinking are not limited to settling sibling
disputes over a last piece of chocolate cake. The legal community has come to recognize
that while the adversarial system is often a good way of resolving conflicts and finding
truth and protecting individual rights, it works better in some settings than in others; and
in those other settings, cooperative critical thinking has proved its worth. In the traditional adversarial divorce proceeding, lawyers for both sides battle to win everything they
can for the party they represent: the house, the bank accounts, the retirement accounts,
the dog, the kids. If I can get 100% of the bank accounts for my client, then I am a more
successful and satisfactory adversarial advocate than if I only get 60%; and if I can get sole
custody of the kids for my client, then that’s a better adversarial outcome than joint
custody. But is that really the best outcome? Assuming that both parents love their
children, and are reasonably good parents, that is very unlikely to be the best outcome for
the children. In fact, it is unlikely to be the best outcome for my client, when my client
steps back from the adversarial conflict and carefully considers what he or she really
wants: because what my client is likely to want most of all is an outcome that is best for the
children, the children who are loved by both my client and my client’s former spouse.
Thus in many areas—particularly in domestic disputes involving children—courts have
set up special alternative ways of handling conflicts and problems. Rather than adversarial procedures, these alternatives are likely to involve cooperative processes, often with
the help of counselors.
In adversarial critical thinking, my goal is to present my own position in its most
favorable light, probe your argument for weaknesses, reveal the flaws in your views, and
establish my position and my arguments as superior: and to the victor, the spoils. In
cooperative critical thinking there is still serious sustained inquiry, but the goals are
different. Rather than trying to find weaknesses in your position, I am trying to find ways
in which our positions can be reconciled. And rather than trying to gain all the spoils for
myself, I am seeking a way that everyone can benefit. Which form of critical thinking is
better? That’s not a very helpful question: it’s like asking which game is better, chess or
tennis. They are quite different, and both are very useful in different contexts and for
Adversarial and cooperative critical thinking are quite different methods of thinking critically; but to practice either method effectively, two things are essential. First,
whether the process is adversarial or cooperative, the most important step is being clear
and precise on exactly what is at issue, what is the question. If you are evaluating an argument, you cannot begin to determine whether that argument is good or bad until you
know what the argument is supposed to be proving. An argument that establishes that
coal is a plentiful and cheap source of energy will be useless if the real issue is whether
burning coal increases the danger of global warming. Consider an argument that Jane
might have murdered Allen, that we cannot rule Jane out as a suspect in the murder: that
argument will be useful if the question is being discussed by detectives investigating the
murder; however, it will be useless if the district attorney presents the same argument to
the jury in Jane’s murder, where the question at issue is whether there is proof beyond a
reasonable doubt that Jane did the foul deed. And if we are thinking cooperatively about
where we should go to dinner, it’s important that we each consider what our goal really is:
is my main concern to save money, or eat healthy, or make my ex jealous by being seen
with my new lover. So adversarial or cooperative, the vital first step in successful critical
thinking is being clear on exactly what is at issue.
There is a second important element to good critical thinking, useful whether the
context is adversarial or cooperative: be respectful to others. Whether the process is adversarial or cooperative, good critical thinking is best accomplished in an atmosphere of
respect and civility. That is obvious enough when we are dealing with cooperative critical
thinking: after all, cooperative critical thinking can hardly flourish in an atmosphere of
distrust and disrespect. But it also applies, and is just as important, when the critical thinking process is adversarial. An attack on your opponent’s character, or distortion and
misrepresentation of your opponent’s arguments and position, is unlikely to succeed in
convincing that person of the wisdom of your arguments. And if your goal is to uncover
the truth through this adversarial contest, then defaming your opponent and misrepresenting your opponent’s arguments are not promising procedures. Of course if you are
not in pursuit of truth, but instead want to bluster and swagger—the sort of thing you can
hear any day on talk radio—then abuse and distortion are excellent for your purposes.
But such slogan-shouting “argument” rarely qualifies as thinking, much less critical thinking.
Both adversarial and critical thinking are useful in many contexts. If the family is
deciding where to go on vacation, then—so long as the atmosphere remains cordial—
adversarial critical thinking may be a useful way of carefully and critically examining each
of the options under consideration. A cooperative approach could also work, of course,
with careful consideration of all the interests and desires that are in play, and a cooperative effort to find a destination that satisfies everyone’s real preferences.
In criminal court proceedings, the style of argument is generally adversarial; in
domestic court, cooperative procedures may be in place. What about in the jury room?
Suppose we are members of the jury in a criminal case: the defendant has been charged with
burglary, we have heard the evidence and the arguments and the judge’s instructions to the
jury, and now we have arrived in the jury room to consider our verdict. Will our deliberative
process be adversarial or cooperative? In most movies and dramas about juries, the style of
argument is clearly adversarial. Perhaps the most famous dramatic re-creation of jury
argument was the film Twelve Angry Men, starring Henry Fonda. The film is a bit dated—
thankfully, few juries are now made up exclusively of men—but it clearly shows an adversarial
argument within the jury room: some jurors argue the case for conviction, while others argue
for acquittal; they present their best arguments, and attempt to refute the arguments of the
other side. But while real juries often use adversarial critical thinking to reach their verdict,
others adopt a more cooperative approach. Two leading researchers on juries, Neil Vidmar
and Valerie P. Hans, contrast the “verdict-driven” approach (which is more adversarial) to the
“evidence-driven” style of deliberation (which is more in line with the cooperative):
Once the leader is chosen, the jury embarks on deliberating about the case. They begin in
different ways; their choice of how to begin can relate to the jury’s ability to reach a verdict.
Some juries start by taking a formal vote, either through a show of hands or a secret ballot. In
one approach, labeled the “verdict-driven” deliberation, jurors then align themselves with
those who are on the same side and talk about the evidence that supports the verdict favored
by their faction. In verdict-driven deliberations, polling tends to be frequent.
In contrast, in an “evidence-driven” deliberation, jurors tend to embark on a general
discussion of the testimony, the facts, and their meaning. Rather than offer only the facts
supportive of their preferred verdict, jurors tend to talk about all of the evidence as they
collectively aim to develop a common story of the events. . . .
The verdict-driven style tends to be faster but also is more likely to lead to a situation in
which the jurors cannot agree on a final decision.9
Which approach is better for jury deliberation? I don’t know. The fact that one
approach is more likely to lead to a hung jury does not necessarily count against it: after
all, a hung jury is certainly better than a mistaken verdict. Which approach is actually
better is a difficult question to test, and at this point there is no convincing research on
that issue. Both approaches can work effectively. My guess is that which approach works
better may depend on who happens to be on the jury. But whichever approach a jury
adopts, they will certainly perform better if they look closely at the conclusion at issue: for
example, the question at issue in a criminal trial is not whether the defendant has been
proved innocent, but whether the prosecution has offered conclusive proof that the defendant is guilty as charged. And whichever approach the jury adopts, adversarial or cooperative, they will deliberate more effectively if they remain civil and respectful.
The cooperative approach is usually confined to civil and domestic issues, but some
Aboriginal peoples in Canada have attempted to apply their community-based nonadversarial approach to the resolution of criminal cases. Starting from a common commitment
to healing the community after a crime has been committed, these groups see the adversarial system as an impediment to that healing. Rather than focusing on who is guilty and
which side wins, the emphasis is on what went wrong in the community and how it can be
fixed, on reintegrating the offender into the community, and on healing the victims, the
offender, and the community.10 It is a very different process from the adversarial contest
of most Western criminal proceedings, but it has some distinct virtues. The Canadian
Aboriginal approach to justice focuses on the deeper source of the problem, and seeks a
problem resolution that repairs the damage to the community and prevents further difficulties. In contrast, most Western court systems impose penalties but do nothing to solve
the root of the problem. Trying to reduce crime by imposing stiff criminal penalties has
been an obvious failure: Among Western industrialized countries, the United States has
by far the highest prison population and is the only country imposing the death penalty,
and it also has a huge lead in the amount of violent crime.
Critical thinking is important in adversarial settings, but it is more than just a sword for
subduing your opponent and winning your argument. Critical thinking is also valuable in
determining exactly what the problems are, exploring the various possibilities for resolving
them, examining the effects of the alternatives, and arriving at the best solution for all concerned. Whether truth is sought by combat or cooperation, critical thinking plays a vital role.
1. Suppose that you are the attorney for the defense, and your client is a 30-year-old black man who
works as a tax accountant for Dow Chemical. He has been accused of assaulting a man in a tavern;
he claims that he was defending himself from attack by a drunken and aggressive patron of the bar
(a 60-year-old white bricklayer). What questions would you ask potential jurors during voir dire? (Be
sure that you phrase the questions in such a way as to get genuine answers.)
2. You are the district attorney, and you are prosecuting a case in which a man—the president of a
small business—is accused of assault and attempted rape. His secretary made the charges, claiming
that the man assaulted her and attempted to rape her one evening when they were working late in
the office. What questions would you ask potential jurors during voir dire? What questions would
you ask if you were attorney for the defense?
3. In the two cases above, do you think you would be a fair and open-minded juror? If you were those
defendants, would you be satisfied to have someone like yourself seated on the jury?
Two women are charged with murder. Sarah is college-educated and works for an accounting firm.
She is 26 years old, of mixed race, and recently divorced. Allison is an old college friend. She is 27,
Irish-Italian, single; she completed 3 years of college, and now works as a sales representative for a
publishing firm. Sarah and Allison had gone to a local tavern for drinks, and were there from 10:00
to 11:00 P.M. While standing at the bar, they began talking with Robert and Jay. Robert is African
American, 25 years old, and recently separated; he drives a truck for a package-delivery company. Jay,
Robert’s friend and coworker, is Polish American: At the time of his death, he was 26, married, and
had a 2-year-old daughter. When Sarah and Allison left the tavern, Robert and Jay followed. The
defendants claim that Jay asked them for a ride, and when Sarah and Allison refused, he became
verbally abusive. Sarah became frightened, and took a pistol from her purse, which she handed to
Allison. When Jay advanced toward Allison, she shot him twice. The first bullet grazed his arm, and
the second entered his heart, causing his death. Robert agrees that Jay was angry, but claims that his
friend did not threaten the women, and that the shooting was unjustified. The defense claims that
this was a justified homicide, with the women acting in self-defense. The prosecution is charging
both women with first-degree murder (though the jury may consider lesser charges).
Don’t consider whether Sarah and Allison should be acquitted or found guilty: For that, you
would have to listen carefully to the whole trial. Rather, imagine that you are seating a jury. You are
not an advocate for either the prosecution or the defense; instead, your goal is to seat the best possible jury you can assemble—the fairest and most reasonable and just jury you can get. Describe your
ideally just jury for this case.
There are two major views of the ideal jury (i.e., an ideally fair and just jury). The contemporary
view is that we should strive to seat jurors who are intelligent but who know nothing whatsoever about
the case that they will be hearing (thus ensuring that everything they know about the case will come
from evidence presented at the trial). The earlier view was that jurors should be intelligent,
well-informed members of the community in which the alleged crime occurred. A juror should not
be the brother of the accused nor the sister of the victim; but if the juror knew the setting in which
the crime occurred and perhaps knew some of the witnesses (and also knew how reliable—or
unreliable—those witnesses might be), then that would make them better jurors (rather than
automatically disqualifying them, as would almost certainly happen today). At the very least, good
jurors were expected to know about community events, and be well informed about current
happenings in the community (which of course would likely include knowing of crimes that had
been committed and people who were suspected).
1. Some people claim that the traditional model worked well in earlier times, in settings of small towns
and shared community knowledge, but that this model does not work well in our contemporary
society. Are there any factors in contemporary society (e.g., societal diversity, or the ways people gain
information, or the anonymity of urban life, or whatever) that make the older model less attractive
for contemporary justice?
2. If your goal is to seat the ideal fair jury for a trial today, which model of the ideal jury would you
follow? Or would you favor a different model altogether?
3. Imagine you were trying to seat the ideally fair jury for a highly publicized case: the O. J. Simpson
murder trial. Who would you select as the members of your ideal jury? Is your answer closer to the
contemporary model (jurors with no prior knowledge of the case) or the traditional model (jurors
who are well informed about community events, who have received considerable information about
the case, and have discussed it with their friends and colleagues)?
1. Lawrence Kohlberg was a twentieth-century psychologist who conducted research on moral
development, tracking the developmental stages of moral development in a large group of children in the Boston area, following them from their early years (some as young as 7) well into
adulthood. In his studies Kohlberg often posed moral dilemmas to his subjects, and asked what
they would do and why. One such dilemma was the story of Heinz: A man named Heinz has a wife
who needs a drug to save her life, but Heinz cannot afford to buy the drug from the druggist, and
the druggist will not give Heinz the drug. Should Heinz steal the drug for his wife? When confronted with this dilemma, some of the subjects thought about it, then gave an answer: Heinz
should steal the drug, or he should not. But others wanted more information before deliberating
about the case: Had Heinz attempted to negotiate with the druggist? What sort of person was the
druggist? Wasn’t the druggist concerned about saving the life of Heinz’s wife? What was the
relationship between Heinz and his wife? Does the demand for more detail correspond to an inclination
toward one or the other style of critical thinking? That is, would those taking a cooperative approach to this dilemma be more likely to ask for more details than would adversarial critical
thinkers? Or vice versa? Or would the style of critical thinking make no difference to the amount
of detail desired?
This example is taken from Barbara Holland’s very entertaining brief history of trial by jury: “Do You
Swear that You Will Well and Truly Try?” Smithsonian, March 1995, pp. 108–117.
This information is from Seymour Wishman, Anatomy of a Jury (New York: Times Books, 1986), p. 65.
McMahon’s remarks were taken from a 1987 videotape for training prosecutors; as quoted in a story from
the Philadelphia Inquirer, April 1, 1997.
Morton Hunt, New York Times Magazine, November 28, 1982, p. 82.
Paula DiPerna, Juries on Trial (New York: Dembner Books, 1984), p. 151.
Quoted in Paula DiPerna, Juries on Trial (New York: Dembner Books, 1984), p. 154.
Samuel R. Gross, “The Death Penalty in the United States,” in Adversarial versus Inquisitorial Justice, edited
by Peter J. van Koppen and Steven D. Penrod (New York: Kluwer Academic/Plenum Publishers, 2003).
“Is the Adversary System Really Dead? Dilemmas of Legal Ethics as Legal Institutions and Roles Evolve,” p. 103.
Neil Vidmar and Valerie P. Hans, American Juries (Amherst, NY: Prometheus Books, 2007), p. 14.
Brian Donohue describes this approach to justice in “The Third Solitude: Making a Place for Aboriginal
Justice,” Canadian Journal of Native Studies, Vol. 17, no. 2 (1997), pp. 315–328.
The website for the National Center for State Courts is www.ncsc.org. Click on Information and
Resources, then Topic Categories, then Jury to find an abundance of interesting research reports
The Justice Information Center is at www.ncjrs.gov. The site is operated by the National Criminal
Justice Reference Service. In addition to a vast number of good files, it has an extensive and wellorganized directory of links to other relevant sites.
The website www.bastionlaw.ca is maintained by the Bastion Law Corporation of British Columbia.
It is a user-friendly site for information concerning Canadian legal issues. Go to www.bastionlaw.ca/
index.asp and click on Criminal Law and Procedure to find informative and readable material on
criminal trials and the role of juries in Canada.
The Virginia Judicial System includes on its website an “Answer Book for Jury Service.” While aimed
at Virginia jurors, it provides good general information concerning jury service. It is clearly written, well
organized, and quite thorough, and it includes a brief but clear glossary of legal terms. The Answer
Book for Jury Service is at www.courts.state.va.us/citizens.html. Click on jury service.
The Jury Rights Project contains a number of files on the history and importance of juries; you
can find it at www.levellers.org/jrp.
Douglas O. Linder, of the University of Missouri–Kansas City Law School maintains a fascinating
site on famous trials in history; you can spend hours there. Go to www.law.umkc.edu/faculty/projects/
www.oyez.org is a wonderful website on the U.S. Supreme Court, including both oral arguments
and written verdicts, along with photos of the justices and the courtroom, and even some photos of
the private chambers of some of the justices.
The Innocence Project—at www.innocenceproject.org—has a treasure trove of information on
trials, especially on ways that trials can go wrong and lead to the conviction of innocent persons.
A superb book on juries and the jury system is Valerie P.
Hans and Neil Vidmar, Judging the Jury (New York: Plenum
Press, 1986). It provides an excellent history of the jury
system as well as a careful yet readable examination of
many important issues related to the jury system (including jury selection techniques, jury competence, and jury
nullification of the law). The book is particularly well documented, and the notes provide a useful guide to further
material. A more recent book by the same authors,
American Juries (Amherst, NY: Prometheus Books, 2007),
discusses more recent questions concerning the jury system, as well as giving additional history of the jury system
and its development.
Paula DiPerna’s Juries on Trial (New York: Dembner
Books, 1984) contains interesting information on jury
selection as well as other related topics.
For a well-written and fascinating study of the jury
system that covers both its history and present circumstances, see William L. Dwyer, In the Hands of the People: The
Trial Jury’s Origins, Triumphs, Troubles, and Future in American
Democracy (New York: St. Martin’s Press, 2002).
An excellent psychological study of the jury that gives
empirical answers to a number of questions about the jury
that were previously only the subject of speculation is a
book by Saul M. Kassin and Lawrence S. Wrightsman, The
American Jury on Trial: Psychological Perspectives (New York:
Hemisphere Publishing, 1988).
A detailed study of the techniques of jury selection—
which ranges from voir dire techniques to body language
to interaction among potential jurors—is Jury Selection, by
V. Hale Starr and Mark McCormick (New York: Little,
Stephen J. Adler’s The Jury: Disorder in the Court (New
York: Doubleday, 1994) gives good illustrations of some of
the difficulties facing juries, and includes interesting comments on the use of social science techniques for selecting
A profound yet very readable examination of the jury is
We, the Jury: The Jury System and the Ideal of Democracy, by
Jeffrey Abramson (New York: Basic Books, 1994). If you
wish to take a serious look at some of the basic issues con-
cerning the jury system—including jury nullification, the
requirement of jury unanimity, scientific jury selection,
and the basic question of whether the jury system should
be preserved or abandoned—this is the best contemporary
book on the subject, and the many fascinating cases and
lively style make the book fun to read.
For those who would like to study some important
instances of critical thinking in famous cases, Peter Irons has
written a wonderful and very readable book that explores 16
twentieth-century cases decided by the U.S. Supreme Court.
The book not only examines the reasoning behind the decisions, but also presents the stories of the people whose court
challenges led to the Supreme Court cases: courageous but
little-known people like Lloyd Barenblatt, who was
imprisoned for challenging the frightening power of the
House Un-American Activities Committee during the height
of the McCarthy era; and Daisy Bates, who braved mob
violence, death threats, drive-by shootings, and bomb attacks
in her struggle for civil rights in Arkansas. See The Courage of
Their Convictions: Sixteen Americans Who Fought Their Way to the
Supreme Court (New York: Penguin Books, 1988).
There are many good books on critical thinking (often
called “informal logic”). DouglasN. Walton has written
extensively on the subject; see his Informal Logic: A Handbook
for Argumentation (New York: Cambridge University Press,
1989); and the second edition of Informal Logic: A Pragmatic
Approach (New York: Cambridge University Press, 2008).
For some interesting articles on the adversarial system
(with comparisons primarily to the inquisitorial system,
rather than the cooperative system), see Adversarial Versus
Inquisitorial Justice: Psychological Perspectives on Criminal
Justice Systems, edited by Peter J. van Koppen and Steven D.
Penrod (New York: Kluwer, 2003).
Read the Document on mythinkinglab.com
Deborah Tannen, The Argument Culture. Deborah Tannen
is a professor of linguistics at Georgetown University.
Much of her work (including her book, The Argument
Culture, from which this passage is drawn) focuses on how
language can be used to increase hostility, as well as to
promote cooperation and understanding. In this passage,
she notes the strong tendency to frame our social issues
in warlike or competitive language. If instead of framing
the severe drug problem as a “war on drugs” we conceptualized it as a “search for workable solutions,” would we
be likely to approach the problem differently?
Deborah Tannen, The Argument Culture, p. 26. When we
are in an adversarial framework, we tend to assume that
there are two opposing sides to an argument; Deborah
Tannen counsels that sometimes it is useful to challenge
Deborah Tannen, The Argument Culture, p. 354.
Deborah Tannen notes that when we are engaged in an
adversarial argument, and eager to win an argument, it is
very difficult to listen carefully to the views and arguments
and concerns of our opponent.
“Changing a Man’s Mind.” This is a reminder of the
importance of genuinely appreciating and understanding
the views of those who oppose our arguments and beliefs.
Gerry Spence, “The Lock.” Attorney Gerry Spence
demonstrates the value of seeking common ground as a
starting point for discussion and argument.
A Few Important Terms
Listen to the Chapter Audio on mythinkinglab.com
Before we plunge into examining arguments, evaluating commercials, debating social
issues, and reaching verdicts, it will be helpful if we are all using the same terms, and we
all agree on what those terms mean. We’ll be concerned with arguments. An argument
offers a conclusion and supports that conclusion with reasons (premises). Not every set of
sentences is an argument. In fact, arguments constitute a comparatively small—but very
important—part of our daily discourse. So the first task is distinguishing arguments from
explanations, reports, contracts, ceremonies, questions, instructions, promises, pleas,
curses, prayers, poems, exhortations, songs, and sweet talk. (Those are not always mutually exclusive categories. A prayer might contain an argument—to God—in the hope of
convincing God to water the drought-stricken crops. A poem might be an argument in
verse: Bob Dylan’s song “Hurricane” argues that the boxer Reuben “Hurricane” Carter
was unjustly convicted of murder. But usually prayers and poems and songs—and pleas
and contracts and instructions—are not arguments.) An argument involves giving reasons
that are supposed to support a certain conclusion. In an argument a set of statements is
arranged in such a way that one is supposed to follow from the others.
So what is a statement? The term is used in many different ways: “His statement was false.”
“Senator, could we have a statement?” “Those orange shoes really make a statement.” We
will be using it in a more specific manner: A statement—sometimes called a proposition—is
a claim that is true or false; that is, a statement has a truth value. A statement is expressed in
a sentence, but not all sentences are statements. (“Please close the door” and “Did you
enjoy the play?” are both perfectly decent and honorable sentences, but they are not
statements, since they make no claims and are neither true nor false.) While a statement is
A Few Important Terms
expressed in a sentence, it should not be regarded as equivalent to a particular sentence.
For example, this sentence—“The defendant struck Ralph”—expresses a statement, but
the same statement could be expressed with many different sentences: “Ralph was struck by
the defendant,” “The defendant hit Ralph,” “The man seated at the table struck the man
in the witness box,” and so forth. In addition, the same statement might be made in
sentences in many different languages. Furthermore, while the same statement can be
expressed with many different sentences, a single sentence can—in different contexts—
express different statements: “I saw her” expresses an enormous variety of different statements, including Wendell saw Rachel, Wendy saw Vanessa, and Arthur saw the Titanic.
We shall be concerned primarily with statements: claims that are true or false.
Premises and conclusions—the basic elements of arguments—are statements.
For the following, tell which are statements and which are not statements.
Please close the door.
If you don’t close the door, the dog will get out.
Read Chapter 3 before the next class.
Why is the sky blue?
Mushrooms are the summer homes of elves.
Go to hell!
I did see an extraterrestrial.
Don’t rush! Think through each question before answering.
Let’s go Mets! Let’s go Mets!
The Mets will definitely win the World Series next year.
Who was the Republican vice presidential candidate in 1964?
Eat your vegetables.
The 2010 Winter Olympics were held in Vancouver.
The 2010 Winter Olympics were held in Miami.
What is your favorite ice cream flavor?
Earth is the only place in the entire universe where life exists.
Why are there no penguins in Lake Erie?
There was a conspiracy to kill President Kennedy.
Joe believes there was a conspiracy to kill President Kennedy.
I believe there was a conspiracy to kill President Kennedy.
Sal loves Sharon.
I love you.
Either there will be a reduction in air pollution or we will suffer severe global warming.
I hope we can reduce air pollution significantly during the next decade.
Add more chocolate chips to the cookie dough.
The cookies will taste better if you add more chocolate chips.
These cookies taste awful.
Did you make these cookies?
Our Sun is one of the smallest stars in this galaxy.
Drive carefully, and watch out for ice patches and potholes.
The Loch Ness Monster really exists, and is a descendant of the brachiosaurus.
Are there any clear photographs of the Loch Ness Monster?
Bill Clinton is the only U.S. president who has played the saxophone while in office.
Don’t play poker with penguins.
A Few Important Terms
35. All penguins cheat at poker.
36. Every human being has lived many past lives, though very few human beings are consciously aware
of their past lives.
37. Jupiter has the most moons of any planet in our solar system.
38. What is the tallest building in Pennsylvania?
39. This is a very tough exercise.
40. Do not look at anyone else’s paper.
41. How many stars are in our galaxy?
42. Critical thinking students study an average of 6 hours each day.
43. The Steelers will win the Super Bowl in 2025.
44. Global warming will cause catastrophic problems in the United States, and especially along the East
45. Jupiter is not the largest planet in our solar system.
46. There is a damaged alien spacecraft in a top secret military aircraft storage building near Las
Cruces, New Mexico.
PREMISES AND CONCLUSIONS
Arguments are made up of premises and conclusions. The conclusion is what the argument is
trying to prove. Premises are the reasons given for the conclusion, the statements made in
support of the conclusion. (The American spelling is “premise”; the British spelling is
“premiss.”) It is not always easy to distinguish premises from conclusion. Sometimes the
conclusion is at the beginning of the argument, sometimes at the end, and occasionally it is
stuck in the middle. There are a few words or phrases that usually indicate premises and
others that usually signal conclusions. Premises are often preceded by words such as since,
due to the fact that, because. And conclusions are frequently signaled by such words as therefore,
hence, it follows that, so, consequently. Attention to such words and phrases may be helpful, but
they are not always used and are certainly not a perfect guide to premises and conclusions.
The following arguments all have the same conclusion. Notice that the conclusion
occurs at different points in the various arguments and that sometimes there are words to
indicate the premises and conclusion and sometimes there are not.
There were three eyewitnesses, and they all were certain that the woman they saw running
from the bank was the defendant. So the defendant must be guilty.
Of course the defendant is guilty. You could tell by her weak chin and beady eyes.
No other woman was near the bank at the time, thus the defendant must be guilty of the
crime. Besides, her alibi was very weak.
Since her fingerprints were found in the bank and the money was found near her car, the
defendant must be guilty.
The arguments above are relatively simple: a premise or two, and a conclusion. Arguments
are often much more complex. A newspaper editorialist may offer several different arguments for the same conclusion, or an essay may contain several arguments for several
distinct conclusions. Or you may be presented with a lengthy argument that contains
several subarguments; that is, in some cases there may be an argument within an argument:
“We should bet on (the racehorse) General Assembly. After all, General Assembly runs very
well on muddy tracks. And since it rained all morning, the track must be muddy.” The overall conclusion is that we should bet on General Assembly. The premises that support that
conclusion are: The track is muddy and General Assembly runs very well on muddy tracks.
But there is also a subargument to support the premise that the track is muddy. That subargument has as its premise: It rained all morning. The conclusion of the subargument is:
The track is muddy. Thus the conclusion of the subargument is a premise of the larger
argument. “The track must be muddy” is prefaced by “so,” which indicates it is a conclusion;
only by thinking carefully about the overall argument can you tell that it is also a premise.
A Few Important Terms
Determine which of the following are arguments and which are not. (Don’t worry about whether the
arguments are good or bad; just distinguish the arguments from the nonarguments.) Then for each
of the arguments, state the conclusion.
1. If the moon is made of green cheese, then there are mice on the moon. The moon is made of green
cheese. Therefore, there are mice on the moon.
2. I solemnly swear to tell the truth, the whole truth, and nothing but the truth.
3. Raspberry Surprise ice cream has big chunks of real fruit! What a combination! Rich ice cream with
delicious fruit; it’s my all-time favorite ice cream.
4. Wheaties®1 is a nutritious cereal. After all, Mary Lou Retton appeared in Wheaties advertisements,
and Mary Lou Retton is certainly healthy; so Wheaties must be nutritious.
5. Requirements for this course include three exams and two papers. You must pass at least two of the
three exams in order to pass the course, and you must make a B or better on both papers in order
to make a B or better in the course.
6. Last summer Joe promised Sarah he would be faithful to her, and he cheated on her. Last spring he
made the same promise to Veronica, and he cheated. This past winter he promised to be faithful to
Joan, but he ran around on her. And last fall he pledged to be faithful and true to Ann, and he
broke that pledge. So now Joe is telling you that he’s going to be faithful to you; but listen, that
man’s going to cheat on you.
7. The team with the best pitching always wins the World Series. So the New York Mets will win the
World Series, since the Mets have the best pitching.
8. The Yankees won the World Series when they had the best pitching staff in baseball; the Dodgers
won the World Series when they had superior pitching; and when the Cardinals won the World
Series they had the best pitching. So the team with the best pitching staff wins the World Series.
9. When you are cooking fettucine alfredo, be careful not to overcook the pasta. If the pasta is overcooked, it will stick together, and the sauce will not spread evenly over the pasta. Also, I recommend
that you serve a green salad with the fettucine, and be sure to have plenty of red wine.
10. All professors own private jets. My critical thinking teacher is a professor; therefore, she must own
a private jet.
11. Three reliable witnesses saw the defendant in New York just one hour before the murder took place
in Los Angeles. There’s no way the defendant could be guilty of the murder. Besides, the defendant
had no reason to kill the guy—they were good friends.
12. You guys charged too much for fixing my car. It only needed new spark plugs, which are fairly inexpensive and are easy to install. So I don’t think I should have to pay this outrageous repair bill.
13. I am not paying that repair bill! I may have to hire a lawyer, I may have to call the state attorney general’s office, maybe my credit rating will be ruined, perhaps they’ll sue me. I don’t care what happens;
I’m still not paying.
14. I like the way the Modern Jazz Quartet plays. They have a cool, tight, almost dispassionate style. It
projects a sense of tremendous energy being held tautly in check. And the drums, bass, vibes, and piano
work together so perfectly that sometimes it is impossible to tell where one stops and the other starts.
15. To be successful in your critical thinking course, it is important to do as many exercises as possible.
It would also help a lot to read the chapters in the text, perhaps even a couple of times. And attending class regularly wouldn’t hurt.
16. Last year there was an increase in gasoline prices in July, and there was also an increase in July the
year before that, and the year before that: in fact, every year of the last decade there has been a
significant jump in gasoline prices during the month of July. So you can expect to pay more for
gasoline this year in July.
17. When hitting a baseball, you should start with your back elbow up; then swing down. Keep your
back foot stationary, and don’t lunge at the ball, and be sure to follow through with your swing. And
above all: Keep your eye on the ball.
18. If the recession continues, then there will be fewer jobs next year. And the recession is continuing,
so clearly next year there will be fewer jobs.
19. All Cleveland Browns fans hate the Steelers. So Brenda must hate the Steelers, because Brenda is
certainly a Cleveland Browns fan.
A Few Important Terms
20. This year North State University had a tuition increase, and there was also a tuition increase last
year, and the year before that, and the year before that. So very likely North State University
students will be hit with another increase in tuition next year.
21. Look, this is really simple. Either we are sure beyond a reasonable doubt that the defendant is
guilty, or we have to vote not guilty. Now obviously we can’t be sure beyond a reasonable doubt that
he is guilty, since the only witness admitted that he was drunk and isn’t sure what he saw. So we have
to vote not guilty.
22. If federal disaster relief had been well organized, then effective aid would have reached
New Orleans immediately after Katrina passed. But in fact effective aid did not reach New
Orleans until long after Katrina passed. So obviously federal disaster relief was not well
23. I love Cajun music. It has a simple beat, but it’s always great for dancing—especially at a Cajun street
dance, when you mix plenty of wine with the music. If you have a great Cajun fiddler, who keeps a
steady rhythm with the fiddle, and you throw in a good accordion player and maybe a guitar, you
can dance till dawn. You haven’t partied until you’ve danced all night to a Cajun band down deep
in the Louisiana swamps.
24. Sharon must be tall. After all, Sharon is a basketball player, and all basketball players are tall.
25. If you believe in democracy, then you should vote. And of course you do believe in democracy, so
therefore you should vote.
26. Please don’t miss class on Friday. We’ll be studying ad hominem arguments, and that’s one of my
favorite topics, and I would be really disappointed if no one was here to discuss ad hominem arguments with me.
27. If a wealthy country like the United States does not provide decent health care for all its citizens,
then there should be major reform in its health-care system. So clearly there should be major
reforms of our health-care system, because the United States does not provide decent health care
for all its citizens.
Premises and conclusions are statements. They make claims, and they are either true or
false. But while the premises and conclusions of arguments are true or false, arguments are
not true or false. Instead, arguments are valid or invalid, sound or unsound, strong or weak,
cogent or uncogent.
Evaluation of an argument comprises two distinct and essential considerations. First, do
the premises support the conclusion? Second, are the premises true? Start with the second
consideration: Are the premises true? The most obvious way that an argument can go wrong
is by having false premises. “You should immediately send $10 to Reverend Megabucks,
because God commands it, and if you break God’s commandment God will cause blight on
your crops, flat tires on your cars, fumbles by your running backs, and holes in your socks.”
Well, if true, that might provide some reason for coughing up a sawbuck to the Rev; but
before we wonder about whether the conclusion really follows from the premises, we should
first question whether the premises are actually true. Since they are not, the argument is no
good—it is unsound—whether the premises adequately support the conclusion or not.
Now we come to the trickier part of evaluating arguments: Even if the premises are
true, do they provide the right sort of support for the conclusion? Does the conclusion
really “follow from” the premises? That is a separate and distinct question from the question of whether the premises are true. After all, an argument with all true premises may
fail to support its conclusion; for example:
The defendant is named George; George starts with g, and guilty starts with g; therefore, the
defendant is guilty.
And an argument with false premises may strongly support its conclusion:
If there are dinosaurs on the moon, then Earth is the largest planet; there are dinosaurs on
the moon; therefore, Earth is the largest planet.
A Few Important Terms
So in addition to asking whether the premises are actually true, we must also ask, Do the
premises provide the right sort of support for the conclusion?
We’ll look further into the questions of how premises support conclusions, and
whether in a particular argument the premises provide the right sort of support for the
conclusion. But first it is important to note that there are two different ways that premises
can support conclusions, and those two ways mark out two different types of arguments. The
two different types of arguments are deductive and inductive.
DEDUCTIVE AND INDUCTIVE ARGUMENTS
What are the differences between a deductive and an inductive argument? There are
several, but they all stem from this key difference: Inductive arguments go beyond the information contained in the premises; inductive arguments make a projection based on given
information. Deductive arguments draw out the implications of the premises; they draw
conclusions that are already contained in the premises. So what you must look for in
deciding whether an argument is deductive or inductive is the relation of the premises to
the conclusion. If the premises are used as a base from which the conclusion makes a
projection, then the argument is inductive; if the conclusion is purportedly drawing out
implications contained in the premises (rather than going beyond the premises), then
the argument is deductive. (Obviously, a deductive argument may contain a premise or
premises that were established inductively. In determining whether an argument is deductive or inductive, the question is not how the premises are supported; rat...
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