"Those that fail to learn from history are doomed to repeat it." This archetypal truism has been credited in some variation to British statesmen Winston Churchill and Edmund Burke and Spanish philosopher George Santayana. For criminal prosecutors, one of the biggest lessons from the O.J. Simpson double-murder trial back in 1995 should have been that, especially in circumstantial cases, psychology plays at least as powerful a part in jurors' decisions as so-called scientific evidence. Prosecutors in the O.J. Simpson case failed to psychologically convince jurors he could have committed the crimes. That the glaring evidence of his evil
deeds did, in fact, fit him like a glove.
This could also turn out to be true of the Casey Anthony prosecution, who have, at least so far, rested their case relying almost entirely on their superior legal skills, circumstantial physical forensic evidence and jailhouse videotapes of the defendant. Last week was a good one for the defense, chipping away at the State's case little by little, trying with some success I suspect, to insert reasonable doubt into the minds of the jurors. To me, one of the greatest hurdles the prosecution must overcome in such circumstantial cases is basically psychological in nature: How to convince jurors, beyond a reasonable doubt, that the defendant--in this case a now twenty-five-year-old, petite, physically attractive female--was capable of committing the alleged depraved crime while, at the same time, being portrayed as a loving parent by her defense team, or, as in the case of O.J. Simpson, a handsome, caring husband, father and idolized charismatic sports figure.
Such seemingly polar contradictions can be mind-boggling for jurors seeking to determine the truth about a defendant beyond a reasonable doubt. How could a young mother deliberately kill, with premeditation and forethought as charged, her own innocent and defenseless child? And then celebrate with total abandon her newfound freedom? What could possibly motivate and make possible such an evil deed? Could she be normal? Or does she suffer from some mental disorder? Without helping the jury get a solid psychological handle on how and why this alleged crime was committed--as opposed to just whether it was or not based on the circumstantial and scientific forensic evidence--they are left to their own limited devices to resolve such glaring, shocking and sometimes inconceivable contradictions in human nature and behavior. And this kind of deliberate omission on the part of prosecutors can amplify the jurors' reasonable doubt. Especially when jurors, just like the rest of us, bring with them certain blindspots, traumatic experiences or preconceptions that prevent them from perceiving and reconciling the often incredibly contradictory complexity of the human psyche. And the universal capacity for both good and evil living within each and every person.
Jurors want to know what happened, how and why. They are understandably reluctant to convict Ms. Anthony in a death penalty case without such certainty. What they need is some psychological insight, expertise and education into why this defendant committed the evil deed with which she is charged, lied about it incessantly, and happily went on with her life after killing Caylee or, as the defense claims, knowing she had drowned accidentally in the family swimming pool. If jurors can't put this jigsaw puzzle together for themselves meaningfully, they may feel compelled to acquit Casey Anthony, or at least find her guilty of a lesser crime than first-degree murder. And certainly unwilling to see her executed by the State of Florida.
What kind of psychological testimony might be helpful to the jury in cases like this? I have already presented some more or less likely scenarios of what the testimony of forensic psychologists or psychiatrists might include here and here. Ideally, such expert testimony--unlike that of the "grief counselor" called in by the defense this week--would be based on actual evaluations of the defendant, and depend on those objective clinical findings. For example, the findings of the forensic evaluations conducted last weekend regarding the defendant's competency to stand trial, or any previous psychological evaluations or mental health history. If that were not possible legally or ethically (I believe the competency evaluations are sealed by the Court), the prosecution could, like the defense, call on expert witnesses to discuss the possible state of mind, psychodynamics and motivation of perpetrators who commit such heinous crimes. What they would need to address in some detailed way, shape or form is how someone like Ms. Anthony, without any known violent criminal history, could have committed this evil deed from a psychological perspective. This could include a formal psychiatric diagnosis and explication of how a person with that particular diagnosis or mental disorder (if indeed any are detected) makes decisions, reasons and acts. Or a more generic type of testimony from forensic psychologists and psychiatrists about individuals with personality traits, histories and behavior patterns similar to those observed and reported in Ms. Anthony, like her apparent pathological lying.
Such psychologically well-informed and sophisticated testimony could, if admissable, make all the difference to some jurors charged with the heavy burden of deciding whether to convict or acquit. But it looks unlikely at this late date that the prosecution will take this strategic tack. Which will be a pity if Casey Anthony is wrongly acquitted because one or more of the jurors could not psychologically accept, come to grips with, and comprehend how and why she could have cold-bloodedly killed her daughter--if indeed that is what truly happened here. I believe this is precisely part of what happened during the now infamous murder trial of O.J. Simpson: jurors could not or refused to believe that he was capable of committing the brutal and bloody crime. They could not overcome the human tendency to see people simplistically as either evil or good, cruel or kind, destructive or creative--but not both. They were unable or unwilling to see past his charming and likeable public persona. In the end, they punished the prosecution case in part, I contend, for not providing more psychologically compelling evidence, engaging in jury nullification: finding the defendant Not Guilty despite a compelling plethora of physical, scientific and circumstantial evidence. If the jurors in Casey Anthony's trial cannot psychologically comprehend how someone like her could or would do the evil deed prosecutors claim, make some meaningful sense of it for themselves, no amount of incriminating circumstantial evidence and cutting-edge scientific testimony will convince them. And the clearly technically competent and seasoned prosecution in this case will have failed for much the same reason that the patently less competent prosecution in the O.J. trial lost: A tragic and arrogant underestimation of the potential power and importance of psychology in the courtroom.