Think of the last time someone did something that surprised you. You likely have a vivid recollection because we tend to remember things that are out of the ordinary. Scientists have actually been able to prove this using EEG’s to measure surprised brains and thereby predict memory formation. In brief, surprise someone and they are likely to process that event differently—and remember it.

Not at all surprisingly, this phenomenon is being talked about by lawyers and finding its way into court. Miller-McCune has a lengthy piece on how the brains of psychopaths are simply made differently and accompanying efforts to decrease their culpability for crimes committed.  Jurors are shown how the brains of psychopaths are different in appearance from ‘normal’ brains. Kent Kiehl (a researcher featured prominently in the Miller-McCune article) finds it absurd to execute convicted murderers who have malfunctioning brains. And attorneys are asking him to perform fMRI’s on their clients’ brains in hopes of having the death penalty taken off the table by prosecutors. There are some fascinating insights into how this actually works in court in the article—it’s worth a read.

Mark Bennett (a criminal defense attorney) at Defending People blog writes about the new ‘reptile’ theory which focuses on making jurors afraid so they want to be safer. Bennett suggests you instead surprise jurors by making them laugh and take them out of their reptile brain and into their simian brains. Sometimes your case simply doesn’t lend itself to humor but the ‘surprise’ element in this example is the important thing. Surprise your jurors with a new way of thinking about a situation that isn’t driven by fear. It’s a powerful inoculation.

Another way to surprise jurors is to surprise their stereotypes. RaceWire blog has a good example of this form of surprise in their post on how we talk about police brutality when the cops aren’t white. We think of police brutality as a manifestation of racism. The cops in this story were acquitted and it was not thought to be about race. That makes no sense to us because of course it was about race—the point is to surprise jurors with stereotype-defying information and get them to think differently.

Surprise can be a powerful tool for litigation advocacy. Jurors remember things that are surprising. Hear the witness say the surprising thing. Tilt your head. Appear quizzical. “Really? How does that work?” Cue the jurors that this is surprising information. They’ll remember it.

Related posts:

1. Neurolaw Update: Who’s in charge here—me or my brain?
2. And the jury says: “His brain really DID make him do it!”
3. Your brain is a liar: It will find what it wants before it even starts looking
4. Is racial bias fueling anti-Obama rhetoric?
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