Eye on the Jury

While older jurors are more likely to convict defendants, they’re also more empathetic and complex

By Trisha Renaud, Special to the Daily Report

The most newsworthy jury study so far this year probably wasn’t much news to attorneys who practice criminal law.

Last month, researchers reported two significant findings in a working paper for The National Bureau of Economic Research: older jurors are more likely to convict defendants than younger ones, and defense lawyers tend to strike older jurors while prosecutors strike younger ones.

The study crunched numbers on jury pool composition and verdicts for more than 700 non-capital trials in two Florida counties. It also included data from one county on peremptory strikes exercised by both defense and prosecution.

When the average age of the jury pool was over 50, juries convicted 79 percent of the time, while pools with an average age of under 50 convicted only 68 percent of the time. (Pools, rather than seated panels, were analyzed because the age composition of the pools was random while that of the panels—having been subject to peremptory challenges—was not.)

The only exception to this trend was when the defendant was female. In these few cases, the older the jury pool, the less likely a conviction.

Probably few attorneys familiar with criminal trials will be surprised by the findings. Older jurors—and the older generation as a whole—tend to be more conservative. That’s why many prosecutors view seniors in the pool as more vested in their communities and identifying more with the law-and-order side, but view those young folks as wild cards who may have little regard for authority. And that’s why defense lawyers tend to have similar concerns.

Sound simple enough? Well, nothing is quite so simple when it comes to picking juries. The examination of broad demographic categories is quite a different proposition than trying to make a judgment about an individual sitting in the jury box.

While social science can help attorneys understand how older jurors are likely to view the world (or a set of facts), demographic generalizations are pretty weak (and in some instances illegal) to use as the sole rationale for exercising a peremptory strike. Instead, demographics are only part of the information needed to understand an individual juror and make decisions on whom to strike. Any given juror may fit only some—or none—of the generalizations about his/her demographic.

But every piece of data can help lawyers make informed, rather than intuitive, choices about jurors. So let’s take a look at what else social science can tell us about the gray-haired generation.

They are more affected by prejudice

Notice that the above reads “affected by prejudice” and not prejudiced. Most of us tend to think of older folks as more prejudiced. We may remember that elderly aunt or neighbor who would blurt out the most outrageous, racist or homophobic things. We assume she’s the product of a less enlightened day and time and just couldn’t change.

In fact, although older adults do demonstrate greater implicit bias when tested, the latest evidence suggests this may have less to do with upbringing or intentions than with the aging process itself. Age diminishes our capacity to suppress or inhibit those stereotypes that inevitably spring to mind in all of us, as well as our ability to act on them.

Fortunately, however—and this is important to the persuasion process—when presented with information that counters stereotypes early on, older adults (read that as jurors) are as capable as younger ones of discounting stereotypes.

They are more empathetic

Two recent studies (as detailed in my July 1, 2011 Daily Report column) show that older people are more likely than the young to empathize with someone in distress. Empathy—the ability to perceive and share another’s emotional experience – can be a critical quality for a juror.

They are less able to contain their emotions

The same studies that show older adults are more empathetic indicate they also have more difficulty keeping their feelings in check. When shown a sad film, they reacted with less detachment and greater sadness than other age groups. At the same time, they are better at reappraising the situation to find its positive aspects.

They tend to be more trusting

A 2006 Pew survey of more than 2,000 people asked questions designed to measure social trust—a general faith or belief in the integrity of other people. Both middle-aged and elderly people exhibited more trust than the young. The survey report speculates that the relationship between age and social trust may be due to an accumulation of life experience or simply the times in which each generation was raised.

Religion matters more to them

As we age, for many of us, religion assumes a bigger role in our lives. According to a 2009 Pew survey, 44 percent of young adults 18 to 29 say religion is very important to them. As the age goes up, so does the percentage. Two-thirds of those 65 and older say religion is very important to them, and a third say it has become more central in their lives over time.

They are not as good at lying or catching liars

Both findings may be related to the aging process. The cognitive skills needed to successfully lie can decline with age, as can the ability to recognize emotion, an essential skill in detecting lies by others.

They may be better at more complex decisions

Does wisdom come with age and experience? At least one study (2011) indicated that while young adults are better at making decisions that involve immediate rewards or consequences, older people (from 60 to early 80s) do better when reaching a decision that requires evaluating both immediate and future rewards/consequences.

Categories and clues

Knowing jurors’ ages won’t reveal everything about what makes them tick. It may, however, provide some clues to how he or she may process information or view the world, leaving you a little better equipped for the difficult decisions inherent in jury selection.

Just remember this caveat: Demographic generalizations can be—and often are—trumped by life experience. Uncovering a juror’s attitudes and values will always be of greater value than demographics when it comes to evaluating jurors.

Here are some of the studies the author used in writing this article:

“A Fair and Impartial Jury? The Role of Age in Jury Selection and Trial Outcomes,” Shamena Anwar, Patrick Bayer and Randi Hjalmarsson. National Bureau of Economic Research Working Paper No. 17887 (March 2012).

“Age, Race, and Implicit Prejudice: Using Process Dissociation to Separate the Underlying Components,” Brandon D. Stewart, William Von Hippel and Gabriel A. Radvansky. Psychological Science, 20 2: 164-168 (2009).

“Aging and Stereotype Suppression,” Gabriel A. Radvansky, Nicholas A. Lynchard and William Von Hippel. Aging, Neuropsychology, and Cognition, 16: 22-32 (2009).

“Age-related Differences in Deception,” Ted Ruffman, Janice Murray, Jamin Halberstadt and Tina Vater. Psychology and Aging, April 4, 2011.

“With Age Comes Wisdom: Decision Making in Younger and Older Adults,” D.A. Worthy, M.A. Gorlick, J.L. Pacheco, D.M Schnyer and W.T. Maddox. Psychological Science 22 (11) 1375-80 (2011).

This article is reprinted with permission from the April 12, 2012 issue of the Fulton Daily Report © 2012. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Wednesday, August 31, 2011

To connect with jurors, avoid the abstract, the dated references and the legalese

By Trish Renaud, Special to the Daily Report

How you say something is often as important as what you say.

It’s no surprise that language is critical to the task of persuading jurors. A well-told story or a compelling argument can capture their attention, turn their thoughts in new directions and make them believers in one side’s cause. All too often, however, lawyers focus exclusively on substance—what to say—and overlook how to say it. In fact, the exact words one uses can be as important to the task of persuasion as the content of one’s message. Language can make ideas clear or obscure, tangible or abstract. It can even make a story or an argument more believable.

A few language tips can help you—and what you have to say—connect with jurors. Very simply, be concrete, contemporary and clear. Or, to put it another way: Avoid the abstract, the dated references and the legalese.

Get real, get believed

When a word is concrete, it relates to an object or an action in the real world, not to an abstraction. Concreteness is also related to believability in the following ways:

• Colorful, rich descriptions of events have a greater effect on the listener/reader than bare-bones recitations of facts.

• Deceptions often lack detail; a lie is usually shorter and devoid of specifics. Most of us instinctively understand that and, as a result, tend to believe stories that contain considerable detail over those that don’t.

• We judge our own memories to be real and not imagined when they contain rich and vivid details.

Clearly, concreteness is important to the perception of truthfulness. But believability is not simply a matter of adding details to a story; it is also a matter of using concrete language. In fact, changing the words alone, while leaving the content (and amount of detail) exactly the same, can affect the degree to which a listener judges a story to be true.

Words vary in their degree of linguistic concreteness. Take verbs for example. Verbs such as “run,” “clap,” “write” or “count” refer to specific actions or behaviors that can be visualized in the mind and leave little room for interpretation as to their meaning. In contrast, verbs such as “help,” “hinder,” or “insult” are ambiguous and therefore less concrete. A third category of verbs, such as “love” or “hate,” refer to a state of being and are even more abstract.

In an experiment published last year, people were asked to rate the truthfulness of 52 statements covering a variety of subjects. Researchers found that statements with exactly the same content were rated as more truthful when they contained concrete words than when they contained abstract ones. Below is an example from the study:

In Hamburg, one can count the highest number of bridges in Europe.

Hamburg is the European record holder concerning the number of bridges.

Both sentences above contain exactly the same content and level of detail. Yet people rated the first sentence as more believable than the second. Why? It uses a concrete verb (“count”) that gives the reader/listener an unambiguous picture of real activity in the real world: someone counting bridges. In contrast, the second sentence in each pair uses the state-of-being verb “is.”

Why do concrete words suggest truth? Researchers say it may be because our brain finds them easier to process and we tend to associate ease of understanding with truth. Or it may be because such words are better at evoking mental images and are easier to recall. Simply put, when we can easily understand, envision and remember something, it has the ring of truth to us.

Get out of the past and the pop references

When you get up to deliver an opening statement or closing argument, take a survey of the jurors arrayed in front of you. In all likelihood, they come from various generations: baby boomers, members of Generation X or Millennials. They bring to their task their generation’s unique experiences, culture and linguistic expressions. Communicating to the entire panel necessitates the use of language that will not confuse or alienate members of any particular age group. One way to do that is to curb the use of those dated allusions that creep into our language. Ralph Keyes, in the book “I Love It When You Talk Retro,” refers to these as “retro talk.”

If you watched the recent remake of “True Grit” with Jeff Bridges, you may have caught a bit of retro talk—the phrase “tighter than Dick’s hatband.” If you understand, it dates you to a particular generation of baby boomers and older. Others who were younger probably just scratched their heads at the saying.

Try these expressions out with younger jurors—

He’s stuck in a groove.

She dropped a dime on him.

They heard all the scuttlebutt and got worried.

You need a secret decoder ring to figure it all out.

—and you may get some blank looks in return.

Compare someone to James Cagney or Jimmy Stewart and you’re speaking to an older generation, while leaving younger ones in the dark. Likewise, Lady Gaga references intended to ingratiate you with the youth won’t get your point across to older generation jurors.

The bottom line? Retro talk and relying on pop culture references can not only date you, but can alienate you and your message from jurors. Put a lid on it!

Last but not least: Legalese

You may say, of course I don’t use legalese. I would never use phrases like res gestae or sua sponte when speaking to jurors. Yet plenty of attorneys use phrases such as:

• “Enter into an agreement” rather than “agree.”

• “At that point in time” instead of “then.”

• “For the reason that” for “because.”

All of the above are both clumsy uses of language and examples of legalese. Beginning in law school, lawyers are drilled in the language of the law, however arcane and obscure, and it becomes habit in both writing and speaking—a bad work habit. Once in a courtroom, the bad habit takes over and the legalese begins.

“Your honor, that is prejudicial to my client!” To many jurors, the word  “prejudice” invokes the idea of racism. They don’t understand the legal meaning of the word prejudice.

Or take the word “award” as in “an award of damages.” The customary meaning of award is an honor, a prize. It can be confusing to a layperson.

Even words you might assume are no-brainers (“pursuant to,” “prior,” “subsequent,” “stipulate”) can produce bewilderment among jurors. Other words can create complete misunderstanding. Take the word “interest,” as in “this witness has no interest in this case.” Invariably, some jurors will conclude that the witness is bored with the whole proceeding.

Or consider this recent account in Bench & Bar of Minnesota of jury deliberations in a personal injury case. Surprisingly, civil litigator Max Heerman found himself on the panel. Not surprisingly, Heerman was chosen foreman. He made a proposal to his fellow jurors on how the group might proceed:

“I thought it made sense to start our deliberations by trying to separate the plaintiff’s back and neck injuries from her alleged shoulder injury. But several of the jurors wondered why we would use this approach. ‘The lawyers said her back and neck injuries were not at issue,’ one of my fellow jurors said. ‘To me, that means they’re not part of the trial. We aren’t supposed to award her anything for back and neck injuries.’”

Heerman knew quite well that that was not what the attorneys meant when they used the phrase “not at issue.” Unfortunately none of the other jurors agreed. It took a note from the judge to straighten matters out.

To Heerman, the lesson was clear: “explain to the jury exactly what you mean. Don’t assume they understand your shorthand terms.”

It’s not only what you say but how you say it that can make the difference.

This article is reprinted with permission from the August 31, 2011 issue of the Fulton Daily Report © 2011. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Older jurors, those with melodic voices and bookworms may have greater capacity for empathy

By Trisha Renaud, Special to the Daily Report

First of all,” he said, “if you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view … until you climb into his skin and walk around in it.”— Atticus Finch in “To Kill a Mockingbird”

Empathy—that quality Atticus Finch described so eloquently to his young daughter—is often an important quality in how jurors view and ultimately decide cases. Consequently, it can be a critical factor to consider in jury selection.

Trial attorneys frequently find themselves on the lookout for highly empathetic jurors who can relate to their client’s situation, be it that of an injured plaintiff, or a small business sued by a major corporation for patent infringement. Or they may seek to strike overly empathetic jurors who identify too strongly with the other side.

Empathy—the ability to perceive, understand and share the emotional experiences of others—can trump even the strongest set of facts for some jurors.

Understanding empathy first necessitates a look at the inner workings of the brain, specifically those recently discovered cells that have excited neuroscientists, psychologists and cognitive scientists alike—mirror neurons.

Neuroscientists tell us that our mirror neurons respond, or fire, both as we perform an action and when we observe someone else engage in the same action. The same holds true for observations of emotion. Mirror neurons fire automatically, instinctively, without the conscious mind’s involvement. We don’t have to think about the other person’s actions, we feel them. We grasp the other person’s emotional experiences because we have a template for such experiences in our own brain. We are able, as the saying goes, to step into another’s shoes.

Research shows that those people who score high on tests that measure empathy are those with particularly active mirror neurons.

But when it comes to evaluating jurors, we must rely on methods other than neuroscience. Many attorneys regularly employ a few well-known criteria for identifying highly empathetic jurors. They look for jurors who have had similar experiences to a party in the case, or for jurors whose work or personal lives are marked by caring or compassionate endeavors. They realize that jurors who have experienced recent traumas or losses may identify with distressed or injured parties or with the victims of crime or misfortune.

But there are other, less obvious, factors lawyers might want to consider when empathy, or lack thereof, is critical to a case. Those factors may include a juror’s age, socio-ethnic affiliations, voice quality and his or her reading habits.

The young and the increasingly uncaring

Empathy is on the decline among youth, according to a study last year from the University of Michigan. Researchers collected empathy test scores from nearly 14,000 college students. The scores, measured with a widely accepted test for empathy, spanned the years 1979 to 2009.

The results showed an overall decline in empathy, particularly since 2000, among college students. The numbers were significant; today’s students scored about 40 percent lower than the students of 20 or 30 years ago.

Researchers have suggested the decline may be due to several factors, including society’s increasing social isolation (fewer of us belong to social or community organizations that ever before—the so-called bowling alone effect), the saturation of violence in the media, and the rise of social media and corresponding decrease in face-to-face and voice-to-voice contact among friends.

On the other end of the age spectrum, two related studies last year showed that, while older people have greater difficulty containing their feelings, they are more likely than the young to find the positive aspects of a sad situation and to empathize with those in distress.

The studies monitored how individuals in their 20s, 40s and 60s reacted to neutral, sad or disgusting film clips, in particular their ability to use such techniques as detached appraisal (adopting an unemotional attitude) and positive reappraisal (focusing on the positive in the situation).

The older participants, drawing on their life experiences, were better at positive reappraisal, while the younger and middle-aged were better at detaching themselves from the emotion of the film clips.

The second study, which used only sad film clips, showed those in their 60s reacted with greater sadness than the other age groups.

Obviously, that doesn’t mean that all young jurors lack empathy. But it may be a factor to weigh along with others when deciding whether to keep or strike a particular individual.

Music on the lips, empathy in heart

The sound of a juror’s voice may provide a clue to the empathy in his or her heart, according to a recent study.

Most of us have at least some measure of a melodic quality to our voice, achieved by variations in tone. That quality, known as prosody, conveys the emotion in what we say to others.

The latest research into prosody, utilizing neuroimaging of the brain, indicates that those of us with the most melodic voices—the sing-song style of speaking or those who turn sentences into questions (termed “upspeak”)—may be the most empathetic.

Researchers imaged the brains of volunteers while they listened to and repeated a nonsensical phrase using happy or sad intonations. The same area of the brain is involved in both listening to and making prosody. Those volunteers who displayed the most activity in that area of the brain tended to use prosody more frequently in their normal speech. They also scored higher on tests measuring empathy.

Whether empathy increases prosody or using prosody helps develop empathy is not clear, but the two were clearly linked in this study.

Who’s in, who’s out

Neuroscience is also helping us understand the role of group identification—including race and ethnicity—in empathy.

Many trial attorneys have long understood that the degree of similarity between a juror and a client, whether it be age, social status or ethnicity, is likely to help a juror identify or empathize with that client. Similarly, psychologists have known for some time about in-group bias. Now, however, neuroscientists can tell us exactly how that works.

When we see someone in pain, our empathy-associated mirror neurons fire and activate regions of the brain. Those neurons provide greater stimulation (i.e., more empathy) when the person in pain is of the same race and less when the distressed person is of a different race. Simply put, racial differences tend to hamper our ability to empathize.

The same effect can be found when it comes to group affiliations other than race. One recent Swiss study involved soccer fans who watched either a member of their own group of fans or someone connected with a rival team be subjected to electric shocks. The observers then had to decide whether they would: 1) help that person by taking on some of the pain themselves; 2) do nothing; or 3) distract themselves by watching a soccer video.

The results? Watching someone from one’s own group suffer produced a different neural response than watching a so-called “outsider” in similar pain. And that differing response controls whether one will offer help.

Bottom line: Our brains work differently when it comes to someone of a different race or social group. And that includes our ability to empathize.

Immersed in a good book

In searching for empathetic jurors, attorneys might want to look for bookworms. That’s because recent studies show significant correlations between fiction readers and high levels of empathy.

Fiction transports us into another world, that of the characters in the book. However different their lives are from ours, for a time we imagine ourselves in their place, feeling what they feel. We feel their pain, their joy, their wonder.

Sound like what empathy is all about? Recent studies would agree. Those who read more fiction have higher levels of empathy. One study of preschool children showed that the number of stories the children read or had read to them predicted their ability to understand the emotions of others—in other words, their ability to empathize.

Researchers hypothesize that reading fiction allows us to practice and hone our social skills. The same findings do not, however, hold true for readers of nonfiction.

So when jurors say they like to read, it is probably important to find out exactly what sort of books are on their shelf.

This article is reprinted with permission from the Friday, July 1 2011 issue of the Fulton Daily Report © 2011. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

A unanimous result is more likely to give jurors confidence in the reliability of their decision-making

By Trisha Renaud

Rare though they may be, hung juries regularly make headlines.

Courthouse news coverage regularly features tales of deadlocked juries and their frustrating, sometimes angry debates that lead to stalemate.

But in spite of the headlines, only 6.2 percent of criminal juries end in deadlock, according to a 2002 National Center for State Courts survey of 30 large urban jurisdictions. The number varies considerably from one locale to another.

Nonetheless, holdout jurors wield a unique power in courtrooms across America. They can thwart resolution of a case, evoking either frustration or delight, depending on one’s point of view.

Whether one regards them as principled heroes or as rogue outliers, holdout jurors and hung juries have been a fixture of our federal and state criminal justice systems for years—with two exceptions.

Two states, Oregon and Louisiana, permit juries to convict a defendant accused of a felony without reaching a unanimous verdict. Both states authorize juries to convict or acquit on a 10-2 vote in felonies other than first-degree murder.

The U.S. Supreme Court addressed this anomaly in 1972. In Apodaca v. Oregon, 406 U.S. 404, the court considered whether those two states’ laws met constitutional muster. Despite the court’s long-standing insistence that federal criminal juries must be unanimous to convict, the justices declined to require the same of panels in Oregon and Louisiana state courts.

Twice this year, the court again had the opportunity to address the matter. Unfortunately, the court punted. In January, the justices declined to hear a case challenging the Oregon law, despite amicus briefs supporting the challenge from the American Bar Association as well as scholars of criminal procedure and jury behavior. Last month, a similar challenge to Louisiana’s law was turned down.

Divided verdicts occur with regularity in Oregon, according to a recent study. A survey of verdict records over a two-year period revealed that 65.5 percent included a nonunanimous verdict on at least one count.

Here in Georgia, the notion of permitting nonunanimous verdicts comes up periodically, usually in the context of death penalty sentencing trials. The latest round of debate arose after a panel deadlocked nine to three on whether courthouse killer Brian Nichols should receive the death penalty. Under Georgia law, when a capital jury hangs on sentencing, the accused is automatically sentenced to life without parole, as was Nichols.

Reactions were swift and emotional. Some called the panel’s deadlock a failure of the system while others countered that the unanimity requirement is a necessary safeguard.

Last fall, both Georgia gubernatorial candidates indicated they were in favor of legislation permitting a split jury to impose a death sentence.

Given the questions raised, a detailed look at the research on unanimous juries is in order. So what exactly do we know?

Juries that must reach unanimity hang more frequently

No doubt about it, the unanimity requirement brings with it more deadlocked juries.

But jury researchers who weighed in on the Oregon case report that requiring unanimity increases the percentage of hung juries by only 3 percent. That’s because deadlocked panels are rarely the result of just one or even two dissenting jurors. Instead, the researchers say, juries hang more frequently when the group has a substantial minority at the outset.

The unanimity requirement does lengthen deliberations

Both simulations (mock trials) and studies of actual juries indicate that panels that must reach a consensus usually deliberate longer. As one would expect, more debate is likely to occur when agreement among all 12 jurors is necessary.

In a 2006 study of civil juries in Arizona, researchers concluded that without a unanimity requirement, juries tended to simply cease deliberations once a sufficient majority was attained.

Jurors are aware of the rules they are operating under, including how many votes it will take to conclude their work. While some panels may strive to persuade dissenters whose votes are unnecessary, others simply end the debate when the needed votes are present.

Unanimous juries engage in more thorough deliberations

A number of studies have concluded that juries with unanimity requirements evaluate their own deliberations as more comprehensive than juries without such a requirement.

In the 2006 study previously referenced, civil jurors operating without a unanimity requirement were asked to rate the thoroughness of their deliberations. Those who reached unanimity evaluated their jury room discussions as more comprehensive than their counterparts (both majority and dissenters) who did not reach accord.

Deliberations of nonunanimous juries are more likely to be verdict-driven, rather than evidence-driven

The verdict-driven jury takes a vote fairly quickly (and often), then proceeds to attempt to persuade any dissenters. The evidence-driven panel, on the other hand, discusses the evidence prior to any voting.

Verdict-driven deliberations tend to divide jurors into competing sides who then focus on converting each other. But when jurors instead focus on the evidence first rather than vote totals, the facts of the case are discussed more extensively and accurately by a greater number of jurors.

Evidence-driven deliberations are generally regarded as more thorough, inclusive and less adversarial.

Minority points of view get a better airing when jurors must reach consensus

Jury simulations conducted by numerous researchers show that without the need to reach unanimity, jurors in the minority participate less in discussions and their views are given less weight by the majority. Put simply, dissenters are not on an equal footing with those in the majority.

With no obligation to persuade holdouts on the panel, the majority need not consider their views.

Unanimous juries are less likely to produce wrongful convictions based on factual errors

Given more thorough deliberations, juries operating under a unanimity requirement are less likely to overlook or discount the doubts of the minority and less likely to make erroneous decisions.

A study by Innocence Project New Orleans found that more than half of their clients who were wrongfully convicted of a noncapital offense and later exonerated had been sent to prison by a nonunanimous jury, according to one of the amicus briefs in the recent U.S. Supreme Court case.

In sum, the benefits are considerable from requiring unanimity while the drawbacks are relatively minor.

A unanimous result is more likely to give jurors confidence in the reliability of their decision-making, and to inspire a similar confidence in the community at large that the verdict issued was one that is true and just.

This article is reprinted with permission from the Wednesday, March 2, 2011 issue of the Fulton Daily Report © 2011. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Wednesday, December 01, 2010

Jurors could have a hard time suppressing thoughts after being instructed to disregard evidence

By Trisha Renaud

“The jury will disregard what you just heard.”

In courtrooms around the country, juries routinely hear some version of the above instruction from a judge, telling them to ignore what a witness has just blurted out, to put out of their minds an inflammatory remark counsel has made or to give no weight to that inadmissible piece of evidence they have just seen.

Curative instructions are a regular occurrence in the courtroom simply because trial participants are unpredictable and fallible. Inadmissible evidence can pop up in an instant, sometimes as a passing, barely noticed remark, other times as stunning testimony.

The judge may deliver a directive to the jury in an attempt to “cure” the introduction of the inadmissible evidence. While the legal language varies, in essence, jurors are told to forget-you-ever-heard-or-saw that and don’t-even-think-about-it.

Does the admonition work? Sometimes better than other times, but, as a rule, not very well.

Ideally, a curative instruction would act like the memory eraser in the film “Men in Black,” a handy device that wiped out an agent’s memory of his secret activities. It would remove the contaminating information from jurors’ minds. But, as every trial lawyer has probably argued, a bell, once rung, can’t be unrung.

Curative instructions often have about as much effect as the unveiled Wizard of Oz’s exhortation to Dorothy and her friends to “pay no attention to that man behind the curtain!”

Essentially, curative instructions ask jurors to suppress and ignore information they already have heard. Some jurors are unwilling to do so, for reasons that we’ll discuss later, but even when jurors do their level best to follow the judge’s admonition, they run into trouble.

The problem is that trying to suppress a thought often makes it come back to mind stronger than ever. In short, it’s counter-productive.

In a well-known 1987 psychology experiment, participants were asked to try not to think about a white bear for five minutes, then to think about a white bear for another five minutes. Whenever they thought about the bear, they were directed to ring a bell. The results? Participants rang the bell twice as often in the first five minutes—when they were trying not to think about the white bear. The results were the same when participants were not instructed to suppress thoughts, but were merely encouraged to do so. The instruction to suppress thoughts of white bears backfired and instead increased thoughts about white bears.

Psychologists even have a term for this effect—the post-suppression rebound effect or sometimes just the rebound or backfire effect.

The rebound effect, researchers have found, is even stronger when people try to suppress very emotional thoughts or very unusual thoughts.

There are two reasons that curative instructions may backfire. One reason is what is known as the reactance theory. Jurors sometimes take offense to the instructions to disregard evidence, believing that their freedom to consider all relevant information is being curtailed. They may retaliate by giving the excluded information even more weight than they would have had no curative instruction been given. In effect, they are flouting the judge’s directive.

Another reason—and this probably occurs more often—is attributed to the ironic process theory. In short, the very mental processes that jurors use to try and suppress information ironically are the same processes that trigger conscious thoughts about that information. As a result, even the most well-intentioned jurors just can’t put the information out of their minds.

Difficulty with suppressing thoughts is especially acute when the mind is operating with a high cognitive load—in other words, trying to understand and remember a large amount of evidence. That is exactly what jurors must do during trial. Jurors are also unable to distract themselves by thinking about completely unrelated things and still pay attention to the proceedings.

Even when jurors agree during deliberations to set aside inadmissible evidence and not discuss it, the evidence does not vanish from their minds. Afterward, they are unlikely to be able to assess the impact of that evidence on their decision making process.

Last month, in the trial of four men accused of planning to bomb New York synagogues, jurors inadvertently received a transcript of a telephone conversation that the judge had previously ruled inadmissible. The judge queried jurors about their ability to ignore the document they had seen by mistake. One juror said she was unsure she could disregard the transcript, but the other 11 jurors promised to do so. The one juror was dismissed and the jury continued deliberations with only 11 panel members. The trial resulted in a conviction, and not surprisingly, the errant transcript will be a focus of appeal.

When inadmissible evidence crops up during trial, lawyers must decide how to respond to it. Absent grounds for a mistrial, they must decide whether curative instructions are appropriate. But what sort of instructions might mitigate the rebound effect?

There is some evidence that brief, minimalist or soft-sell instructions may work best. A 1977 study in the Journal of Applied Social Psychology found that jurors were least likely to comply with curative instructions when the judge told them they had no choice but to disregard the evidence.

Using what might be termed an “early warning” or “inoculation” system can help increase juror compliance. A 1993 study in the Journal of Experimental Social Psychology found that people have greater success in discounting information if they are warned prior to receiving the information, then reminded about the warning immediately after the information is disclosed.

A judicial inoculation might go something like this: “During the trial you may inadvertently hear information that should not be part of these proceedings because it is not the type of evidence that meets the standards of the court. It may be evidence that is unreliable or so prejudicial that it would jeopardize a fair trial for all concerned. So there may be times when I have to ask you to put certain information aside and not consider it during your deliberations. Please do your best to do so when asked.”

When curative instructions are required, the judge could then remind jurors by saying, “This is one of those occasions I told you about earlier when I must ask you to try and disregard certain evidence and not let it be a factor in your decision making.”

Offering specific explanations for why the evidence should not be considered in the curative instruction can produce mixed results. Sometimes the explanation is obvious, as when one Georgia judge recently told jurors to disregard the questioning of a victim about whether the defendant had ever apologized to her. The defendant, the judge said, was prohibited by court order from any contact with the victim.

But other explanations are more problematic. A 1995 study in Law and Human Behavior found that legal explanations backfire in the case of prior conviction evidence—but may help in the case of hearsay. That may be because jurors perceive prior conviction evidence as highly relevant to their decision, but hearsay evidence as less reliable, the study suggested.

A 1997 study in Personality and Social Psychology Bulletin found jurors were influenced by the type of reason—either substantive or procedural—given for the judge’s instruction to disregard certain evidence. Substantive reasons such as the quality or reliability of the evidence increased compliance, while procedural or due process reasons produced more resistance to the instructions.

The authors concluded that jurors are more worried about the outcome of the case than procedural considerations, adding that “it is precisely because jurors seek just outcomes that they cannot resist the temptation to use information they see as relevant—whether it satisfies the law’s technical rules or not.”

This article is reprinted with permission from the December 1, 2010 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Monday, June 07, 2010

Potential jurors are more likely to lie or omit information when judges conduct questioning

By Trisha Renaud

An angry Virginia judge last month accused jurors of not telling the truth during voir dire in a child molestation case and reluctantly declared a mistrial.

Virginia Judge Frederick G. Rockwell III was livid, and he let jurors know it. “The only way that this system works is if people tell the truth,” he said, according to the Richmond Times-Dispatch.

The trial of defendant Edward L. Hope Jr. was derailed after a juror sent Rockwell a note complaining of three jurors with biases that had not been disclosed earlier in voir dire. One juror had heard accounts of Hope being taken from his workplace in handcuffs. Another juror had previously been falsely accused and questioned by police, and a third had preconceptions about molestation victims since his wife had been molested.

All of this was news to the judge and the lawyers. None of this information had been revealed during jury selection.

It’s unclear just how extensive or complete voir dire was in this case. According to the Richmond newspaper, Rockwell and the lawyers had spent about two hours questioning jurors before the panel was selected, asking about such topics as their connections to law enforcement and their experiences with crime.

No doubt, the process was frustrating to not only the judge, but to the lawyers and the parties. The ability to make appropriate challenges for cause and use peremptory strikes effectively depends on getting accurate information from jurors during voir dire.

But jurors do sometimes lie, as most litigators know. They also fail to bring up information that they know or should know is relevant to the case.

A 1991 study made just that point. Researchers observed jury selection for 31 criminal trials, then interviewed 190 jurors after the trials were over, asking many of the same questions jurors had answered during voir dire. About one-fourth indicated during the post-trial interviews that they or a family member had been a crime victim when they had not revealed that information in voir dire. Almost 30 percent told interviewers they knew someone in law enforcement but had failed to reveal this in court. (See Richard Seltzer, Mark A. Venuti and Grace M. Lopes, Juror Honesty During the Voir Dire, Journal of Criminal Justice, Vol. 19, pp. 451-462 (1991).)

So how can juror honesty and disclosure during voir dire be improved? What is the best method to get accurate information from jurors?

Potential jurors are more likely to be forthcoming when voir dire is thorough and when the lawyers, rather than the judge, ask the questions.

In the 1991 study mentioned above, the voir dire in most cases was brief. In 29 percent of the cases, voir dire lasted less than an hour. In only 13 percent of the cases did the questioning take more than two hours. And, in four cases, panel members were asked a total of six questions.

In addition, in 63 percent of the cases, the judge asked all the questions. In only one case were lawyers allowed to conduct the entire voir dire.

An earlier study from 1987 looked specifically at the issue of juror candor in the settings of judge-conducted voir dire versus attorney-conducted voir dire.

In this study, 116 jury-eligible people filled out written questionnaires about their attitudes on the legal system. Then they were brought into the courtroom for voir dire sessions conducted by persons with legal backgrounds playing the roles of judge and attorneys. The mock jurors were asked the same questions they had answered earlier in the questionnaires. Researchers noted any differences in jurors’ responses. (See Susan E. Jones, Judge- versus Attorney-Conducted Voir Dire, An Empirical Investigation of Juror Candor, Law and Human Behavior, Vol. 11, No. 2, pp. 131-146 (1987).)

What happened? People were nearly twice as likely to change their answers in the courtroom when questioned by a judge as when questioned by a lawyer. Women were somewhat more likely to change their answers than men. Even three ministers who participated in the sessions changed their answers significantly.

Across the board, the mock jurors were more candid about their attitudes and beliefs when the lawyers conducted voir dire.

Researchers concluded that the mock jurors tried to supply the answer they believed the judge wanted to hear—the one they believed to be the most socially acceptable rather than their true belief. In an attempt to conform to some perceived judicial standard, they shifted from moderate attitudes to more conservative ones.

The researchers also examined how candid jurors were when the questioner adopted either a formal or a personable style, and when the questioner disclosed some small background information about himself or herself, a technique known as “reciprocity.”

Neither personal disclosure nor a more personal style improved juror candor when the judge was the one asking questions. In contrast, jurors’ answers were more consistent when attorneys asked the questions, particularly when a more personable style was used.

The problem isn’t that judges are unskilled at asking questions or that they are all intimidating personalities. The issue is their status—the robe and the high bench are visible signs of authority and higher social status. Jurors get it.

The respect jurors have for the position of judge—and most show great deference to the court—doesn’t make them more forthcoming when talking to a judge. On the contrary, that respect causes them to want to please the judge and to avoid embarrassment by conforming to a perceived notion of what is socially acceptable.

So when you’re in federal court—where judges conduct the vast majority of voir dire—keep asking the judge for opportunities for counsel to participate in voir dire. If the judge is reluctant and concerned about moving the case along, suggest a time limit on the lawyer portion of voir dire.

If that fails, propose a supplemental juror questionnaire. It will likely provide better answers than those the judge elicits during voir dire.

The focus group or mock trial will help reveal how jurors are likely to evaluate the case and why.

By Trisha Renaud

Ever been caught off guard by jurors?

Maybe it was the time you were confronted with that overlooked detail that jurors found so important in their deliberations.

Perhaps it was the skeptical look on their faces as you expounded on the theme and storyline you once thought so brilliant.

If so, you should consider a test run for your next case: a focus group or mock trial.

Product marketing campaigns are tested on small groups before being launched on a large scale. New medications are subjected to clinical trials before they are approved for release. Politicians float trial balloons to see how the public reacts to their ideas.

Similarly, your cases almost always will benefit from pretrial juror research. While research can never simulate the complexities of a trial, it can provide you with valuable insights long before you enter the courtroom.

Already got your own testing methods, you say?

Bouncing ideas off colleagues, family or friends might yield some insight, but this feedback is of limited use. These folks may try to be objective, but they inevitably approach the case with a bias in your favor. And, odds are, your presentation isn’t exactly objective.

Lawyers’ objectivity inevitably suffers because they are too close to their cases and too invested in their viewpoint. They view the case with a legalistic tunnel vision, meaning that the issues or evidence they consider critical often bears little resemblance to what non-lawyers (read: jurors) find important.

The focus group or mock trial will help reveal how jurors are likely to evaluate the case and why. Properly conducted, this type of pretrial research provides critical information that enables lawyers to fine-tune or sometimes totally revamp their case.

Focus groups typically involve six to 12 people who listen to a neutral presentation of case facts. Participants engage in moderator-led discussions that examine key facts, critical issues or witnesses. Participants may be asked to complete written questionnaires at various points during the session.

Mock trials generally more closely resemble actual trials in that they are longer and contain more formal presentations. They feature the testimony of witnesses, opening statements, closing arguments and jury charges. Jurors deliberate and reach a verdict, then are debriefed by the moderator/facilitator.

Mock jurors and focus group participants usually are recruited to reflect the makeup of the venue’s jury pool, but there are exceptions when the research aim is to explore a particular demographic.

In both types of sessions, participants sign confidentiality agreements.

Good pretrial research involves more than just rounding up people, running down the facts and asking for a vote. Why participants decide the way they do is just as important as what they decide. It is for this reason that sessions developed and run by trial consultants usually obtain more useful information than those put together by untrained staff.

In either the focus group or mock trial, trial consultants function as a neutral voice, asking questions that will get to the root of participants’ thinking. An untrained moderator will likely fail to elicit critical information and will unconsciously influence the discussion and the outcome.

It is the consultant’s responsibility to ensure that participants are representative of the venue’s jury pool and are properly screened for conflicts. A consultant will also assist in planning presentations and developing questionnaires to assess juror reaction at various points throughout the session and at conclusion.

Sounds great, but you’ve got no time, you say? Got your hands full getting ready for trial?

Viewing focus groups or mock trials as a frill or a distraction from trial preparation is short sighted. Preparation for these sessions is preparing for trial.

Working to condense the case into a streamlined presentation for a mock jury yields a clearer grasp of both what’s important and the big picture.

You’ll also learn about your opponent’s case. In any pretrial research, the opposing side’s presentation must be as strong as possible. That slant is designed to maximize the opportunity to learn what jurors like or dislike about the opposition and how its arguments might be countered.

Obviously, staging focus groups or mock trials is an added expense to trial preparation, but it is an efficient way of testing your case that can pay off. It is most useful early in the litigation process, when the knowledge can be put to use.

A word of caution: Because the sample size is too small to make accurate statistical predictions about what trial jurors will do or to determine a definitive favorable/unfavorable juror profile, focus groups and mock trials do not predict verdicts.

But they will give you insights unavailable from any other source.

By Trisha Renaud

Judges seem to be in a bigger hurry these days when it comes to voir dire.

Few on the bench ever grant the litigator’s dream: free rein and unlimited time to question the venire panel. Yet, of late, judges appear to be even more pressed than usual.

Some judges are choosing to do the questioning themselves. Others are setting limits on each side’s time with the panel. And some are just pushing lawyers at break-neck (and nearly break-less) speed.

 No matter what form it takes, abbreviated jury selection is a problem for the unprepared lawyer. You may plan for the perfect voir dire, only to be given less than half the anticipated time to do it.

The solution? When time is short, voir dire must be focused and productive.

That means curtailing the urge to use questions for argument or advocacy and, instead, concentrating on ways to gather the most information possible about your jurors.

Jury selection has several well-recognized goals: Establishing a rapport with jurors, educating jurors on issues and legal principles they will confront in the case, and—first and foremost—finding out what they think.

But some attorneys spend too much time using questions to argue their case. Attempting to persuade potential jurors on the righteousness of your cause shouldn’t be a goal of voir dire. Here’s why:

• In the time span of a trial you are unlikely to sway anyone to your side who is close-minded to your point of view.

• You may cause the unfavorable jurors (whom you need to identify) to stop providing information to you.

• Most importantly: You won’t find out the information you really need to know.

The critical task in voir dire is not to alter jurors’ beliefs, but to discover what they believe. Only then can attorneys make informed peremptory strikes.

The notion that selling one’s case must begin in voir dire originated with early jury studies in the 1960s. Researchers concluded that jurors begin to form fixed opinions during voir dire and, by the end of opening statements, a huge percentage have already made up their minds. The logical conclusion, then, was to begin advocating one’s cause right away, including during voir dire.

Critics (and later research) pointed out that those early studies had an important flaw: They did not consider pre-existing attitudes and how those affected the formation of jurors’ opinions. In all likelihood, jurors in these studies made up their minds so quickly due to biases they acquired long before they stepped into court.

Those pre-existing attitudes or beliefs—particularly those shaped by jurors’ personal experiences—are very difficult to change. Voir dire is best used to explore those biases rather than attempt to change them.

So what to do with limited time? Make sure you cover what’s pertinent to the particular case, rather than relying on the standard one-size-fits-all questions.

Run over the story of the case in your mind, listing all the important elements that will be presented. Is there a contract involved? A delayed diagnosis? A gun? A foreign-born client? A promotion denied? A defective product? A broken promise? A warning ignored? An abusive boss?

 Crafting your questions

You can and should ask jurors directly for their opinions on these topics, but, to be most effective, you must also ask about the experiences they have had that shaped their opinions and about their habits or behaviors.

Craft your questions by first considering what experiences might jurors have had that bear on these issues and what behaviors they might engage in that would tell you something about their attitudes on these topics.

For example: Have they ever had a situation where they wished an agreement had been put in writing, but wasn’t? Do they always read the fine print before signing a document? Do they go out of their way to buy American-made products? Ever written a letter to complain about a product?

Then tackle the legal elements of the case for your side and the other side. This should include causes of action, defenses, or, in a criminal case, the elements of the crime. Again, consider what related experiences jurors may have had and what type of behaviors might reveal their attitudes.

If you go through this exercise, you will have included the essential questions you need to ask to gather information. You will also have educated jurors on what they can expect the case to be about.

If there are particularly thorny or sensitive issues in your case, bring them to the attention of the judge before the day of trial. Explain why these issues might be a problem and how you’d like to address them. When judges are presented with specific requests, rather than a general “we just need more time,” they may be willing to go along.

Come prepared with two lists, one shorter and one longer. One should contain the most essential questions for your panel that must be covered in the event your time is cut short. The other can contain those quirky questions (such as “whom jurors most admire”) that you’d love to ask if time—and the judge’s patience—permits.

This article is reprinted with permission from the March 30, 2010 issue of the Fulton Daily Report © 2010. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Lawyers-and even jurors-may not be able to detect implicit bias, but there are steps to mitigate it

By Trisha Renaud, Special to the Daily Report

The search for bias is at the heart of every lawyer’s mission when facing a panel of prospective jurors.

Armed with lists of voir dire questions, attorneys hope to coax jurors into revealing enough information to identify who among the panel are dangerous for their client. Some jurors may dislike all plaintiffs while others are distrustful of big corporations. Then there are those who are immediately repulsed by anyone charged with a crime.

When the case involves issues that touch on race or ethnicity, lawyers know that uncovering such bias is more difficult. It is the rare juror who will admit prejudices, particularly in a courtroom in front of a crowd and a judge. And even those jurors willing to discuss their biases are usually unable to accurately gauge the depth of their feelings.

Social scientists tell us that when it comes to bias, matters are complicated.

When prospective jurors say they think people who file lawsuits are greedy, police are corrupt or women are ruled by their emotions, they are revealing one type of bias. Explicit bias consists of those attitudes a person is aware of and can identify, even if the person doesn’t recognize them as bias.

Yet even the most honest and self-critical individuals can go only so far with self-assessment. They won’t tell you about an entirely different type of bias, known as implicit bias, for the simple reason that they can’t. Implicit bias exists outside the conscious mind, beyond our awareness.

Implicit bias consists of unconscious associations that are the product of culture and life experiences. Social scientists have spent the past decade studying implicit bias in all its forms and developing ways to measure it.

Researchers at Harvard University’s Project Implicit have developed the Implicit Association Test (IAT).

Since 1998, the IAT has been taken online by some 4.5 million people.

The IAT works by measuring the reaction time a test taker uses to make certain associations. Such tests begin simply. In the version of the IAT that measures bias toward African Americans, the test (which can be taken online at implicit.harvard.edu/) works this way:

Subjects are asked to classify sets of words and images as quickly as possible. They must use the “e” and “i” keys on their computer to correspond to the left and right respectively. They are instructed to hit the left key when a black face appears and the right key when a white face appears. Then the same procedure is repeated using two sets of words. Subjects must hit one key for “good” words such as joy, wonderful or happy and another key for “bad” words such as evil, horrible, failure and nasty.

In the next stage, the words and images are combined. Test takers are instructed to hit one key when they see a white face or “bad” word and the other key when they see a black face or “good” word.

Finally, the associations are reversed: for either white faces or “good” words, subjects hit one key, and for black faces and “bad” words, they hit another.

By measuring and comparing the response times, the IAT will reveal a slight, moderate or strong preference for whites or blacks, or little to no preference. This response time difference occurs because associations that are more difficult for the mind to make take longer. Generally white test takers are faster at associating positive words with white faces than associating positive words with black faces.

Other versions of the IAT measure bias against the elderly, homosexuals, the disabled or associations between gender and careers, and between gender and science.

Project Implicit research has found that implicit bias is widespread. More than 80 percent of test takers show bias against the elderly as compared to the young and 75 percent to 80 percent of whites and Asians show implicit bias in favor of whites over blacks.

Of all the researchers’ findings, one conclusion is particularly important for trial lawyers: Implicit bias very often predicts behavior. As might be expected, persons with higher implicit bias more often engage in discriminatory acts.

Further, according to research published earlier this summer, implicit bias is a much better predictor of behavior than a person’s own self-assessment. This conclusion was based on a review of the results of 184 different studies that used the IAT.

Obviously, lawyers don’t have tools like the IAT when it comes to jury selection. Nonetheless, some familiarity with social science research on bias can be helpful to attorneys both in voir dire and during trial.

• People can’t reliably assess their own bias.

The limits of self-assessment may be obvious to many lawyers, and social science bears this out. Even the most soul-searching jurors simply don’t realize what attitudes linger in their unconsciousness.

• Deal with the biases you’re worried about during voir dire.

While voir dire can’t detect all bias, the nature of the questions you ask can affect jurors’ subsequent judgments. Some studies have concluded that the simple act of bringing up those biases relevant to your case can increase jurors’ open-mindedness and prime them to be sensitive to the issue.

• Friendships are important.

There is evidence from studies that individuals who have close friendships with someone of another race or ethnicity have less implicit bias toward that group. Recent polls indicate the same may be true of anti-gay bias. So ask prospective jurors about their ties with those who are different from them.

• Observations of interactions between potential jurors can be misleading.

A recent study concluded that whites don’t show implicit bias toward African Americans who are part of their same group. That group might be a sports team, a club, a corporate department-or it could be a jury panel. Group bonds of this type can be formed in minutes, or in the time prospective jurors spend waiting before they enter the courtroom. Their friendly interactions do not necessarily mean, for example, that white jurors won’t be biased against your African-American client. The diminished effects of implicit bias will not apply to African Americans who are not part of the “group,” regardless of how well jurors of different races or ethnicities appear to get along.

• Use every opportunity to provide jurors information that counters their stereotypes.

Research indicates that exposure to people who differ from stereotypes can mitigate the effects of implicit bias. Make sure the jury becomes aware of all the ways your client or witness is different from any stereotypes. You probably can’t eliminate all bias from your jury, but you can reduce its impact.

• Diverse juries can mitigate the effects of bias.

A 2006 study using mock trials found that whites who served on diverse juries were more open and receptive to discussing issues of racism than whites on all-white juries.

• Learning about prospective jurors’ behaviors and experiences is the best way to evaluate their bias.

Bias is shaped by experience. When developing voir dire questions, think of all the experiences a juror might have had that could contribute to a prejudice or a stereotype. Then, consider all the ways that someone with a particular bias might act.

• Ask for a commitment.

Once you’re near the end of speaking with a juror, ask for a commitment that he or she will do their utmost to be fair. Prime them to fulfill their civic duty. Then remind them of their promise gently when you address the panel in opening statements and closing arguments.

__________________

The April 22 Jury Watch column discussed an Ohio murder trial in which three jurors conducted home experiments.

Defendant Ryan Widmer was found guilty of drowning his new bride by holding her head down in the bathtub. After the trial, several jurors acknowledged experimenting at home to see how long it took to air dry after bathing and discussing their findings during deliberation.

Last month, a Warren County judge granted Widmer a new trial, finding that the verdict may have been based in part on the improper home experiments.

This article is reprinted with permission from the September 2, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Studies are split on whether plaintiffs or the defense has the advantage with jurors who have served before.

The topics addressed during voir dire of prospective jurors vary from case to case, but one area of questioning is nearly universal: prior jury service.

Whether the case is civil or criminal, tort or felony, lawyers always want to know which panel members have experience as a juror.

Georgia judges typically permit questions to be posed such as these:

• Have you ever served on a jury?

• Was the case civil or criminal?

• Were you the foreperson?

• Without specifying what that verdict was, did your jury reach a verdict?

• Is there anything about your prior jury service that would make you unable to be fair and impartial in this case?

Sitting as a juror affects an individual’s future attitudes toward the justice system in a number of ways.

During their service, jurors learn the various players in the court system and their roles, gain familiarity with courtroom procedures and acquire at least some knowledge of legal concepts. Jurors also gain experience listening to and evaluating evidence and participating in deliberations to reach a decision.

Some jurors come away from their courtroom time with a newfound respect for the justice system and with a sense of civic responsibility fulfilled. Others, however, may find the process tedious or trying, the deliberations frustrating or troubling or the entire experience disillusioning or haunting.

Regardless, lawyers always want—and need—to know about prospective jurors’ past jury service. Many attorneys believe that repeat jurors tend to side with the defense in civil cases, and with the prosecution in criminal cases. They also expect that repeat jurors are more likely to be leaders on the jury and that a juror who has been a foreperson once stands a good chance of being chosen foreperson again.

Is there evidence—more than anecdotal—to support these widely held beliefs?

To answer that, we should look to the results of studies of juror behavior. The available research on the effects of prior jury service on verdicts, which includes both field studies (interviews with jurors or statistical evaluations of court records) and laboratory experiments (simulated trials or case assessments using undergraduate students or volunteers) were conducted in the 1980s. They focus solely on criminal cases.

Of those studies, most found that repeat jurors in criminal cases are more likely to vote to convict. Some studies also indicated that juries with a higher percentage of repeat jurors are more likely to convict.

One laboratory study found that repeat jurors’ votes were influenced by two factors: the seriousness of the previous case as compared to the second case, and the comparative strength of evidence.

The studies also revealed that repeat jurors are more likely to become forepersons—especially if they have served in that capacity previously.

Obviously, these findings are generalizations, but they underscore the need for criminal defense lawyers to scrutinize those who have previously served as jurors in a criminal case and to consider the number of repeat jurors who may wind up on the new panel.

One category of repeat jurors warrants even more scrutiny: those jurors who learned after the verdict that information had been hidden from them during trial.

Prior criminal records, evidence seized from an illegal search, evidence of other litigation or any irrelevant and prejudicial information is often excluded from trial for sound legal reasons. Yet one of the attorneys, or sometimes even the judge, often will reveal that information to jurors during post-trial discussions in the jury room.

Sometimes this disclosure will reinforce jurors’ beliefs in the righteousness of their verdict, while in other cases, it will call into question their just-rendered decision. In either case, it will inevitably change how they assess future cases. These jurors will feel duped or tricked. Next time around, they are likely to assume that secrets are being kept from them again, leading them to factor that assumption into their assessment of the evidence.

In short, revealing this information to jurors after trial—described by one public defender’s blog recently as the “post-trial reveal”—poisons the pool of future jurors.

Last month, a California juror who served on a civil trial described just such a situation on her blog: “[T]he things I’ve found out from one of the attornies [sic] since the trial has been over has seriously damaged my sense of justice and fair play. The judge did not let in several things that, knowing now, would have changed the outcome.”

Another juror’s blog reveals a similar story: “After the verdict, evidently, a judge can be more free with his opinions. He came back to the jury deliberation room and without actually saying the words, let us know that we had made a wise decision. He also told us that this was the defendant’s fifth offense.”

And finally, this juror, whose panel had just found a man guilty of raping a child, wrote that both the judge and the prosecutor shared some new information with jurors after the verdict. “Turns out this sick bastard has two more pending rape charges. … The judge also assured us there was nothing about the case that could be appealed successfully.”

The post-trial reveal can also be an ethical violation.

State Bar of Georgia rules provides that after a jury is discharged, a lawyer “shall not ask questions or make comments to a member of that jury that are calculated to harass or embarrass the juror or to influence his actions in further jury service.” A violation of the standard is punishable by a public reprimand.

The American Bar Association’s Criminal Justice Standard 3-5.4 contains similar language directed at prosecutors who speak with jurors after a verdict.

A few additional voir dire questions about prior jury service may help lawyers spot those repeat jurors who feel they been deceived in the past. Ask if they learned anything during—or after—their prior jury service that might affect their feelings toward either side or toward jury service in the current case.

Since Jury Watch’s column of Feb. 13 about jurors on the Internet, the problem has mushroomed to the point of derailing, or threatening to derail, case after case.

In Florida, a federal judge declared a mistrial in a drug case after discovering that nine jurors had done Internet research on the case. A judge in Philadelphia considered, but rejected, a request for a mistrial based on one juror’s Facebook postings during the trial of a political corruption case. And an Arkansas company tried unsuccessfully to set aside a $12.6 million verdict because a juror had sent multiple Twitter messages on the case during trial.

In response, some courts are instituting measures to address the problem.

Rhode Island recently revised its juror handbook, according to the Providence Journal. The new guide will warn jurors against conducting Internet searches, participating in chat rooms or posting on blogs about the case. Jurors will also be told they may not discuss the case “either personally or through computers, cell phone messaging, personal electronic and media devices or other forms of wireless communication.”

The Michigan Supreme Court went even further, issuing new jury instructions. Beginning Sept. 1, judges must instruct jurors not to use cell phones or any other electronic device during a trial or in deliberations. That includes all electronic communications, including text and Twitter messages.

This article is reprinted with permission from the July 13, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.