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Deliberations: Jurors think and feel as they make decisions

Monday, July 26, 2010
posted by Douglas Keene

Our legal system assumes jurors will make their decisions without bias. This assumption echoes the ancient words of  Aristotle: “the law is reason, free from passion”. Yet, most of us realize that decision-making encompasses both reason and passion. So how do you take that into consideration as you prepare and then present your case?

Researchers have explored both the “need for cognition” in juror decision-making and, more recently, the “need for affect”. Most of us are more familiar (whether we know it or not) with the “need for cognition” research.

Need for cognition: This refers to how much an individual enjoys and engages in effortful cognitive activities. We hear direct applications of this research in voir dire questions like: Do you enjoy doing crossword puzzles or Sudoku? When trial lawyers ask questions like these, they are examining whether jurors are high in the need for cognition (yes responses) or low in the need for cognition (no responses).

Need for affect: This is a newer concept–and therefore doesn’t have its own Wikipedia page! According to a new article by Desirée A. Griffin and Emily Patty in The Jury Expert, “need for affect” refers to “the motivation to approach or avoid emotion-inducing situations”.

Jurors who are high in need for affect will remember more of an emotion-laden message than they will a cognitive-laden message. Thus, depending on whether you want jurors who will respond to a highly emotional argument (or not) you can use their ‘need for affect’ to make decisions on whom to keep and whom to strike. Griffin and Patty, in their article on need for affect in the courtroom, offer the following as suggested queries for voir dire:

To identify jurors high in need for affect, Griffin and Patty suggest:

1) It is important for me to be in touch with my feelings.

2) I think that it is important to explore my feelings.

3) I am a very emotional person.

4) It is important for me to know how others are feeling.

5) Emotions help people get along in life.

6) Strong emotions are generally beneficial.

To identify jurors low in need for affect, Griffin and Patty suggest:

1) I find strong emotions overwhelming and therefore try to avoid them.

2) Emotions are dangerous – they tend to get me into to situations I would rather avoid.

3) I would prefer not to experience either the lows or highs of emotion.

4) If I reflect only on my past, I see that I tend to be afraid of feeling emotions.

5) I would love to be like “Mr. Spock,” who is totally logical and experiences little emotion.

6) I have trouble telling the people who are close to me that I love them.

Overall, identifying jurors who have a relatively cognitive approach or a dominant emotional approach to decision-making can potentially help your case. We always think it’s a good idea to assess jurors using valid and reliable questions from pre-existing measures.  It just makes good sense, and sometimes it makes all the difference.

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2 Responses to “Deliberations: Jurors think and feel as they make decisions”

  1. Kevin Mahoney says:

    As a trial lawyer for the past 20 years, it has always mystified me that many trial lawyers fail to grasp the importance of the emotional undercurrent of the trial — or better stated, the story. And unfortunately for many of these lawyers, they wait until the closing arguments to appeal to juror emotions — when they probably have already committed themselves to one side or the other and are, therefore, unreachable. I write about it on my website http://www.relentlessdefense.com and in my book, Relentless Criminal Cross-Examination. Appealing to the juror’s emotions must begin in the opening statement and be reaffirmed during trial. Of course, this appeal to their emotions and the telling of the client’s story are one in the same.

    Regards,

    Kevin Mahoney

  2. [...] From Jury Room: “Deliberations: Jurors think and feel as they make decisions” [...]

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