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Archive for the ‘Voir Dire & Jury Selection’ Category
Voir Dire Tips you wouldn’t likely figure out on your own
We’re always on the lookout for research findings that can give us an edge when it comes to jury selection. These sorts of findings are often counter-intuitive and not the sort of thing you would figure out on your own. As a public service (and because it’s sort of fun) we present the latest of our research scavenging.
Juror empathy: There are times when you want jurors who are high in empathy. Say, for example, you have a plaintiff horribly injured or a defendant who will suffer irrevocable harm if a verdict is awarded for the plaintiff. Rather than inquiring specifically about empathy—just listen. People who talk in a more melodic (or “sing-song”) voice or cadence are higher in empathy. Sometimes you want them. Sometimes you don’t. Proceed accordingly.
Juror bias against Arabs: This is a tricky one. If your client is Arabic or Muslim, you have an uphill battle. No surprise there. A recent article in the APA Monitor finds that there seems to be a tendency for religious bias to be involved in trials involving Arab defendants but there is little to no controlled research to examine anti-Muslim biases. What we would say here is this: be very careful. Talk to jurors about implicit bias and how associations made by opposing counsel with terrorist acts can bias them against your client without their conscious awareness. Talk to them about how to minimize this bias within themselves.
There is more we’ve seen lately. This is a sampling to get you started thinking about the novel applications of research findings you see reported in the mass media on a daily basis. What does it potentially mean for voir dire?
We know liars when we see ‘em
Or so we believe. We’ve written about beliefs in our individual ability to detect deception a number of times. The truth is, our ability to detect deception is often less than that of chance alone. But that doesn’t inhibit our wish to imagine great skill in detection. Even when we experience lies big and small—right to our faces—on a regular basis, we still want to believe we have nearly magical ability to spot it. If this delusion wasn’t so dangerous it would be somehow funny or sad. But in fact it is hazardous to justice.
We want to believe we can spot liars on sight. Some would say that intensive ‘scientific’ research has brought us closer and closer to ‘scientific’ means of assessing deception. In fact, recently an eye-tracking lie detection method has been licensed to a Utah based company. Principals in the company say that this product was developed based on intensive research and that it will enable better “national security” among other things.
While most jurors can’t use advanced equipment to identify liars, many of them are attempting to enhance their skills in deception detection by watching TV. The Fox Network show “Lie to Me” has become a popular television show which many tune in to faithfully. In fact, many trial attorneys routinely ask jurors what television shows they watch on TV to get a sense of who may have beliefs about the work of the police, investigators and attorneys.
So here’s an interesting finding. A recent study on viewers of Lie to Me found that all watching this TV show did was make viewers more suspicious of others—but it did nothing to improve their detection of deception. Which leads us to a new reason to ask about television shows jurors watch:
- If you want jurors who are suspicious and prone to see conspiracy about them, you likely want viewers of this TV show on your panel
- If you want jurors who are not suspicious and prone to see conspiracy about them, you don’t want viewers of this TV show on your panel
We love research. It’s always good for something!
Voir Dire Strategy: Who’s the authoritarian?
Recently, in his blog (Defending People), Mark Bennett posted about using scientific jury selection via the use of questions to assess jurors’ authoritarianism. Mark even shares the questions he used.
We happen to love this idea. We like to use pre-existing (already validated) survey research items since we have an idea of what a normal distribution of responses should look like. Mark’s idea of using the authoritarianism trait is a tried and true one. Research has long shown us that people who are authoritarian are more likely to be punitive, see the ‘law’ as a black and white standard, and condemn persons who question and/or deviate from societal norms.
The challenge in this sort of approach to jury selection (as pointed out in the comments on Mark’s blog entry) is in figuring out just how to get to the data.
- One reader suggests a pretrial questionnaire.
- And a member of the jury pool where Mark tried this strategy says she found it really interesting but wondered if she had enough time to really consider her responses.
- Mark used half his voir dire time to ask jurors these questions.
Often, you simply don’t have the time in voir dire to do this sort of interviewing/questioning but when you do, this is a good strategy if you do not have the luxury of pre-trial research. There are multiple resources you can peruse (free of charge) that may elicit additional ideas for voir dire investigation. It’s like a scavenger hunt. Below we suggest just a few:
Of Innocence and Dissonance: Reviewing the Conviction-Prone Status of Death Qualified Juries from a Cognitive Dissonance Perspective by Victoria A. Springer (2007). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=992963
Our Existential Death Penalty: Judges, Jurors, and Terror Management Jeffrey L. Kirchmeier (2008). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324922
Authoritarians Have Moral Intuitions that Liberals Do Not Share: A New Look at Moral Foundations Theory. Matthew B. Kugler (2009). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1435002
The new bumper sticker? Tattoos in the courtroom
We’ve blogged about tattoos before—looking at whether you can assess juror morality by counting tattoos and whether the location of a tattoo is meaningful (along with a cookbook photo of location and assigned interpretation).
Recently, however, a courtroom in Fresno, California has been dealing with a different issue: sentencing for two gang members who tattooed a 7-year-old boy with a gang icon. One of the two defendants is the boy’s father. Part of what has caught our interest in this story is the use of jury questionnaires where jurors are being asked if they have tattoos.
While this is sometimes done in death penalty cases, the idea of querying potential jurors about their tattoos is an interesting one. In the above case, jurors with tattoos could be useful information for either side of the case—gang sympathizers/members could be readily identified and every one with a tattoo would know the pain involved in being tattooed.
But what about privacy? Suppose I have tattoos I don’t want you to know about? While I doubt anyone will strip search jurors for body art examination—some jurors may not realize they do not have to disclose everything.
Tattoos can be artistic expression meant for public viewing or they can be meant to stay private and secretly enjoyed by oneself or a select few. As a trial consultant, I enjoy seeing people’s tattoos but I am intensely interested in seeing the tattoos you don’t want me to see. They give me secret information. Access to who you are privately and what biases you may bring in to the jury room with you. This is part of what I love about trial consulting. It lets me be a private detective. I learn things about what sorts of attitudes and experiences allow jurors to hear or result in them closing off their minds to information.
Sometimes though—access should be limited. When it is simply not my right to ‘see private tattoos’? Or other private beliefs and ideas? At what point do the parties rights to a fair trial interfere with the private citizen’s right to privacy? It’s an odd question for tattoos to raise but there you have it.
And now the second hundred…
It seems hard to believe but over the last 7 months we have published 100 blog entries. We have gone from having no blog to having readership in every state and about 75 countries.
We started the blog for a couple of reasons. We wanted people to come look at our website, and frankly to consider us when they had need for the kind of services we provide. That has worked out well. Under the old rules of ‘how to grow your business’ you advertised like crazy alluding to your ability, and kept your actual knowledge under cover. The new business universe has changed drastically, and for the better. Now the strategy is much more one of ‘We will tell you what we do and a lot of what we know—and let you decide whether it fits your needs’. To us that feels like a better model.
We wanted to participate in what we were seeing as a lively online community of smart and helpful commentators on the leading edge of knowledge regarding society and the law. Bloggers like Anne Reed, The Situationist, Mark Bennett, Victoria Pynchon, Thaddeus Hoffmeister, Stephanie West Allen, Timothy Hughes and ‘Gideon’ have distinctly different voices, but have all made terrific contributions to our knowledge by sharing their perspectives. We like sharing ideas with smart and thoughtful people. And we wanted that discussion to include you.
There is no end of potential blogs we can post—we are confronted with new research, new trial strategies, and new takes on juror decision-making virtually every day. But what makes it a blog you want to read?
It would be helpful to hear from you on what topics struck you as most useful, or readable, or entertaining, or important. If there are topics you wish we would cover or develop more fully, let us know that, too.
It has been a challenging but fun First 100. Let us know where you want the next 100 to go, and we’ll see you there.
Doug Keene and Rita Handrich
Simple rules, beer pong, hysterical laughter & jury questionnaires
What do beer pong and voir dire have in common? Apparently, quite a lot! That’s what the Mass Torts blog concluded with regard to Mark Bennett’s Simple Rules for Better Jury Persuasion article in the most recent issue of The Jury Expert.
We think Mark’s a pretty creative guy and we’ve pointed our readers to his blog a number of times: here and here for example. And we like his rules. They are catchy, easy to read, fun, and likely pretty effective (since they mirror much of what we recommend!). We liked Mark’s simple rules so much, we stole the idea from him for our series on Simple Jury Persuasion. The persuasion literature is huge. Our series is meant to give you a taste of it and see how we apply emerging research findings and random thoughts to the litigation advocacy.
So we thought we’d give you a few amusing excerpts from recent juror questionnaires since Mark’s used up all the funny rules for better jury selection. It takes a LOT of preparation to make the actual work of jury selection/voir dire simple and even fun! And when you are bleary-eyed at 11pm from poring over juror questionnaires for hours and know you have hours and hours to go, every little bit of amusement goes a long way!
- Question: What is your occupation?
- Answer: I am a frozen food stalker at Wal-Mart.
- Watch out frozen food!
- Answer: I am a frozen food stalker at Wal-Mart.
- Question: Have you heard anything about this case prior to today?
- Answer: I am a physician and I will side with the physicians. I know everything about this situation and I know all the doctors involved. I know how sleazy the defense side behavior was. I am very busy.
- Hmmm…I would say she doesn’t want to serve!
- Answer: I am a physician and I will side with the physicians. I know everything about this situation and I know all the doctors involved. I know how sleazy the defense side behavior was. I am very busy.
- Question: Is there any reason you should not serve on this case?
- Answer: I have issues. I could bring a note from my psychiatrist.
- It’s okay judge. Let her go!
- Answer: I have issues. I could bring a note from my psychiatrist.
At 2am, these sorts of comments are hysterically funny. And by 4am, they are likely to make you cry with laughter. It’s tedious work. Painstaking. And that’s why we like the humor and engaging style of Mark’s 16 Simple Rules for Better Jury Selection. We hope you like it too.
Can you assess juror morality by counting tattoos?
Maybe you can. While ink on the skin doesn’t mean what it used to (see our post here) it still is a concern for many among us. Body art/ink has become mainstream as evidenced by its presence among a wide cross-section of the population. Even the very educated have tattoos. One of the blogs at Discover Magazine’s website recently uploaded a variety of ‘science’ tattoos which decorate the bodies of scientific researchers. Very amusing.
But parents worry. And so do litigators choosing juries. What do those tattoos mean? There’s research for that! Thanks to researchers at Texas Tech, parents and litigators everywhere can know what those tattoos mean. In essence, tattoos are like real estate: “The key factors are density and location, location, location”.
Here’s what they did:
Researchers counted the number of tattoos and piercings (and noted just where on the body the markings or piercings were located) and then assessed ‘deviance’ (in the form of marijuana use, occasional use of other drugs, being arrested for a crime, cheating on college work, binge drinking, and/or having multiple sex partners).
And here’s what they found:
Those who had 4 or more tattoos, 7 or more body piercings or piercings of their nipples and genitals (which hopefully will be difficult for most parents and litigators to assess) were more likely to report deviant behavior.
To a very significant degree, tattoos and piercing is a sign of style and fashion, rather than rebellion. Researchers concluded that the growing acceptance of body art means those with truly deviant tendencies have to go a step further (multiple tattoos or nipple piercings) to maintain their sense of social distance. You have to try harder to make it clear that you are an outsider. So you might be able to assess social alienation and disenfranchisement by counting tattoos, but take it easy on wondering about the ones you can’t see.
Propaganda, Dogmatism & Bias: Who are your jurors?
As the country becomes increasingly divided (again), we are seeing increasing indications of closed minds on jury panels. This is reflected in the blogosphere and in recently emerging research findings. Sadly, this appears to be a time of seeking to affirm pre-existing beliefs rather than informing ourselves and coming to our own conclusions about hot button issues.
It has become commonplace to think that the news channels prospective jurors watch can tell us about their politics. We blogged about this here and here. So it isn’t surprising when we hear the results of a study in the journal Media, War & Conflict telling us that we don’t seek out television news to inform ourselves, but rather to affirm ourselves. That is, we watch television news shows that support our pre-existing beliefs, rather than those that could challenge those pre-existing beliefs.
Or, as Robin Hansen at Overcoming Bias blog tells us, we are “built to rationalize”. In other words, Hansen says, “our minds often unfairly defend our most deeply held beliefs” and “when we sense such beliefs being threatened, our minds distract us, refuse to comprehend alternatives, and grab onto weak excuses as though they were timber”. It is what we do. We use cognitive shortcuts like stereotypes to help us defend against new information and maintain confidence in our pre-existing beliefs.
So given the resistance of entrenched beliefs to change and the relatively short timeframe of most jury trials, how can you attempt to seat a jury most open to actually hearing your case?
- If your case resonates with conservative and/or religious values, you may like jurors who show evidence of dogmatism which is, essentially, being powerfully wed to a particular belief system. These jurors will hear your case and dismiss opposing counsel (particularly if you show them how the other side does not resonate with their strongly held values).
- If, on the other hand, your case resonates more with liberal or pluralistic values (the more ‘gray’ areas), you want to identify jurors (for disqualification or peremptory strikes) who will dismiss your case without listening. Look for group affiliations that would indicate the likelihood of dogmatic beliefs.
And for those of you curious about a short-hand way to identify those more open-minded—here’s a tidbit. The same study finding that we seek to affirm rather than to inform through our television news habits, also found something that may surprise you. Those who watch television news on the Al Jazeera English network become less dogmatic! And the longer they watch, the more open they are to opposing points of view. We find that very intriguing. Opposing counsel may well know ‘who’ watches Fox or listens to NPR—but do you think they know who listens to Al Jazeera? Ah, but now you’ll make sure to know.
Voir Dire Clinic
This blog post marks the beginning of a series, the frequency of which will be decided by you. I was asked, by a very gracious and experienced litigator/reader, if I would weigh in on a voir dire dilemma she recently faced in Federal Court.
There was no attorney voir dire, so she only had the opportunity to submit questions for the judge to ask. Questions had to be put plainly and directly, and she needed them to be voir dire questions of a sort the judge would consider appropriate. The results of my analysis and top 3 suggestions are below.
She suggested that this would be an interesting blog series, and I agreed. Maybe you do, too. So here is what we’ll do. If a situation we know of strikes us as being worthy of this treatment, we will offer our own fact pattern as the basis. But what would be far more interesting is if your ideas and case concerns take center stage. If reading this brings to mind your own case facts you would like to see discussed, let us know. Feel free to modify and obscure the facts to mask the case, and we will not publish the name or venue of the person who submits it. Try to limit the case description and your view of the primary concerns to about 150 words. Submit it as a comment to the current blog post, and we’ll take it from there.
We have been writing for years about the fact that we put little stock in persuasion and our belief that the best a fine trial lawyer can do is to build a bridge between the values and preconceptions of the jury and the facts of the case. A perfect voir dire weeds out the venire members who are disinclined to allow that bridge to be built. But where are the land mines? Let’s look at the case presented for analysis.
Case: Knicknack Supplies decides to contract for custom work to be done offshore. They hire Acme Logistics Co. to arrange for manufacture in China, for which Acme is to receive a fee. The fees fall grossly into arrears, time passes, and a lawsuit is born.
Quandary: What questions might we submit to the judge to identify jurors who will hold negative views of the Acme Logistics, whose whole business is arranging advantageous offshore manufacture for American companies? Acme’s counsel is confident that the contract is clearly in Acme’s favor, if only it is not muddied by these negative views.
Analysis: The underlying assumption is that the jury will attribute more of the responsibility for the move offshore to Acme than to Knicknack (which is not necessarily true). But if this assumption is true, we want to find people whose values are protectionist toward American companies, who feel the strain of the shift toward Asian manufacture, and who are more interested in punishing over the changing job climate than tracking the facts of the case.
Questions:
Who goes out of their way to buy products made in the US whenever possible?
Who feels that it is disloyal to our own country to shift jobs overseas that could be done here, just for the sake of small savings?
Who has no interest in ever visiting Asia?
Discussion:
The first question addresses lifestyle. Are you willing to work to support the US economy through your shopping choices? Most people who say this don’t live it, but it is their willingness to say it that is of the greatest interest. It signifies that they are hardcore.
The second question gets at whether they are looking for scapegoats.
The third question, which might not meet with cheerful endorsement by the judge, is actually very meaningful. It seeks out those whose minds are closed to any potential merit in understanding others and in a global culture.
So, send us some comments. Of course there will be many more questions submitted to the court. What would you add? Why would you add it?
And on what case would you like input? Shoot us a comment about this one, and pose a case and quandary for us. We’ll offer our take on it, and see what our readers suggest for consideration. This could turn out to be fun!
Extremism comes in many shapes and forms
Given the focus of our country on terrorism, now if we say ‘extremism’—we likely have a common image that comes to mind. But there are many kinds of extremism. We’ve written about some of them: racism here, and here, polarizing opinions, and hate group members.
What we’ve noticed is that when we have mock jurors who describe themselves as “very liberal” or “very conservative” or “very religious” or very anything—they often have trouble listening to and actually hearing evidence. It is as though their ‘bias filters’ are turned so high that they hear not what the litigator is saying, but instead what they believe the litigator means or even should be saying.
These are often jurors who end up seeing conspiracy, hidden agendas or motivations, or simply ‘know’ something is not true despite evidence to the contrary. Those who identify themselves as extreme on any belief system or attitude are generally too unpredictable to leave on a jury.
Spira (2002) writes about this reality: “high levels of certainty and extremity result in resistance to persuasion”. We agree. Rigid extremists do not magically turn into open-minded and curious jurors for your case even though they may say they can “be fair”. In our minds, this is not the time to extend the benefit of a doubt. Exercise a strike.
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