Voir Dire: An Art In Search of a Science?[1]
©Vicky Campagna, 2009
“Never forget, almost every case
has been won or lost when the jury is sworn.”
Clarence Darrow. (45)
Abstract Voir
Dire, that phase of a trial when prospective jurors are theoretically examined
by both attorneys to ensure their impartiality, has been considered to be
pivotal to a successful verdict. In this article, the current state of voir
dire is examined. I then review the
current state of the trial consultant’s role in litigation.
The Stage Is Set
It’s the only time during a trial when the playing field truly is level. No impassioned opening statements have been
made, no witnesses have testified, no experts have presented their sophisticated
and sometimes confusing analyses, no judicial rulings have been made on any
motions, not even any evidence has been offered. And yet this brief span may well determine
the outcome of this trial, where so much is at stake.
This
is the environment in which voir dire exists.
Derived from the old French, meaning “to speak the truth,” voir dire is
the process by which plaintiff’s and
defendant’s attorneys question prospective jurors in an attempt to discern
which possible jurors may be most
inclined to accept their version of the
case. But---as Middendorf (33), Davis
and Follette (9), Suggs (54) and others have pointed out---voir dire is not as
much a quest for a jury that is likely to be prone to accept one’s perspective
as much as it is a search for a jury that has been shriven of jurors who would
harbor a pre-trial inclination to accept the opposition’s version. Many
lawyers believe that juror interviewing---voir dire---is the key to winning a
trial. (30) At the same time, however,
scientific scrutiny of this area has yielded only “rudimentary” knowledge (19). One of the few solid conclusions
is actually a negative one: individual differences among potential jurors are
“not especially potent predictors of juror verdict preferences.” (14, 10). Even where a slight relationship between
differences and verdict preferences has been found, it is clear that the case specific factors cannot be
generalized from one case to another. (ibid)
The
attorney may prevent a juror from being impaneled in a jury by exercising a
challenge, either for cause or peremptory.
In the former, which are limitless,
the juror is shown, by voir dire, to have a bias which cannot be set aside in
order to render an impartial verdict in the present case. A peremptory challenge, on the other hand,
may be exercised when the attorney believes---for any reason whatsoever---that
s/he does not want this particular juror to serve on this jury. Peremptory challenges are strictly limited in
number, and used only when there is no basis for challenging for cause.
Little
wonder, then, that so much attention has been paid to the question of how an
attorney’s voir dire can be made more effective. From folklore nearing superstition (such as
the presumption that accountants are pickier) (19) to theoretical strategies (e.g. 6) to opinions
derived from personal experience (e.g. 41, 37, 26), there has been no dearth of
scrutiny in this area. Attorney folklore
regarding voir dire has been existent at least since 1887 (14), even though
contradictory advice often is proffered.
And this advice is not confined to far earlier, unsophisticated
times: one source (29) argued less than 25 years ago that
artists, mechanics and office workers
are preferable for plaintiff civil cases, whereas bank officers, retired
policemen and clergymen’s wives are better for the defense in a civil
case.
However,
establishing solid scientific evidence has been more problematic. This is an
ironic state of affairs, since there is indeed research that finds that the
attorney using solely his/her own intuition is prone to use the same
stereotypes as does the average lay person.
(38) Obviously, lawyers are not trained in social science skills and Suggs
and Sales’ research (53) concluded that “the overall performance of attorneys
during voir dire is poor.” (p. 371)
Historically,
scientific jury selection was first employed by the defense in the trial of the
Harrisonburg Seven, defendants who were charged with various anti-war activities. Sociologist Jay Schulman and his colleagues
felt that the jury pool was unfairly biased against the defendants and so offered
their services pro bono to the defense in an attempt to create a more balanced
trial. Accordingly, they conducted
numerous interviews with the local citizenry and were thus able to identify key
characteristics of their respondents that appeared to be related to verdict
preference. The government presented
its case for two months; the defense said only that the seven defendants were
innocent and did not call any witnesses.
After a seven-day deliberation, the jury said they were deadlocked: 10
were for acquittal and two were for conviction.
The defendants were never again tried.
Shulman (26) was also successful in convincing the judge that the
defendants in the
Lieberman
and Sales’ perspective (31) is that there are four purposes to voir dire, i.e. educating
the jurors about the case’s central issues,
building rapport between the attorney and the jurors, requesting that the jurors remain impartial
until they have heard all the evidence (since research has shown that people
who publicly proclaim a commitment are more likely to act congruently) and emphasizing
the juror’s control over the trial’s outcome, thereby enhancing his/her satisfaction
with participation. (With respect to
ingratiation, however, Brodsky and Cannon (3) assert that excessive ingratiation
may backfire as some jurors will resist what they see as being blatant toadying.)
Broeder
(4) found that a high percentage of the time spent in voir dire (80%) is
spent indoctrinating the jury and only 20% spent trying to determine who among
the venire is likely to be the most predisposed towards one’s client. And even that 20% often appears to be wasted
time. He concluded that voir dire
indoctrination often does not succeed, finding that the process was “grossly
ineffective” in detecting jurors likely to be unfavorably disposed towards a
position. Zeisel (57) concurred: “on the whole, the voir dire…..did not provide sufficient
information for attorneys to identify prejudiced jurors….Perhaps the most
significant finding was the inconsistent performance of attorneys. Occasionally, one side performed well in a
case in which the other side performed poorly, thereby frustrating the law’s
expectation that the adversary allocation of challenges will benefit both sides
equally.” (p.528-9)
Horowitz
(24) compared conventional jury selection methods with those using
“systematic social science methods” in two criminal cases. His conclusion was that it was only when
there were “strong relationships” among personality, demographic and
attitudinal variables that the social science method was more robust in
predicting favorable jurors’ responses. And Hastie (23) and Saks (44) found that attitudinal and
demographic models could only account for 11-13% of the variance in verdicts.
But
Smith’s research (47) brought to light yet another variable that may strongly influence juror
verdict, apart from the traits and perspectives of the chosen jurors. Her large subject pool (N=489) lead her to
conclude that a great many of her subjects had knowledge of the law prior to
hearing the judge’s instructions on it but yet did not set aside their
erroneous preconceptions. Somehow, she
deduced, judicial instructions have to not just educate jurors who do not know
the law, but must also must “revise jurors’ existing concepts.” (p. 857)
Does the personality of
the juror matter not at all, then? There has been some psychological
investigation of personality traits as they relate to behavior. One association has been found for the trait
of authoritarianism, which has been conceptualized as a strong preference for
order, clear rules, conventional norms and strong authoritative leadership. Authoritarianism has been shown to be related
to a wish to punish those who deviate from the group norm and to prejudice
against those who are in the “out group.”
(26) Yet the studies seeking to
find a link between authoritarianism and verdict preferences have been only
somewhat successful: a meta-analysis of 20 such studies (32) found a
“significant” relationship between authoritarianism a propensity towards conviction,
but also found that determination of authoritarian attitude might require
extended voir dire questioning. Authoritarianism
also may be moderated by such variables as evidence strength.
Little empirical support
has been found for common stereotypes used to identify jurors with specific
attitudes. In a series of studies, (33), researchers found that attorneys employed unsophisticated stereotypes
and relied on a few demographic characteristics in judging their jury
pool. However, the empirical support for
such practice is sorely lacking. (25)
Somewhat less critical,
Frederick (18) found that data from the Joan Little murder trial were “suggestive” of
validity, and felt “more rigorous tests” were needed prior to drawing any conclusions. But
More recent work (8) has found that there is a difference between those attitudes rooted in
thoughts versus those originating in emotion.
Attempts at persuasion must be matched to type of attitude in order to
be effective. Different voir dire
approaches and trial techniques are called for in each case, and as
Darrow (7) concurred
regarding the primacy of emotional responses:
“It
is not the experience of jurors, neither is it their brain power that
Is
the potent influence in their decisions.
A skillful lawyer does not
tire
himself hunting for learning or intelligence in the box; if he knows
much
about man and his malting, he knows that all beings act from
emotions
and instincts, and that reason is not a motive factor. If delib-
eration
counts for anything, it is to retard decision.
The nature of the
man
himself that determines the juror’s bias for or against his fellow
man. Assuming that a juror is not a half-wit, his
intellect can always
furnish
fairly good reasons for following his instincts and emotions.”
Darrow noted also that there was “no sure rule” for choosing a
sympathetic juror, commenting that “many irrelevant issues in choosing jurors
are not so silly as they seem.”
Darrow (7) believed that
“in the last analysis, most jury trials are contests between the rich and the
poor…….The most important point to learn is whether the prospective juror is
humane.” Yet even Darrow applied
idiosyncratic criteria for determining the suitability of a juror: he felt, for
instance, that Presbyterians could be counted on for being judgmental: “He is
as cold as the grave; he knows right from wrong, although he seldom finds
anything right.” More broadly, Darrow
felt that “solemn people seem to think that pleasure is wicked. Only the gloomy and dyspeptic can be trusted
to convict…..If a man is instinctively kind and sympathetic, take him.”
There
is a substantial psychological literature on the subject of persuasion. In sum, the consensus is that the more
similarities between himself and the speaker perceived by the listener, the
greater the attraction and thus, the greater the believability. (53) When the receiver perceives a
similarity with the speaker, the receiver assumes that they share common goals
and values. Then the receiver may change
his/her attitudes to make them more consistent with the values of the
speaker. Most importantly, the greater
the perceived credibility, the greater the potential persuasive power of the
source.
Enter The Trial Consultant
In cases where the seriousness of the charge is considerable, and when
the defendant has sufficient financial means to afford the hefty price, a trial
consultant may be called to assist with the case in any number of ways, from
help with selecting the jury to creating compelling trial graphics.
Powell (41) contends that the focus on jury selection as a service of trial
consultants is misplaced. She believes
that the more important goal is knowing how to best present the case “weaving a
simple and compelling story for the jury.
It should be a story that helps put the spotlight on the strengths of
your case and diminishes your weaknesses.”
Trial
consultants, first known as jury consultants, have long since expanded their
repertoire of services beyond voir dire assistance and changed their name
accordingly. (See sidebar.) Trial consultancy has been cited as having
grown by 1999 to a $400 million industry, with more than 700 practitioners working
in over 400 firms. Most of these are
behavioral scientists but others are specialists in marketing and
communication: “Trial consulting is very much the use of modern psychological
assessment techniques packaged and applied in a marketing-type process.” (43) Just as with the marketing of any
product, the consultant identifies the target audience, then comes up with a
strategy to persuade the “customers” (in this case, the jury) to buy the
product. (ibid) “Like it or not, you are
selling a product, and it is important to know what real people, in this
instance, the jury, think of your goods and your sales pitch.” (Bennett and
Hirschorn, 1993, as cited in 51).
Middendorf
and Luginbughl (33) also suggested that the focus of studying the voir dire process
should not be on determining who appropriate jurors are, but on the style of
the voir dire itself. Traditional voir
dire questions are directive, i.e. lead the prospective juror in such a way
that s/he finds it easier to respond in one direction vs. another. These have strong “demand characteristics”
and do little to foster a relationship with the inquiring attorney. Non-directive voir dire questions, on the
other hand, are not leading and do not have a simple yes/no response. An example of a non-directive question would
be educating the juror as to the fact that the defendant is not required to testify,
and that the decision not to testify may not be taken as evidence of
guilt. The juror is then asked how s/he
would react if the defendant did not testify in his own behalf. This non-directive style is characterized by eliciting
the juror’s feelings about critical
legal issues, such as the right not to testify, reasonable doubt, and burden of
proof. Middendorf and Luginbulh’s subjects
listened to different styles of voir dire and the authors concluded that “a
non-directive voir dire style is more effective at uncovering grounds for cause
challenges than is a directive style.” (p.129)
One
conceptualization that does in fact have research support is the influence of
how jurors process the information they take in. In other words, juror cognitions--- the juror creating a story in his/her mind to
make sense of the evidence presented--- may make a difference in the trial’s outcome. Developed by Pennington and Hastie (39, 40),
the Story Model is seen as the intermediate step between evidence and forming
judgments about that evidence, i.e. what
does it mean? In their model, Pennington and Hastie posited
that “jurors impose a narrative story organization on trial information, in
which causal and intentional relations between events are central.” (p. 243)
This process of story organization helps the jurors understand the evidence and
assists in their being able to reach a pre-deliberation verdict. Pennington and Hastie state that their Story
Model contains three components, i.e. evidence evaluation, decision alternative
representation and story classification (in which the juror selects the verdict
that best fits his story of the evidence).
In sum, the Story Model facilitates “critical interpretive processing
and organization of evidence” so that the juror can evaluate the evidence
against all possible verdicts. In later
work (34), they conducted experiments to test their model. That research supported their contention that
explanations are key mediators of jurors’ decisions and their confidence in
those decisions. The easier it is for a
juror to construct a story to fit the evidence, the more comfortable s/he feels
with the decision.
Pennington
and Hastie also argue that their findings are important when considering evidence
presentation order and judgment strategy.
They believe, again, that a narrative story sequence is the most
effective method of presentation.
Instructing jurors to wait until they hear all the evidence before
making their judgment may lead to more confidence in their ultimate verdict. As Huntley (25) states,
“Verdicts were made in favor of the side whose
evidence presentation most resembled the story sequence. The story model
proposes that jurors proceed in three steps.
First, they evaluate the evidence and construct a story or stories to
make sense of that evidence. Second,
they learn the attributes of the different verdict choices. Finally, they reach a verdict by determining
which verdict category described by the court provides the best match with the
constructed story. Jurors may construct
multiple stories, but are thought to select one by assessing the stories on
their coverage, coherence, uniqueness and goodness of fit. Coverage refers to the story’s ability to
account for the evidence presented during the trial. Coherence of the story is based on the
consistency and plausibility of the story…Finally, goodness of fit between the
story and the best matching verdict category will determine certainty. Thus, without a good match, jurors will
default to a not-guilty verdict because of their concern about the burden of
proof.” (Huntley 2003)
However,
all of Pennington and Hastie’s work was done in the arena of criminal
justice. In 2000, Huntley (26) conducted
a study using the story model with civil litigation. Using mock jurors responses to four sexual
harassment cases, Huntley found support for Pennington and Hastie’s story
model. In 2003, (25) she replicated her
study with new cases and concluded again that the story-mediated model worked
well again:
“People strive to make sense of their world and this sense-making is often accomplished
through
the use of stories. In courtroom disputes, the raw materials for
constructing stories
are
the preexisting attitudes of jurors, and the…..Jurors bring expectations and
pre-conceptions
with
them to the jury box, about which they
are told, and consciously or unconsciously process in formation, in ways that
may strongly influence their decisions.” (p. 29)
She further cites Diamond (14) as stating “The evidence presented at trial cannot account for initial
disagreements among jurors: all jurors are exposed to the same evidence. The difference in juror reaction must stem
from preexisting differences among the jurors.” Lieberman and Sales (31) point out that jurors come to the trial with their own ideas of what
“commonsense justice.” (Commonsense justice is defined as what the juror think
the law ought to be.) Scientific jury selection’s task, then is to
determine which jurors are more likely to have models of commonsense justice
that benefit the attorney’s case.
Hooks---the
parts of the story which particularly catch a juror’s attention--- are a major
consideration for Macpherson, (32). In her discussion of developing
these for civil cases, she argues that creating a story that “incorporates the
human factors” will ensure the jurors’ attention. Macpherson believes that a narrative is
necessary in order to place the case events in an understandable framework for
decision-making. However, the simple
transfer of information is insufficient to guarantee how that information will be used.
If the presented story is incomplete, jurors will complete it via the
insertion of their own assumptions. Main
actors and the core conflict must be identified as starting points. The goal is to describe the characters and
their actions in such a way so that the juror comes to a conclusion favorable
to your side. The “human story in a
commercial dispute inevitably touches on the jurors’ everyday experiences and
evokes their basic assumptions about how people succeed or fail.” (ibid)
Although
most investigators acknowledge that broad attitudinal measures have been only
somewhat successful in predicting verdicts, there is also the belief that case-specific
attitudes are the key in juror verdicts.
Nonverbal Cues
Because
prospective jurors may deliberately or even unconsciously attempt to hide their
true attitudes, some believe that paying attention to the juror’s nonverbal actions
may be the most reliable indicator of that person’s real feelings. Note that there is no empirical evidence to
justify this claim; nevertheless, it is a popular one, e.g. 9, 24, 26.
Nonverbal
cues can provide telling information regarding which issue(s) evoke anxiety (and
thus, possible deception) for each prospective juror. Lieberman and Sales (31) concluded
that there are four possible sources of anxiety:
ü The juror may be trying to deceive the questioner
and the deception elicits anxiety
ü Even if the truth is being told, strong feelings
may be evoked about the particular issue being discussed
ü The individual may have negative feelings towards
the person asking the question (i.e. the attorney)
ü Simple shyness about speaking publicly can also
cause anxiety.
By
carefully observing and recording nonverbal manifestations of anxiety, they
state, the attorney may develop a clearer, more accurate picture of the juror’s
true feelings. Research confirms that
there are common nonverbal indicators of anxiety, according to Suggs and Sales (53) who make the following critical
points:
ü
The prospective juror will feel more anxiety when being
questioned by the attorney whose
position the juror favors
less
ü
Anxiety will occur when the juror is being questioned about
Issues about which s/he has strong
feelings
ü
The juror will feel anxious when his responses are deceptive.
This type of anxiety is situation-specific and is
likely to be displayed in the juror’s “communicative behaviors.” (p. 632)
The
authors suggest that the observation begin during initial questioning, as the
first questions (i.e. those about innocuous matters such as occupation, place
of residence, etc.) will likely elicit little anxiety and therefore can be used
as a baseline against which to compare anxiety levels in response to later,
more provocative questions. This
baseline will provide information regarding the juror’s usual level of anxiety;
additional anxiety is presumed to reflect the situational anxiety of the trial.
(It is, of course, also possible that anxiety detected at baseline
represents pre-existing bias.) However, conclusions as to the meaning of the
juror’s displayed anxiety should be made cautiously, since there are several
possible origins of that anxiety.
There
are basically two types of nonverbal cues.
Paralinguistic cues are the manner
in which a given message is delivered, e.g. the speaker’s tone, vocal pitch,
rate of speech, etc. “Kinesic
cues,” on the other hand, refer to
physical signs such as body language, expressions, eye contact, hand gestures,
etc. Anxious individuals may manifest
their nervousness through bodily movements that include averted eye contact and
facial cues. Most people are aware of
the ability to communicate feelings through facial expressions: universally
common attributions of emotions such as happiness, anger and fear are well
established. Thus, people may
consciously try to control emotions expressed facially but still, remnants of
their true feelings may slip out. Ekman and Friesen (as cited in 47) referred
to this phenomenon as the leakage
hypothesis (i.e. the idea that although people might attempt to control
their body language, at least some of their true feelings will “leak” from
their bodies.) Research on this point has been inconsistent, but discrepancies
between an individual’s facial and body cues at the very least strongly suggest
that that juror’s statements be carefully scrutinized.
The
amount of direct eye contact from the prospective juror to the questioner is
another promising kinesic cue.
Theoretically, there should be no difference between the degree of eye
contact from the juror to any questioner, since---theoretically again---the
juror should view each equally. If the
juror displays a greater or lesser amount of eye contact towards one attorney,
bias may be suspected.
Hand
movements are another potentially fruitful area of observation. Behaviors such
as shrugs, tapping, scratching, etc. may signify the presence of anxiety or
deception. Since it is unknown whether
an increase or decrease in hand movements is correlated with nervousness, what
should be watched is a change from the
baseline observation.
“Paralinguistic cues” are those nonverbal signals which may identify
situational anxiety, i.e. pauses and latencies, speed of speech and breath
rate, disturbances of speech and length of speaking time. Suggs and Sales (47) noted four aspects of
such cues:
ü Pauses and latencies: Pauses are those periods of silence within a
given sentence or phrase, while latencies are the time length between the
asking of a question and the answering of it.
There has been research suggesting that both pauses and longer latencies
are associated with greater anxiety, especially when the speaker is also being
deceptive.
ü
Speech and
respiration rate: Although there is some
indication that both speech and breathing are more rapid when responding to
anxiety-arousing questions and when attempting to deceive, this relationship
may be curvilinear; thus, it is important to contrast the suspected
verbalizations with speech in a more typical environment before drawing any
conclusions.
ü
Disturbances
of speech: these include such phenomena as stuttering, inappropriate laughter,
changes in voice, etc. Repeated declarations
of “I don’t know” may also signify anxiety.
There
are a few other areas of nonverbal communication that have been explored:
Clothing:
Some authors (e.g. Starr and McCormick, 2000 and Mauet, 1992, (cited
in 26) suggest that a potential juror’s manner of dress can provide information
on “a variety of issues.” However, no research has explored this assumption.
Graphology: Similarly, the use of a juror’s handwriting
has been proposed as a method of discerning his/her true feelings. Yet again, however, there is no published
research exploring graphology in a legal context. Indeed, the overall consensus of published
research is that graphology is not a useful personality or behavior predictor. In any case, personality itself has been
shown to be a weak predictor of jury verdict as has been previously cited.
ü the endomorph (soft body, underdeveloped muscles, round
shaped) as being sociable, relaxed and tolerant
ü the mesomorph (hard, muscular body, “overly mature”
appearance, rectangular shaped) as being adventurous, courageous, dominant,
bold and competitive)
ü the
ectomorph (tall, lightly muscled, stoop-shouldered, young appearance) as being
self-conscious, introverted, socially anxious and emotionally restrained.
As
recently as 1974, Sheldon’s theory was treated as a viable way to gain insight
into a prospective juror. For example,
“Generally speaking, the heavy, roundfaced,
jovial-looking juror is
most
desirable. The undesirable juror is
quite often the slight, un der-weight and
delicate type. His features are sharp
and fragile, with the
lean
‘Cassisus’ look. The athletic-looking
juror is hard to categorize.
Usually
he is hard to convince, but once convinced, he will usually go
all
the way for you.” (p. 376)
However, again there is no real-world, empirical
research to support a theoretical relationship between physical body and
psychological traits, and Sheldon’s theory itself has “fallen out of favor in
the last 30 years.” (53)
Rating Nonverbal Behavior
In
observing nonverbal behavior, Suggs and Sales (53) suggested that there be two
raters, and their ratings compared.
(Preferably, the lawyer is not one of these two, since his/her attention
is likely to be caught up in other aspects of the trial.) This method will provide a rough measure of
how a given area engenders anxiety in the prospective juror. They presented a simple grid (below) as a
format for recording. The present author would suggest an additional column
listing the specific subject being discussed. The presence of an anxious
behavior should be recorded with a 1; negative behaviors (towards either the
judge or attorney) are coded -1. Neutral behaviors earn a coding of 0. Sales notes that such a neutral score can be
interpreted in at least two ways: either there genuinely was no reaction to the
question or s/he was able to mask his/her reaction to it. (45)
Nonverbal Behavior Rating Grid (54)
|
Behavior |
Judge questioning |
Plaintiff atty. quest. |
Defense atty. questioning |
|
Eye contact |
|
|
|
|
Facial cues |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hand movements |
|
|
|
|
Speech disturbances |
|
|
|
|
Pauses and latencies |
|
|
|
One
grid should be used for each juror. A
score may be computed for each interrogator (i.e. judge, prosecuting/plaintiff
attorney and defense attorney) and an average obtained for each. Ratings should be made at least twice (once
at baseline, once for each examination) and by at least two observers, who must
be seated so that they can clearly watch the juror’s behavior head-on. The obtained score then can be used as a
hypothesis about that juror’s relative bias.
But
Decision Quest (10) urges that caution be exercised when attempting to
understand jurors’ body language. It
cannot be considered as an independent clue to a juror’s feelings: “since jurors
spend most of their time listening, there are few opportunities to match their
verbal communication with their nonverbal or vocal behavior.” However, body
language should not be completely ignored, and several suggestions for finding
significant signs are offered, including being aware of the slight non-verbal
reaction (such as looking away, an eye blink, etc.) called “glimmers” that may
hint at underlying feelings.
Numerous
other methods of classification of juror attitudes have been proposed (54), but
all have been lacking empirical validation.
Joellan
Dimitrius (15) one of the nation’s most widely known trial consultants (she assisted
the defense in the O.J. Simpson trial) does not dispute the significance of
body language and physical traits as viable cues to any given juror’s
personality. However, she cautions that
no one indicator can be assumed to be representative of the juror’s mental
state. Providing a lengthy list of
physical traits and of body language signs and what they may signify, Dimitrius
advocates seeking “consistent combinations of clues” (p.75) to be certain that
one is finding accurate information. But again, context is crucial, since the meaning of clues can vary. (ibid)
Dimitrius
(ibid) reiterates that no one trait or fact can reliably predict a juror’s
verdict preferences. Rather, it is the pattern of a variety of facts about
that juror---from the neighborhood in which s/he chooses to live, to the style
of clothing worn to court to the various knickknacks displayed on his/her desk
that, when combined and viewed in their entirety, accurately reveal a juror’s
true perspective, but only if that data is interpreted in its appropriate
context. Dimitrius finds that the most
important factors (in terms of their accuracy in revealing a juror’s likely attitude
towards a case) are the juror’s level of
compassion, socioeconomic status and degree of satisfaction with life. Along similar lines, Mills and
Similarly,
DecisionQuest (10) stresses that “experience and attitude are more important
than demographics in creating a juror’s perspective. Drawing a parallel to Alfred Adler’s
lifestyle concept, DecisionQuest promotes the idea that there are four basic
patterns, one of which will be dominant and developed in childhood. These are the risk-taker, the victim, the
rescuer and personal responsibility.
Although jurors will not be likely to make statements that identify
themselves as being one or another of these types, DecisionQuest argues that
the category may be inferred from other statements, and that different
categories are predisposed to favor
different verdicts.
When
a prospective juror makes a statement during voir dire that seems to suggest
the presence of bias, the examining attorney is likely to want to probe more
deeply into that area. However, if the
juror had indeed been trying to be deceptive, further questioning along the
same lines may be ineffective: some research (5) indicates that such probing will not be successful and in fact, may
communicate suspicion or uncertainty: these researchers found probing produced
changes in nonverbal behavior and suggest that their probing may have suggested
to the juror that attorney was suspicious or uncertain and thereby motivated
deceptive subjects to mask their nonverbal behavior and appear truthful. Detection of those who were lying was not
improved.
As
Lieberman and Sales (31) state, classification of nonverbal behavior is a
subjective process and thus, is subject to misclassification. There is also some evidence (52) that there is no difference in the nonverbal behaviors of deceivers and
truth-tellers. However, the area of
nonverbal behavior shows promise as a method of assisting attorneys in voir
dire, although much more empirical research is needed in order to produce
reliable conclusions.
A
large part of the reason for the absence of true experimental research on the issue
of jury selection is that it is impossible to control all the variables that
might factor into the reason behind a given juror’s decision to vote for one
verdict versus another. For example, might
not a wealthy, middle-aged businessperson have different values than a
college-aged Art History major on a subsistence budget? Would a third set of values be held if that
businessperson were female? What if s/he
were retired? Then throw in another
variable: ethic background. If it’s reasonable
to conclude that this too may have an impact on how one sees the world, how
will verdict votes be affected? What about the individual’s personal experience
with defendants or plaintiffs of a similar type? With no way to know which, if
any, of these will influence the individual’s actions as a juror in this case, or how they will affect it, how can the attorney
even begin to guess which combination of traits will be most favorably disposed
to his arguments? Epstein (17) takes this already impossibly complicated conundrum even
further: he states that it is the aggregate
of all of the components of an individual’s personality that determines how
s/he will respond to any given stimulus.
“A
major emphasis is that behavior is often so highly situationally specific that
unless this is
taken
into account by procedures such as aggregation over situations and/occasions,
or by the
investigation of events that are so highly
ego-involving that experimental effects dominate situa- tionally
unique effects, results will tend to be unreplicable or ungeneralizable, no
matter what their
level
of statistical significance.” (p. 360)
But
Lecci, et al, (30) argue that when the information
gathered through the personal judgments (which has been shown to be unreliable)
is considered in the aggregate, the result will always be compromised. Moreover, even valid information considered
in the aggregate will be unreliable if there is no standardized, quantitative
method employed. And since all prospective
jurors have biases of some sort or another, comparing different jurors again
requires application of a quantitative methodology.
Dimitrius (15) also strongly contends that no one trait can be
definitive; it is the pattern of
traits that is important. She advocates extensive community sampling to discern
the pattern of traits that is most likely to be favorable to the attorney’s
case: for example, in the O.J. Simpson trial, her survey indicated that female
African-Americans would be most favorably disposed towards Simpson and disliked
prosecutor Marcia Clark. The makeup of
the final jury reflected Dimitrius’ position and many observers believe this was
pivotal in the juror’s acquittal verdict. (Interestingly, the prosecution fired
its own jury consultant.) This dilemma is complicated even further by the fact that the voir dire process
is not uniform across jurisdictions. Jurors
may be questioned individually or in groups; by the judge or the attorneys. (13)
Often-used
methods of determining what beliefs an “ideal” juror would have, involve
pre-trial research. In criminal cases, there is some existent
literature on favorable jurors, but much less information is available when it
comes to civil matters, at least when it comes to specific types of cases. But pre-trial research is still
possible. Ideally, a mock jury is formed
(composed of jurors as similar to the venire pool as possible) and the case
presented to them. A profile of jurors
likely to be favorably disposed to the attorney’s case (obtained by pairing the
characteristics of a juror with his/her responses and reactions in the mock
trial) is thereby created, against which all prospective real-world jurors are
compared.
Another
strategy is the community attitude survey, where a large sample of residents
(at least 400) are interviewed by telephone and given the case details. Their reactions are paired with their
demographic information to, again, create a profile of a juror most favorably
disposed towards the attorney’s position.
The
information from these procedures is used to create a pre-trial questionnaire
(in jurisdictions where that is allowed) and/or craft the most appropriate voir
dire. Critical themes to be emphasized
in the trial are also identified. But Hastie (23) and Saks (44) found that attitudinal and demographic models could only account for
11-13% of the variance in verdicts.
Working Without a Trial Consultant
But if financial constraints or any other factor preclude
the use of a trial consultant firm, is there no intermediate recourse for the
attorney who wishes to employ a courtroom style informed by solid knowledge
from the behavioral sciences?
Fortunately, this is not the case: there are a number of techniques,
applicable to almost all trials, that are based on what is known about personality.
Moreover,
many of trial consultant firms make some of their strategies available on their
websites. Jepsen (27) suggests “six best
practices for improving voir dire results.”
These include defusing your case’s weaknesses by acknowledging them
openly and then defusing them, becoming familiar with local court rules and
customs and preparation of a list of the “top ten” themes for voir dire questioning. Jepsen agrees with the value of written juror
questionnaires, and offers strategies to convince the court to allow such a
procedure.
Salmons
(46) presented the novel idea that selecting jurors ought to be done on the
basis of their ability to tolerate boredom.
Cautioning that her data applies only to the specific setting of the
trial she investigated, Salmons used a scale designed to measure
boredom-proneness and found that the degree of boredom proneness was associated with significant difference in
verdicts: high boredom prone juries were much more critical in their verdicts
for the male defendant.
Several
trial consultancy firms offer trial strategy advice on their websites. The Synchronics Group, (55),
for instance, believes that there are 6 approaches that lead to more effective
voir dires, i.e. engaging each juror in a conversation, exhibiting genuine
interest and undivided attention, finding
a common bond with each juror so that the attorney is perceived as being “like
them,” using humor naturally as a
tension release, establish the attorney’s leadership, perhaps by explaining
some of the ground rules of listening to testimony, gently teaching appropriate
court etiquette (e.g. the attorney is not allowed to chat with jurors outside
of court), and acknowledging the juror’s “high purpose” of listening to
evidence with an open mind.
Bernstein
(1)
argued that the most difficult part of voir dire is simply getting the
prospective jurors to talk and reveal information about their attitudes. She suggests that the attorney ask questions
to which the answer is unknown.
Bernstein acknowledged that this flies in the face of the traditional
wisdom that an attorney should never ask something without already knowing the
answer, but argued that in order to make an intelligent strike decision, it is
worth probing into uncharted territory.
Once the decision to probe has been made, she offered the following
techniques designed to make that probing a worthwhile venture:
·
Ask
questions beginning with ‘what’ ‘how’ ‘could you’ or ‘would you.’ These are open questions that encourage
people to talk and bring forth information or feelings. Avoid questions beginning with ‘why’ as these
will likely encourage defensiveness.
·
Repeat
the juror’s words in your question without paraphrasing. This will convey that you understand the
juror’s perspective and encourage further sharing.
·
Provide
cues to promote continued talking. Such
tactics as repeating the juror’s last few words, but raising one’s voice a bit
at the end will be perceived as a question being asked, and will encourage
further elaboration.
Suggs and Sales (54)
also emphasize the importance of open-ended questioning as being
the most likely to elicit the
nonverbal behaviors that may provide clues as to the juror’s true feelings.
The
key, Bernstein said, is to demonstrate that you are sincerely interested in the
juror’s words. By conveying your
interest and respect, the interrogation of voir dire can be turned into a revealing
conversation. Dimitrius (15) concurs:
“The
best way to establish (a juror’s trust in you) is to reveal
something
of yourself. Let people read you to some
extent,
and
they will feel more comfortable. As
their comfort level
increases, they will open up to you. It’s
simple---if you want
a
clear view of another person, you must offer a glimpse
of
yourself. (p. 10)
Jones (27) also agrees, noting that research has shown that the more someone
discloses personal information, the greater the likelihood that the respondent
will reciprocate in kind. Moreover, the
more the questioner is liked, the greater the self disclosure from the juror. And the closer the questioner is perceived to
be in the same hierarchical level, the greater the self-disclosure. For these
reasons, voir dire conducted by a judge is less likely to evoke juror candor
than when it is conducted by an attorney.
Her empirical research supported these conclusions.
DecisionQuest
(12) observed that research indicated that 30%-50% of jurors did not speak up
when it would have been appropriate to do so.
This was believed due to a need to present a favorable impression in
court, to be uncomfortable in disclosing personal information in front of an
audience, and to the stiff, formal court atmosphere. Several ideas for fostering increased juror
self-disclosure were presented.
Similarly, investigation (42) found that the use of strategic questions
could be “identified as a major source of influence.” (p. 171). They defined these as being of three types:
1) questions that seek juror support 2) questions seeking juror commitment and
3) questions that preview the case.
The
Synchronics Group (55) also offers specific suggestions on incorporating
nonverbal information into a winning presentation. They specify
several ways an attorney can make his/her message more powerful to the
jury , i. e, keeping an open posture, maintaining visual control, maintaining physical balance and neutral posture and projecting
self-confidence.
Giewat (22),
noted that several studies had confirmed that jurors were not always as candid
as possible and examined 16 trial transcripts, finding that the norm of fairness
and impartiality was stressed to a greater extent than that of candor. A study was conducted which candor was
stressed to potential jurors. Their
results did not support the hypothesis that encouragement of candor and honesty
lead to greater self-disclosure, but did show that more self-disclosure
occurred in a group versus individual setting.
Giese
and Perrott (20)
believe that by identifying the “hooks and trigger issues” of the case, and
then crafting voir dire questions around those, the attorney can choose “bait”
in such a way that the potential juror is comfortable in expressing his/her
true attitudes:
“Keep
in mind that jurors are under enormous social-psychological pressure in open
voir dire to answer your questions in a way they think will make them appear to
be fair and impartial….This means that you must pose bias eliciting questions
in such a way that jurors can indicate bias without feeling as if they are bad
members of society.” p. 2
To accomplish this, they suggest
several techniques, including the use of reciprocity: the lawyer discloses a
life experience that might make it difficult to be fair in some instances, while not impairing the ability to be fair in most
other cases. The authors argue that this
tactic has the effect of creating a safe environment in which jurors will feel
safe in disclosing their own biases.
These
authors also stress the importance of considering each potential juror’s “potency.”
In other words, while some jurors will be leaders/persuaders in
deliberations, others will be followers.
They believe that information about this important dimension can be
obtained through observation of the juror’s nonverbal and verbal cues.
However,
attempts to use socioeconomic data, gender or ethnicity have not proven to be
reliable yardsticks for measuring juror attitudes. (54)
Voir
dire has often been described as a process of both retaining jurors whom you
deem favorable to the attorney’s client while at the same time, getting rid of
those who appear to favor his opponent.
However, Davis and Follette (9) propose that voir dire can be a far more proactive process and contend
that a well-crafted voir dire can be used to select wanted jurors. They argue that a voir dire strategy can be
designed that also protects desirable prospective jurors from challenge.
The
first step is for the attorney and his consultant to identify those jurors whom
they consider to be unsuitable. This is
done by creating “working hypotheses” about juror traits that are likely to
predict juror verdicts. The social
science literature provides guidance for these hypotheses, they believe, particularly
in the criminal arena, although there has been some work done in the civil
venue as well. Clarence Darrow once
stated the issue concisely: ”Every knowing lawyer seeks for a jury of the same
sort of men as his client; men who will be able to imagine themselves in the
same situation and realize what verdict the client wants.” (7)
The
next step is to create a “profiling questionnaire,” composed of questions about
the “demographic, attitudinal and experiential variables hypothesized to relate
to verdicts.” (p.10) Besides demographic questions, this questionnaire will
contain items concerning attitudes and experiences relevant to the case at
hand, as well as habits or personality
traits that “are assumed to indirectly
assess attitudes, knowledge, leadership potential, or relevant personality
characteristics.” (ibid)
Some jurisdictions
will allow attorneys to use a juror questionnaire. If permitted, this questionnaire will enable
counsel to inquire about areas that would otherwise prove embarrassing to answer
in open court. At least one generic
questionnaire is available for downloading on the internet at this URL: http://findarticles.com/p/articles/mi_qa4023/is_/ai_n15958186
Ideally, the questionnaire is then given to a community sample or to a mock jury or trial simulation (i.e. a jury made up of those similar to
the actual venire). A mock trial with
all the components of a in criminal trials, which their research found to have
predictive validity superior to other, more generalized instruments) is then conducted. It is critical to note that there is a
trade-off between the size of the sample chosen and the quality of the case
presentation and how valid the results are likely to be. More attention to detail will likely yield a
more precise result, but with trade-offs in both time and money.
Wrightsman
and his colleagues (56) compiled a series of questionnaires designed to measure a variety of
legal attitudes, such as attitudes towards confessions, entrapment, medical
malpractice, death penalty, etc.
However, these were designed as course aids in classes in forensic psychology
and have not been validated.
Similarly,
Gieselman (21)
constructed a very brief 4-item scale for use in criminal cases said to predict
a juror’s verdict a priori with 11-15% certainty beyond chance. He found four items that correlated with
perceptions of fairness in the legal system and reasonable doubt. He believes that the voir dire for a criminal
trial should include these questions:
1)
Socially
speaking, do you consider yourself to be more of a conservative or a liberal?
2)
Have you a
or a close friend or relative ever been a victim of a violent crime?
3)
Do you
generally agree with this statement—“Too many innocent people are wrongfully
imprisoned.”
4)
Do you
generally agree with this statement—“In most cases where the accused presents a
strong defense, it is only because of a good lawyer.”
In one of the very few
studies conducted empirically, Moran and
Comfort (36) found that in a felony trial, lower SES males were conviction-prone,
while their female counterparts SES showed a lesser relationship. And Mills and
Attorneys appear to have
good reason to want to discern the hidden biases of the venire pool: the
Chicago Project (cited in 29) found that 90% of individual jurors’ decisions
are made prior to beginning official deliberations: the role of deliberations
did not so much decide the case as create consensus amongst jury members.
Moreover, Olczak and colleagues (38) found that both trial attorneys and law
students in their sample accepted more conviction-prone than acquittal-prone
jurors. Since this did not correspond to
actual jury selection or juror leanings, it was concluded that trial attorneys
use stereotypes similar to those used by laypeople to choose jurors.
Decision Quest (13)
cautions against employing too simplistic of a model in gauging prospective
jurors. They emphasize that people are not
constant over time and that the role the juror is playing---“what a person
acts as in a social situation”--- is likely to shift over the course of a
trial. It is most important to
understand how central the role is to the juror’s sense of who s/he is in order
to grasp how it will affect the juror’s behavior.
Davis
and Follette (9) and Davis (8) present a strategy they refer to as the “DIPP” method for maximizing
the chances of seating a favorable jury:
Diagnosis of juror favorability
Ingratiation of the attorney to the jury
Persuasion by creation of a favorable story for the attorney’s side of
the case and
Procuring desirable jurors (challenging those who are considered the
strategies of misdirection, misinformation and non information, The authors contended
that the well-prepared attorney can craft a jury inclined to favor his/her
side. This is done chiefly by “targeting
specific questions to specific jurors.”
But
sophisticated strategies such as the DIPP method above, require the expertise
of an objective professionally-trained party (i.e. a trial consultant) to
formulate, research and interpret the venire pool. Such an expert’s services might also be used in
other ways as well. (See sidebar) Yet trial
consultant services are quite costly: one 1989 survey Fulero (19) estimated a cost of upwards of $100,000. A more recent cost study found that fees can
be as high as $500,00. The expense may be
justified by the outcome, however: One civil trial resulted in the largest to
date antitrust judgment ($1.8 billion awarded to MCI in its lawsuit against
AT&T (51). One attorney commented “It’s
gotten to the point where if the case is large enough, it’s almost malpractice
not to use them.” (ibid) Another chimed
in “no self-respecting trial lawyer will go through the process of jury selection
in an important case without the assistance of highly paid trial consultants.”
(ibid)
But Wait…..Not So Fast!
But,
as
There
have been other concerns raised about trial consultants other than their
effectiveness, however. Strier (51) cited concerns about basic fairness. In one study (49), investigators found that trial consulting was perceived as being fair only if it were balanced on both
sides (i.e. both sides either having or not having the service). The question becomes more problematic when
only one side has a consultant: this may lead to perceptions of jury tampering,
unfair advantage of the wealthy, of violating the right to a truly impartial
jury, etc.
Some
observers (51,30) are uncomfortable with the relative lack of professional standards in the
trial consulting industry. Calling the
profession “unregulated” and “without professional qualifications and binding
ethical restrictions,” Strier (51) notes that “anyone can enter and
self-identify as a trial consultant” (p. 107) and further observes that “those
without traditional credentials must, of necessity, be adroit at
self-promotion.” (ibid). Further, some
practices used by trial consultants (e.g. pretrial investigation of potential
jurors) may be construed as being, if not jury tampering, then at least invasions
of privacy. (However, much of the information gathered---political party, home
and vehicle ownership, driving record, litigation history, etc.---is freely
available as a matter of public record.)
Ratings may be compiled on “favorability index (indicating probably
verdict leaning), leadership potential index and an overall desirability index,
based on a combination of the previous two.”
(Davis 1996)
Lecci,
et al (30) argue that like any other profession, trial consultancy should be
held to “specific scientific standards with regard to demonstrating its ability
to contribute to the legal process. We
further argue that the use of standardized measures to quantify assessment in
the voir dire is the only way to accomplish this.” (p.69)
They
concluded that
“To
summarize, the approaches to jury selection generally employed by attorneys appear to
involve conjecture and a reliance on stereotypes, neither of which are
valid methods. More-
over, attorneys tend to select the same
jurors as do untrained individuals and, in either case,
the resulting jury
is rarely less biased than a group of randomly selected jurors ….Although
there are no data that explicitly evaluate the jury selection skills
of consultants, there is no
reason to assume that they would be any
more skilled as a trial consultant, one might argue
that trial consultants are even less
likely to contribute in a meaningful way to voir dire. Thus,
because legal expertise or trial experience
does not result in effective jury selection, the onus
is on trial consultants to demonstrate that
they can in fact contribute to the jury selection process.” (p.71)
Stolle (49) argued that in addition to the issue of effectiveness, the second question
that must be examined is whether or not procedures used by trial consultants
are fair. Noting that the popular
media has referred to jury/trial consultancy as “the best jurors money can
buy,” Stolle stated that the public perception is that these services are only
for the very wealthy and for corporations, thus disadvantaging the average
litigant. However, Stolle argued that it
is equally plausible that the jury would see the use of a trial consultant as
more evidence of the wealth of the defendant, and would therefore make a higher
award for the plaintiff. This entire
concept requires careful scrutiny, he said.
But
these shortcomings are not likely to be examined by trial consultants, Lecci,
et al, contend, (30) because these firms
“rarely empirically evaluate whether they have made
the correct decisions in jury selection.
Instead,
they are likely to take a victory in court as an indication that they selected
the correct
jury,
when in fact the verdict was more likely the result of trial evidence. Likewise, a loss in
court
is not likely to be attributed to faulty jury selection….but instead (they)
will attribute the
loss
to other factors….As a result, trial
consultants will consider themselves quite adept
at
jury
selection, despite unequivocal research findings indicating that individuals,
regardless of
their
experience, rarely discern bias in prospective jurors at a rate better than
chance.” (p. 73)
If
an attorney has the luxury of time and money to incorporate the voir dire style
of extensive questioning, having the venire complete lengthy questionnaires
covering a wide range of seemingly irrelevant questions, conduct mock trials
and/or in-depth community attitude surveys, as well as assimilate the
information to be gleaned from nonverbal clues and to digest and apply the
many analysis techniques suggested by Dimitrius (15) and others, it appears to
be quite likely (although not empirically
proven) that the use of scientific trial consultants could well be advantageous. However,
such a state of affairs is very seldom the case. Thus, the question of the efficacy of
scientific jury selection is moot: while
the practice may well be quite helpful, the intrinsic limitations of the approach
(e.g. cost, local rules of court re: acceptable voir dire conduct) most often
preclude its use.
However,
Strier (51) makes a telling point:
“The nature of jury decision making and the secrecy
of jury deliberations guarantee
that
the actual impact of consultants, one
way or the other, will remain immune to
empirical
verification. But we should not preclude
the value of relying on probabilities….
The
point here is merely to suggest that inability to prove the infallibility of
trial consulting
should
not foreclose any consideration of its value.
Stated differently, substantially improving
the
odds, if not the certainty of victory should not be dismissed as inconsequential.”
(p. 102)
He
also eloquently stated:
“only trial attorneys suffering from overinflated
egos or hubris really believe there is
nothing
of value a qualified consulting firm can offer in selecting a jury or trying a
case….
No
lawyer would be harming his client by taking advantage of scientific jury selection.”
(p. 103)
The Bottom Line
The
consensus of the literature regarding trial consultants and their ability to
guide attorneys in selecting a jury favorable to the attorney’s case is that neither
trial consultants---nor attorneys acting independently---have developed a
reliable formula for success. And in many cases in which jury selection may
have benefitted from trial consultant input, the cost of that help was prohibitive.
Finally, the influence of juror factors (e.g. demographics, personality traits)
is “often outweighed by the strength of the trial evidence.” (31)
However,
the choice not to use trial consultants for any or all of the preceding reasons
---or at least, to be very skeptical regarding their validity---contains the
danger of throwing the proverbial baby out with the bathwater. The other aspects of trial consultancy---e.g.
determining a compelling way of presenting one’s story to the jury---have not
been subject to detailed scrutiny and may well have the ability to have a
significant impact on jurisprudence outcome.
One
additional area of likely utility is in the area of graphic presentation of the
attorney’s arguments. Some research
has shown (e.g. (16, 2) that a visual presentation of information can have a significant impact
on jurors. Rochelois (43) noted that visual graphics “have
a strong positive effect on comprehension and retention. Interestingly, the use of visuals does tend to
produce a higher regard for the presenter.” It is suggested that future
research pay attention to the assessment of the value of services of trial
consultants beyond the area of choosing jurors, such as the use of graphics, witness
preparation, and other services. (sidebar)
SIDEBAR
Sample Trial Consultant Firm Services
“SITUATION
ANALYSIS: A non-legal assessment of the case that provides a
review of the case situation as it is presented in case documents and trial
team discussions. It clarifies and identifies possible key themes and story
lines and
forms the basis of optimal case strategy.
THEME DEVELOPMENT
RESEARCH:
Establishes the clearest and most compelling
themes and litigation strategies by using surrogate jurors from the appropriate
venue to deliberate on and evaluate case the opponent, making it an invaluable asset in the
formation of the most influential case presentation possible, particularly when performed early in the
discovery stage. This service concludes with (the consultant) “debriefing”
jurors to formulate refinements and devise a course of action that will sway
the unconvinced.
MOCK JURY & MOCK
BENCH TRIALS:
The most comprehensive forms of research offered, entailing the complete setup
and execution of mock jury or bench trials using retired judges, fact and expert
witnesses, and/or surrogate jury panels relevant
to your venue. Mock trials can test every aspect of the case - from the
usefulness of graphics to attitudes
toward damages - en route to developing the most of focused strategy for
trial. (The trial consultant) completes mock trials by holding de- briefing
interviews with the jurors or judges to collect nuanced details that will
enhance the persuasiveness of the attorney’s trial approach.
WITNESS EVALUATION:
This process assesses the strengths and weaknesses of the witnesses, which can
then be refined.
WITNESS PREPARATION: A
facet of pre-trial work that grooms the witnesses to remain
focused and effective on the stand or in deposition. This service allows the consultant
to identify the factors that most impact juror decision-making and, in turn,
develop a plan as to how witnesses can best support the decided-upon persuasive
story.
COMMUNITY ATTITUDE
SURVEYS:
Custom-tailored questionnaires poll a representative sampling of the eligible
jurors in the venue to ascertain current attitudes toward the case and client.
The resulting written report conveys an accurate understanding of the trends affecting the case and is accompanied
by recommendations for handling them before
and during trial.
CHANGE OF VENUE
STUDIES: Carefully designed studies that gather the statistically significant information
necessary to argue for possible change of venue decisions.”
References
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2. Brewer, N., Harvey, Sophie and Semmler, Carolyn (2004). "Improving comprehension of jury instructions with audio-visual presentation." Applied Cognitive Psychology 18: 756-776.
3. Brodsky, S.I. & Cannon, D.E. (2006) Ingratiation in the courtroom and in the voir dire process: When more is not better. Law and Psychology Review, 30 103-117.
4. Broeder, D. W. (1965). "Voir dire examinations: An empirical study." Southern California Law Review 38: 503-528.
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www.decisionquest.com/litigation_library.php?NewsID=206
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www.decisionquest.com/litigation_library.php?Newsl......
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15. Dimitrius, J.E. (1998) Reading People New York, Random House.
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American Journal of Forensic Psychology 2009. Voir Dire: an Art in Search of a
Science. American Journal of Forensic Psychology, V. 27 No. 1, 23-53.