If you’ve spent any time interviewing jurors, you know that eyewitness testimony holds great weight. And if you’ve spent any time researching cognitive psychology, you know that eyewitness testimony can be very unreliable. I want to briefly discuss the research and then will talk about implications for your case.
Elizabeth Loftus is one of the leading minds in the field, along with Garry Wells and a few others. She ran an experiment in 1989 where she showed subjects a video of a car accident at an intersection where there was a stop sign. Half of the participants later received a suggestion that the traffic sign was a yield sign. When questioned about what traffic signal they remember seeing in the video, participants to whom the yield sign was suggested reported remembering the yield sign instead of the stop sign, suggesting that the suggestion of the yield sign altered their memory of the original event. I am certainly not suggesting that this happens every time – there are many factors that increase or decrease the chance that a memory gets altered, such as how focused the participant was on that particular item (if the subject found the stop sign to be particularly important, they are more likely to focus on it and be less vulnerable to the yield sign suggestion).
Perhaps the scariest part, however, is not that the memory was altered, but that a person’s confidence level in their memory is not correlated with accuracy. This means that you can get an extremely confident witness on the stand who will win over jurors but is inaccurate in their recollections.
Much of the studies on memory and testimony relate mostly to criminal cases where there can be police suggestions in lineups or interviews that alter the memory. But the problems can also appear in civil cases where people are questioned by police, attorneys, and put through numerous depositions.
So what can you do about it? You certainly cannot prevent the altered memory and you may not even have the ability to know when or how it happened (unless you have a criminal case where there are more clear factors such as suggestions that are implanted at the lineup). But consider informing your jurors of these psychological phenomenon. Experts like Elizabeth Loftus testify in cases and can point out to jurors the factors that make memory more or less accurate, giving them things to look at other than the confidence of the witness.
There have been many studies done on lie detection and the results are often disheartening. Most of us, including police officers, fare no better than chance at detecting a liar. When it comes to your voir dire, this can be troublesome. While much of lie detection is a gut reaction (if you haven’t read the book “Blink” yet, I highly suggest it), there are some things that you can look for and some myths you should be educated about.
- Liars Fidget. Yes, maybe…but so do people who are telling the truth. Often, good liars have learned to keep their bodies very still. You could have a truthful juror who is simply nervous and fidgety. Don’t assume a nervous behavior means they are lying.
- Liars Look Away. Again, not necessarily. Some liars will look you straight in the eye. They may even have more direct eye contact than normal.
- Liars Won’t Have Detailed Stories. Not true. The stories are more likely to be overly detailed.
The most important things to look for in detecting lies are inconsistencies. As humans, our bodies betray us – there are little tells that come out even if you don’t mean for them to. Slight smiles when talking about something gruesome and horrifying or nods of the head when talking about something in the negative. Look for these subtle body language cues.
If you ask basic questions first, you can get a baseline reading off the person (such as asking about their family and work life). When you ask more controversial case-specific questions and they react differently, that may be a sign they are lying. If a juror is fidgety when talking about basic questions but then stiffens up when answering more case-specific questions, you need to consider that they are lying on the case-specific questions. Watch for changes in tone of voice, body gestures, crossed arms, whether they look straight at you or not. It is not the gesture in itself that matters – it is the difference from their baseline. Watch for inconsistencies and you will fare much better than sticking to stereotypes of liars.
If you want to know more, look up some work by lie detector Pamela Meyer and I’m sure there are many others.
You’re creating the story of your case for opening and trial. You have a situation where a business allowed an unsafe condition to exist on their land and as a result, your client got hurt. You get to the point in opening where you start to tell the story and you say, “the defendant failed to fix the problem. They never put up warning signs…” You may not have realized it, but you have already compromised your story.
There are two principles to keep in mind when telling a story, whether in opening or questioning witnesses or closing:
1. Acts are more powerful than omissions because jurors forgive omissions much easier than conscious acts or choices. In focus groups and juror interviews, you consistently hear jurors say “well, it was just an accident” or “anyone could forget that” and so on. This is because as humans, we understand that no one can think of everything every time, so we let people off the hook for forgetting something. If the same scenario is framed as a conscious choice, however, it is much harder to forgive because it feels deliberate and intentional. So, in the above example, you should tell the story as “the defendant sees the pot hole. He examines it and CHOOSES to walk inside. He DECIDES to start setting up his shop for business. Six hours later, the plaintiff comes to shop at the defendant’s store….” This sets up jurors to see that the defendant knew about the condition and CHOSE to ignore it and do other things that were more profitable instead. This applies to any type of case: “the driver chose to drive through the red light” or “the doctor chose to ignore patient safety rules when he did x, y, z.”
2. The unconscious mind does not know the difference between a positive and a negative and therefore will always interpret something as the positive. For example, if you say “the driver did not stop for the red light,” the unconscious crosses out the negative and only hears “the driver stopped for the red light.” Whenever possible, frame your sentences as positives, such as “the driver saw the red light and kept driving.”
These may seem like small changes, but to the unconscious mind, they make a huge difference.
Attorneys are often worried about asking questions in voir dire that elicit responses that are harmful to your side of the case. For example, I hear plaintiffs attorneys worry about asking questions regarding tort reform because they are afraid that jurors will start talking about costs of insurance rising and how lawsuits are chasing doctors out of town. The fear is that these comments will taint the neutral or good jurors.
My suggestion is not to worry about poisoning jurors on the panel. Your role in voir dire is to elicit information and you certainly want to hear the bad comments so you can dismiss bad jurors. Jurors who are favorable to you will not change their opinions simply because a stranger sitting next to them spouts off opposing viewpoints. If a person holds a fairly well ingrained opinion, they have formed that opinion based on their life experiences. That opinion has already been challenged by media, friends, and family. An hour-long voir dire (if you’re lucky to even get the much time) will not change their opinions. If a juror is neutral on a matter or has not formed any deeply rooted opinions on the topic, they may be swayed by what other jurors say but not to the point of danger to you. Their opinions will not have been ingrained and they can be easily swayed back to your side during trial.
The most important things to remember during voir dire are:
1. You should listen much more than you talk. This is a time for you to gather information, not feed jurors facts about your case or try to start convincing them.
2. You need to appear as non-lawyerly as possible. Jurors hate attorneys and this is your first impression. Do not under any circumstances argue with a juror about their opinion or try to change it. You will alienate yourself from the rest of the panel, including your good jurors.
3. Bring out those bad facts and get jurors to commit to their opinions solidly if they are bases for cause challenges. That will give you a much better chance at removing more of the bad jurors and ending up with neutral or favorable jurors who will then appreciate your openness to different attitudes and trust you more as you begin to present your case.
Filed under Misc, Voir Dire