From Mastering Voir Dire, Chapter 3
- To explore how jurors reveal their opinions and biases in their nonverbal behaviors.
- To understand the importance of deviations from normal patterns of communication.
- To develop strategies for utilizing nonverbal communication in jury selection.
To evaluate potential jurors’ opinions and biases, it is important to be aware of what jurors are telling us beyond the answers they give to questions posed during the course of voir dire. As we shall see in Chapter 5, the way that voir dire is normally conducted inhibits candor and openness on the part of potential jurors. In addition, there is evidence that potential jurors may seek to deceive lawyers through their answers to questions posed to them.1 Thus, while the jury selection process places a premium on the information jurors provide, strict reliance on the content of jurors’ answers may not reveal the jurors’ true feelings and opinions.
Types of Nonverbal Communication
One of the most important ways people communicate has nothing to do with the content of what they say, especially when it comes to their opinions and emotions. Studies have shown that from 60 to 65 percent of people’s total communication occurs through what are termed nonverbal behaviors.2 This type of communication consists of kinesic behaviors (nonlinguistic body motions) and paralinguistic behaviors (non-content aspects of speech).3 Considerable attention has been paid to the presence of anxiety in nonverbal communication, particularly in detecting when someone is lying.4 When people are anxious because of sensitivity to the subject matter, general nervousness, or a wish to deceive, they can reveal or “leak” their anxiety (and other feelings) through a variety of kinesic and paralinguistic behaviors. Lawyers can uncover the underlying opinions, feelings, and biases of potential jurors during the jury selection process by paying attention to the information contained in nonverbal communication.5
Nonverbal indicators of what jurors are feeling or when they are evading the truth are of two types: visual cues (what we see) and auditory cues (what we hear). Several points should be kept in mind when considering visual and auditory cues. First, there is no Pinocchio effect (i.e., the fictional character Pinocchio’s nose growing longer when he told a lie). No single cue or behavior is universally associated with lying or anxiety. Second, although we will consider these cues separately for the purposes of explanation, in reality, the behavior of jurors is rarely this simple. Nonverbal cues usually occur in clusters or combinations of cues that provide the overall meaning to the behavior. Therefore, it is important not to fall victim to simplistic one clue/behavior interpretations of the nonverbal communication of potential jurors at any given time.
Third, jurors may exhibit individual behaviors or a cluster of behaviors for a variety of reasons. For example, when potential jurors fold their arms, it may reflect animosity toward what is being said, or it may simply mean the air conditioning has made them cold. Careful attention to the whole process is necessary in order to glean useful information about potential jurors’ true feelings.
Fourth, in considering what to look for in the jurors’ nonverbal communication, it is necessary to start at the beginning. That is, we must consider the normal pattern of the jurors’ nonverbal behavior. How do jurors act simply as a function of their being in the voir dire situation? Observing jurors at the beginning of voir dire provides a critical comparison point or baseline for evaluating their subsequent actions. Does the juror’s behavior change in response to what is happening on voir dire (who is asking the questions or what topic is being addressed)? For example, does the juror show signs of nervousness or agitation throughout the questioning or only when the topic of race relations or tort reform is discussed? Is the juror more open and talkative with one lawyer than with another?
Finally, it is important to understand that nervousness and deliberate deception may not produce the same responses within the same individual. Jurors may reveal outward signs of nervousness (e.g., increased blinking or lack of eye contact) in sensitive topic areas, but, when it comes to specifically expressing a misleading or deceitful opinion on a topic, they may exert greater control over their nonverbal communication (e.g., maintaining higher levels of eye contact). This latter activity can arise from stereotypes held by jurors about successful deception, for example, that lack of eye contact is associated with lying.
The key to understanding jurors’ answers lies in deviations or breakdowns in their typical behavior. It is through the information these breakdowns provide and the overall patterns or clusters of jurors’ behaviors that lawyers can better understand what jurors are really saying.
Visual Cues: What We See
The first category of cues comprises what is seen in the potential juror’s behavior, such as movements, postures, and facial expressions. Eight types of cues are important:
- Body movement
- Body posture
- Body orientation
- Inadvertent emblems
- Eye contact
- Facial expressions
Visual Cues to Anxiety and Deception
Source Examples of Behaviors
Shifting postures, wringing hands, repetitive movements, or “adaptive movements”
Greater rigidity and less head and body movement
Closed orientation, folded arms, crossed legs, or leaning away from speaker
Nested fist in the crook of the elbow or clenched hand on leg
Presence of shoulder shrugs
Less eye contact and more blinking; exceptions: hostility and cultural norms of reduced eye contact
Frowning, skeptical expressions, detached or fixed smiles
Fleeting facial expressions (in milliseconds) reflecting emotions often inconsistent with dominant facial expression
Adapted with permission of Virginia Lawyer.
In general, the more movement the potential juror exhibits, the greater the anxiety. These movements can involve the entire body (e.g., shifting body postures) or more limited parts of the body (e.g., wringing hands or tapping fingers). Gross movements such as repeatedly shifting the body’s weight (“fidgeting” or “squirming”) reflect anxiety or nervousness on the juror’s part, the traditional reaction to being placed on “the hot seat.”
More subtle body movements relate to actions that dissipate the nervous energy or arousal produced by anxiety—rubbing the hands together and squeezing them at the same time, or strumming the fingers repeatedly on a chair arm or tapping them on a book, newspaper, or other object. Strumming and tapping movements, however, can also reflect impatience. While not necessarily an indicator of deception, these body movements often suggest unfavorable reactions to the lawyer asking the questions. Twisting an object such as a tissue, necklace, bracelet, watchband, or ring with the hand is often analogous to hand wringing and is a more subtle sign of anxiety.
Other signs of anxiety are what are termed “adaptive” movements,6 such as scratching one’s head, pulling or twirling one’s hair, or briefly touching one’s face. Grooming can also reflect anxiety. Anxious potential jurors can be seen brushing their hair back with one hand or quickly shaking the head so that their hair falls in place. This anxious grooming can also lead potential jurors to “pick” at their clothing, removing lint, or they may “straighten” their clothing (dresses, coats, shirts, or ties).
Not all of these movements indicate anxiety. For example, scratching of the head also may reflect uncertainty, particularly if the head is tilted at an angle while the scratching occurs. While wringing the hands reflects anxiety, rubbing the palms together in a back-and-forth motion can indicate confidence or anticipation of something desirable. Steepling the hands, where the hands are placed palms together with the fingers pointed skyward, indicates confidence in one’s position or in what one is saying. In addition, expressive gestures or “illustrator” movements that complement what is being said generally indicate a greater degree of comfort or involvement in the process. These cues or behaviors should not be mistaken for anxious reactions on the part of potential jurors.
This cue combines two sources of information, body rigidity and gestures. In general, the more rigid the body posture of a potential juror, the greater the anxiety the juror is experiencing. Signs of rigidity include an erect, stiff posture and the tightening of muscles. Tightening of the muscles in the hands and fingers can produce the appearance of “white knuckles” when anxious potential jurors grasp the arms of their chairs or clasp their hands in their laps. More subtle signs of anxiety occur with the tightening of smaller muscle groups in the body, particularly in the face. For example, in jury selection for a medical negligence case against a hospital, questioning of a hospital administrator on the issues of hospital liability and size of damage awards led to a subtle but informative nonverbal response. Although his answers were not overtly anti-plaintiff, his jaw muscles tightened whenever liability and damage award issues were addressed. When questioning returned to less sensitive areas, his jaw muscles relaxed.
Rigidity is also apparent when normal head and body movements do not occur during the course of voir dire questioning. This lack of movement can manifest itself in crossed arms, crossed legs, and legs crossed at the ankles. However, it is important to consider the above cues in light of other features of the potential jurors’ nonverbal communication. For example, crossed arms with a genuine smile indicate comfort, not anxiety or resistance. Crossed legs with a slight kicking motion can reflect boredom or impatience. Placing the hands in pockets, particularly with the fists balled up, reflects anxiety and sometimes even hidden hostility.
Various gestures can also provide information on potential jurors’ feelings.7 Placing fingers in front of the mouth can indicate reluctance or the holding back of the juror’s true feelings. Placing a hand in front of the mouth can reflect a lack of confidence or embarrassment at what the potential juror is saying. Jurors who tilt their heads may be evaluating what is being asked or questioning the statement being made (enhanced by the juror’s pursed lips). An open hand to the throat can indicate a need to protect oneself from an anxiety-provoking situation, topic, or person, such as the criminal defendant.
A final aspect of body posture concerns the concept of “mirroring.”8 Mirroring refers to the degree that individuals adopt the body postures and mannerisms of those around them (or those of a speaker). Mirroring usually indicates agreement or a positive response to what is being said or identification with the person who is saying it. Potential jurors may mirror the postures or mannerisms of lawyers or other jurors with whom they identify or toward whom they have positive feelings. Mirroring among jurors is useful when considering the development of cliques or relationships that may form in the jury. Potential jurors mirroring each other are revealing possible bonds that may form if they serve together on the jury.
A third cue concerns the orientation of the potential juror’s body to the lawyer. Body orientation refers to the relationship of the front of the listener’s body to the speaker. Open orientation can be seen in the “squaring” of the listener’s body to the speaker. An open orientation by a juror generally shows lack of anxiety, positive feelings toward the speaker, or agreement with the speaker or his or her position. In a basic sense, an open orientation leaves the vulnerable parts of the body exposed, a position people are reluctant to take in the presence of someone (or something) that makes them feel uncomfortable. Thus, the degree to which the body is angled away from the speaker, as when the shoulder is turned toward the lawyer or party, reflects the “closed” nature of the relationship or resistance to the speaker or his or her position. This closed orientation can be particularly informative when it reflects an ongoing orientation toward one party or the other.
A related feature of orientation involves whether parts of the body are brought together to close off or “protect” the body. Crossing of the arms or legs can combine with orientation to reflect a further closing off to the lawyer. Jurors who cross their arms in this manner reveal their resistance or even hostility toward the lawyer or party to which it is directed.
Like mirroring, body orientation can provide information about potential relationships within the jury. How jurors associate in the hallways, lunch rooms, and the jury box during the course of jury selection provides glimpses of the relationships between jurors. Several jurors may stand together in a small group with the outlying members turning their bodies in toward the center of the group, reflecting the “closed” nature of the group. This exclusivity is particularly telling when other potential jurors are standing near the group, yet are not included in it. The orientation of jurors also can reveal relationships in the jury box. When several potential jurors tend to turn toward one another, other jurors can be left “outside,” with their bodies oriented either straight ahead or away from these potential jurors.
Finally, leaning forward or away from the speaker can reveal the degree of interest in the lawyer or the position advocated. Generally, jurors who lean forward reveal their interest, attention, or receptiveness, but this is not necessarily a positive sign for the lawyer. A hostile potential juror, whose forward lean indicates attention to the lawyer or party, reflects a more combative interest, not the presence of any positive feelings. Leaning away by jurors, on the other hand, generally indicates less interest or less receptivity. This latter cue also may reflect comfort with what is being said or the fact that a decision has been reached. In either case, there is a decrease in the juror’s need to be vigilant or attentive.
Emblems are gestures that can be made in place of a word. The nodding of the head (yes) or the cupping of the hand behind the ear (speak up/I can’t hear) communicates the intent of the person without the use of words. Like “slips of the tongue,” there can be “slips of gestures” or “leaks of emblems.”9 A key to detecting information contained in the leakage of emblems is that it is exhibited outside the normal presentation area (and oftentimes is present only in partial form). For example, an emblem or gesture such as a clenched or shaking fist is often made in front and away from the body, and is a sign of hostility or anger. Generally, such emblems are inappropriate for expression during voir dire questioning. However, a clenched fist tucked in the crook of the elbow is not so obvious, yet can still be emblematic of the juror’s true hostile feelings.
Shrugging the shoulders while answering a question can indicate a lack of confidence arising from anxiety (as a result of deception), embarrassment, or uncertainty. Shrugs can be the juror’s way of qualifying an answer. Potential jurors who shrug when answering a question about the defendant’s presumed innocence or awards for pain and suffering are telling lawyers that they are not sure or do not agree with what the lawyers are saying. This information is important to know in evaluating the desirability of these jurors.
A shrug may indicate the juror’s lack of commitment to what is being said. Under these circumstances, potential jurors are telling lawyers that while they may verbally agree, this agreement may have no impact on their decisions. Finally, shrugs can also indicate indifference about an issue, as in the case of a juror who shrugs when noting that police may sometimes go too far in subduing potential lawbreakers.
The willingness or ability of potential jurors to make and maintain eye contact during questioning can be a measure of the anxiety they feel. If there is anxiety or tension in the interaction between the lawyer and potential jurors, this tension will build up over time. As the tension rises, potential jurors will respond by breaking eye contact (through either averting their eyes or blinking). When eye contact is broken, the tension level temporarily decreases, and the jurors can then resume eye contact with the lawyer. If anxiety is not present, potential jurors can maintain a moderate to high level of eye contact with the lawyer or party in the interaction. The same is true when the potential juror has positive feelings toward the lawyer or party, or is interested in what the lawyer has to say. However, when the potential juror is anxious (possibly as a result of being deceptive), breaks in the normal pattern of eye contact can occur, with potential jurors averting their eyes at critical times or blinking more often.
Knowing the relationship between eye contact and anxiety allows lawyers to consider several useful questions. Do potential jurors maintain eye contact with the lawyer or party when they give their answers, or do they avert their eyes at critical times? For example, when potential jurors are asked how they feel about rendering a million-dollar judgment against the defendant, do they say “I wouldn’t have any reservations about rendering a million-dollar verdict [averting eyes] against the defendant [reestablishing eye contact]”? Or, in the case of a criminal defendant possibly not taking the stand to testify, do jurors say “I would not hold it against the defendant [averting eyes] if he chose not to testify [reestablishing eye contact] in his own defense”? Averting the eyes at the last part of the answer reveals the juror’s anxiety. Do potential jurors increase their blinking in response to questions concerning certain opinions or when a particular lawyer asks the questions? Are potential jurors able to maintain eye contact throughout the questioning process? A potential juror’s failure to maintain eye contact could mean that the juror would not be a desirable choice for the examiner.
Three exceptions to the relationship between eye contact and anxiety should be kept in mind. First, although steady eye contact is usually an indication of juror ease or interest, an increase in eye contact can reflect hostility. This phenomenon is captured by the expression “know your enemy” (e.g., “I don’t like you, and I am keeping my eye on you”). Second, an increase in eye contact has also been associated with attempts to deceive or hide one’s true feelings.10 As such, when jurors choose to lie or mislead and believe that a steady gaze would make them appear more truthful, they may increase their eye contact. Third, cultures differ in their view of the appropriate levels of eye contact. For example, potential jurors of Hispanic and Asian backgrounds may exhibit lower levels of eye contact, which simply reflects their cultures’ views. These exceptions highlight the need to consider all nonverbal and verbal cues together in order to evaluate potential jurors’ feelings and opinions.
Probably the cue that people rely upon most in their interactions with others is facial expressions. Frowning, smiling, looks of concern, or skeptical or incredulous expressions can reveal feelings about a situation or a person. The problem with facial expressions is that over the course of socialization, people learn to control their facial expressions more than other aspects of nonverbal communication. Potential jurors may smile or exhibit signs of interest even when their feelings are inconsistent with these expressions. However, unless a potential juror is particularly adept at controlling or manipulating nonverbal communication, inconsistencies between feelings and outward appearances will leak out. Leakage occurs in two areas: aspects of the facial expressions themselves and inconsistencies with other body cues.
The facial expressions of a potential juror can betray underlying “hidden” feelings in several ways. One way potential jurors can betray their true feelings is through the quality of the facial expression itself. While there are no hard-and-fast rules for lie detection, a fixed smile, one that lasts longer than is appropriate for the situation, can reveal deception or masking. Jurors often use smiles to mask other feelings. The fixed smile appears to linger, where the genuine smile naturally disappears as the situation or feeling changes. This fixed smile can reveal the degree of control the juror is exercising, with the “controlled” face giving the appearance of unemotionality or composure when the juror should be reacting to the situation. For example, when a lawyer inadvertently embarrasses a hostile juror, the juror may adopt a fixed smile to cover his or her hostile reaction to the lawyer.
In addition, a nongenuine facial expression is often asymmetric, not involving the whole face, as a genuine expression normally does. The “crooked smile” is such an expression. In a crooked smile, the lips turn up in a smile on one side while the lips on the other side remain horizontal or turn slightly down, in a frown or grimace.
Finally, leakage occurs through the jurors’ other nonverbal body cues. This leakage occurs when a facial expression communicates some desired effect, but the body cues send a conflicting message. For example, potential jurors may verbally express a willingness to treat a party fairly, and the facial expression may appear neutral or positive. However, the body cues may reflect resistance or anxiety, with crossed arms and a closed orientation. As will be discussed later, the degree of consistency of nonverbal cues is a major factor in uncovering a juror’s true feelings.
One type of potential juror highlights the discussion of facial expressions. The “smiling” juror wears a smile during the voir dire questioning by the lawyer, giving the impression that the juror is receptive to or feels positive toward the lawyer or party. However, this juror is actually hostile or in some other way unfavorable. Once selected, this juror smiles at the lawyer during the trial, continuing to foster the impression that the juror is favorable. When the jury returns a verdict against the client, the smiling juror continues to smile (and only later is revealed as having opposed the client’s case).
The key to detecting the smiling juror lies in examining the consistency of his or her nonverbal cues. Are there wrinkles or crow’s-feet at the outside corners of the juror’s eyes that should accompany genuine smiling? Is there a softness to the eyes that is associated with positive feeling, or are the eyes hard, as would be consistent with the expression “eyes that looked daggers”? Is the smile asymmetrical (e.g., one side of the smile lifts up while the other side of the smile stays relatively flat or points downward)?11 Is the smile consistent with other nonverbal cues such as body orientation and posture? Always beware of the potential juror who smiles but angles his or her body away and maintains a rigid posture!
A special class of facial expressions is what are termed “microexpressions.”12 Microexpressions are very short or fleeting expressions, measured in terms of milliseconds. Microexpressions reflect universal emotions, including sadness, happiness, fear, anger, disgust, contempt, and surprise.13 Microexpressions are inconsistent with the dominant expression and reflect the suppression of this expression by the individual. For example, when the facial expression of someone who is not happy, but is smiling, is filmed in slow motion, microexpressions may show a sad or angry expression, belying the dominant smiling expression. While microexpressions are hard to detect because of their fleeting nature, it has been proposed that training can increase someone’s ability to detect such expressions.14 Microexpressions may influence us on a subconscious level as well and may be an important source of lawyers’ “gut” feelings about jurors, where lawyers have a positive or negative reaction to a juror yet cannot give an objective reason for that feeling.15
1. See Dale W. Broeder, Voir Dire Examinations: An Empirical Study, 38 S. CAL. L. REV. 503 (1965); George E. Mize, On Better Jury Selection: Spotting Unfavorable Jurors Before They Enter the Jury Room, 36 CT. REV. 10 (1999); George E. Mize, Be Cautious of the Quiet Ones, 10 VOIR DIRE 8 (2003); Richard Seltzer, Mark Venuti, & Grace M. Lopes, Juror Honesty During the Voir Dire, 19 J. CRIM. JUST. 451 (1991); Neil Vidmar, Case Studies of Pre- and Midtrial Prejudice in Criminal and Civil Litigation, 26 LAW & HUM. BEHAV. 73 (2002). See Chapter 6 for a discussion of the “stealth” juror, a juror who withholds information or is deceitful during jury selection in an attempt to be seated on the jury.
2. See studies cited in n.27 of Judge’s Nonverbal Behavior in Jury Trials: A Threat to Judicial Impartiality, 61 VA. L. REV 1266 (1975).
3. For reviews of the area of verbal and nonverbal communication, see JEFFREY FREDERICK, THE PSYCHOLOGY OF THE AMERICAN JURY (1987); Paul Ekman, Lie Catching and Microexpressions, in THE PHILOSOPHY OF DECEPTION (Clancy Martin, ed. 2009); PAUL EKMAN, TELLING LIES: CLUES TO DECEIT IN THE MARKETPLACE, MARRIAGE, AND POLITICS (3d ed. 2001); M. Zuckerman, B. M. DePaulo, & R. Rosenthal, Verbal and Nonverbal Communication of Deception, in 14 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 1–60 (L. Berkowitz ed., 1982); ALBERT MEHRABIAN, NONVERBAL COMMUNICATION (1972). For its relation to trial practice in general, see ROBERTO ARON, JULIUS FAST, & RICHARD B. KLEIN, TRIAL COMMUNICATION SKILLS (1991); as it relates to jury selection, see JO-ELLAN DIMITRIUS & MARK C. MAZZARELLA, READING PEOPLE: HOW TO UNDERSTAND PEOPLE AND PREDICT THEIR BEHAVIOR—ANYTIME, ANYPLACE (1999); Jeffrey Frederick, Jury Behavior: A Psychologist Examines Jury Selection, 5 OHIO N.U. L. REV. 571 (1978); Jeffrey Frederick, Jurors’ Verbal and Nonverbal Communication: What Attorneys Should Look for During Jury Selection, 39 VA. LAW. 24 (1990); David Suggs & Bruce D. Sales, Using Communication Cues to Evaluate Prospective Jurors During Voir Dire, 20 ARIZ. L. REV. 629 (1978); and judge’s behavior, see id.
4. See, e.g., Zuckerman et al., supra note 3.
5. It is important to recognize that as a rule, humans are notoriously bad at detecting lies, with most people operating no better than chance, including those in law enforcement, the judiciary, and other professions, with very few individuals being able to detect deception at rates of 80 percent or greater. Ekman and his colleagues have labeled people who are able to do so “wizards” of detection. See Gary D. Bond, Deception Detection Expertise, 32 Law & Hum. Behav. 339 (2008). This chapter will not make you wizards, but it is designed to increase your sensitivity to nonverbal communication.
6. See John E. Hocking & Dale G. Leathers, Nonverbal Indicators of Deception: A New Theoretical Perspective, 47 COMMUNICATION MONOGRAPHS 119 (1980).
7. For a related discussion, see Aron et al., supra note 3.
8. For additional discussions of mirroring, see Jury Work: Systematic Techniques (National Jury Project 2009), and ARON ET AL., supra note 3. While mirroring has been suggested as a technique that can be adopted by lawyers to enhance rapport and persuasion, a recent study found that mimicry or mirroring does not appear to enhance the ability of individuals to detect the emotional state or truthfulness in others. In fact, those mimicking others did worse than nonmimicking observers in these areas. See Mariëlle Stel, Eric van Dijk, & Einav Olivier, You Want to Know the Truth? Then Don’t Mimic!, 20 PSYCHOL. SCI. 693 (2009).
9. For a further discussion, see Ekman, supra note 3.
10. Samantha Mann, Aldert Vrij, & Ray Bull, Suspects, Lies, and Videotape: An Analysis of Authentic High-Stake Liars, 26 LAW & HUM. BEHAV. 365 (2002).
11. Researchers have found that even genuine positive or “Duchenne” smiles, often assumed to be spontaneous and not under conscious control, can appear under deliberate attempts to feign genuine positive emotion, indicating a need to take a multiple cue, dynamic context approach (viewing ongoing segments of behavior) to evaluating emotions. See Eva G. Krumhuber & Anthony S. R. Manstead, Can Duchenne Smiles Be Feigned? New Evidence on Felt and False Smiles, 9 EMOTION 807 (2009).
12. See Ernest A. Haggard & Kenneth S. Isaacs, Micromomentary Facial Expressions as Indicators of Ego Mechanisms in Psychotherapy, in METHODS OF RESEARCH IN PSYCHOTHERAPY (Louis A. Gottschalk & Arthur H. Auerback eds., 1966). See also Aron et al., supra note 3.
13. Paul Ekman, Basic Emotions, in HANDBOOK OF COGNITION AND EMOTION 45–60 (Tim Dalgleish & Mick Power eds., 1999).
14. See Sharon Weinberger, Airport Security: Intent to Deceive? Can the Science of Detection Deception Help to Catch Terrorists?, available at http://www.nature.com/news/2010/100526/full/465412a.html. The Fox Broadcasting Company has a television series concerning lie detection, Lie to Me, which is based on the work of Paul Ekman. Training in this area is offered by Ekman and his associates, some of which is available of the Internet (http://www.paulekman.com).
15. A note of caution is needed when considering “gut” reactions. It is always important to ask yourself, “Why am I reacting to the potential juror in this manner?” and “What is it about this potential juror that is either good or bad for my client?” Focusing on the answers to these questions helps separate a truly insightful gut reaction from the more generic positive or negative feelings toward a potential juror. The latter reaction may reflect more on one’s personal likes and dislikes rather than on whether the potential juror holds opinions and values that are beneficial or detrimental to the client.