Young Lawyers Corner: Observing Jurors During Trial

Sharpen and trust your intuition. Intuition is like common sense: We all have it to certain degrees. Our intuition tells us to trust our instincts. Without feedback, however, our own intuition may miss the mark. For example, we may believe that those we like, like us back; but, this is not always true. While jurors are a separate, unpredictable component of a trial, lawyers can sharpen their intuition with education to gain a better read on jurors.

First, lawyers can learn to detect lies. Mastery of this skill requires understanding when and why lies succeed or fail and recognizing common myths about lying behavior. A juror who appears nervous or sweats is not necessarily lying. (The ability to detect lies is also valuable to witness preparation. See, e.g., Cynthia R. Cohen, “Demeanor, Deception and Credibility in Witnesses,” ABA Section of Litigation Section Annual Conference Materials, Chicago, IL 2013.)

Lawyers also need to appreciate that jurors use intuition to judge demeanor, deception, and credibility in their daily lives. Because jurors bring life experiences with them to court, understanding their perceptions of truthfulness and lying behavior is critical. Whole books are written on the topic of lying, and a television series, Lie to Me, was derived from the work of Dr. Paul Ekman, the renowned psychologist specializing in human emotion and lying. Knowing the myths that jurors believe will help you not only weed out prospective stealth jurors, but also recognize what empaneled jurors deem credible and how they interpret behavior. Paul E. Ekman, Telling Lies: Clues to Deceit in the Marketplace, Politics, and Marriage (1985); The Detection of Deception in Forensic Contexts (Pär Anders Granhag, & Leif A. Strömwall eds., Cambridge Univ. Press 2004).

Identify deception. “Liar, liar, pants on fire!” children often shout, as if lying created effects that were immediately obvious to the onlooker. As we grow older, we rely on more subtle signs in deciding whether to trust someone. We refer to untrustworthy people as “shifty eyed” or imagine a trustful person as having an “honest face.” Often, we are convinced that we can judge others’ characters on the basis of how they look and behave. Despite what we believe, however, reliance on this kind of common sense often leads to errors and may be fatal to your case. Learning the psychology of deception is critical to detecting stealth jurors and other jurors not on your side.

Can you detect deception? Not all people can readily detect deception. Researchers have sought to identify which people are likely to recognize a liar when they meet one. A seminal work in this area is Paul Ekman and Maureen O’Sullivan’s nurse experiment. Paul E. Ekman & Maureen O’Sullivan, “Who Can Catch a Liar?,” 46(9) Am. Psychologist 913–20, (Sept. 1991). The researchers asked individuals to interpret whether nurses were truthfully describing a scene at the beach, as represented, or were actually viewing a bloody surgery. Those who were least successful relied on fidgeting and speech content to draw conclusions. On the whole, those who were good at recognizing emotions were more accurate in judging who was lying. Ekman and O’Sullivan’s work confirmed that there is not one solo indicator for lying behavior but that physiological expressions of emotions may be useful for detecting deception. Researchers have since found that most people are not better than chance in detecting deception but some groups of police professionals have demonstrated significant lie detection accuracy, which is possibly due to specialized training. Maureen O’Sullivan et al., “Police Lie Detection Accuracy: The Effect of Lie Scenario,” 33(6) Law & Hum. Behav. at 530–38, (Apr. 2009).

Misconceptions about deceit. Stereotypes can be hazardous for lawyers and their clients at trial, particularly stereotypes regarding the significance of nonverbal behavior such as avoiding eye contact, scratching, picking, crossing one’s arms, or tapping one’s foot, in terms of signifying lying. These generalizations are unreliable. It is best to understand the person’s baseline to define the behaviors and mannerisms. For example, does a person normally tap his or her foot while sitting down? During the person’s usual conversations, does he or she have a pattern or rhythm of looking at someone and looking away?

Shifting eyes may be indicative of a lie if it is linked with other signs. Eye contact is a learned behavior and there are cultural differences. Looking away often occurs when someone is carefully constructing an answer. It is not a sign of lying.

Ums, ahhs, and inarticulate words used to fill pauses also are not necessarily signs of lying. Rather, they tend to be signs of thinking.

Misconceptions about Deceit

• Crossing arms

• Lack of eye contact, looking away, shifting eyes

• Movement (fidgeting, scratching, picking hands, tapping foot)

• Nose is growing

• Sweating or nervousness

• Ums, ahhs—filling pauses

Understand who lies. Some people lie more successfully than others. Good liars, like professional actors, have the ability to become the role they are playing. They do not believe they are lying; they believe the events they describe are actually happening. Pathological liars, on the other hand, cannot choose to be truthful. They know they are lying, but they cannot stop themselves. They fool people sometimes—usually in brief encounters. These brief encounters may involve a clerk at a store, a new person met at a bar, or online date prospects. People tend to lie for sport. Whether an individual lies under oath depends on whether he or she has gotten away with lying in the past. Pay close attention to pronounced feelings about lying, as these often betray liars.

Look for emotional cues. While there is no certainty that a stealth juror is amidst your jury panel, there is a certainty that all jurors have emotions and hidden biases. Jurors more engaged in judging the credibility of your case will turn and observe parties directly while witnesses testify. They have no fear about making eye contact with lawyers or witnesses. Many juries will decide among themselves to mask emotions and not reveal anything to observers. Being able to detect emotion is integral to determining credibility or lying behavior. Each emotion (i.e., anger, contempt, disgust, happiness, sadness, surprise, fear, and guilt) has a different significance and different cues. For example:

• Fear. A person who manifests fear may be afraid of being caught in a lie. Fear cues include higher pitch, faster and louder speech, pauses, speech errors, and indirect speech. The greater the liar’sdetection apprehension, the more evident these fear cues should become. Liars appear more fearful as the stakes become higher and the anticipated probability of success becomes lower.

• Guilt. Emotions are often briefly revealed through leakage. If someone feels guilt about lying, the first time that person tells the lie is the easiest time to spot tell-tale micro-expressions. Micro-expressions are small bits or physiological blips of the emotion being felt, such as noticeable changes in face and body. If you believe that you observed a micro-expression on a juror’s face, first determine whether there is a compelling reason for the juror to feel guilty before concluding that a lie has been told.

• Contempt. The same emotional leakage that reveals feelings of guilt occurs with feelings of contempt. Take, for example, Anita Hill during the Clarence Thomas Senate hearings. She was a semi-reluctant witness confronted with details about her accusations of sexual harassment. When asked to recall specific incidents, Ms. Hill displayed micro-expressions indicating contempt (e.g., raising one eyebrow).

• Sadness. One of the easier emotions to identify is sadness, as people generally cry when they are sad. Not all tears should be taken at face value. Remaining vigilant for so-called crocodile tears can help you determine whether the sadness is genuine. A sure indicator is the person’s facial muscles; true sadness engages more facial muscles than feigned tears.