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September 18, 2013 Articles

Young Lawyers Corner: Observing Jurors During Trial

Once the case is rolling, observation is telling.

By Cynthia R. Cohen

Observation of jurors’ body language begins during jury selection and continues through trial. The best time to get a read of any juror is during voir dire. At that time, you observe verbal and nonverbal behaviors. After that, it is harder to gauge what jurors are thinking because they cannot speak to you. During trial, jurors often communicate nonverbally. While knowing how to read them is an asset to your trial presentation, it is impossible to tailor arguments to each individual juror. Strategies for improving jurors’ responses to your arguments include focus on clarity in graphics and persuasive themes that touch juror emotions.

Juror Body Language: Separating Myth from Reality 
Trial skills involve the art of communication. Getting jurors to talk and listening to their answers during jury selection is an art. Watching body language during voir dire is critical if you want to interpret juror reactions toward your case during trial and establish a baseline of behaviors. There are several myths about juror body language that are perpetuated by limited knowledge and deficits in observational skills:

Myth: A juror smiling during your voir dire likes your case.
Reality: Some jurors smile with both sides. There is a continuum between those who try to please others and those who do not. Be wary of the stealth juror who hides opinions and smiles because he or she wants to vote against you.

Myth: Jurors are truthful.
Reality: Sometimes yes and sometimes no. Some jurors lie to get off jury duty. Others lie to stay because they prefer to be away from mundane jobs. Even worse, there are stealth jurors who lie to stay on the jury for vindictive motives. 

Myth: Note-taking during your case means jurors like what you said.
Reality: Jurors who take lots of notes are paying attention but may be poking holes in your case. This also goes for interpreting juror questions during trial; if a juror asks a basic question—e.g., requesting a definition for a medical term in a medical-malpractice lawsuit—there may be no special significance, as sometimes a cigar is just a cigar.

Myth: Sleeping jurors do not contribute in deliberations.
Reality: I have learned during post-trial juror interviews that even jurors who did not take notes or napped during testimony may have a grasp of the evidence. Some sleepers are responsible jurors who work at their jobs overnight and voice strong opinions. The other jurors fill in gaps during deliberations. Sleeping jurors often believe they know what happened even if they did not hear every word.

Detecting Stealth Jurors
Mastering the art of reading juror body language is critical to detecting stealth jurors. These jurors seek power and retribution, and to change societal norms. They often believe that they can make a difference or accomplish their goal by sending a message through high dollar awards, particularly against corporations, hospitals, or insurance companies.

The most illustrative example of a stealth juror is Nicholas Easterly in John Grisham’s Runaway Jury. (Unlike in Runaway Jury, trial consultants typically do not burn jurors’ houses.) In jury selection, Easterly originally acted like he wanted off the jury; but he actually wanted to get on the jury and advance a personal agenda. Like Easterly, a stealth juror does not appear eager to be on the jury. A stealth juror hides true feelings and experiences.

Who purposefully hides answers? Who lies to get on the jury? How can you spot jurors who resent a defendant or want to punish a corporation? Stealth jurors are generally uncovered when they claim in court that they know nothing about your client or case but express strong opinions on social media. Yet, there are ways to detect a stealth juror before empanelment.

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 deceitStereotypes 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 liesSome 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.

Final Recommendations 
The more you know about reading emotions and what strangers think of your case, the more strongly prepared you will be for obtaining a favorable jury verdict. Fine-tune your juror-perception and communication skills with mock trials and jury research to measure juror attitudes, experiences, and reactions to case issues. If your client has limited funds, brainstorm case themes with a tutor for critical feedback. Using your themes, develop voir dire questions and juror profiles. Jurors’ experiences trump attitudes, so look for the issues at the epicenter of the case. Know your venue and community attitudes. If there is anything in particular that affects the local economy, voir dire the jurors on it. Once the case is rolling, observation is telling. Shadow experts or shadow juries express feedback, but only the jurors your eyes gaze upon have the answer.

Keywords: litigation, young lawyer, voir dire, jury selection, stealth juror, lying, deception

Cynthia R. Cohen – September 18, 2013