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JURY RESEARCH UPDATE

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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% of people's total communication occurs through what are termed nonverbal behaviors. Considerable attention has been paid to the presence of anxiety in nonverbal communication, particularly in detecting when someone is lying. When people are anxious because of sensitivity to the subject matter, general nervousness, or a wish to deceive, they can "leak" their anxiety (and other feelings) through a variety of nonverbal behaviors. Lawyers can uncover the underlying opinions, feelings, biases, and evasion attempts on the part of potential jurors during jury selection by paying attention to the information contained in two types of nonverbal communication: visual cues and auditory cues.

The first category of cues comprises what is seen in the potential juror's behavior, such as movements, shrugs, posture, and facial expressions. Several of the more important cues are considered below.

Body movement. In general, the more movement the potential juror exhibits, the greater the anxiety. These movements can involve the entire body (e.g., shifting postures) or more limited parts of the body (e.g., wringing hands or tapping fingers). Other signs of anxiety are what are termed "adaptive" movements, such as scratching one's head, pulling or twirling one's hair, or briefly touching one's face.

Body posture. 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 anxiety 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 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 facial muscles (e.g., clenching of the jaw).

Body orientation. A third cue concerns the orientation of the potential juror's body to the lawyer. Body orientation refers to the relationship 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. The crossing of arms or legs and the angling of the body away from a lawyer "protect" the juror from sources of anxiety. These protective measures are examples of a more closed orientation.

Eye contact. 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 the eyes or blinking). When eye contact is broken, the tension level temporarily decreases and the jurors can resume eye contact with the lawyer in the interaction. When the potential juror is anxious (possibly as a result of being deceptive), breaks in the normal pattern of eye contact occur, with potential jurors averting their eyes at critical times or blinking more often.

Two exceptions to the relationship between eye contact and anxiety should be kept in mind. First, an increase in eye contact can reflect hostile feelings. This phenomenon is captured by the expression, "I don't like you and I am keeping an eye on you." Second, cultures differ in their view of the appropriateness of eye contact. For example, Hispanic and Asian potential jurors may exhibit lower levels of eye contact, which simply reflects their cultures' views of what is appropriate.

Facial expressions. Probably the cue that people rely upon most is facial expressions. Smiling, frowning, looks of concern, or skeptical expressions can reveal feelings about a situation or 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. However, unless a potential juror is particularly adept at controlling or manipulating nonverbal communication, inconsistencies between feelings and outward appearances will leak out. Leakage can occur in two areas: aspects of the facial expressions themselves and inconsistencies with body cues.

The facial expressions of the potential juror can betray underlying "hidden" feelings in several ways. First, the quality of the facial expression can be affected. While there are no hard-and-fast rules for lie detection, a fixed smile, one that lasts too long, can reveal deception. 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. The 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.

Leakage also 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.

One type of potential juror highlights the above discussion of facial expressions. This type of juror is the "smiling" juror, who wears a smile during the voir dire questioning by the lawyer. This smile gives the impression that the juror is receptive or feels positive toward the lawyer or party. However, the juror is really hostile or in some 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 they hard, as would be consistent with the expression "eyes that looked daggers"? Is the smile asymmetrical? Is the smile consistent with other nonverbal cues, e.g., body orientation and posture? Always beware of the potential juror who smiles but angles his or her body away and maintains a rigid posture.

The second category of cues focuses on what we hear, i.e., auditory cues. There are a number of auditory cues that can indicate the presence of anxiety or deception. Some of these cues are:

Vocal hesitancy. Vocal hesitancies are pauses that occur in the juror's answer. Vocal hesitancies occur more frequently as the anxiety level of the potential juror rises. These pauses can occur at the beginning of the answer, or as with speech disruptions, pauses or breaks can occur during the course of the answer or sentence. In either case, it is important to hear what vocal hesitancies are communicating about the juror's real feelings.

Amount of speech. When jurors feel positive toward a lawyer they are more willing to talk with this lawyer. On the other hand, when jurors do not like a lawyer or party, their willingness to talk or provide full and candid answers in response to the lawyer's questions decreases. Lawyers should be leery of potential jurors who give brief answers to their questions yet give detailed answers in response to questioning by the opposing lawyer. An exception to this rule is when jurors provide irrelevant information or evasive answers, indicating deception or anxiety on the part of the juror.

Tone of voice. The tone of voice of the jurors can be an important cue to deception and negative feelings. A cold and condescending tone of voice generally indicates deception (and aloofness or potentially negative opinions, such as animosity).

Word choice. Unlike the previous cues, the final cue in the auditory area concerns the content of the jurors' answers. The words jurors choose to communicate their answers can be very informative. The choice of words can reflect a psychological distance the jurors impose between themselves and the objects about which they are speaking. The presence of psychological distancing can indicate the presence of negative feelings or anxiety. For example, jurors who refer to the plaintiff as "she" or "the plaintiff" are placing greater distance between themselves and the plaintiff than are jurors who use the plaintiff's name. Asking questions during voir dire that force jurors to answer in their own words helps provide the basis for examining the jurors' choice of words.

Up to this point, the various visual and auditory cues have been considered separately. The key concept for evaluation of the nonverbal cues lies in consistency. How do the cues work in concert to present a picture of what the juror is really doing (e.g., concealing the truth) or feeling? The presence of inconsistency among cues raises a red flag indicating that something is afoot. Particular attention should be given to discovering what is actually happening.

Establish a baseline. The first step in evaluating the jurors' nonverbal communication is to establish a comparison point or baseline of anxiety or nervousness that the jurors are experiencing in the jury selection process. Anxiety does not occur in a vacuum. Jurors may show signs of anxiety or nervousness simply because they are being asked questions in court.

By establishing a baseline of activity or anxiety, lawyers can interpret subsequent changes in behavior within the context of the jurors' typical behavior. The best way to establish a baseline is to observe the jurors' nonverbal communication while they are answering questions concerning their backgrounds. The pattern of the jurors' responses at this time will reveal how anxious they are at being part of the voir dire process.

Evaluate changes in jurors' responses. After establishing the baseline of anxiety for jurors, evaluations are made in light of how the jurors' subsequent behaviors change. Particular attention is paid to changes occurring as a function of who asks the questions and what topics are being addressed. For example, do potential jurors start to withdraw from the lawyer as the area of questioning shifts from issues of worker safety or pain and suffering to issues relating to punitive damages or contributory negligence? Also, noting any changes in the jurors' nonverbal communication when different lawyers conduct their examination is important. Do potential jurors respond differently when the prosecutor, plaintiff's lawyer, defense lawyer, or judge asks the questions?

Watch jurors' sources of support. Beyond changes in the jurors' behavior, it is necessary to evaluate where jurors turn for support in uncertain situations. It is important to note who jurors look to for support or clarification when they become confused by questions or are unsure of their answers. Do jurors continue to make eye contact with the lawyer asking the questions--in essence, seeking clarification or assistance from this lawyer? Do jurors look to the lawyer for the opposing party? Do they look to the judge or their fellow jurors? This response may indicate where these jurors will turn for answers or support when questions arise during the course of the trial.

Observe jurors at all times. Alert lawyers can benefit from observing the potential jurors' reactions to both the questions posed to, and the answers given by, other jurors. Jurors will often nod in agreement, show skeptical facial expressions, or give other nonverbal indicators of their opinions and feelings.

Finally, lawyers should observe the reactions of potential jurors while these jurors are in the spectator's section of the courtroom. Because jurors feel as though they are under less scrutiny in the spectator's section, they tend not to inhibit their nonverbal reactions.

About the editor:

Jeffrey T. Frederick, Ph.D., is the Director of Jury Research Services for the National Legal Research Group. He has consulted with attorneys since 1975 on jury selection, case preparation, and trial presentation issues. He is a frequent speaker at continuing legal education programs across the nation. His publications include two books, Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury (ABA Press, 1995) and The Psychology of the American Jury (Michie Co., 1987), and a number of articles on the topics of voir dire, jury selection, and persuasion. Those interested in information on jury research services are encouraged to call 1-800-727-6574.

LET US HELP YOU IN YOUR NEXT JURY TRIAL. We know jury trials. We offer a broad range of services including basic case evaluation, voir dire development, evidence and argument preparation, jury selection, focus groups, trial simulations, and jury surveys. All service packages are tailored to meet your litigation needs given the resources available. For more information call Dr. Jeffrey Frederick, Director of Jury Research Services, at 1-800-727-6574.