Chapter 3 Understanding Jurors' Nonverbal Communication
| Library | Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.) |
Objectives
• 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.
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 (non-linguistic 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 provdes 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). Attempts to control nonverbal communication can reflect the stereotypes jurors hold 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.
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 to consider.
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' feel-ings.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...
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