Chapter 7 The Psychology of Picking a Jury

• Library: Picking a Civil Jury: A Guide for Illinois Trial Lawyers (2015 Ed.)

CHAPTER 7 - THE PSYCHOLOGY OF PICKING A JURY

In the 1960's and 1970's, it was widely believed in the legal community that voir dire was "grossly ineffective not only in weeding out 'unfavorable' jurors but even in eliciting the data which would have shown particular jurors as very likely to prove 'unfavorable.'"¹ Since then, social science research has demonstrated that voir dire is often inadequate, in part, because the courts and the attorneys do not fully appreciate the psychological dynamics of voir dire. To be effective during voir dire, you must have a basic understanding of the psychological aspects of jury selection. The first step in this endeavor is to understand how to procure honest answers from prospective jurors.

I. The Reciprocity Effect

The ultimate goal of the judge's and attorney's questions in voir dire is to foster honest self-disclosure. Psychological literature suggests that you should offer yourself as a model of self-disclosure. In studies in which subjects viewed interviews of a "self-disclosing stooge," the subjects exposed to high disclosing stooges were significantly more willing to disclose information about themselves.² These studies suggest that if you discuss your own nervousness or offer information about your own life, you will be "setting the stage" to procure openness from the prospective jurors.

Other studies have also indicated that an interviewer who reveals of himself or herself is more likely to obtain self-disclosure from the interviewee.³ Thus, the jurors will often use your cues. If you disclose some personal aspects about yourself or speak in a friendly, self-deprecating way, you may be setting a tone that provokes helpful disclosures from the jurors.

Social scientists have also attempted to quantify the appropriate degree of self-disclosure by the interviewer. One study found that four disclosures (as opposed to none or 12) elicited the most self-revealing statements from the interviewees.⁴ Thus, it is important that you not go overboard in utilizing the self-disclosure techniques and it may be too much to reveal too many of the facts concerning your personal life. But for some attorneys, an admission to being nervous may be helpful. Studies also suggest that self-disclosure techniques should be utilized when you are engaged in voir dire of a single juror.⁵

To many experienced lawyers, these studies merely lend credence to the common sense principle that to get information, you have to give a little. Often, when clients come into your office, they are nervous and intimidated by the prospect of dealing with an attorney. A good interviewer will "break the ice" with a professional but friendly demeanor. A client who enters your office to discuss a problem teenager will be more inclined to be open and honest when they hear that you, too, have teenagers that are difficult to raise. In short, when you conduct voir dire, you should engage the jurors in a non-threatening, personable manner, and be willing to offer some (but not too much) personal information about yourself.

II. Positive Reinforcement

The use of positive reinforcement is another recommendation supported by empirical data. When prospective jurors offer self-disclosing comments, you should offer "verbal praise or non-verbal indicators of interest, such as increased eye contact, direct body orientation, relaxed posture, head-nodding and mm-hmming."⁶

III. Interactive Distance

There have been many studies on the proper separation an interviewer should maintain from the interviewee. There is compelling evidence that a distance of 3-6 feet is just right.⁷ If the interviewer is closer than 3 feet away, the interviewee tends to become anxious and protective, and reveals less. If the distance exceeds 6 feet, the interviewer's speaking style is altered, with a more formal, cold demeanor. The interviewer and interviewee are strangers and they will tend to communicate like...