Juror reactions to attorneys at trial.

• Author: Diamond, Shari Seidman

It is often suggested that attorneys have a powerful influence on trial outcomes, and that jurors react as much or more to the attorneys as to the testimony presented by witnesses. Yet few studies have investigated the extent of that influence, the factors that affect juror perceptions of attorneys, or how those perceptions affect trial outcomes. The structure of our study of jury decisionmaking in antitrust and death penalty cases and the measures we collected permit us to explore how jurors respond to what attorneys say and do.

Analysis of the different ways that attorneys can influence and impress jurors can be found in both trial advocacy books(1) and law journal articles.(2) The widely available litigation advice, though inconsistent, uniformly assumes that the lawyer's behavior is crucial to the outcome of the case. The empirical literature on juror reactions to attorneys reveals a less extensive collection of findings. Several studies have shown how variations in opening statements can influence outcomes.(3) A few have tested various cross-examination tactics and found varying effects on the evaluation of the attorneys and juror verdict.(4)

In addition to examining only a few aspects of attorney performance, the small body of literature on juror reactions to attorneys generally has studied college students rather than jurors or jury-eligible adults.(5) Only a handful of empirical studies have examined the post-verdict reactions of jurors in real trials(6) and none of the simulations has systematically analyzed the discussions about attorneys during deliberations.

Our research, which employs an elaborate set of simulations using citizens called for jury service, explores a variety of juror reactions to attorneys. These reactions include references the jurors made to the attorneys during their deliberations. It also includes assessments of the attorneys based on the attorneys' approach to cross-examination of expert witnesses. We also consider the common claim that opening statements effectively determine the outcome of the case by convincing 80-90% of jurors what the outcome should be. This attempt to take a more comprehensive look at juror reactions to attorneys reveals that the attorneys, like other trial participants, contribute to, but do not single-handedly determine, the outcome of a trial. Even stronger evidence about the effects of attorneys on juror decisions would be provided by a study which employed a large sample of cases and attorneys. However, our use of two very different cases(7) provides some evidence for the generalizability of our findings on juror reactions to attorneys.

1. Design Of The Study

   The participants in this research were citizens serving as jurors in two Cook County (Illinois) courthouses. Cook County uses a one day/one trial system so that if a juror is selected for a trial, the juror serves until the trial ends. If not selected for a trial, the juror completes his or her service at the end of the day. On days when the jury venire exceeded court needs, we invited randomly selected jurors to participate in our research; over 90% agreed.

   Main Study: We showed 1,925 jurors a simulated videotaped case involving either an antitrust price-fixing case (one of twelve versions) or a death penalty hearing (one of seven versions).

   The Antitrust Case: The antitrust case involved a price-fixing agreement in which two suppliers of crushed rock who controlled 70% of the business in Colorado agreed to set the same price for their product. The plaintiff was a road construction company, a long-time customer of the two suppliers. An earlier trial established that the defendants had indeed formed an illegal price-fixing agreement. The issue for the jurors in this trial was to determine what damages were suffered by the plaintiff as a result of the agreement.

   The Death Penalty Case: The offense which led to the death penalty hearing was the armed robbery and murder of a stranger who the defendant robbed in order to buy beer. The defendant was a thirty-year-old man with a history of six prior convictions, including two armed robberies. The prosecution witnesses included the defendant's companion at the time of the offense and a psychiatrist who testified about the dangerousness of the defendant. The defense witnesses included the defendant, his sister, a former employer, and, in one of the versions of the case, a psychologist who testified about the defendant's potential for change.

   We began by administering a brief questionnaire that included background questions similar to those that jurors would answer during a jury selection: demographic characteristics and attitudinal information. The jurors then viewed one version of the videotaped trial. In the antitrust case, there were twelve versions of the trial: six different instruction conditions(8) combined with two different expert conditions.(9) In the death penalty case, there were seven versions of the trial: two different instruction conditions.(10) combined with three different expert conditions, plus an additional version to test a fourth expert condition.(11) Each trial lasted approximately one hour and fifteen minutes, and each contained all elements of a trial from opening statements to judicial instructions. The roles of the judge, attorneys, and witnesses were played by professional actors who followed a prepared script.

   After viewing the trial, jurors each filled out a brief form indicating their predeliberation vote. In the antitrust case the question was how much the plaintiff should receive in damages, and in the death penalty hearing it was whether the death penalty should be imposed on the defendant.(12) At this point, six jurors in the antitrust case (twelve in death penalty case(13)) were randomly selected to become the deliberating jury.(14) The jury was then taken to lunch as a group and the jury members were instructed that they could discuss anything but the case during lunch.

   While the deliberators were at lunch, the remaining jurors, the non-deliberators, filled out a lengthy questionnaire assessing their reactions to the trial and the witnesses. They were then excused. When the deliberating jury members returned from lunch, they deliberated for a maximum of seventy-five minutes,(15) and we videotaped the deliberations. At the end of the deliberations, they too individually filled out questionnaires indicating their reactions to the trial and to deliberations.(16) The data discussed in this article are the deliberation transcripts and questionnaire responses of the 1022 jurors who viewed one of the antitrust trials and the 696 death-qualified jurors who viewed one of the death penalty hearings.

   Death Penalty Tracking Study: In a supplementary study, 126 death-qualified jurors filled out the background questionnaire and then watched a videotape of one of four versions of the death penalty hearing described above. After each attorney's opening statement, after each witness' direct and cross-examination, after each attorney's closing statement, and at the end of the judge's instructions, we stopped the videotape and jurors filled out a brief questionnaire indicating their reaction to the attorney and/or witness(17) and their tentative vote at that point in the hearing.(18)

2. Talk About Attorneys

   1. Are The Attorneys A Focal Point For Juror Discussion And A Central Factor In Jury Decision Making?

      In the videotaped trials that the jurors watched in this study, the attorneys played substantial roles. The attorneys in both cases were active, articulate, and highly visible to the jurors throughout the trial. When an attorney was giving his opening or closing statement, the camera focused on him. When an attorney was conducting a direct or cross-examination, the attorney doing the questioning was shown throughout the examination in a window which occupied the lower right hand quadrant of the screen so the jurors always had a clear view of the attorney's face. In addition, the jurors saw the attorneys respond to some questions from the judge and to some of the actions of the opposing counsel.

      One indicator of the potential influence of attorneys on jurors is the discussion about them that occurs in the course of deliberations. We examined the frequency of attorney references in ninety-four deliberations (sixty antitrust juries and thirty-four death penalty juries), identifying each instance in which the word "lawyer" or "attorney" or one of the attorneys' names was mentioned by a juror. In the entire set of deliberations, jurors mentioned attorneys 379 times--248 times on the antitrust juries and 131 times on the death penalty juries. Those totals amount to a rate of four comments per deliberation.

      The number of comments referring directly to the attorneys may underestimate their influence in at least two respects. The behavior of the attorneys (e.g., qualities of their opening and closing statements, choices in witness selection, effectiveness of direct and cross-examination) may have an influence on jurors not reflected in comments during deliberation. Moreover, we could identify only comments in which the attorney was explicitly mentioned. If a juror adopted the position or argument of an attorney without ascribing that position to the attorney, such an influence was not included in our count. Thus, the four-per-case rate of comments is likely an underestimate of attorney influence on deliberations. Nonetheless, the picture of jurors focusing on the attorneys independent of other aspects of the trial is clearly inconsistent with the pattern of behavior we observed in both the antitrust and death penalty cases.(19) The content of the comments jurors made about the attorneys in the two sets of deliberations provides further evidence on the nature of juror reactions to attorneys.

   2. DO JURORS DISCUSSING ATTORNEYS FOCUS ON THEIR PERSONAL CHARACTERISTICS?

      We coded each comment referring to an attorney on three...