What Are Your Jurors Thinking? It Depends on the Type of Evidence You Are Presenting.

• Author: Patrick, Wendy L.

We have all been there. You are in the middle of the testimony of a critical witness at trial, believing you are really scoring points, only to glance over at your jurors and see by their expressions that they are not buying what your witness is selling. Many have put down their notebooks and pens, others have crossed their arms and clearly tuned out. These observations are disconcerting whether you have a victim or a credentialed expert on the stand, because credibility counts. Demoralized and disappointed, you wonder - what are they missing? How in the world did you select these people in the first place?

I have picked juries tor over 26 years, both as a prosecutor and a defense attorney, and am constantly reading scientific research as a jury consultant. The verdict: the wisdom of jury selection comes from considering a combination of the anecdotal and the empirical. Experience plus research. Jurors arrive at the courtroom predisposed in many different ways - only some of which they are consciously aware. Through creative questioning, you can get them to admit the personal biases they are aware of, and detect the implicit biases they are not.

In determining what questions to ask to select the perfect jury panel, new research reveals some factors to consider, depending on the type of evidence you have in your case.

A PICTURE IS WORTH A THOUSAND WORDS

We are not always successful admitting all of the photographic, often graphic evidence we would like to show our jury, especially when trying crimes of violence. But the more we are able to show, the greater the likelihood our jurors will be emotionally invested in delivering justice for the victim.

David A. Bright and Jane Goodman-Delahunty investigated the impact of gruesome evidence on juror emotions. (1) Specifically, they compared the impact of gruesome verbal evidence, versus gruesome photographs. While they did not find a disparate impact with verbal evidence, they did find that mock jurors who viewed gruesome photographs reported significantly more intense emotional responses, which included a higher level of anger at the defendant. Perhaps not surprisingly, the conviction rate when evidence included gruesome (or even neutral) photographs was higher than without photographic evidence. Regarding the mediating factor, Bright and Goodman-Delahunty found that juror anger toward the defendant impacted the influence of gruesome photographs by enhancing the weight of the inculpatory...