By Thomas C. Gallagher, Minneapolis Criminal Defense Lawyer
The main audience of The Psychology of Juries is psychologists. But criminal lawyers can learn much from it, too Here I offer my brief review of: Kovera, Margaret Bull Ed. The psychology of juries. American Psychological Association, 2017.
This 2017 book is a collection of chapters by leading psychology researchers in the field of juror and jury decision-making. Each reader will bring their own perspective to it. My perspective is that of a criminal trial lawyer who has been a longtime student of psychology.
Trial lawyers and psychology
Trial lawyers have deep interest in jurors and juries. After all, they are the people who decide our cases, and the fates of our clients. We (trial lawyers) first study the law, including trial practice. Later we practice the law, including trials to juries.
Lawyers have been around as a profession for hundreds of years. And the functional equivalents of lawyers have been around even longer (for example, Cicero, Jesus). During that history, lawyers have learned by reading, apprenticeship, and by doing. (We also learn by teaching, as anyone who has taught well knows.) This has been the substance of our professional knowledge, based upon our collective clinical experience conducting jury trials. Trial lawyer often believe we have a clinical understanding of the psychology of juries. But how solid is it?
Psychology is a scientific discipline that has been around for perhaps a bit over 100 years – short in comparison. Partly as a result, lawyers and courts have not been much influenced by psychological research. One need not have an opinion about whether that is a good thing. But a trial lawyer can learn a great deal from psychological research. And even more so when that research focuses on juror and jury decision-making.
Psychology of Juries: Why this collection?
Where to start then? This book makes a good launching pad for exploration of psychological research relating to jurors and juries. Why? It packs a lot of punch within only 300 pages. It includes eleven chapters with the varied views of seventeen leading researchers. And it provides a concise review of the current research; as well as suggestions about needed future work.
In addition to issues of concern to researchers; authors discuss how courts have reacted to the science of juries in various contexts. With numerous references to source material, the reader can expand in any number of directions of interest.
I’ll offer just a few reactions, for the sake of brevity but to spark interest in The Psychology of Juries.
Magic and mystery vs. science
In law school we learn of the mysterious, magical genius of the jury. And we gain a sentimental faith that the collective decisions of juries are nearly always right. But, of course, they are often not.
Our perspective is one of cultural elites-in-training. As the would-be managers of the justice process, we use the rules of evidence and procedure; the substantive law, to persuade.
Jury power today is but pale ghost of what it once was. And this is due to ever-increasing legal management of juries, and an ever shrinking role for the jury.
Even so, better understanding of jury decision-making can help a lawyer better serve the client. We give too little thought to how “fact finders” make decisions.
As we began trying cases, we then focus on the jurors during jury selection. And we focus on the jury as we develop a theory of the case; and communicate with the jury during the trial. We’ve relied upon lore from other trial lawyers, and then upon our own experiences.
Different psychological perspectives
New though it may be, psychology has much to offer trial lawyers when it comes to jurors and juries. Many of the disciplines with Psychological research shed light on the psychology of juries.
Each juror is an individual human being, and so, like all of us, can be better understood with cognitive psychology.
Cognitive psychology has mapped out how individuals perceive events, make sense of them, recall them, and report them.
Juries, as groups, can be better understood with social psychology. Social psychologists have developed the science of how people cooperate and come to decisions together. And we can apply other branches of psychology in the context of juror and jury research. So all this can benefit of the willing trial lawyer.
Trial advocacy concepts in juror decision-making research
Christina Studebaker’s chapter in The Psychology of Juries, develops integrating trial advocacy concepts into juror decision-making research. Factors that can influence juries’ verdict decision-making have been researched. And these include:
- Trial participant characteristics such as race and other demographic characteristics of the defendant, and demographic and personality characteristics of jurors.
- Case characteristics like expert testimony, scientific evidence, and eyewitness evidence.
- Legal procedures including jury instructions, cautionary instructions by the judge to disregard inadmissible evidence, juror note taking.
Little studied, but deserving of more study, is the effect of the adversaries, including attorneys and advocacy methods. Trial advocacy methods that have been studied include:
- Evidence presentation, for example stealing thunder. The witness or the witness’s attorney presents damaging information before opposing counsel presents it.
- Cross examination, and the effect of leading questions.
- Expert testimony about experimental research vs. anecdotal or case study evidence.
- Character evidence and prior bad acts evidence.
- The unfulfilled promise made in the opponent’s opening statement.
Advocacy methods deserving of more future research suggested are:
- Organizational structure of trial information, including simplification of information, themes, ordering of information, story organizational structures, using primacy and recency.
- Repetition of Information, and counter-techniques.
- Gap questions about details omitted in witness testimony.
- Arousal of juror emotion and countermeasures.
The Psychology of Juries book targets psychologists more than for trial lawyers. But it’s a succinct snapshot of research on juror and jury psychology, a good overview, with resources for further study.