The Psychology of Juries is a worthy read for criminal lawyers, even though its main audience is psychologists. 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 are intently interested in jurors and juries since 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). 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.
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, in order to realize that a trial lawyer can learn a great deal from psychological research – even more so when it is focused on juror and jury decision-making.
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. It provides a concise review of the current state of the research, as well as suggestions about where future work is needed. In addition to issues of concern to researchers, there is discussion of 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 shall offer just a few reactions, for the sake of brevity but to spark interest.
In law school we learn of the mysterious, magical genius of the jury, and the implicit faith that juries are always (or nearly always) right in their collective decision (even when they are not). Our perspective is that of cultural elites-in-training, as the would-be managers of the justice process, using the rules of evidence and procedure; the substantive law to persuade.
Jury power today is but pale ghost of what it once was, 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. In the past, too little thought has been given to how decisions are made by the jury, or for that matter the judge, as “finder-of-fact.”
As we began trying cases, we then focus on the jurors during jury selection, as well as when developing a theory of the case, and communications with the jury during the trial. We’ve relied upon lore from other trial lawyers, and then upon our own experiences.
New though it may be, psychology has much to offer trial lawyers when it comes to jurors and 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 to an impressive extent 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. Other branches of psychology can also be applied in the context of juror and jury research – all to the benefit of the trial lawyer.
The chapter by Christina Studebaker on integrating trial advocacy concepts into juror decision-making research is of particular interest. Factors that can influence juries’ verdict decision-making have been researched. 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 which is the witness or the witness’s attorney presenting damaging information before it is presented by opposing counsel.
- 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 book is written for psychologists more than for trial lawyers. But it’s a succinct snapshot of research on juror and jury psychology, a good overview, and offers many resources for further study.