By Melissa M. Gomez
Special to the Legal
There is a study that indicates the power of suggestion on perceptions. In this study, subjects are read a list of negative words (war, damage, harm, etc.) or positive words (rainbow, beach, play, etc.) and afterward they are asked to look at faces with neutral expressions and project emotions onto those faces. Not surprisingly, subjects who were read negative words before viewing the pictures ascribed negative emotions like sadness and anger to the neutral faces and the subjects who were read positive words ascribed more positive emotions like thoughtful or peaceful.
So, with all of that, what kinds of projections are we creating when we ask voir dire questions at trial or in a mock jury exercise? Are we tainting our jurors by asking them their perceptions of relevant issues before we give them a case story? Some folks believe that, based on research like the study cited above, we are. I disagree.
First of all, research, like the study cited above, is about influence on flash stimuli. A set of words and a flash of a face were the stimuli in the aforementioned example. Trials and mock jury exercises subject people to hours or days of information. The impact of the inundation of information throughout the trial will be vastly more powerful than any suggestion by a voir dire question.
Second, in the research cited above, the words provided were clearly biased toward one end of the emotional spectrum. Voir dire and pre-research questions are (or at least should be) balanced to find bias against both sides of the case, not just one. Both sides of the case get to ask questions, after all, and any good jury consultant knows in mock trials and focus groups to make sure pre-presentation questionnaires are written to be balanced.
There is an exception, though. Voir dire questions that suggest information that may or may not come into the trial can be harmful. It can put ideas in folks’ heads that they may not hear about as evidence. For example, if a plaintiff in a personal injury suit had a prior history of alcoholism and you are not sure whether that will come in or not, don’t ask about it. The question itself could become evidence. Hopefully, all of those issues will have been worked out before voir dire, but I have seen instances in which they are not.
There is a difference between putting new apples in the basket of jurors’ minds and simply looking to see what apples are already there. As we know, preconceptions influence perceptions. What people have learned in 20, 30 or 40 years of life will have more impact on their perception of a case story than anything we do or say. We do ourselves no service by failing to understand what preconceptions are out there and how they may influence perceptions of our case story, especially in jury research exercises. It is in those exercises that we can later analyze said preconceptions to see if there are any associations with verdict orientation—letting us know what information is the most important to gather in voir dire.
So, go ahead and ask the question both in voir dire and in your jury research. The answer may just be the difference between knowing who to strike and who to allow in the group of decision-makers.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at [email protected] or call 215-292-7956.