By Melissa M. Gomez
Special to the Legal
The Kermit Gosnell abortion clinic trial in Philadelphia made national news with the tagline “House of Horrors.” The tagline was fitting, considering the graphic photographs and testimony that the jury had to endure, describing accusations of babies born alive at the clinic that were later killed by Gosnell and other members of his staff.
As a jury consultant in the region, I received a few calls from reporters asking for commentary about the trial and the fact that, after days upon days of seeing and hearing horrible things, the jurors seemed not to react as strongly to the evidence as they did when the trial began and graphic evidence was first introduced. One reporter wanted to know whether that meant the jurors weren’t being impacted by the evidence anymore and whether the graphic nature of the testimony was, in fact, beginning to backfire on the prosecution. My answer: “The evidence is likely still quite impactful, but it very well may become impactful in a way it was not intended to be.”
Because many of the cases I work on involve personal injuries, I have seen some pretty horrible accidents with unthinkable injuries. The photographic evidence in these cases can be extremely difficult to look at, in general, especially when the accidents involve children.
When trying these kinds of cases, it is critical to stop and consider what the jury really needs to see and how much. Juries don’t want to see horrible and descriptive photos. At all. There are some instances in which the photographs of the injuries are critical evidence to determine what really happened and whether there is blame to be doled out. This was likely the case with several aspects of the Gosnell trial.
There are other instances in which horrible graphic evidence does not tell the story of liability, but is purposed to show the terrible nature of the injuries for the purpose of damages. Take a case in which there was a leak in a boiler that caused carbon monoxide to leak into the apartment above, killing the inhabitants. The bodies were found several weeks later in a scene akin to a horror movie. Did the jurors need to see those bodies in varying states of decomposition to determine who was at fault for a leak in the boiler? No, they didn’t.
At times, especially for plaintiffs, there is the urge to show the jury the gruesome aftermath of an accident to bring into the courtroom the true horror of what was experienced. An angry and upset jury may be more likely to award higher damages, after all.
There are times in which doing so is ill advised, though. When such upsetting images don’t help a jury make its decision, jurors can become angry at whoever is forcing them to look at such horrible things. I have heard jurors complain that images and testimony were simply purposed to manipulate their emotions so the plaintiffs could get what they wanted. In those instances, the jurors did get upset, but not in the way the plaintiffs intended.
If such images are indeed important to show in the case, it also may be unwise to show them repeatedly. First, jurors will become desensitized and, while the images will continue to be disturbing, the shock value will abate, which was likely the issue in the Gosnell trial. Showing these kinds of images repeatedly may also, again, cross that line in jurors’ minds from important evidence to emotional manipulation.
If you are going to show photos of a terrible injury, give jurors a warning that you are about to show an upsetting image before you introduce it and show it only as many times as absolutely needed – just once, if possible. If you need to refer to it again, do so orally. If the image were truly that disturbing, the jurors wouldn’t have forgotten about it. To the contrary, it would likely be seared in their brains.
My advice when showing graphic images not absolutely critical to the case is not to show them at trial. In more than one trial, I have had attorneys put the images in an envelope, instead, and tell the jurors that the pictures are there if they feel the images are important to see, but that viewing them is their choice in deliberations. In truth, the jurors usually can’t help themselves. They look anyway.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. 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 a decade 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, contact Gomez at [email protected] or call 215-292-7956.