Courtroom Persuasion
This chapter was written to accompany the book, Persuasion in the Media Age.
As I began work on this book, I was called for jury duty in my county. Having never before been called to jury duty, I was excited about the prospect of being selected, hearing evidence, and deciding a case. Despite being questioned in the jury selection process twice during my time of service, I was never selected for a jury. Perhaps you have been called to jury duty or have even served on a jury. Our trial system requires that common citizens pass judgments of life or death on those accused of crime. We place a great deal of responsibility in the hands of jurors. The persuasion that takes place in the legal process must consider the emotions, needs, values, and reasoning skills of its audience members. This chapter explore the persuasion that occurs within this context.
Our legal tradition is built upon the principles of persuasion. Through persuasion, companies are forced to pay millions of dollars to victims of their negligence, laws are established that govern all aspects of society, and accused criminals are sometimes sentenced to death. Since we are all potential jurors, it is important that we understand persuasion in this context. Some of you reading this plan to be an attorney some day. Unfortunately, law school training often ignores the importance of communication in the courtroom, instead focusing on the logical arguments made by attorneys.
In this chapter, we focus on how persuasion variables influence how jurors process legal arguments. We begin by tracing the influence of the media on legal persuasion. We next consider a model of legal persuasion proposed by two communication scholars. Then we will study how attorneys use audience analysis techniques to select unbiased jurors and frame their arguments for the jury. Then we discuss the various components of a trial and how persuasion is used in developing the case theme, constructing opening arguments, presenting evidence, and making closing arguments. Finally, we take a look into the jury room to see how the audience evaluates the arguments of attorneys. As in all other contexts of persuasion, attorneys seek to identify with juries by forming intimate relationships with them.
Legal Persuasion in the Media Age
Our focus in this book has been on the media's influence on persuasion. In the past few chapters, we have looked at how media influence various contexts of persuasion. In this chapter, we focus on the courtroom. We begin our discussion by again looking at the model of persuasion and how it applies to legal persuasion.
Consider the trial of O.J. Simpson, the former football player and actor accused of murdering his ex-wife and her friend. In this example, we can identify at least three persuaders: the prosecutors, the defense attorneys, and the news media. The prosecutors sought to show the Simpson was guilty. The defense attorneys tried to prove his innocence. News media was influential in developing beliefs about Simpson before the trial even took place. The media used were interpersonal persuasion and television and print coverage of the murder. Verbal and visual symbols, such as pictures, charts, and maps, were used by the persuaders. The audience members were the jurors who heard the case. Their emotions and reasoning skills played a role in how they interpreted the messages of the persuaders. To gain a more complete picture of how the jury reached its decision, we have to look at persuasion that occurred before the trial took place. The news media, for years, had shown that the Los Angeles Police Department was not above tampering with evidence. This coverage created a cultural belief in the audience that these practices occurred. The defense counsel, then, presented a case based on fragments that were circulating the audience's cultural orientation. The prosecutors attempted to appropriate these fragments for themselves, but they also provided images of Simpson being unable to fit the disputed black glove that would have tied him to crime. From this set of influences, the jury, in the criminal trial, found him innocent. In the civil trial, a different set of influences were present and in this case, the jury found him “responsible” for the deaths.
From this discussion, we can draw four implications for how the media influence legal persuasion. First, the media create cultures from which jurors emerge. One argument that we have explored throughout the book is the link between media, culture, and cognition. In the first chapter, we discussed the views of Chesebro and Bertelsen who say that the dominant media of a given culture influence how members of the culture interpret messages. A culture dominated by television, for instance, will tend to focus on visual images. A culture dominated by print will focus on linear relationships between ideas. As American society moves toward visual mediums of communication, we would expect that people will be more influenced by visual images than they will by printed words. In the courtroom, this means that attorneys must increasingly seek to reach their audiences through visual mediums. Attorneys in our mediated society cannot only rely on using words to sway juries. Thus, culturally, we tend to expect visual communication; jurors are no exception. Jew and Peterson (1995) explains that jurors attach credibility to what they see. Visual images call upon the emotions of jurors and help them make decisions. Photographs, videos, and computer simulations help jurors see the evidence of a case. We will discuss how attorneys use visual images in their persuasion.
In addition, our contemporary mediated culture is fragmented. That is, we are separated from other individuals and tend to take a self-centered view of the world. Vesper (1998) notes that many jurors today are indifferent to the plight of others and attorneys have to adjust their language and arguments to win settlements for wronged clients. He puts the amount of damages in terms familiar to the jurors so they identify with his message.
Second, the prevalence of media has made pre-trial publicity an important factor for attorneys and judges. As cable channels carry round-the-clock news coverage, the amount of information about trials available to the public is high. In fact, there is at least one cable network devoted solely to coverage of legal issues: Court TV. Even in smaller markets, pre-trial publicity is common on television and radio and in newspapers.
Pre-trial publicity endangers the bias of potential jurors who may be exposed to information about a case before they are seated on a jury (Gilbert and Wenner, 1997). Given the influence of mass media, it is almost certain that jurors will have been exposed to information about a case. Even when told to ignore what they may know about a case, jurors cannot disregard knowledge gained during pre-trial publicity (Fein, McCloskey, and Tomlinson, 1997). Yet evidence indicates that pre-trial publicity has no effect on conviction rates (Bruscke, 1999). In fact, suspects were convicted less often in moderately publicized trials than they were in trials that received little pre-trial publicity.
Third, the entertainment media influence our expectations of what to expect in the courtroom. We have seen movies such as A Few Good Men, in which Tom Cruise plays an attorney who provokes Jack Nicholson's character into making an enraged confession during cross-examination. Or, we watch the television series Ally McBeal and expect that closing arguments are short, off-the-cuff statements that come from the heart of the attorney. Jurors often take these expectations with them to the courtroom. Legal research suggests that most of the time, the presentation of evidence in the actual courtroom lacks the dramatic effect we see in the entertainment media.
A fourth implication of media for legal persuasion is that trials often serve as the impetus for larger discussions about issues in society. Much public policy is made when audience members are able to reflect on our current laws and their ability to provide for our safety. Legal persuasion serves as yet another source of cultural knowledge for us. Keep these observations in mind as we continue to examine legal persuasion.
A Perspective on Legal Persuasion
As we study legal persuasion, we will adopt a perspective that reflects our definition of persuasion and some of the theories we have studied. If you recall, we previously defined persuasion as the process in which two symbol-using animals share symbols so that they may identify with each other. In this chapter, we will study how attorneys and witnesses seek to create identification with juries by exchanging symbols. It is a myth to think that trials are processes in which rational people enact formal rules to make logical decisions (Leach, Nolte, and Larimer, 1999). Juries do not act predictably in response to stimuli created by attorneys. Instead, make use of reasoning skills and their needs, values, and emotions when they make their decisions. Bennett and Feldman (1981) explain that the process of identification in the courtroom may instead be viewed as storytelling.
A story, explains Bennett and Feldman (1981) is an everyday communication device that creates a context for its interpretation. A story “not only focuses attention and judgment on certain key behavior (and the actors' relations to it), it also has the capacity to constrain a clear understanding about the significance of that behavior” (Bennett and Feldman, 1981, p. 7). Stories provide context for the evidence presented, giving meaning to that evidence. Storytelling, write Bennett and Feldman (1981), involves the presentation, organization, and analysis of evidence through “broadly shared techniques of telling and interpreting stories” (p. 4). In other words, the characters in a trial transform the evidence into easy to understand stories which may be seen as reasonable or unreasonable, likely or unlikely. Rieke and Stutman (1990) explain, "Essentially, stories are the systematic means of storing, rearranging, comparing, and interpreting the available information about social behavior" (p. 48).
When children get into trouble, they often create stories that explain their actions in light of the circumstance. Consider a child who has broken a lamp by knocking it off a table while playing with a basketball. The child might try to explain that the family cat jumped on the table and knocked off the lamp. If the cat has been known to jump on the furniture, the story might make sense to the parent who has investigated the event. If the cat has not done this before or if the cat was with the parent at the time of the incident or if the child is still holding the basketball, the story might not be seen as believable. In any case, the child attempts to explain a certain action by creating a context through which that action can be interpreted.
Just as the parent used the story to judge the child's actions, the storytelling perspective is a good one to use when trying to understand how jurors make decisions in trials. Bennett and Feldman (1981) explain that while trials involve complicated laws and legal practices, we expect everyday individuals to make decisions based on what they hear. These citizens often lack formal training in argumentation and legal discourse. Instead, jurors use a more everyday method of interpreting and evaluating what they hear: storytelling. Storytelling is a common tool which we all use to express our ideas and evaluate the ideas of others. We have learned how to tell and evaluate stories since we learned to speak. It is not unreasonable to assume that jurors use a similar approach when evaluating legal arguments.
When you watch a movie, you look for elements of the plot that help to explain the characters' behavior. In a good movie, the actions of the characters seem reasonable because the situation calls for them to act in a certain way. In a bad movie, you have probably said to yourself, “That character wouldn't do that.” The character's actions seem unreasonable to you given the set of events that have developed. In the 1999 film The Blair Witch Project, one of the characters threw away a map that was being used to guide three young filmmakers out of a desolate forest. To many viewers, the character's action did not seem reasonable and the film lost credibility as a valid narrative. In the courtroom, attorneys attempt to develop plots that make certain actions reasonable and other actions unreasonable.
As you read the last few sentences, you may have thought of the Fisher's narrative theory. Indeed, Fisher's theory and Bennett and Feldman's storytelling perspective have much in common (Rieke and Stutman, 1990). Both involve the way persuasive messages are structured and both contain some assumption about how the persuasive messages will be evaluated. Fisher says we evaluate narratives based on their internal coherence and narrative fidelity. Likewise jurors who evaluate courtroom stories evaluate them based on their internal coherence and degree to which the story “fits with” the juror's previous experiences. By viewing courtroom persuasion as a story, we can understand how jurors organize and evaluate the large amounts of data presented in a trial.
Bennett and Feldman's (1981) theory is useful to us as we try to understand how the courtroom audience—the jury—is persuaded. Their theory can also help us understand how attorneys choose symbols to structure reality for the jury. The meaning of symbols, you will remember from Chapter 5, are not readily agreed upon. Instead, symbols are subject to the interpretation of individual audience members. Thus, the story told in the courtroom is never a 100 percent reflection of the event in question.
Bennett and Feldman (1981) outline three processes inherent in how juries create stories about trials: identifying the central action of the story, interpreting the central action, and evaluating the interpretation of a story.
The first cognitive process is identifying a central action in the controversy. Jurors seek to understand "what happened" in a trial. They seek to understand what action took place that led to the court proceeding. In a murder trial, the central action would be the death of the victim. The central action in a medical malpractice case would be the injury that occurred to the patient.
Once the central action is isolated, attorneys help jurors interpret the action in ways favorable to their case. The central action is linked, or connected, to other elements of the story. Bennett and Feldman (1981) outline five types of connections that occur: empirical, language category connections, logical connections, normative connections, and aesthetic connections.
• Empirical connections relate the facts of the case to the central action. The fact that the victim in a murder trial was shot in the back would create the interpretation that he or she was not attacking the shooter. Thus, the defense could not logically claim self-defense. The injury inflicted upon the malpractice patient by an unqualified resident physician could be used to support an allegation of malpractice.
• Language category connections use particular words to refer to a category of related words. Jurors draw inferences about the central action based on a set of words associated with the attorney's word choice. Referring to the crime victim as a mother, for instance, implies a set of related concepts, such as family, nurturing, and caregiver. Using the word “mother” may be an effective way of causing the jury to interpret the central action in light of the mother's responsibilities to her family.
• Logical connections assert a common-sense relationship between two symbols. The attorney for someone who claims to be wrongfully dismissed from a job would attempt to show that the employee had previously provided quality work for the company. Thus, the firing was not logical based on a quality of work standard. Some other standard—perhaps discrimination—becomes the logical explanation for why the employee was fired.
• Normative connections reference what is normal, or reasonable, behavior. In a medical malpractice case, for instance, the defense would interpret the central action of the injury as resulting from what is typically done in the course of the medical procedure in question. That is, the physician's actions are argued to be reasonable.
• Aesthetic connections refer to the artistic, satisfying, or pleasing elements of the attorney's story. Use of a metaphor might be one way of establishing an aesthetic connection. Or, the attorney may use a catchy phrase to form a memorable interpretation of the central action for the jury. Attorney Johnnie Cochran's use of the phrase, “If it doesn't fit, you must acquit,” when referring to ownership of the disputed glove in the O.J. Simpson trial is an example of an aesthetic connection.
The final aspect of Bennett and Feldman's (1981) theory of courtroom storytelling discusses evaluating the interpretation of a story. Central to how a jury evaluates the stories told by counsel is knowing when “enough connections have been established to make a consistent and confident interpretation” (p. 61). The story must be sufficiently free of contradictions and there must be strong enough evidence to support one story over another.
Bennett and Feldman's (1981) framework provides a way for us to understand how juries make decisions, but also how attorneys can structure reality for jurors in the courtroom. Let us now consider an example of how this framework can be useful to an attorney. Consider a wrongful termination suit filed by an employee against a former employer. The central action is the dismissal of the employee by the employer. Interpretation of the central action can be achieved in several ways. Empirically, the employee could show that the employer had been sued in the past for wrongful termination. Using language connections, the employee's counsel could refer to the client as a “team player,” as “someone who loved the job,” and as “essential to the business.” Logically, the employer could show that his or her work was exemplary and that it made sense for the company to keep the employee. Finally, the employee could address contradictions offered by the employer to help the jury evaluate the story in favor of the employee. Keep this framework in mind as we continue our discussion of courtroom persuasion. An important part of this theory is knowledge about the audience and their attitudes.
Audience Analysis in the Courtroom
Just as advertisers and politicians survey their audiences in order to construct effective persuasive arguments, attorneys use audience analysis techniques as well. Some of these techniques are quite complicated and expensive, while others rely on having the attorney make quick judgments about a juror's perceptions of the case. Attorneys analyze their audiences prior to arguing the case in court and during the trial. By measuring the audience, attorneys are able to make important strategic decisions.
Litigation Intelligence Survey
Attorneys frequently make use of an audience analysis survey called the litigation intelligence survey. Attorneys, or their consultants, administer a survey to people who live in the jurisdiction of an upcoming trial. If proper statistical measures are used, such a survey can accurately predict how potential jurors from the jurisdiction will view the case, how they feel about the issues involved in the case, or if the venue for the trial should be changed. Attorneys use this information to decide whether to proceed with the case or settle. If they choose to proceed, data from the survey is used to help them determine the best trial strategy. The typical survey costs $15,000 to administer (Singer, 1997), which is a lot for minor cases, but for other cases, the survey would be a small investment that might help a defendant save millions of dollars. Consider the following example.
In a product liability case, the manufacturer of a product had—several years prior to the incident in question—obtained a patent for a childproof version of the product, but had not re-engineered the product to take advantage of the safety feature. A small child, despite the mother's best efforts, eventually found the product and was injured by it. At first thought, the company would not seem to be responsible for the injury, since the product met industry standards and worked as intended. A telephone survey of local residents, however, found that 92 percent agreed that the manufacturer should be held liable for damages and that an award of $2 million was reasonable (Singer, 1997). Once these results were shared with the manufacturer's counsel, the defense quickly settled the case on favorable terms to the plaintiff. In this case, obtaining knowledge about the audience helped the prosecution settle the case and the defense avoid a larger payment.
Jury Questionnaire
When settlements aren't reached, a jury hears the arguments presented by the attorneys. While it is not uncommon for a judge to hear the arguments, most trials are conducted with juries. The U.S. Constitution grants this right to all who are accused of a crime. Juries are composed of members of the community in which the trial takes place. Usually this is in the jurisdiction where the complaint or suit was filed. Jury lists are composed in various ways, depending on the jurisdiction. In the county where I live, jury lists are compiled from voter registration and driver's license records. Jurisdictions make every effort to ensure that those called for jury duty are representative of the entire area. Potential jurors are randomly selected to serve for a period of time, a month or two or even longer. When a trial is scheduled, jurors from the pool are notified to appear in court on the date of the trial. More jurors are selected than are needed.
Once this list is generated, each of the potential jurors is sent a questionnaire. The questionnaire is used to determine which jurors are eligible to actually serve and the questionnaire provides important information about the jurors that will be used by the attorneys for the case. Jury questionnaires include typical demographic questions such as occupation, age, income, religion, marital status, and education level. Often, the questionnaire will ask the potential juror about his or her views toward capital punishment, drugs, or product liability lawsuits. The attorneys use the information provided on the jury questionnaire in the jury selection process.
Jury Selection
Once the jurors are assembled in the courtroom, the judge introduces them to the case they may hear and how they will make their decision. From the pool of jurors selected to serve on that day, a smaller group is called into the jury box to answer questions posed by the judge and the attorneys. It is from this group that the final jury will be seated. The process by which the jurors are selected is called voir dire, which means “to speak the truth.” After asking questions of the jurors, the attorneys will strike several jurors from the pool. Attorneys have various reasons for striking jurors, but the ultimate goal is that the jury that eventually hears the case is as impartial as possible. Voir dire may last a long time in high profile cases. In the O.J. Simpson murder trial, jury selection lasted for several months before a jury and alternates were selected. In a local trial, jury selection may last as short as 30 minutes.
Voir dire usually begins by having the judge ask general questions of the potential jurors. He or she may ask if any of the jurors know the defendant, plaintiff, if a civil case, attorneys, or witnesses. Simply knowing one of the parties in the case does not mean that a person will be removed from the panel. The judge and/or attorneys may probe further before deciding to strike a juror for this reason. The judge may also ask questions regarding how much the juror knows about the case or if the juror has served on a jury previously. After the judge asks questions, the attorneys next ask questions of the potential jurors.
Matlon (1988) outlines three objectives attorneys have during the jury selection process. First, the attorneys try to learn about the potential jurors so they can exclude those who would not be sympathetic toward their side of the case. Attorneys frequently probe the demographic questions addressed by the jury questionnaire. Attorneys ask jurors about their occupations, marital status, or other demographic variables. Too often, writes Singer (1996b), lawyers rely too heavily on these variables. They assume that because a juror is part of certain demographic groups that they will behave in certain predictable ways.
Instead, argues Blue (1998) attorneys should ask about personal experiences the jurors might have had that would predispose them toward a particular type of belief. What is important, writes Blue (1998) is the belief system of the jurors. In a recent drug possession trial, one of the attorneys asked the jurors whether they abstain from using alcohol. One of the jurors responded that he did. When asked why, the juror responded that he was fearful of drug testing on his job and that he would lose his job if he tested positive for alcohol. Thus, the attorney learned that the man's abstention was not due to religious or moral reasons. Simply knowing that the man was an over-the-road truck driver would not have provided the same information. Open-ended questions can help the attorney learn about the belief system of the jurors.
It is particularly important to identify biased jurors during the voir dire process. Each jurisdiction has rules about what constitutes a biased juror and attorneys often use persuasive questioning to lead jurors to admit their bias, so that they are removed from the panel. Singer (1996b) identifies the strategies of clarification and reinforcement as useful in probing the bias of a juror. Clarification uses questions such as, “Why do you think this is so?” Reinforcement uses a statement such as, “Please don't apologize at all, sir. I very much appreciate your honesty.” In addition, notes Singer (1996b), attorneys should let jurors speak, allowing them to display their feelings on a particular subject.
The second goal of voir dire is for the attorneys to establish credibility and rapport with the jury. Matlon (1988) writes that counsel should seek to establish a relationship of trust, respect and understanding from the very beginning of the trial. Attorneys should introduce themselves prior to asking questions. Attorneys should ask questions that show respect for the juror. Attorneys should refer to jurors by their names, not their juror number. Attorney Tom French notes that one of the first things jurors say to him after the trial is that he knew their name. Care should be taken when using sensitive questions. Attorneys should be clear in their questioning. If the goal is develop credibility with the jury, counsel should avoid complex questions or use legal jargon the jurors do not understand.
A third goal is to educate the jurors about the case (Matlon, 1988). Counsel will ask jurors about the case facts, theories, and law that will be involved in the trial. Attorneys may ask about legal terms such as presumption and burden of proof. Voir dire is a good opportunity to introduce the case theme to the jury. Attorneys may also wish to inoculate the jury against the arguments of the other side by disclosing harmful information about the case early. The impact of the disclosure later in the trial will be diminished when small bits of information come out early.
Jury Analysis
As the jury selection process takes place and as the trial begins, counsel, and sometimes special jury consultants, engage in analysis of a juror's attitudes and beliefs. Attitudes refer to the beliefs that individuals possess. Relationships with people involved in the case would cause the juror to have attitudes about the information presented. Previous experiences also cause people to have attitudes about present and future experiences. For instance, being a victim of crime may predispose one to being less than sympathetic with accused criminals. Also, feelings about racism and other societal problems should be examined, especially if they are involved in the trial. Prior information about the case, too, may have developed attitudes in the jurors.
Personality analysis is used to make inferences about the juror based on his or her personality traits. Matlon outlines a list of personalities and their impact on certain cases. In a medical malpractice case, for instance, the plaintiff would like jurors who are independent while the defense would want jurors who are dependent, on doctors, for example. General questions such as, "Do you plan your vacations or take them on the spur of the moment?" will allow attorneys to make assumptions about the juror's personality. Language cues can also be used to determine a juror's personality.
The juror's nonverbals are analyzed as well. Anxiety, for example, can be determined by focusing on the juror's rate of speech, body movements such as fidgeting, or lack of eye contact. In some cases, counsel would not want anxious jurors on the jury. These cues would help to reduce the risk of seating an anxious juror. Other nonverbal factors, such as appearance, can also be used to make assumptions about the juror.
Demographics are also used to understand the jury. Gender, income, occupation, religious affiliation, and age are all factors that may influence the leanings of jurors. Younger jurors, for example, are usually more forgiving of defendants than older jurors. Ethnic and racial differences, too, can influence how a juror hears the trial. The O.J. Simpson criminal trial, the jury of which was predominantly African-American, is a good example of how people from different racial groups may process information differently than that of white society. It is important to realize that many of these generalizations do not hold true for all cases. Attorneys must be careful not to overgeneralize about their jury.
Jury Focus Groups
Attorneys will frequently test their arguments before a trial with a focus group. Focus groups can provide for attorneys information about the plausibility of their case theme, witnesses' credibility, and plausibility of the opposition's arguments (Barnett, 1999). Attorneys or trial consultants assemble focus groups in much the same as the actual jury. In fact, the more representative the focus group is of the actual jury, the more reliable will be the results. Attorneys present evidence, show witnesses, and test arguments on focus groups. Asking open-ended questions about each of these issues can help the attorney determine case strategy. Focus groups are especially effective at conveying emotional relationships to the case or its participants (Singer, 1997).
The audience in courtroom persuasion is narrowly defined and constructed. Attorneys take great care to learn about potential audience members, removing those who would not be sympathetic to their position. As the trial progresses, attorneys continue to monitor the cognitive and emotional responses of jury members. As their research tools become more precise, attorneys will have even more ability to adapt their arguments to their audiences. We'll now move from discussing the audience to focusing on the persuader in legal persuasion.
Persuaders in the Courtroom
As we discussed in Chapter 8, the credibility of a persuader is an important variable in how audiences identify. In this section, we will overview the persuasive aspects of courtroom persuaders. As we discuss persuaders in the courtroom, keep in mind our previous discussion in Chapter 8 about ethos, source credibility, and image. Even though trials are usually unmediated, jurors still form images of plaintiffs, defendants, witnesses, and attorneys and they behave based on these images.
Attorneys as Persuaders
The importance of a persuader's credibility extends to the courtroom. If a jury is to accept the evidence and closing arguments presented to them, they jury must first accept the source of those messages. Singer (1999) writes, “Credibility is, by far, the most important personal and professional quality an attorney needs” (p. 20). French (1995) argues that it is imperative for attorneys to be trustworthy. He refuted the popular notion that attorneys bend the rules and win by pulling courtroom tricks. In fact, he writes, the best attorneys are those that consistently are truthful and polite. Attorneys can establish their credibility verbally and nonverbally.
Vesper (1998) explains that attorneys should start the trial without a great deal of emotion. Attorneys should use their opening statement to clearly present the facts to the jury. Only later should attorneys use emotion to sway the jury. In other words, attorneys must establish common ground with the jury before using emotional arguments. French (1995) writes that attorneys should object sparingly, not use legal jargon, and use time wisely to enhance their credibility with the jury. Singer (1999) explains that attorneys should quickly get to the point of their questioning and statements to show respect for the jurors' time.
Attorneys should use language strategically, which includes the use of vivid language and metaphor by a speaker (Rieke and Stutman, 1990). Describing events in detail is an example of vivid language use. A metaphor, as we have discussed in Chapter 14, makes a comparison between objects that are different. The storytelling perspective that we have discussed in this chapter calls upon attorneys and witnesses to use strategic language in order to create meaningful stories for jurors.
Singer (1999) observed that jury persuasion is primarily psychological, not legal. That is, jurors cannot help but make emotional decisions about cases. They cannot completely separate the cold, logical language of the law from their attitudes and beliefs. Attorney Thomas J. Vesper (1998) has replaced the sterile terms “pain and suffering” and “noneconomic damages” with the more emotional term, “human losses,” when discussing damages due to negligence. He has his clients create lists of “enjoyments of life” that they miss out of due to their injury or disability. Items would include, “playing with my children,” “going on walks,” “or “viewing art.” Jurors, writes Vesper (1998) are more apt to identify with these experiences that the victim has missed out on. Vesper also has his clients testify about what they would do with the settlement or award money. In one case, a man paralyzed by a car accident, testified that he would fulfill a lifelong dream by opening a business. The jurors sided with the man and awarded him a large amount of money, believing it would help him achieve his life's goal (Vesper, 1998).
An attorney's nonverbal communication is important as well. One juror in a recent case notes that the two attorneys failed to look up when the jury entered the courtroom, giving the impression that they were too busy to take time to notice the jurors. Attorneys should face the jury and if possible, maintain eye contact with both witness and jury during questioning. Singer (1999) notes that attorneys frequently stand behind a podium, instead of positioning themselves closer to the jury and without the physical barrier of the podium between themselves and the audience. Attorneys should stand six to eight feet from the jury box, explains Singer (1999). Standing closer to the box violates the jurors' sense of personal space. Attorneys who use multimedia aids, must do so skillfully (Singer, 1999). Smiling, gesturing, and speaking quickly when addressing jurors are other ways for attorneys to create rapport with jurors (LeVan, 1984). It is important that attorneys use nonverbal behaviors that complement their verbal actions.
In all, attorneys should create identification with the audience. We have said that persuasion occurs through identification. Attorneys must connect with their audiences in order to win the jury's verdict. In addition to the verbal and nonverbal aspects of credibility with have discussed, Singer (1999) writes that telling colorful, vivid stories helps the jury to create an emotional connection to an attorney's case. Attorneys should also project warmth and humanity to improve their efforts of identifying with the jury.
Witnesses as Persuaders
Despite the power of the attorney's opening and closing arguments, the impact of witness testimony on juries is important. Singer (1999) explains that attorneys must carefully prepare witnesses for depositions and court testimony. In this section, we will discuss the verbal and nonverbal aspects of witness credibility, the idea of likability, and use of expert witnesses.
Verbal factors influence the jury's perceptions of a witness's credibility. Wright and Hosman (1983) found that juries saw witnesses who used “powerless” language—the use of qualifiers such as “sometimes,” “kind of,” and “sort of”—as less attractive than those who did not. Expressing certainty is an important component in a witness's credibility. It is important that witnesses do not give too much information when being questioned. Quite often they may contradict themselves or other witnesses, thus damaging their credibility. Witnesses should be told to answer, "I don't know" or "I don't remember" when appropriate.
Language intensity focuses on how much language use deviates from neutrality. For instance, “I hated my job,” is more intense than, “I disliked my job.” Research indicates that if the jury views a witness favorably, intense language enhances this credibility. If the jury dislikes a witness, intense language hurts the witness even more. When the jury is neutral towards the witness, intense language usually has a positive effect on jurors (Rieke and Stutman, 1990).
Opinionated language reflects a judgment on the part of a speaker, but it also contains an attitude towards others and their view of the topic in question. The statement, “I support Senator Smith” is not considered opinionated, whereas the statement, “I can't believe anyone would not support Senator Smith,” is opinionated. Rieke and Stutman (1990) report that opinionated language has a significant influence on jurors.
Language immediacy is the use of language to associate the speaker with the audience (Rieke and Stutman, 1990). Speaking in the present tense and using first-person pronouns are examples of language immediacy. A juror who says, “We went to the restaurant together” uses immediate language while a juror who says, “The defendant and the witness went to the restaurant together,” does not. Speakers who use immediate language enhance their credibility.
An important nonverbal aspect of witness testimony is nervousness. It is quite common for witnesses to be nervous when they testify. LeVan (1984) explains that nervous nonverbal behavior by witnesses may be seen as deceitfulness by the jury. Nervousness may be exhibited by behaviors such as picking at fingernails, grabbing one's knees, and playing with one's face (LeVan, 1984). We often associate these behaviors with lying. Jurors also perceive speaking in a high pitch and talking slowly as signs of deceit (LeVan, 1984). The witness's credibility can be enhanced by being relaxed and responsive to the questions asked. Witnesses must not appear to be hiding anything from the jury. Cues perceived to be truthful include nodding, leaning forward slightly, and talking quickly (LeVan, 1984). Attorneys can rehabilitate witnesses who are nervous by explaining to the jury that it is common for witnesses to display these types of behaviors when testifying.
The most important component of witnesses credibility is his or her likability (Singer, 1996a). Likability is an image of the witness formed in the minds of jurors. Likability refers to the personality of the witness. It is important for the witness to display emotion when testifying so that jurors empathize with them. Yet witnesses should be careful to not display too much emotion. It is important for the witness to smile when appropriate. The witness should show hints of his or her personality to the jury.
An expert witness is a particular type of witness who may testify about specific judgments relevant to his or her area of expertise. Expert witnesses should use analogies and metaphors to help jurors understand complicated testimony. Shorter answers are preferred to long-winded explanations (Singer, 1996a). Expert witnesses should make known their qualifications without seeming boastful.
Trial Presentation
With the preliminary work of surveying potential jurors out of the way and with a better understanding of the persuaders in this context, we now turn our attention to the trial presentation. We will examine several aspects of the trial presentation: case theme, opening arguments, evidence, examining witnesses, closing arguments, and presentation strategy.
Case Theme
Before entering the courtroom, counsel should develop a case theme for their case. The case theme is the essence of the case strategy, or the story that will be told throughout the trial—from voir dire to closing arguments. Maher writes that a theme is easy to repeat, understand, and integrate throughout the trial. The theme should be unique and provide an incentive for the jury to provide a favorable verdict. Let's look more closely at the functions of a case theme, its creation, and its implementation in the trial.
Functions of the Case Theme There are four functions of a theme. First, it is easy to remember. Jurors are bombarded with a great deal of information during a trial. Having a simple way to connect the information in a way that is easily remembered is important. Perdue and Perdue (1998) observe that humans have a limited ability to process information, so we simplify complex problems to easily understand them. A theme aids jurors in simplifying the complex amount of information presented in a trial and helps them make sense of the information.
Second, it is something that a favorable juror can use during deliberations. Following closing arguments, the attorney's arguments are carried forth by the jurors in the jury room. Arming them with evidence and an easy-to-grasp story is critical to promoting the continuation of one's arguments.
Third, it is consistent with, and supported by, the evidence. The theme allows the attorney to tie the evidence together. Singer (1999) notes that a theme is psychologically comforting to jurors who can use the theme to eliminate their anxiety concerning conflicting arguments. The theme helps the jury fit the pieces of the puzzle together, discarding those pieces that do not fit.
Fourth, it is in tune with the juror's sense of justice. A theme that is antithetical to what a juror believes will not serve an attorney well. The theme must employ the values of the jurors. Perdue and Perdue (1998) explain that audience members have a difficult time accepting new ideas that are not tied to existing beliefs. If you recall Rokeach's theory of beliefs and attitudes from Chapter 4, you will remember that we link beliefs together to form new ideas about the world. Thus, a case theme must call upon what an audience already believes to be true in order to establish a new belief.
Creating the Case Theme The case theme should consist of one sentence that is no more than 15 words long. Attorneys often use slogans, or clichés, for their theme. Themes are often developed after the attorneys have engaged in audience analysis techniques, such as surveys and focus groups.
Legal scholars take a variety of approaches to the case theme. Some contend that a simple slogan, such as "Better safe than sorry," comprises the case theme. Other scholars believe that the theme should be a more detailed statement concerning the actions of the accused, such as "The defendants in this case possessed drugs with the intent to sell those drugs." From our perspective, a case theme should be more than a simple slogan, and it should use emotional, aesthetic, and linguistic cues to foster identification with the jury.
In a recent medical malpractice trial in which a woman had a breast mastectomy operation though she did not need one, the theme used was "She trusted the wrong people to do the right thing." The theme highlights the emotion of trust, but carries with it the cognitive message that the defendants were irresponsible in their medical diagnosis.
Implementing the Case Theme Gonzalez (1998) writes that the case theme should be implemented at each stage of the trial, from voir dire to closing arguments.
• During voir dire, or jury selection, attorneys should prepare the jury to think about the case theme. Asking open-ended questions of the jurors can help them to consider the theme. In a medical malpractice suit, for instance, the jurors might be asked, “Do you think a radiologist should be careless when reading an X-ray?” The theme of carelessness thus enters the minds of the prospective jurors.
• The theme is formally introduced to the jurors in the opening statement. Gonzalez (1998) argues the theme should be introduced early in the opening statement. All of the evidence should be linked to the case theme and used to support the attorney's theory of the case.
• In examination of witnesses, the key points of the theme can be used to ask questions of witnesses and force them to contribute evidence that supports the theme. In the medical malpractice example, a physician may be asked, “Is it not the responsibility of a radiologist to be careful when reading X-rays?” Visual evidence can also remind jurors of the case theme.
• Finally, in closing arguments, the evidence that was actually presented should be used to reinforce the theme. Attorneys wish to have jurors begin deliberations with a clear image of the theme in their heads and a clear understanding of how each piece of evidence fits with the theme.
Opening Arguments
Once the jury is seated, counsel engage in opening arguments. The plaintiff or prosecution presents its opening first. The defense may present immediately following the plaintiff/prosecution, or the defense may wait until the plaintiff/prosecution presents and rests its case. While counsel may often present information from the case to the jury in the jury selection process, the opening statement is the first time the attorney can provide a more or less complete view of the case to the whole jury. Rules prohibit the attorney from actually arguing the evidence of the case. Instead, attorneys seek to tell stories about what they hope to accomplish in the case.
Pyszczynski and Wrightsman (1981) found that the opening statement was significant in influencing jurors when the prosecution and defense openings varied in intensity. The first strong opening heard by the jury was an accurate predictor of how the jury would decide the case. For instance, if the prosecution delivered a strong opening and the defense a brief, weak opening, the jury would be more likely to decide the case for the prosecution. Pyszczynski and Wrightsman (1981) believe the opening sets the thematic framework by which the jury hears the case. That is, the opening story is a good way to frame the case for the jury.
Matlon (1988) writes there are two goals of opening statements. First, the opening statement allows the attorney to present the case theme to the jury. The goal is to give the jury the "big picture" in opening arguments so they can later relate individual pieces of evidence to the whole picture presented in the opening argument. Matlon says that a theme is vitally important in the opening argument. The second goal of the opening statement is to establish rapport and goodwill with the audience. The attorney should be sincere, honest, warm, and friendly, writes Matlon (181).
In the entertainment media—and in actual courtrooms—we often see opening statements that use the words, “The evidence will show...” or “The defense will prove that ...” Allison (1998) argues that this approach is an ineffective way to present the opening statement. Instead, the opening statement should make use of the narrative style of presentation. In other words, the attorneys should engage in good storytelling. Recall our earlier discussion about Fisher's narrative perspective and Bennett and Feldman's theory of legal storytelling. These scholars state that arguments can be seen as stories and that audiences judge arguments in the same way they judge stories.
Allison (1998) recommends that opening arguments have the same features as any good story. The opening should have a beginning and end. It should have good characters and evil characters. The story should be told in chronological order and it should build to a climax. Attorneys may also use Bennett and Feldman's (1981) model for how juries process legal arguments, which we discussed previously in this chapter. In this case, the narrative structure is used to link a central action, such as the firing of an employee, with an interpretation of that action, either the employee was fired wrongly or the employee was fired justly. In order to make the connection between the central action and each side's interpretation of the central action, counsel should develop a guiding philosophy, use a metaphor, and use chronological language. Thus, the attorney starts with the central action and by telling a good story, leads the jury to an interpretation of the action that is most beneficial for his or her side. The opening statement is an excellent opportunity to tell this type of story. It should be told in the past tense, writes Allison (1998).
Allison (1998) writes the opening should be delivered without notes, if possible. The attorney should maintain direct eye contact with the jury and should be passionate about the case (Allision, 1998). Visual aids, such as photographs, maps, or charts, should be used if they can help the attorney be more persuasive.
Evidence
After opening statements, attorneys begin the process of presenting evidence and calling witnesses. The most significant aspect of courtroom persuasion is evidence (Rieke and Stutman, 1990). Evidence takes many forms: the confession of the defendant, scientific analysis of crime scene material, eye witness accounts of an incident, photographs, and more. Rieke and Stutman (1990) note that the presentation of evidence by attorneys and witnesses plays a crucial role in the persuasiveness of the evidence. We will discuss two main types of evidence—nontestimonial and testimonial—with an eye towards how the presentation of this evidence influences juries.
Nontestimontial Evidence Nontestimonial evidence includes depositions, documentary proof, and visual exhibits that are presented to the jury (Matlon, 1988). Depositions are the written or videotaped statements of witnesses who cannot be present at the trial. Depositions are made in the presence of attorneys for both sides. Depositions usually take place as part of the discovery process, but are often used in the trial when the witness cannot appear or to question the credibility of witnesses. If possible, the deposition should be videotaped and presented to the jury through that medium. As we previously discussed, videotaped depositions keep the interest of the jury better than does reading from the deposition. In one courtroom, absentee witness testimony is shown on a life-size monitor placed behind the witness stand. If video is not possible, Matlon (1988) suggests having someone role-play the part of the witness, who would respond to questions asked by the attorney. The text of the deposition—the actual words of the witness—would thus be enacted by the attorney and a surrogate witness.
Documentary proof consists of papers and records, such as letters, birth certificates, or wills. Documentary proof must be authenticated before it is accepted as evidence and shown to the jury. A witness may testify that he or she wrote a letter in question. A physician may authenticate that the signature on a birth certificate is genuine. A notary public may certify that a signature on a will is legitimate. Matlon (1988) notes two cautions regarding use of documentary proof.
• First, documentary proof can often overwhelm the jury because it contains too much information. A will, for instance, may provide more information than is necessary to prove the side's case. After authentication, a line or two from the will could simply be read to the jury to focus their attention on the important section instead of providing the entire document for them to read.
• Second, documentary proof may contain positive and negative evidence for a side. A letter for instance, may include statements that would both help and hurt an attorney's case. In this situation, the attorney would be wise to have the letter writer or recipient read only the information that supports his or her case.
In any case, documents should be presented to the jury in multiple formats: orally, in writing, and, if possible, as large graphics for the jury to see. In one high-tech courtroom, jurors can see on a monitor each of the documents referred to in the testimony (Lederer, 1999) and on a 10-foot diagonal screen. The people in the courtroom can watch as witnesses point to certain parts of the document with an electronic light pen.
Baer and Riley (1999) identify three types of visual exhibits used by attorneys in the courtroom: static images, animation, and computer simulations or recreations. Static images include charts, photographs, or illustrations. Refer to our discussion of the persuasiveness of visual signs in Chapter 6 to review the benefits of using each type of image. Charts are effective in presenting numerical data, photographs can be used to document a past event, while illustrations are renditions of a past event or occurrence. Static images are either enlarged and presented to the jury on an easel or they are digitized and used in presentation software such as Microsoft PowerPoint. Baer and Riley (1999) observe that in most jurisdictions presenting static images is permissible.
Animation uses computer technology to give the impression of motion to a series of static images. Animations may be used to illustrate a medical procedure, for example. In a medical malpractice suit, an animation can show how the procedure is correctly done and how it is alleged to have been done incorrectly. When attorneys use animation, they do so without intent to replicate an actual event. The animation is simply a general illustration.
Simulations use images and mathematical formulas to accurately recreate a past event. Good simulation software can verify the accuracy of its modeling. A simulation could put the jury in a car that was in an accident. The jurors could see and hear what the driver saw and heard before the accident. The accident could be shown from multiple vantage points. The law regarding use of simulations is not consistent at this time.
In Chapter 6, we discussed three functions of images in persuasion: representing reality, proving ideas, and communicating what cannot be said. Attorneys achieve each of these functions when they use images. First, images represent reality and thereby attract attention and elicit an emotional response. In the courtroom, studies show that jurors remember 85 percent of what they see, as opposed to only 15 percent of what they hear (Baer and Riley, 1999). Since jurors must be able to accurately recall evidence in order for them to make a good decision, using images enhances justice. Images keep the attention of jurors, who often fall asleep during the trial (Zirin, 1998). Watching a videotaped deposition is more interesting than hearing someone read from a transcript. Attorneys may also find that images are an effective way to elicit an emotional response from jurors. Showing a picture of a crime scene can be a powerful way for jurors to identify with the prosecution's case.
Second, images can prove that a past event happened. Photographs and video are good examples of how images can be used as proof. Video images of a convenience store robbery contains vital information about who robbed the store. Photographs of damaged vehicles can be used to establish how the accident occurred. Photographs of the accident site can indicate how fast the cars were travelling and in what direction.
Third, images can serve as an argumentative premise, communicating what cannot be said through words. In a recent trial, the picture of the defendant's car—a Porsche—provided enough information for the jury to convict. The image of the car carried with it a connotative statement about characteristics of the defendant. These characteristics led the jury to conclude that he had committed the crime of which he was accused. A simulation is another way to communicate what cannot be stated through words. By putting a juror in the driver's seat of a car that was in an accident, the jury can see and hear the arguments of the trial. The juror can then decide which side to believe. In a mock trial at William and Mary Law School, jurors could visualize themselves inside the cockpit of a burning airplane. Then, the developer of the software demonstrated how easily the pilots could have shut off the burning engine, saving the plane and its passengers (Lederer, 1999). The simulation provides a powerful means through which attorneys can communicate to jurors.
Because of their powerful effect on jurors, courts have established procedures to authenticate visual exhibits and prove their relevance to the trial. Attorneys should also take care in how they use visual exhibits. Images are not always used effectively. Singer (1999) argues that lawyers often overuse graphics, charts, and multimedia exhibits. Presentational aids should be used to help the jury “see” the important aspects of the case. Solomon (1999) explains that graphics should be designed to meet the needs of jurors as expressed in focus groups or other pre-litigation research. Graphics should be tested on focus groups before being used in court. Media aids should also be used to reinforce the attorney's theme. That is, the media should be consistent with the overall case strategy.
Testimonial Evidence The second type of evidence is the testimony of witnesses. Witnesses testify about objects, relationships, sequences, and other facts of the trial. In keeping with our perspective of storytelling, Matlon (1988) suggested witnesses are actors directed by the attorneys. We have previously discussed the credibility of witnesses; in this section we will discuss the strategies used by attorneys and witnesses in presenting testimonial evidence.
There are two basic types of questioning that elicits testimonial evidence: direct and cross examination. When an attorney asks questions of a witness he or she has called to testify, the attorney is engaged in direct examination. Following each witness's direct examination, the opposing counsel asks questions during the cross-examination period. Following cross-examination the witness's attorney can ask questions during the redirect examination. Questions during this period can only address questions raised during cross-examination. Likewise, the defense attorney—in recross—can again ask questions of issues raised during re-direct. In a trial, the prosecution first calls its witnesses to the stand and asks questions of them. The defense follows with its witnesses when the prosecution rests its case.
Direct Examination Witnesses testify in an order that is determined by the attorney for each side. The order in which an attorney calls witnesses is dependent on many factors. Matlon (1988) provided three guidelines for determining witness order. The first witness should be a strong witness who can make an immediate impact on the jury. Juries are likely to remember what they hear first. Matlon (1988) writes that the next set of witnesses should develop, in chronological order, the story that being told by the attorney. Ideally, the order of presentation allows the attorney develop a narrative which leads to an emotional climax. Basic facts are presented first and each witness provides more information and moves the story closer to its conclusion. Witnesses that provide corroborating evidence for other witnesses should come immediately after that witness. Finally, Matlon (1988) suggests that the final witness provide a dramatic conclusion to the case.
In general, attorneys ask broad, open-ended questions of witnesses in direct examination (Matlon, 1988). "Can you explain for us what happened on the morning of July 4, 2000?" or "How did the company's response to your complaint make you feel?" are examples of open-ended questions. Open-ended questions allow the witness to explain, in narrative style, information pertinent to the case. The witness should be a storyteller during direct examination (Stuart, 1999). Research suggests that witness credibility is enhanced when they are allowed to offer complete and detailed testimony without the constant prodding of the questioning attorney (Matlon, 1988). Leading, or closed-ended questions, are generally not allowed in direct examination. That is the attorney could not ask, "Was the car red?" Instead, the attorney would ask, "What color was the car that was involved in the accident?"
The order of questions depends on the purpose of the witness's testimony. If the witness is describing an event or occurrence, the examining attorney should ask questions in chronological order (Matlon, 1988). If the witness is testifying about a particular point or argument, questions should be structured to develop that point. Expert witnesses, writes Matlon (1988) should testify about their conclusion first, to make the most impact on the jury, and then testify about the reasoning used to support the conclusion. In any case, direct examination should end with a strong statement that will be memorable for the jury.
The questioning attorney should use appropriate nonverbal communication behaviors during direct examination. Since witness nervousness hurts credibility, it is important for the questioning attorney to provide reassuring behaviors, such as smiles, head nods, and eye contact, during direct examination. The attorney should stand so as not to block the jury's view of the witness. It is best, writes Matlon (1988) for the attorney to stand near the jury box, so the witness projects his or her voice and looks in the direction of the jury. The questioning attorney should use a friendly, conversational tone to put the witness at ease during the questioning period.
Cross Examination An attorney's strategy during cross-examination is different than that during direct. Cross-examination is often seen as the most dramatic part of the trial. Jurors often have an expectation of the drama of cross-examination based on their exposure to movies such as A Few Good Men or Philadelphia. Matlon (1988) argues that cross-examination should not be seen as the most important part of a trial, but that it is the best opportunity to correct facts and question the credibility of witnesses. Miller (1998) described two purposes of cross-examination: using the witness to prove facts favorable to the questioner's case and weakening the witness's credibility.
The witness in cross-examination can help the questioning attorney prove his or her case. Miller (1998) explains that the questioner should know what information can be obtained from this witness in order to bolster the closing argument. The witness can be asked to agree with certain facts of the case, with the judgment of one of the previous witnesses, or with the theory of the attorney's case (Miller, 1998). The second goal of cross-examination is to discredit the witness. The attorney may also seek to question the witness's knowledge, perception, memory, or truthfulness (Matlon, 1988). The attorney may show that the witness has lied, is biased, or has offered improbably testimony (Miller, 1998).
Usually attorneys ask closed-ended questions during cross-examination. These questions force the witness to answer yes or no. Attorneys wish to ask safe questions during cross-examination. That is, attorneys should have a good idea of how the witness will answer before asking the question. Attorneys should avoid questions where an unexpected answer could be given or when the attorney does not have conclusive proof of the facts of the case. Questions that ask "how" or "why" should generally be avoided as well. Attorneys should limit the amount of information the witness tries to provide. Important questions are saved until a sufficient groundwork has been laid to force the witness to answer the question in a particular way. Baldwin (1996) explains that attorneys should view cross-examination as a story told to jurors, structuring questions in a way to develop the story. Finally, the cross-examination period should end on a high note (Matlon, 1988). Attorneys should be careful not to ask one question too many.
In some instances, an attorney may wish to impeach a witness from the other side. Impeachment is the process of discrediting a witness (Matlon, 1988). Impeachment has a powerful effect on juries because they typically disregard the testimony of a witness who has been impeached. Impeachment is risky, however, because if the attorney fails the witness will look stronger and the attorney will be less credible for the jury. To impeach a witness, the cross-examining attorney asks a series of closed-ended questions that relate to a particular part of the witness's testimony. The attorney should stop just short of the final "kill," saving the final conclusion about the witness's credibility for the closing argument.
Matlon (1988) identifies three instances in which impeachment is productive. First, he writes impeachment is effective to point out internal contradictions in a witness's testimony. To do this, the attorney asks the witness to recall his or her previous testimony and then reads from the testimony from the court transcript to show that the testimony was contradictory. In one courtroom, the jury can follow along with a transcript of the testimony in question on a monitor before them (Lederer, 1999).
Second, witnesses may also be impeached when they have a prior history of lying. Additional witnesses may be called to discredit the impeached witness's prior testimony. These witnesses may know the impeached witness from prior occasions and be in a position to testify about the person's character.
Third, impeachment occurs when a witness has deficient perception, memory, or recall. This type of impeachment is particularly concerned with short term memory and the problems that arise when people attempt to recall information. A witness's recall is limited by factors such as ability, confusion, or medical conditions.
Closing Arguments
After the presentation of evidence and witnesses, counsel present closing arguments. Closing arguments pull together the evidence of the trial and focus the jury's attention on the most important factors of the attorney's case. Next to the examination of witnesses, jurors say that the closing argument is the most influential aspect of the trial (Rieke and Stutman, 1990). In the opening arguments, attorneys are prohibited from discussing the evidence of the case. In the closing, discussion of evidence is expected (Rieke and Stutman, 1990). Attorneys typically challenge the credibility of witnesses, the value of evidence, and the probability of events described by witnesses (Rieke and Stutman, 1990). Often the closing argument is written before the trial starts so that attorneys have an idea of how to structure their case. The closing argument gives jurors arguments they can use in the jury room to convince fellow jurors of a verdict (Matlon, 1988).
Rieke and Stutman (1990) explains the primary goal of the attorney in the closing argument is to tell a “convincing story” (p. 203). The case theme should be incorporated in the closing story. The story told by counsel should contain the aspects of Bennett and Feldman's (1981) model. The closing should identify the central action, interpret the central action, and facilitate positive evaluation of that interpretation. Matlon (1998) writes that explicit logic should be used in closings. Attorneys should not imply conclusions about evidence or testimony; instead, they should assert the conclusions in explicit terms. Attorney Nancy J. Turbak (1996) did so with this statement: “The facts, then, come down to simple things. Carla Maken was the victim of a defendant who failed to yield the right of way.” Counsel attempt to "win" the issues involved in the trial. An issue is a specific question that is answered by evidence. "Did the defendant have a motive to kill the victim?" is an example of an issue. Turbak (1996) argues, “It's our responsibility to prove the collision caused the whiplash injury, and that part is easy.”
Once the attorney's own story is clearly told, he or she addresses the other side's arguments. Questioning the other side's story involves identifying inconsistencies in testimony and raising questions about witness credibility. In a products liability case against an airplane manufacturer, attorney Bob Gibbins questioned the strength of the airline company's case: “Now, Mr. Townsend designed these flight controls, and he has had experience in knowing what is wrong with this white area. But the defense didn't bring him down here to be put on the witness stand and give any expert opinions. That ought to tell you something.”
In addition to these two goals—telling a story and attacking the other side's case—Rieke and Stutman (1981) provided two additional goals for the closing argument that are identified by research: personalize the closing by thanking the jurors for their time and avoiding legal jargon. Legal scholars and practicing attorneys offer several additional strategies for the closing, but Rieke and Stutman (1981) warned that not all attorneys and legal scholars agree on the best closing strategy.
Some attorneys argue that the closing should weigh the burden of proof. Various visual and language strategies may be employed to help the jurors understand how the burden of proof standard relates to the case. Attorney Robert L. Habush used this statement to help jurors understand burden of proof: “We have to persuade you by the greater weight of the credible, believable evidence. If you can visualize a scale, if the scale tips ever so slightly in our favor, then that is persuasive evidence and we have met our burden of proof.” Matlon (1988) says that counsel should also point out weaknesses in their own case, but should point out their insignificance when doing so. In the conclusion, the attorney should build to an emotional climax. Matlon (1988) says, "This is the time for oratory and eloquence" (p. 275). The last few words, he writes, should be strong and call for action on the part of the jury.
Jury Decision Making
Having outlined the presentation of the case, we will now take a closer look at how the jury processes these messages and reaches a decision. There has been a great deal of research involving jury decision-making, focusing on factors such as credibility, evidence, and the jury decision-making process. We will review some of the scholarly findings in these areas.
Attorney and Witness Credibility Factors
Some of this research has found that factors such as intelligence, conviction, and use of emotion are associated with credible attorneys, while dishonesty, cruelty, and insincerity are associated with poor attorneys. Another study surveyed jurors immediately following a trial. Victorious attorneys were attractive, good-natured, verbal, and intelligent. Losing attorneys were perceived to be "different" than the jurors, unattractive, or being a poor problem solver. Matlon (1988) concludes by stating, "In a sweeping survey of jurors in criminal trials, it was found that proficiency in lawyering skill and likeability were the strongest predictors of outcome while attorney dress was the least significant factor" (p. 305).
Jury Decision-Making Process
Burnett and Badzinski (2000) identify five propositions that explain how juries reach their verdicts. Their model is based on two layers of argumentation that occurs in the trial process. The first layer occurs in the trial itself and is carried out by attorneys and witnesses. The second layer occurs during deliberations, where jurors themselves advocate positions and influence others.
First, jurors construct stories to help them determine “what happened” in the trial. They contend that jurors construct several plausible stories about what happened. As they obtain more information from the trial, they modify existing stories, construct new ones, or discard stories that do not seem plausible. Jurors, then, use the trial to help them choose which of these stories to accept.
Second, some jurors may decide among these stories prior to the deliberation process. Burnett and Badzinski (2000) argue that jurors use pre-conceived attitudes, impressions upon seeing defendant for the first time, or opening arguments to make judgments prior to entering the jury room. Jurors who have already decided the case rarely change their mind once deliberations start, but some jurors are influenced prior to the first straw vote.
Third, jurors take their stories to the deliberation room where the jury, as a group, evaluates the stories. Jury members collect, evaluate, and discard stories as a group (Burnett and Badzinski, 2000). Jury members may believe different stories, but still agree on a final verdict.
Fourth, as jurors sort through the stories, they use argument. Argument helps the jurors advocate stories, discover new beliefs, clarify issues, manage relationships, and influence others (Burnett and Badzinski, 2000). Jurors spend most of their time discussing evidence. Matlon writes that evidence is "the strongest determinant of a jury's deliberation and verdict" (307). Research has found that jurors can recall "almost every relevant fact of the case" (307). Fein, McCloskey, and Tomlinson (1997) argue that even though they are told to ignore inadmissible evidence, jurors use this information to make their decisions. Jurors also use argument to defend their positions.
The fifth element of the Burnett and Badzinski (2000) model is that jurors make non-complex arguments in deliberation. That is, jurors simply restate positions argued in the trial, they elaborate on those positions, or they agree with what was said in the trial. Jurors typically do not create their own arguments, they usually have only their memories with which to form the basis of their arguments, and their deliberations are constrained by the judge's instructions, which focus them to discuss only certain issues.
Chapter Summary
Our legal system relies on the principles of ethical persuasion in order to enact the principles of justice and equality. Today's courts operate within a mediated environment that creates visually-oriented jurors, leads to extensive pre-trial publicity much of the time, and creates expectations about the legal system for its participants.
Communication scholars W. Lance Bennett and Martha Feldman argue that we can understand courtroom persuasion and jury decision-making by using a storytelling theory. Their argument is that stories provide a context for what the evidence and testimony means and that jurors use everyday forms of argument analysis in deciding upon a verdict. Bennett and Feldman explain that three processes occur in the storytelling process: identifying a central action, interpreting the action, and evaluating the interpretation of the story.
Like other persuaders we have studied, attorneys perform audience analysis to better understand juries. A litigation intelligence survey probes the attitudes of potential jurors to help an attorney decide on trial strategy and whether the case should be settled. Jury questionnaires identify the demographic attributes and attitudes of jurors who have been called to jury duty. Attorneys use both audience analysis instruments in the jury selection process, which is called voir dire. The goal of voir dire is to seat a jury that is as impartial as possible. Attorneys and their consultants use jury analysis techniques to determine what arguments will persuade the jury. In some cases, focus groups are used to gain more information about what should be the attorney's persuasive strategy.
Attorneys are increasingly using images in trials. Attorneys use static images, such as photographs, charts and illustrations. Animations are computer renditions of events, while simulations are computer-generated recreations of actual events. Images gain attention, prove a past event, and state what cannot be said. Attorneys and witnesses use appropriate language and nonverbal behaviors to show that they are credible.
The presentation of the case itself involves a case theme, which is the essence of the story told by counsel. The theme is memorable, consistent with the evidence, implies a strong causal relationship, and is in tune with the juror's sense of justice. The case theme is introduced during voir dire, presented in opening arguments, demonstrated through the evidence, and reinforced during closing arguments.
The trial consists of opening arguments, presentation of evidence, examination of witnesses, and closing arguments. Opening arguments allow the attorney to get acquainted with the jury, while telling them a story about the case. Evidence is either testimonial or nontestimonial and is seen by many researchers as the most important part of the case. Attorneys engage witnesses in direct and cross-examination, attempting to prove facts relevant to their case. In closing arguments, the attorney relates the facts of the case to the case theme, telling a convincing story that jurors will consider in deliberations.
As jurors deliberate, they use arguments to defend their own stories about what happened. Researchers have found that jurors are heavily persuaded by attorney and witness credibility, with likability the most significant factor.