In Part 1 of this blog, we discussed whether asking verdict-related questions early in a mock trial can cause a commitment effect in mock jurors, such that they are less likely to change their opinions as more evidence is presented.
Now, we’ll extend this idea into “real world” trials, because some venues allow jurors to discuss the case throughout trial, rather than instructing them to wait until deliberations. Specifically, we’ll discuss the effect this could have on jurors’ decision making, and whether one side may benefit more from those early discussions.
Allowing Juror Discussion During Trial
Although it is far from the norm, some jurisdictions – such as Arizona and Indiana, along with individual courts in New Mexico – have begun allowing jurors in civil trials to discuss the case prior to deliberations, as long as it is done with the entire jury present. Much like asking mock jurors for their verdicts at early points in a mock trial, this presents an opportunity for jurors to state their views in front of others.
Given, the jury instructions for these districts do caution that, although discussion of the case is allowed, jurors should resist reaching a conclusion until the end of trial. But is that enough? Does discussing one’s view on an ongoing trial make it more difficult to reverse that view later? What effect can these discussions have on jurors’ leanings throughout the trial?
Do Jurors Resist New Information If They Discuss the Case Early?
While scientific inquiry into how discussion during trial can affect juror decision making is rare, a study by Hannaford, Hans, and Munsterman (2000), which had one group who was allowed to discuss the trial as it proceeded and another who was not, found that jurors who were allowed to discuss the case felt that their understanding of the case was higher, were less likely to be unsure about which side they favored at the start of deliberation, and had an improved level of debate about the verdict. The study, however, did find that the prior discussions had led to higher levels of bias among jurors going into deliberations.
On the flipside, a consistent finding in persuasion research is that a public commitment to a decision makes people less likely to change their minds later (Gopinath & Nyer, 2009). By discussing the case with others, jurors are potentially indicating – in public – a preference for one side of the case. Therefore, when they are presented with new information, their previous public commitment would make them less likely to change their opinion. As the plaintiff is the first to present, jurors who discuss the case at that point in the trial have only been given a heavily slanted version of the case. According to persuasion psychology, those early discussions create more commitment to the plaintiff’s case, which could generate resistance to subsequent opposing evidence and arguments.
How Do Jurors Manage Opposing Messages?
In 1957, a social psychologist came up with a name for the internal discomfort we all feel when faced with competing attitudes and behaviors – cognitive dissonance (Festinger, 1957). Simply put, humans strive for consistency in their attitudes, decisions, and behaviors. When faced with competing attitudes (and therefore inconsistency), discomfort arises because of the dissonance, or mismatch, between the attitudes.
The classic example relates to smoking. People who smoke face two related but dissonant ideas, namely that smoking causes cancer and that they themselves smoke. If the smoker is aware that smoking causes cancer, it follows that they should not smoke. Therefore, these two ideas conflict with each other. The smoker needs to choose which attitude will “win,” and can ultimately do some fascinating mental gymnastics in order to justify smoking and downplay the known cancer risk, with the end result of eliminating that discomfort.
So how does this relate to jury decision making? Well, jurors do something like this when they make statements about their leaning to other jurors early on in trial. The interesting part comes into play after this commitment is made. Since the plaintiff and defense cases are rarely similar in their claims, jurors may be experiencing a high degree of dissonance due to the size of the attitudinal shift that would have to occur to change their initial leaning. Again, this makes it less likely that new evidence and arguments introduced after these discussions will change the jurors’ opinions to the same degree as they may have changed had the jurors refrained from an initial opinion. In fact, it is possible that the new evidence may even be unconsciously downplayed by the jurors in an effort to continue reducing that dissonance.
Strategies for Dealing with Premature Juror Decision Making
Bearing all this in mind, how can you handle the potential for jurors to make premature decisions in jurisdictions where discussion is allowed? By reminding jurors of another, greater commitment they have already made and framing the case as a story that needs to be told to the very end.
First, remind jurors in your opening statement that they made a commitment in court during voir dire to keep an open mind as the trial progresses. Emphasize what an important responsibility they have and how seriously the court takes their oath. This allows you to use the commitment effect itself to inoculate jurors against premature decision making by designating the juror’s oath as the commitment that supersedes any other public commitment they might make about the case.
Second, stress in your opening statement that jurors need to hear the whole story. If the judge allows, use examples from pop culture, such as movies or television series, where seeing additional information can totally change the viewer’s outlook on the whole story, such as The Sixth Sense or Fight Club. Not only does this give jurors an understandable example for why they should keep listening, it also motivates them to listen to the very end, just in case there is a twist no one could see coming.
Third, structure your closing statement as a story incorporating elements from the verdict form that instructs the jurors to follow the law. Again, this reinforces the idea that jurors should honor their previous commitment before the court and follow the law, rather than allow premature decisions to shape their verdict. It also closes the loop on the story idea by summarizing what the jurors have heard as a story that makes sense now that they have heard all the information.
While the complicated nature of legal cases makes it easy to jump to the conclusion that allowing jurors to discuss a case with each other throughout trial could improve their recall and understanding, the science of persuasion provides a cautionary tale. The process of decision making being what it is, allowing jurors to discuss a case as it proceeds carries a strong possibility they will be more resistant to subsequent evidence, and may likewise create a potential for bias in favor of the plaintiff’s case.
By: Katy Cook, Ph.D. – Consultant and Jill Leibold, Ph.D. – Director, Jury Research