The bias beneath: Uncovering juror bias in sexual assault cases
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
www.plaintiffmagazine.com
JUNE 2010
The bias beneath: Uncovering
juror bias in sexual assault cases
Seven types of juror biases:
Uncovering and dealing with them
WILLIAM S. FRIEDLANDER AND field of social psychology to use in voir asking for it/he’s a nice looking guy/
dire and trial strategy in order to identify doesn’t look like a rapist) and a predispo-
ALEXANDRA RUDOLPH and move jurors past the underlying bi- sition to blame the victim3.
[Ed. Note: This article was originally pre- ases they hold.
Uncovering juror biases in
sented by the authors at the 2009 meet- These susceptibilities include the voir dire
ing of the National Crime Victims Bar “availability” bias, the “confirmation”
bias, the “belief persistence” bias, the Voir dire is the time to begin to edu-
Association Meeting. It is reprinted with
“norm” bias, the accountability or re- cate jurors and dispel salient myths and
their permission.]
sponsibility bias, and the processes of stereotypes regarding sexual assault in-
You are called to represent a woman who “defensive attribution,” “fundamental at- cluding: consent, resistance, reporting,
was raped in the stairwell of her apartment tribution” and “just world” thinking. false accusations, absence of witnesses,
building at 2:00 a.m. She is barely 22, never What follows is a brief synopsis of each of absence of evidence of injury. Questions
finished high school and works as a cocktail these mechanisms, the way it impinges regarding juror expectations of assailants,
waitress in a seedy bar. Her attacker is a col- on juror understanding or decision-mak- victims, false accusations, responses to
lege student who frequents the establishment ing, and its lessons for jury voir dire and bullying, and persuasive evidence can
regularly. The management company for the trial preparation, particularly in cases of help jurors shed stereotypes and articu-
building knew the stairwell was poorly lit and sexual assault implicating third-party cul- late appropriate standards of behavior.
several tenants requested that the building in- pability. Expert consultation or evaluation can
stall additional lights as a safety precaution shape the case to dispel the myths (provo-
after a robbery. Witnesses testify and your Juror bias in sexual assault cation, resistance, outcry, prompt report-
cases
client admits that she had a gin and tonic after ing, false accusation, assumption of risk,
her shift but maintains that she was not drunk. Wise counsel will try to harness or lack of witnesses, lack of injury) attached
You are bringing a case against the landlord, subvert the biases, using voir dire to tap to sexual assault, and/or to identify the
claiming that they knew the stairwell was dan- into jurors’ conscious and unconscious defendant’s patterns of behavior or show
gerous but did not take adequate measures to decision-making processes. In order to ef- that standards of care were not met.
protect tenants. fectively diffuse biases, one must be famil- Voir Dire questions: Juror expectations &
How will you convince a jury that the iar and able to draw them out of potential preconceived notions in SA litigation
landlord is to blame when she was raped jurors. Effective voir dire not only identi- • How do you think a person would act if
by a good-looking assailant? How do you fies the usual excludable biases (consan- they falsely accused someone of rape or
show the landlord could have reasonably guinity, affinity, employment or other sexual assault?
foreseen a third party’s criminal act? How close relationship to a party, inability to • Has anyone had the experience of
do you prevent jurors from blaming the be fair or familiarity with the case) but being bullied at school? Did you report
victim? What hidden biases do they bring? addresses biases which jurors themselves it? Why? Why not?
And how does that impact their view of may be unaware of or unwilling to ac- • Have you ever had to tell other people
the case? How do you uncover predisposi- knowledge.1,2 about a traumatic, painful or humiliating
tions that present challenges to your case? In sexual assault cases, such biases experience that happened to you? Tell
In response to these prevalent biases, include: suspicion of plaintiffs, myths re- me about that. How did you feel?
trial attorneys and jury consultants have garding perpetrators and victims of sex- • When I say the word, “rapist,” what im-
increasingly drawn on insights from the ual assault (she wore a short skirt and was ages come to mind? Tell me about that.
Copyright © 2010 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com 1www.plaintiffmagazine.com
JUNE 2010
• What evidence would you need or like vated to hold the plaintiff to a higher The law says that I only have to
to see in sexual assault cases? standard of accountability and focus their prove my case 51 percent to win. That’s
• Would the victim’s testimony be enough attention on the plaintiff ’s choices or be- it. Fifty-one percent.
or would you require more evidence? havior rather than the defendants. Jurors How do you feel about that? Who
What kind of evidence? holding this bias are suspicious of the thinks that you would probably need a lit-
• If you only had her word and no “hard plaintiffs’ motives, quick to assume the tle more proof? How sure would you need
evidence,” how would that impact the way lawsuit is frivolous and require a high to be? Give me an approximate percent.
you view the case? burden of proof. They are strong defense
jurors and their perception of the case Juror predispositions: Mono-
Reframing case to causality heuristic
can be described as “guilty until proven
accommodate juror
predispositions innocent”– not “innocent until proven In cases where sexual assault impli-
guilty.”4 cates a third party, like the landlord of
Trial counsel can make use of voir In sexual assault cases, the suspicion premises where an assault occurred, gen-
dire, not only to uncover the pre-existing bias is likely to be reinforced through der biases and acceptance of myths about
norms against which jurors are assessing powerful visceral responses to the plain- sex crimes may be compounded by an-
the conduct of victim and perpetrator, tiff ’s case and based on the jurors’ own other bias which psychologists call the
but to explore alternative norms that may prejudices. Variables such as racial or “monocausality heuristic.”
reshape jurors’ thinking about standards gender bias, belief in common myths re- The monocausality heuristic bias,
of conduct. garding perpetrators or victims, personal rather ironically, is defined by simplicity.
While voir dire can help uncover bi- similarities or psychological identification It maintains that people tend to prefer
ases, “overcoming” them is a difficult with one party or the other, or the physi- simple explanations to complex ones and
process as they are generally deep-seated. cal attractiveness or charm of the plain- are more likely to accept a succinct singu-
The attorney must approach it as such tiff, defendant or the attorneys impact lar story that appeals to their sense of
and craft a trial strategy that takes biases how each juror views the case. logic over a complicated one, even if it is
into consideration. Instead of seeking to The most effective way to identify ju- the best answer. As a result, they are re-
change a juror’s mind about a long-stand- rors with suspicion bias is to create a safe sistant to accept that an event may have
ing belief, the attorney must, instead, re- environment in voir dire that encourages multiple causes or may be caused by mul-
frame arguments and show the juror why jurors to share negative information and tiple parties because it is difficult to un-
this case is different. ask them how they feel about lawsuits and derstand.
people that file them. Social science research on jurors’ de-
Juror predispositions:
Suspicion bias Positively reinforce negative informa- cision-making shows, and trial attorneys
tion and use it as a platform to hear from know, that jurors with a monocausality
Understanding juror bias begins with other jurors. Remind prospective jurors heuristic bias are difficult to detect in voir
recognizing that there is widespread sus- that they are under oath and ask short, dire5. Lawyers should expect jurors to
picion against plaintiffs and plaintiff open-ended questions that do not imply hold this bias and craft a case story that
lawyers. The media provides fodder for the “right” answer. caters to it. Find a simple case story that
such distrust, often featuring scandalous Voir Dire questions: Suspicion bias makes sense and flesh it out with detail.
cases and reporting outlandish jury • My brother thinks that people who sue Presenting evidence without providing a
awards that affirm the negative plaintiff companies are trying to win the “litiga- context complicates the case. Spoon-feed
stereotypes. tion lotto.” information to jurors using laymen’s
The suspicion bias stems from several My wife, on the other hand, believes terms, preferably using the same language
assumptions or presumptions people most people have a legitimate reason for that mock jurors did if the case was tested
generally have about plaintiffs, namely: filing a lawsuit. in a mock trial. Graphics simplify com-
they are too quick to sue, have ulterior What do you think? Are you more plex information and should be utilized to
motivations, blame someone else for their like my brother or my wife?” keep jurors, and lawyers, focused on key
own irresponsibility, are trying to win the • A lot of people I know think corpora- case elements.
“litigation lotto,” or that their suit will pe- tions are sued because they have “deep
nalize or “tax” the jurors’ own pocket- pockets”. Juror predispositions:
books by increasing costs, such as health Who agrees? Tell me more about Availability bias
care. that. The availability bias contends that
Jurors predisposed to suspicion bias • In a civil lawsuit the burden of proof is whatever occupies the jurors’ attention
are defense-orientated. They are moti- different than in criminal cases. during trial will receive disproportionate
Copyright © 2010 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com 2www.plaintiffmagazine.com
JUNE 2010
focus in deliberations. Otherwise stated, Voir Dire questions: Availability bias ity or a company’s failure to adhere to the
jurors will use the information available • Has anyone heard of the term “date standard of care is compelling to jurors be-
to them to find fault with a party. If the rape”? How would you describe it? cause they are already primed to believe
plaintiff is the central character, they have • Is anyone familiar with the concept of corporations are driven by profits and will
more information on his/her actions, thus “consent”? What is it? cut corners to save money. By identifying a
more opportunity to find fault. • Have you ever had an experience where theme that coincides with the lens they see
Jurors filter information in a way that you felt fear or shame? the world through, jurors are naturally in-
attributes fault, and jury research suggests • Is anyone familiar with the concept of clined to favor that side because it con-
that the first story presented is subject to “standard of care”? In your own words, firms what they already “know.”
the heaviest scrutiny as well as given tell me what it means. Again, this is a particular challenge
greater weight in deliberations. Jurors are • Do you believe events can have more in cases of sexual assault, where generic
more likely to focus on inconsistencies, than one cause? biases against plaintiffs are compounded
patterns of behavior or deviations from • What do you think about large corpora- by gender and sex-role prejudices, com-
“normal” conduct in the first scenario. tions? mon myths about sex crime perpetrators
When they hear the second story, jurors • Some people believe that companies and victims, and a preference for a sim-
are already trying to reconcile information put profits over safety while others think ple, or monocausal, explanation. While it
and determine “what really happened.” they are an important part of the commu- is possible to appeal to their sense of cor-
When the plaintiff ’s story is told nity. What do you think? porate responsibility by showing devia-
first, the focus is on what the plaintiff did tions from the standard of care or
wrong. This allows jurors to judge the vic- Juror predispositions: promoting deterrence, lawyers may find
Confirmation bias
tim’s decisions leading up to the assault, it more helpful to test individual cases in
such as, her decision to drive home late The confirmation bias asserts that ju- a mock trial focus group. This enables the
at night or take the staircase in the apart- rors tend to search for evidence that con- trial team to see how mock jurors react to
ment building rather than the elevator. firms their beliefs and tend to scrutinize the case, which values they identify with,
Conversely, when defendant’s actions are or disregard evidence which does not fit the language they use, themes that res-
highlighted, it’s easier to identify faults with prior beliefs. When presented with onate, landmines in the case and argu-
and draw a causal connection between ambiguous evidence, jurors tend to inter- ments that are most compelling8.
the defendant and the crime6. In sexual pret it in a way that is consistent with
assault cases, the third party had the abil- what they already think or retrofit infor- Juror predispositions:
Belief persistence bias
ity to foresee potential hazards but failed mation to support their decision. They
to take any preventative action. Warning tend to search for evidence that confirms The “belief persistence” bias involves
signs are most effective when they estab- prior beliefs, interpret ambiguous evi- jurors’ tendency to cling to an initial
lish a pattern of behavior and can include dence in line with beliefs, question or dis- story, particularly one consistent with
a history of multiple crimes on the prem- regard evidence that does not fit with their underlying beliefs, despite contradic-
ises, frequent police calls, a refusal to in- prior beliefs. Studies show that jurors are tory evidence.
stall door buzzers, video cameras or a more likely to remember evidence that ei- Jurors do not report to jury duty as a
key-operated garage door despite re- ther confirms their prior beliefs or clearly “tabula rosa” or blank slate. They filter
quests from residents to incorporate these shows a party’s blameworthiness by devi- information through their own life expe-
safety measures. ating from them. riences, paradigms and prior knowledge.
In the case of sexual abuse, the avail- The lawyer’s goal is to show the jury An important caveat to note is that prior
ability bias may be diffused by frequently that the defendant’s conduct was out of “knowledge” can be factually incorrect. For
repeating key words or themes the attor- line with their beliefs and the plaintiff ’s example, everyone “knows” that bigger
ney wants jurors to adopt and begins in behavior is consistent with them. lumps in breast tissue are more danger-
voir dire. Conversation with potential ju- Confirmation bias thus speaks to the ous than small lumps. In fact, this is com-
rors about the themes and issues of the framing of the case – finding a theme or pletely false. A lump can be sizable but
case during jury selection highlights es- paradigm that is consistent with jurors’ benign while smaller lumps are danger-
sential language, paradigms and norms values and taps into their predisposed atti- ous. When presented with conflicting evi-
which focus on the defendants’ failure to tudes. For example, anti-corporate senti- dence, jurors rely on what they “know to
take action. Before the trial starts, the ment is a commonly held bias. Most be true” to make decisions. Lawyers must
lawyer can tap into the availability heuristic people are willing to believe that a com- be aware of such common beliefs in order
and reframe the case in a manner which pany puts profits over safety. Therefore, a to properly dispel them or use it to their
is beneficial to him.7 theme that involves corporate responsibil- advantage.
Copyright © 2010 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com 3www.plaintiffmagazine.com
JUNE 2010
The belief persistence bias invites coun- Voir Dire questions: “Norm” bias is seen as, the more he or she is blamed
sel to put forward strong themes and a • When you envision a rapist, what men- for causing the harm.
strong case story early in the trial process tal image comes to mind? Can you de- In sexual assault cases, jurors use the
so that jurors are primed to latch onto ev- scribe it? responsibility bias to blame the victim
idence that validate their beliefs and • How would you expect a rapist to act? twice. First, because she is seeking recom-
downplay ambiguities or inconsistencies9. Look? What would you expect his life to pense from the defendant or defendants
be like? and shirking responsibility for her own
Juror predispositions: • How would you feel if you were told the conduct and, second, because they as-
“Norm” bias victim was an alcoholic? For some people, sume her conduct was irresponsible and
The “norm” bias can be defined as the it would drastically change the way they somehow invited assault. Because the vic-
tendency to attribute blame and causa- feel about the case, and they would be tim is doubly blame-worthy, jurors are
tion to behavior that is considered abnor- more likely to find for the defense. For able to gloss over the defendant’s culpa-
mal. It often involves the conscious or others, it does not matter. How do you ble conduct.
unconscious positing of counterfactual feel? In dealing with the responsibility
scenarios. If only “X” had been different, • What about if I told you that the victim bias, trial counsel’s task is to frame the
the outcome would have been different. was dressed in a very short skirt and not story in a way that paints the plaintiff as
Research shows that jurors search the evi- wearing pantyhose? Does that impact responsible and the defendant as irresponsi-
dence for the “X” that caused the injury how you view the case? How? ble. To glean insight into the plaintiff ’s
and conduct that deviates from the norm • If I told you that the victim had an ex- adherence to norms of responsibility, ask
is often linked with causation. The more tensive list of sexual partners, does that about their responsibilities and the deci-
deviant the conduct, the more blamewor- change the way you view this case? Are sions they make when it is compromised
thy and causative it will be deemed. you more likely to favor her, less likely or (trust, for example, or refusing to drive
When the plaintiff ’s story is told first, does it not matter to you? after drinking).
jurors focus their normative or counter- • Would you be able to hold a corpora- Voir Dire questions: Responsibility or ac-
factual scrutiny on the plaintiff ’s conduct tion, a landlord or an employer to the countability bias
with predictable results. The plaintiff ’s same standard of care as an individual? • In your life, what are you responsible
perceived risk-taking behavior (going to An effective way to use the norm for? (home, work, finances, etc)
the bar, wearing a short skirt, trusting an bias in an advantageous way is to juxta- • Who are you accountable to?
acquaintance to drive her home) will be pose the “normal” behavior of the plain- • If I were to ask your (husband, wife,
perceived as a cause or contributing factor tiff against the erratic conduct of the brother, best friend) how safe you are,
to the injury. In contrast, the defendant’s defense. Highlighting inconsistencies, what would they say?
conduct will be given relatively scant at- deviations in the defendant’s conduct or • When it comes to a tenant and land-
tention by virtue of the sequence of infor- showing what the defendant could have lord, who do you think is more responsi-
mation presented. This shows how both done differently is persuasive. In the ble for safety? Assign a percentage to
the availability bias and belief persistence case of third-party defendants, norm each party.
bias can work in harmony to retrofit infor- bias invites plaintiff ’s counsel to look
mation in a manner that supports pre-ex- for the simple precautions defendants Juror predispositions:
could have taken – lighting, security, a Defensive and fundamental
isting beliefs10.
check-in/check-out policy – but failed to attribution bias
In sexual assault cases, jurors’ ideas
of what is considered “normal” are often do which decreased safety. This enables The “defensive attribution” bias is the
shaped by societal myths regarding the jurors to focus on the defendant’s lapses tendency to blame the victim for acts of
perpetrators and victims of sex crimes. and failures of reasonable care instead omission or commission when the con-
For instance, the myth that the perpetra- of what the plaintiff did or failed to duct is uncomfortably close to the con-
tor had an uncontrollable sex urge or that do11. duct or vulnerability of the juror assessing
the victim’s resistance was reasonable. the case. As a coping mechanism, the
When a plaintiff dresses or conducts her- Juror predispositions: juror distances herself from the victim’s
Responsibility or accountability injuries or risk of injury.
self in a way to “invite” advances, fails to
bias
resist or does not promptly file a com- This serves to protect a juror’s belief
plaint, the norm bias leads the jurors to The responsibility or accountability bias in a safe, just or predictable world and blame
blame the victim and forecloses inquiry assesses blame and causation against the individuals rather than circumstances. By
into the culpable conduct of the perpetra- party who is perceived as shirking respon- assigning fault to the victim through her
tor or other parties. sibility. The more irresponsible the party characteristics or decisions instead of situ-
Copyright © 2010 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com 4www.plaintiffmagazine.com
JUNE 2010
ations, jurors can take comfort that the the victim. Entrusting the future safety of for prospective jurors to respond more
harm could never happen to them. These the community to jurors is far more com- accurately and completely, especially
mechanisms allow jurors to believe that pelling than cultivating sympathy for the when coupled with assurances that their
the victim “asked for it” so as to minimize plaintiff. responses will be kept confidential.14
the threat that there may be criminal de- However, lawyers should not count In voir dire, many jurors feel social
pravity or danger lurking in familiar situ- on being able to bypass these biases. pressures to give the politically correct re-
ations12. It is too frightening to think that They should expect that blaming the vic- sponse in order to maintain an unbiased
this event could happen to them; there- tim will be part of jurors’ discussion in image or avoid shame often associated
fore, jurors make a point of finding some- deliberation and prepare accordingly. with being sexually victimized. A written
thing the plaintiff did that they wouldn’t Focus group research can help determine questionnaire allows the jurors to express
have done to protect themselves from the what juror life experiences will exacerbate their true feelings or experiences in a
possibility that the harm could have hap- or dissipate biases, what language and more confidential manner, allowing for
pened to them. rules will be well-received by the jury.13 more candid responses.15
Women serving as jurors in sexual as- In trial, the victim must tackle biases Use of supplemental juror question-
sault cases are particularly prone to the de- head-on in her direct examination and naires is highly recommended for sexual
fensive attribution and just world bias. In answer questions jurors are likely to ask assault cases. Questionnaires provide ju-
sexual assault cases, defensive attribution such as: Why were you out so late at rors a safe outlet to share highly sensitive
makes women similar to the victim (age, night? Why didn’t you call the police? personal information and protect their
demographics, background, physical char- Why did you get into a car with a man privacy. Victims of sexual assault may un-
acteristics, etc) the least desirable jurors you just met? Knowing which judgments knowingly expose themselves to harm by
for the plaintiff. Instead of relating to the jurors are likely to hold in a particular failing to disclose their previous experi-
plaintiff, women distance themselves from case through the use of focus group re- ence. Although sexual assault victims are
her to preserve their own sense of safety. search allows the attorney to have a re- favorable jurors for the plaintiff, reliving
However, even jurors that are widely dis- sponse ready at trial. the experience could re-traumatize the
similar from the victim may utilize psycho- Suspicion of the plaintiff, tendencies juror and trigger PTSD symptoms in trial.
logical mechanisms such as the to blame the victim and assume that she
“fundamental attribution” error or the is irresponsible can be offset by showing Witness preparation: Victims
of sexual assault
“just world” defense to blame the victim. she carried out responsibilities in her
Personal experience, not demo- workplace, home or through family and Witness preparation is essential to
graphics, is the most predictive method community involvement. By investigating credibility, whether the witness is the
to evaluate which side a juror is likely to the defendant’s history, it is possible to plaintiff or an expert. The plaintiff ’s
favor. For example, not all women are uncover choices and deviation from nor- truthfulness, clarity, and appropriate
strong defense jurors. Those who have mal patterns of behavior such as, a land- emotion should be made evident to the
been assaulted themselves and felt lord’s or employer’s violations of jury. She should provide significant de-
blamed for it or had special training in regulations, protocols, or standards of tails of her life and persuasive and consis-
this area are sympathetic towards victims care, which allow the jury to scrutinize de- tent details regarding the incident.
of sexual assault. fendant’s conduct, choices and intent. As with all witnesses, the victim
Counsel might be able to bypass de- should understand that her non-verbal
fensive attribution, fundamental attribu- Use of supplemental juror behavior also weighs with the jury and
questionnaires (SJQ)
tion, and “just world” biases by focusing, that she can help control her nervousness
not on the plaintiff ’s story or injuries Supplemental juror questionnaires by attending to factors such as dress, pos-
(however sympathetic these may appear), increase juror candor, decrease jury con- ture, mannerisms, tone of voice, and sin-
but on the defendant’s conduct. By violat- tamination and assist in the selection of cere expression of emotion. Although
ing the law or not meeting the standard fair and impartial jury. Written answers to jurors can be asked, in voir dire, to imag-
of care, the defendant put the plaintiff, as sensitive issues are more amenable to ine the plaintiff ’s (or any witness’s) nerv-
well as all other people in the plaintiff ’s confidentiality orders than oral responses ousness or hesitancy to discuss intimate
position, at risk. In cases that involve to questions in an open and crowded matters, they expect witnesses to be pre-
third-party responsibility, it is important courtroom. Whereas the pressure of a pared and can be unforgiving or quick to
to reframe the case in a way that appeals courtroom situation might lead a poten- judge a witness who stumbles in her re-
to the jurors’ sense of fairness and em- tial juror to give an inaccurate or incom- sponses or is evasive.
powers them to make decisions for the plete response to a voir dire question, the While testifying is a stressful experi-
greater good, not simply for or against questionnaire provides an opportunity ence for anyone, it can be traumatizing for
Copyright © 2010 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com 5www.plaintiffmagazine.com
JUNE 2010
sexual assault victims. Victims of sexual as- • Ask questions in present tense and offer mend the use of focus groups to identify
sault have to openly share deeply personal prompts (direct) case strengths, weaknesses and biases. As
and often shaming information with a • DO NOT conduct mock cross- in all personal injury cases, mastery of
group of strangers whose purpose is to examination fact is key to understand the way the ju-
judge her. Therefore, it is extremely im- Ask partner or another lawyer to rors react to the case and to dispel ram-
portant to have a mental health profes- conduct the mock cross-examination. pant biases jurors may have against
sional present. If she has a therapist, see if Even as a witness preparation exercise, plaintiffs and plaintiffs’ counsel17.
the therapist can help prepare the victim victim should never view attorney as an William S. Friedlander practices in
to testify and offer coping strategies for adversary Ithaca, NY. He is an active member of AAJ
anxiety. Lawyers often don’t realize how Example direct-examination questions: and currently serves as the AAJ Chair of
traumatizing it can be for a victim to talk SA victim the Small Firm and Solo Practice Section.
about being sexually violated and should • “It is May 10th 2004. You are walking He co-founded the AAJ Schools-Violence,
plan multiple witness preparation sessions out of the restaurant towards your car. Misconduct, and Safety Litigation Group,
to allow time for stress-related setbacks. Tell the jury what happens next.” and he is a past chair of AAJ Firearms and
One way a lawyer can prepare the • “Now you are on the ground looking Ammunition Litigation. He is admitted to
victim to testify is by asking her to write for your keys. What happens next?” practice in New York, Pennsylvania and
out her narrative of what happened that Florida. He can be reached at
Conclusion
night, as if it is happening in the present wsf@friedlanderlaw.com.
tense. Include as many sensory details as The psychological biases and mecha- Alexandra Rudolph, M.S. is a
possible. What did she see? What did she nisms discussed above are unlikely to be trial consultant, headquartered in
hear? Could she smell anything? This articulated, much less eliminated, during New York City. She can be reached at
helps her hone the details of what hap- voir dire. Many elements of the plaintiff ’s alexandrarudolph@mac.com.
pened that night, and details spawn cred- case can be primed in voir dire which al-
References:
ibility. Telling the story in the present lows biases of availability, confirmation,
tense makes it more powerful and helps norm-identification, responsibility, and 1
The wide range of issues determined by a jury assessment
attribution to work in plaintiff ’s favor. of “reasonableness” or proportionality makes juror bias of
jurors picture the event happening in special concern in civil cases. See, Arthur H. Patterson and
their own minds. Ask questions in present Reframing the case early on and intro- Nancy L. Neufer, “Symposium: Juries: Arbiters or Arbitrary?
tense during direct-examination and ducing themes invites jurors to hold the Redefining the Role of the Jury: Removing Juror Bias by Ap-
transition the witness. defendants accountable for violation of plying Psychology to Challenges for Cause,” 7 Cornell J. L. &
Pub. Pol’y 97 (Fall 1997), James H. Underwood et al., “Demo-
Witness preparation for SA victims standards and empowers them to restore graphics in Civil Trials: Biases and Implications,” Journal of
• Schedule multiple sessions safety to the community. Business & Economic Research, vol. 7, no. 2, p. 33-42 (Feb-
Builds rapport between lawyer & client Theme development and story fram- ruary 2009).
• Retelling/reliving event could be trau- ing should begin long before trial and is an 2 While trial literature often refers to these habits of thought as
matic → go slow ongoing process that starts with case infor- “biases,” the literature of social psychology from which they
• Enlist help of her therapist or mental mation and follows through when witnesses are drawn often identifies them as “heuristics,” or common
are interviewed, discovery requests are pre- problem-solving strategies or shortcuts that often lead deci-
health counselor
sion-makers to reach false conclusions. For ease of under-
Include therapist in witness prepara- pared, responses are analyzed and focus standing, this paper will continue to use the familiar term
tion sessions groups are conducted. An early theme that “bias,” although it should be recognized that the “bias model”
Therapist should be in courtroom for addresses jurors’ stereotypes, biases, or can unwittingly serve to perpetuate a negative frame for the
plaintiff’s case, and thus to perpetuate suspicion against plain-
direct and cross-examination habits of thoughts by focusing on defen- tiff’s case and plaintiff’s counsel. See, David Wenner, Gregory
• Keep hands clasped dant’s behavior and plaintiff ’s responsibil- S. Cusimano, “Reframing the Model,” 44 Trial 26 (March
Helps avoid fidgeting/Looks more ity, trustworthiness and positive values can 2008).
composed be used at voir dire to prime the jury to 3 See, Id.
• Make eye contact look more critically at defendant and be re-
Jurors associate avoiding eye contact ceptive to plaintiff ’s story16. 4 See, David A Wenner and Gregory S. Cusimano, “Combat-
with having “something to hide” Insights from social psychology can ing Juror Bias,” 36 Trial 30 (June 2000); Elizabeth F. Kuni-
holm, “Representing the Victim of Sexual Assault and Abuse:
• Have victim write out narrative and in- help attorneys put voir dire and juror Special Considerations and Issues,” 2 ATLA ANNUAL CON-
clude as many sensory details as possible questionnaires to effective use in uncover- FERENCE REFERENCE MATERIALS 1889 (2006), available at
• Testify in present tense and recount ing and harnessing juror bias. Research 2 Ann.2006 ATLA-CLE 1889 (Westlaw);
event in story format in social psychology strongly suggests that 5
See, Patterson, supra; Wenner/Cusimano, “Combating,”
• Details increase credibility trial preparation is essential and recom- supra; Kuniholm, supra; Lynn Hecht Schafran, Esq., “What the
Copyright © 2010 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com 6www.plaintiffmagazine.com
JUNE 2010
research about rape jurors tells us,” in Understanding Sexual litigation against third-party defendant McDonald’s; see also, 15
See, Wenner/Cusimano, “Reframing,” supra (putting a posi-
Violence: Prosecuting Adult Rape and Sexual Assault Cases, Barrett, supra. tive spin on jury bias, using concepts of loss framing and
online at http://www.mincava.umn.du/documents/ priming).
usvpros/fmanual/usvprosfmanualday3.html (downloaded 8 See, Wenner/Cusimano, “Combating,” supra, and studies 16 Barrett, supra; Kuniholm, supra; Amanda A Farahany, “Juror
4/9/09); Tom Lininger, “Is it Wrong to Sue for Rape,” 57 Duke cited therein; Lininger, supra, citing studies on juror values- Bias in Sexual Assault Cases,” Powerpoint Presentation,
L.J. 1557 (2004), n. 254-257 (citing research and legislative consistency; see also, Shari Seidman Diemod, “Essay: Be- downloaded 4/26/09.
findings that jurors particularly distrust sexual assault victims); yond Fantasy and Nightmare: A Portrait of the Jury,” 54
M. Erian et al., “Juror verdicts as a function of victim and de- Buffalo L. Rev. 717 (Dec. 2006) (also citing studies); and see, 17
Wenner/Cusimano, “Reframing,” supra.
fendant attractiveness in sexual assault cases,” Am. J. of Kuniholm, supra, suggesting focus group questions.
Forensic Psychology, vol. 16, iss. 3, p. 25-40 (1998). 18 Barrett, supra; Kuniholm, supra; Wenner/Cusimano, “Com-
9 See, Wenner/Cusimano, supra. bating,” Wenner/Cusimano, “Reframing,” supra.
6 For examples, see, Barrett, supra; Wenner/Cusimano, “Com-
bating,” supra; Neil R. Feigenson, “Legal Meaning in the Age 10 See, Feigenson, supra; Barrett, supra.
19 Barrett, supra; Kuniholm, supra; Wenner/Cusimano, “Com-
of Images: Accidents as Melodrama, 43 N.Y.L. Sch. L. Rev. bating,” supra.
741 (1999-2000), discussing trial counsel’s use of a third- 11
Barrett, supra; Feigenson, supra.
party’s back story to win a plaintiff’s verdict in Faverty v. Mc- 20 Krauss & Bonora, supra note 1, Section 2.08, at 2-44. (“Ju-
Donald’s Restaurants of Oregon, Inc., 892 P.2d 703 (Ore. Ct. 12
rors who might hesitate in the public setting of the courtroom
App. 1995), a case against the corporate employer of a young Barrett, supra. to reveal private information relevant to their jury service are
driver who fell asleep at the wheel and rammed plaintiff in a more likely to be candid in filling out a private questionnaire.”)
13 Barrett, supra; Wenner/Cusimano, “Combating,” supra;
cross-over accident after back-to-back cleaning shifts.
Feigenson, supra. 21Bigelman and Winter, Thirteenth Annual Survey Of Sixth Cir-
7
See, Feigenson, supra, discussing trial counsel’s repeated cuit Law: Federal Taxation, 1992 Det. C.L. Rev. 451, 499
use of “corporate greed” language and imagery in successful 14 Barrett, supra; Feigenson, supra; Kuniholm, supra. (Summer, 1992).
Copyright © 2010 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com 7You can also read
