Professional Documents
Culture Documents
I. INTRODUCTION
1.
William C. Costopoulos, Persuasion in the Courtroom, 10 DUQ. L. REV. 384 (1972), re-
printedin PSYCHOLOGY & PERSUASION IN ADVOCACY (Louis N. Massery II, ed., Association of Trial
THE COURTROOM, Ed. Norbert L. Kerr & Rober M. Bray (1982); THOMAS SANNITO & PETER J.
McGOVERN, COURTROOM PSYCHOLOGY FOR TRIAL LAWYERS (1985); L. TIMOTHY PERRIN ET AL.,
THE ART & SCIENCE OF TRIAL ADVOCACY (2003).
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II.
TECHNIQUES OF PERSUASION
It has been said that trial advocacy "requires the lawyer to engage in a
practical application of psychological knowledge, and it is the obligation
of every lawyer to succeed in doing so., 12 Through anecdotal stories presented in trial advocacy literature and personal experiences, this section
discusses various advocacy techniques and explores the scientific basis
behind them.
A.
For the trial attorney, persuasion starts with jury selection. 3 Psychologists suggest that jury selection be used as an opportunity to determine which jurors are susceptible to the attorney's influence and which
might be biased in favor of a particular attorney's argument. 14 For decades
attorneys have tried to get into the minds of potential jurors in an effort to
pick the best jury for the case. Social scientists, over the last several decades, have used their expertise in a quest to discover the perfect juror; as a
result, volumes have been written on how to select the best jury for a par-
7.
See generally Mastering the fundamentals of advocacy seminar, ALABAMA BAR INSTITUTE
FOR CONTINUING EDUCATION (2001); Jury selection: who to strike and how to do it presented in a
dynamic format, ALABAMA BAR INSTITUTE FOR CONTINUING EDUCATION (2001).
8.
Gold, supra note 3, at 482.
9.
Gold, supra note 3, at 482-483.
10.
See generallyGold, supra note 3.
11.
Id.
12.
ROBERTO ARON & JONATHAN L. ROSNER, How TO PREPARE WITNESSES FOR TRIAL 2d.
20051
Science of Persuasion
ticular case.' 5 This section does not purport to be a compendium of knowledge on scientific jury selection; rather, it serves to help the reader understand that persuasion in the courtroom starts with picking the right jury.
Many attorneys begin the voir dire process with stereotypes and general assumptions about groups of people in an effort to distill the mountain
of uncertainties posed by the jury pool. For example, in personal injury
cases, attorneys often assume that more liberally minded people will tend
to favor the plaintiff and more conservative minded people will tend to
favor the defense. 16 From the plaintiff's perspective, attorneys generally
do not consider middle to upper class white men and women, especially
business owners, as "good" jurors for personal injury suits. 7 Clarence
Darrow once weighed in on jury selection saying, "[i]f a Presbyterian
enters the jury box, carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is as cold as the grave; he knows right
from wrong, although he seldom finds anything right .... Get rid of him.
. . before he contaminates the others."18 Another factor commonly thought
to have bearing on jurors' attitudes and predispositions is body shape. It
was generally thought that taller, skinnier people were conservative, and
larger more obese persons were friendlier and more likely to award damages. 19 Prior to scientific jury selection, these are the types of "hit or
miss" generalizations and stereotyping that occurred. 20 The process of jury
selection has been an especially uncertain endeavor; although social scientists have not completely eliminated uncertainty, scientific research has
likely decreased the uncertainty surrounding jury selection.2'
Attorneys have been known to consult U.S. Census Bureau information on the demographics of a particular venue to determine the chances of
15.
See generally JEFFEREY T. FREDERICK, AM. BAR ASS'N, MASTERING VOIR DIRE AND JURY
SELECTION: GAINING AN EDGE IN QUESTIONING AND SELECTING A JURY (1995); ANN FAGAN
GINGER, JURY SELECTION IN CIVIL AND CRIMINAL TRIALS (2004); JAMES J. GOBERT & WALTER E.
JORDAN, JURY SELECTION: THE LAW, ART, AND SCIENCE OF SELECTING A JURY (2005); WARD
WAGNER, JR., ART OF ADVOCACY: JURY SELECTION (1986).
16.
In the author's experience many attorneys make assumptions about jurors based on the jurors'
political preferences. In many cases, lawyers make assumptions about a juror's political preference
merely on the physical appearance of the juror. For example, men with long hair, tattoos or ear rings,
are sometimes assumed to be politically liberal.
17.
WAGNER, supra note 15, 1.04[8].
18.
Janeen Kerper, The Art and Ethics of Jury Selection, 24 AM. J. TRIAL ADVOC. 1, 1 (2000)
(citing Clarence Darrow, Selecting a Jury, ESQUIRE MAG. (1936)).
19.
WAGNER, supra note 15, 1.04[3][g].
20.
See DONALD E. VINSON, JURY PERSUASION: PSYCHOLOGICAL STRATEGIES AND TRIAL
TECHNIQUES 132-34 (1993). Vinson mentions various jury selection myths such as "women with thin
lips will help a plaintiff ... highly educated jurors are better in complex cases . . . [and] widows
award high punitive damages." Id. He suggests that these myths lead to errors in judgment. Id The
author is aware of a lawsuit where a female plaintiff broke her pelvis in nine places as a result of a
collision with a tractor trailer truck. Because of the severity of her injuries she was unable to ever be
intimate with her husband. The plaintiffs attorney in that case thought he needed as many young
married persons on the jury as possible.
21.
See sources cited supra note 15.
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22.
See United States Census Bureau, available at www.census.gov (last visited Mar. 19, 2005).
23.
In his discussions with members of the Bar, the author has learned that some attorneys employ this practice.
24.
According to attorneys with whom the author has spoken, the attorneys who investigate jurors
in this way find such information quite relevant and helpful during the jury selection process.
25.
VALERIE P.
Jury Selection,
29.
30.
31.
32.
33.
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2005]
34.
Lisa A. Blue & Robert B. Hirschhorn, Goals and Practical Tips For Voir Dire, 26 AM. J.
TRIAL ADVOC. 233, 241 (2002).
35.
Id.
36.
Id.
37.
Id.
38.
Id. at 239-240.
39.
Id. at 252. It is important for attorneys to appear credible because people who are perceived
as credible are generally more persuasive than those that are not credible. See infra note 159 and
accompanying text.
40.
Id.
41.
Id.
[Vol. 29
John M. Conley et al., The Power ofLanguage: PresentationalStyles in the Courtroom, 1978
(1987).
44.
A summary of this research can be found in O'BARR & LIND, Ethnographyand Experimentation: Partnersin Legal Research, in THE TRIAL PROCESS, VOL. 2 OF PERSPECTIVES IN LAW AND
PSYCHOLOGY 181-207 (B. Sales ed., 1981); see also COMMUNICATION, supra note 6, at 15.06; John
M. Conley, Languagein the Courtroom, TRIAL, September 1979, at 32.
45.
SANNITO & McGOVERN, supra note 6, at 5.35; Lubet, supra note 2, 325.
46.
Id.;
see also Celia W. Childress, The Trial Lawyer's Persuasive Speaking Voice, 81 AM.
JUR. TRIALS 317 25.
47.
FREDERICK, supra note 43, at 169; Conley et al., supra note 42, at 1380; JEFFERY L.
KESTLER, QUESTIONING TECHNIQUES AND TACTICS (3rd. ed. 1999) 9:56.
48.
49.
Conley
50.
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MICHAEL J. SAKS & REID HASTIE, SOCIAL PSYCHOLOGY IN COURT 114 (1978).
58.
Gold, supra note 3, at 485 (citing W. O'BARR, LINGUISTIC EVIDENCE, LANGUAGE, POWER
AND STRATEGY IN THE COURTROOM 71-75 (1982)).
59.
Id. (citing O'BARR, supra note 58, at 94-96).
60.
FREDERICK, supra note 43, at 171; Conley et al., supra note 42, at 1395.
61.
Lubet, supra note 2, at 334.
62.
Id.
63.
Lubet, supranote 2, at 334-35.
[Vol. 29
unreliable to a jury. 64 Nouns and verbs are not generally subjective; they
suggest something about the event or action itself.65 Consider a situation
where an attorney states that an accident was a horrendous, gruesome,
terrible, deadly, awful accident. The use of these, although vivid, descriptors is a subjective judgment.66 In contrast, consider where an attorney
describes the accident in these terms: "the roof of the car was smashed in
on top of the driver; blood dripped down the side of the car door, splattered on the grass and soaked into the dirt; the front wheels and hood of
the car were ripped off during the plunge down the ravine." These noun
and verb combinations-roof, smashed; blood, dripped; splattered, grass;
soaked, dirt; wheels and hood, ripped-provide a more concrete description of the accident. The roof of the car can either be smashed in or not;
however, that the accident was terrible, could mean different things to
different people. The jury is more likely to find the noun/verb description
concrete and dependable.67
Further, defense attorneys will generally refer to an event as an accident, while plaintiff's attorneys will generally refer to the same event as a
tragedy or horrific crash. 68 In a series of studies conducted by psychologists, subjects were shown a film of a vehicle accident and asked to estimate the speed of the vehicle on impact. 69 The study used different verbs
to describe the accident and found that the estimates varied depending on
word choice. 70 Witness estimates were found to be higher when the subjects were asked how fast the vehicle was going when the vehicle
"smashed" into the other vehicle. 7 1 Estimates were lower when the question was phrased such that the vehicle "contacted" the other vehicle.72
A defense attorney, particularly in criminal cases, can gain an advantage by making the meaning of the evidence vague or unclear. One study
suggests that criminal defense attorneys can increase their chances of an
acquittal by using "abstract or vague language. ,73 Further, the study stated
that successful defense attorneys used fewer adverbs. Adverbs tend to increase specificity; thus, a decrease in the use of adverbs increases vague-
64.
65.
66.
67.
Id. at 335.
Id.
Id. at 334-35.
Id.;See also Michael G. Parkinson & L. Marie Parkinson, Speech Tactics for Successful
Trials, TRIAL, Sept. 1979, at 36.
68.
Richard H. Underwood, Logic and the Common Law Trial, 18 AM. J. TRIAL ADVOc. 151
(1994), at 187; Theodore I. Koskoff, Words & Action: Convincing the Jury, in PSYCHOLOGY &
PERSUASION IN ADVOCACY 334, 350-51 (Louis N. Massery II, ed., Ass'n of Trial Lawyers of Am.,
1978).
69.
SAKS & HASTIE, supra note 57, at 115.
70.
Id.
71.
Id.
72.
Id.
73.
Parkinson & Parkinson, supra note 67, at 36.
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20051
ness. 74 Because the burden of proof in criminal trials is high, the defendant
should be acquitted if the jury is confused.75
One successful trial attorney stated that one would be a fool if he did
not prepare his witness before trial or depositions.7 6 Social scientists have
uncovered two traits that stand-out as indicators of truthfulness: certainty
and detail .77 Preparing a witness before a deposition or trial, giving particular attention to certainty and detail can have a considerable impact on a
witness's credibility. Even witnesses that are confident and certain about
their conduct or observations may appear surprised or uncertain upon
hearing a question for the first time at trial.78 Some have stated that an
attorney would be well-advised to inform the witness of the topics to be
covered in both direct-examination and cross-examination. 79
A command of detail has been found to increases credibility.8 Studies
suggest that assumptions of witness credibility were made on the basis of
the level of detail the witness reported, even when the details were irrelevant to the case.8I One article states quite emphatically that "supportive
details . . . add credibility and weight, 82 while an apparent lack of knowledge tends to erode the credibility of witnesses and attorneys .83 One psychologist suggests that an attorney ask his witness to recount as many details that they can remember about the incident in question. 84 Effective
cross-examination could take advantage of this tendency; 85 to undermine
an adverse witness' credibility, it is suggested that the attorney ask questions about details the witness is unlikely to know or remember.8 6
Varying the speed of one's speech affects credibility and helps create a
temporal framework for events or actions. Studies show that "rapid speaking (to a point) tends to increase believability," 87 while "unnaturally slow
speech is [perceived] as an indicator of uncertainty .... "88 "Reflective
questioning" is a technique where one varies the pace of his speech to
74.
Id.
75.
Gold, supra note 3, at 496.
76.
This statement was made to the author by a prominent defense attorney. Witness preparation
as it is discussed in this work is not a method to encourage a witness to be untruthful; rather it is a
method by which the attorney can present his case more effectively. Several works have been published on witness preparation. See generally WrrNSSES, supra note 12.
77.
Lubet, supa note 2, at 341.
78.
Id.
79.
Id.
80.
Id. at 332.
81.
HANDBOOK OF PSYCHOLOGY IN LEGAL CONTEXTs 551 (Ray Bull & David Carson eds., 1995)
[hereinafter HANDBOOK].
82.
Lubet, supr note 2, at 332.
83.
Id. at 352.
84.
HANDBOOK, supra note 81.
85.
Lubet, supra note 2, at 352.
86.
Id.
87.
Id. at 353.
88.
Id.
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Id. at 334.
Id.
Id.
Id.
93.
94.
Id. at 191. The author is aware of an example of indirect assertion of facts in an ethics case.
After three-and-a-half days of presenting evidence, the prosecution rested its case against a public
official for ethics violations. At the close of the prosecution's case, the defense attorney, sitting at his
table, leaned toward the jury, at a volume just loud enough for some of the jurors to hear he ex-
claimed, "They haven't proven a damn thing." The defense attorney then proceeded with his case. He
called two witnesses and rested his case within four hours. The individual was acquitted. Although
there may be ethical issues here, the defense attorney, without any justification asserted that the prosecution had not proven its case.
95.
Miller, supra note 6, at 560.
96.
Id.
97.
Gold, supra note 3, at 488 (citing Goodman & Loftus, Social Science Looks at Witness Examination, TRIAL, Ap. 1984, at 52, 55).
98.
Miller, supra note 6, at 560.
99.
Id. Another example from the author's experiences with indirect assertion of facts follows. A
plaintiff, who testified that she could not lift more than three pounds and could not lift her arm over
her head, was caught on video tape in a grocery store reaching over her head to grab what appeared to
be a one gallon milk container (one gallon of milk weighs over eight pounds). After an in camem
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[Vol. 29
jury uses the first arguments and pieces of evidence to form preliminary
opinions about the case. 10 5 These initial opinions have been found to bias
the interpretation of subsequent evidence. 0 6 Inconsistent evidence, received later, "tends to be disregarded or misinterpreted" by the jury. 10 7
Several articles suggest that the most favorable evidence will have its
greatest impact if presented first.10 8 Experts have found that "jurors tend
to sustain belief in the validity of their initial theories long after logic suggests those theories have been discredited."'0 9 The principle of recency
asserts that people are more likely to remember what they have been exposed to most recently. 1 0 Generally, the prosecution or the plaintiff has
the advantage of primacy, however, the defense is not lacking in methods
to counteract it.' Psychologists offer two strategies to minimize the deeffect: (1) lengthen the trial 1 2 (2) examine many
fense-induced primacy
1 13
character witnesses.
The above research must also be tempered with other findings that the4
more factual the communication, the more quickly it loses its power."1
Also, when emotional evidence is presented first, jurors are likely to
"construct a logic to justify it;" that is, jurors tend to make later presented
evidence "fit" with early encountered emotional evidence. 15 In light of
these findings, Psychologist Sannito has suggested several sequencing
strategies for attorneys." 16 Emotional evidence should be put on first to get
the primacy effect and factual evidence should be put on last to gain the
recency effect.' 1 7 Because factual information fades faster, putting factual
evidence on last will increase the chance that the jury will remember certain factual information.
2. Inoculation and Forewarning
Another technique attorneys often use is to acknowledge negative evidence and forewarn of false evidence. The technique of inoculation works
105.
Gold, supra note 3, at 495 (citing R. NISBETr & L. ROSS, HUMAN INTERFERENCE:
106.
Id.
107.
Id. at 496.
108.
Sannito, supra note 3, at 31; Lubet, supra note 2, at 325-26; VINSON, supra note 20, at 16263.
109.
Gold, supra note 3, at 496 (citing NISBETr & Ross, supra note 105, at 167-92); Sannito,
supra note 3, at 31.
110.
COMMUNICATION, supra note 6, at 15.04.
111.
SANNITO & McGOVERN, supra note 6, at 5.4, 5.5; Sannito, supra note 3, at 31.
112.
The longer the defense's case-in-chief, the less effect primacy has. SANNITO & MCGOVERN,
supra note 6, at 5.4, 5.5; Sannito, supra note 3, at 31.
113.
Psychologists suggest that character witnesses, by their sheer number will weaken the primacy effect. SANNITO & McGOVERN, supra note 6, at 5.5; Sannito, supra note 3, at 31.
114.
Sannito, supra note 3, at 32.
115.
Id.
116.
Id.
117.
Id.
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314
[Vol. 29
juror says "yes" then he continues saying "because in this case there's
gonna be some lying going on coming from that witness stand."4 27 This
statement has the effect of forewarning the jury that someone will be untruthful; having been forewarned of an untruthful witness, the jurors will
tend to devalue or reject testimony.
3. Repetition, Duration, And The Von RestorffEffect
Through repetition and duration principles and the Von Restorff effect, emphasis can be placed on importance pieces of evidence. Repetition
and duration principles seek to emphasize the significance of evidence or
arguments; the more time the attorney spends on an idea or assertion, the
more important it will seem to the jurors. 28 The more something is said
the more likely it will be believed and remembered.12 9 Repetition creates
attitudes that are more readily retrieved from memory.130 As for duration,
the more jurors are exposed to a statement, the more they will become
comfortable with that statement.
The Von Restorff principle holds that unique events are almost unforgettable. 131 For example, one probably does not remember what one was
doing on any given day during the month of September 2001. However,
one probably remembers where one was and what one was doing on the
morning of September 11, 2001. Similarly, many people remember where
they were or what they were doing when John F. Kennedy was assassinated, when Neil Armstrong stepped foot on the moon, and when Elvis
died. Researchers have found that even when a person is merely told that
127.
Id.
128.
An example of repetition and duration with which the author is familiar, occurred during a
case where a man was run over and severely injured by the alleged negligent acts of a cable television
worker. The wife of the victim stated in her deposition that, as a result of the injuries her husband
sustained, one of her husband's testicles swelled to the size of a football and appeared blue. After the
deposition, the plaintiffs attorney had an assistant paint a football blue in preparation for the trial.
During the trial the blue football was placed on a file box in view of the jury. Although the victim's
wife testified only briefly at trial about the extent of her husband's injuries and his home health care
needs, because the defense allowed the blue football to remain in sight of the jury, the blue football
and the wife's testimony had a lasting impact on the jury. That the victim's testicle was the size of a
football had very little evidentiary value as to negligence, but because the football was in view
throughout the trial it made a significant impact on the jury.
Another example of repetition and duration occurred in a trial resulting from a swimming
pool accident. Gold, supra note 3, at 495. A woman drowned in a swimming pool; she was pulled out
of the swimming pool and the rescuers noticed that one of her arms appeared bright blue. Experts for
both parties could not provide an explanation for the phenomenon. Mock jury trials, conducted by
social scientists, suggested that the blue arm evidence would be important to the jury. Psychologists
recommended "that [the] defense . . . 'constantly infer' . . . throughout the trial that the blue arm
meant that the woman had some prior [medical] problem that made her susceptible to drowning." Id
Defense attorneys highlighted evidence with little or no value simply by referring to it throughout the
trial. Id.
129.
See Lubet, supranote 2, at 331.
130.
VINSON, supra note 20, at 54.
131.
Sannito, supra note 3, at 32.
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315
Id.
Id. at 171.
Id.
Lubet, supm note 2, at 331; VINSON, supra note 20, at 54.
Id.
Linz & Penrod, supra note 5, at 3.
Miller, supra note 6, at 568.
Id. at 569.
Id.
Id.
Id. at 5-6.
Linz & Penrod, supra note 5, at 6.
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145.
SANNITO & McGOVERN, supranote 6, at 5.22; see also DAVID BALL, NAT'L INST. TRIAL
AD., THEATER TIPS AND STRATEGIES FOR JURY TRIALS 7 (1994) (outlining what attorneys should do
Stanley L. Brodsky et al., Attorney Invasion of Witness Space, 23 LAW & PSYCHOL. REv. 49
(1999).
147.
SANNITO & McGOVERN, supra note 6, at 5.24-5.36.
148.
Id. at 5.22.
149.
Childress, supra note 46, at 5.
150.
Jennifer Fowler-Hermes, Improving Persuasive Effects in the Courtroom: An application of
Rhetorical Theory, 24 AM. J. TRIAL ADVOC. 313, 339 (2000).
151.
WAGNER, supranote 15, at 1.11[4].
152.
STARR, supra note 29, at 13.02.
153.
The author is personally aware of attorneys who wear blue suits on the first day of trial; these
attorneys believe blue suits to have a calming effect and believe them to convey trust.
154.
The author is aware of several law firms that make suggestions regarding appropriate clothing
for clients and witnesses.
155.
This story was relayed to the author by a medical malpractice defense attorney in Birmingham, Alabama.
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Science of Persuasion
shirts without French cuffs." Through the remainder of the trial, the doctor came to trial with his sleeves rolled up. The attorney's reasoning was
that the appearance of cuff links further alienated the already assumedly
wealthy doctor from the every-day juror; the cuff links increased the doctor's perceived wealth and gave him an aristocratic air. No better example
can be presented to illustrate the relationship between physical appearance
and persuasion than a defendant in a rape/murder trial who wore a T-shirt
and blue-jeans to trial. 1 6 The short sleeved shirt revealed a tattoo
of an
58
157
octopus engulfing a nude female. The defendant was convicted.
Research shows that people who are perceived as credible and attractive are generally more persuasive than those that do not have these characteristics; 5 9 "[s]tudies have shown that jurors are more likely to credit
the arguments of lawyers who are tall, attractive [and] . . .similar to the
jurors themselves." 160 One psychologist suggests that an attorney "stress
similarities between himself and the jury, 'particularly in beliefs, attitudes,
values, and goals' because people view those similar to themselves as
credible." 161 It is thought that an attractive person is more persuasive because the "listener adopts the position of an attractive speaker . . because
62
he wishes to perceive himself as associated with [the attractive person]."
One psychologist, in his discussion on physical appearance and persuasion, states that "beautiful is good and ugly is bad." 163 Studies have shown
that unattractive defendants are found guilty more often than attractive
defendants.' 64 Research also indicates that the victim's attractiveness also
had a tremendous impact on verdicts. 165 Psychologists suggest that an attorney can minimize the negative correlation between attractiveness and
perceived guilt "by making [the defendant] more pleasing in appearance." 166 For plaintiffs, psychologists suggest they present an understated
image. 16 Plaintiffs should dress down, particularly female plaintiffs; it is
thought that female jurors will resent attractive female plaintiffs. 6 8 Experts suggest that defendants accused of abuse of power or any kind of
156.
157.
158.
Id.
159.
Linz & Penrod, supra note 5, at 29.
160.
Lubet, supra note 2, at 351; See also COMMUNICATION, supra note 6, at 1:15; Sannito,
supra note 3, at 33; Linz & Penrod, supra note 5, at 38-39.
161.
Fowler-Hermes, supra note 146, at 338 (citing JOSEPH A. DEVITO, THE ELEMENTS OF
PUBLIC SPEAKING 397 (6th ed., 1997)). See also Sannito, supra note 3, at 33.
162.
Linz & Penrod, supranote 5, at 39.
163.
Sannito, supra note 3, at 33.
164.
Id. (citing M.G. Efran, The Effect of Physical Appearance on the Judgment of Guilt, InterpersonalAttraction and Severity of Recommended Punishment in a SimulatedJury Task. 1974 J. RES.
PERSONALITY 8, 45-54); HANS & VIDMAR, supra note 25, at 103.
165.
STARR, supra note 29, at 13.02.
166.
Sannito, supra note 3, at 34.
167.
Id.
168.
Id.
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white collar crime, should "wear a pale beige suit, a pale shirt (not light
blue) and a pale tie" to weaken his authoritative appearance.169 One practice manual states that, "in the final analysis . . . the attorney must make
the final intuitive conclusion whether the witness will or will not be attrac-
,,170
"Conservative" is generally the style of dress recommended for attorneys. 171 There is a social stereotype that males with long hair are more
politically liberal and males with short hair are more conservative.172 A
study has found that male attorneys who tend to have problems establishing authority should wear a dark-blue pin-striped suit to increase their perceived authority. 173 It is recommended that men avoid bright yellow, red,
pink, lavender, gold, green or gray shirts and avoid bow ties, large patterned or pictured ties and purple or black ties.174 For female attorneys,
plunging necklines, clingy or flowy fabrics, very short skirts, sweaters,
see-through fabrics, glittery fabric, pants
and tight clothing of any kind are
175
almost always negatively perceived.
2. Non-verbal Cues
Over the last three decades, there has been a growing appreciation of
non-verbal communication. 176 However, there is some confusion over
body language and non-verbal communication. Body movements do com-
municate meaning, but that is not the only source of non-verbal meaning. 77 Scholars are in agreement that an official, uniform "body language" does not exist; if it did, one could look up a body movement in a
stress affects body movement, one could only make general conclusions
about an individual's personality. 7 9 Attorneys should note that non-verbal
characteristics discussed here are not separate and distinct from verbal
characteristics discussed earlier in this article. In order to understand what
169.
170.
171.
172.
STARR, supra note 29, at 13.04[E] (citing J. MOLLEY, DRESS FOR SUCCESS (1988)).
WITNESSES, supra note 12, at 2.13.
STARR, supra note 29, at 13.04[E].
STARR,
13.03[A]
(citing KAISER,
CLOTHING (1990)).
173.
Id.at 13.04[F]. See STARR, supra note 29, 13.04[F] table 13-1 to 13-4 for clothing suggestions for men and women attorneys.
174.
Id.
175.
Id. at 13.04[F].
176.
STARR, supra note 29, at 12.01.
177.
Id.
178.
179.
Id. at 12.03[A].
Id.
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188.
189.
190.
191.
192.
Id.
Id. at 68 app. (citing Klein, supra note 187).
Lubet, supra note 2, at 354.
Id. at 354-55.
Brodsky, supra note 146, at 64 app. (citing Klein, supra note 187).
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193.
Id.
194.
Id. at 68 app. (citing Mary E. Ryan & David Svaldi, Women in the Courtroom: Increasing
Credibility Through Nonverbal Behavior Change, 16 TRIAL DIPL. J. 253 (1993)).
195.
Id. at 58 (citing Bernstein, supra note 183, at 94).
196.
KESTLER, supra note 47, 3:38; Brodsky, supra note 146, at 50.
197.
Brodsky, supra note 146, at 50.
198.
For a further discussion of proxemics, see COMMUNICATION, supra note 6, at 9.
199.
KESTLER, supra note 47, at 3:37.
200.
From the author's experiences in state and federal court, attorneys display a wide variety of
styles of spatial manipulation and usage in court.
201.
Any number of television shows depict scenes such as the one described. Shows such as
Matlock, Perry Mason, and Law and Order depict attorneys using proxemics to threaten or intimidate
witnesses. Although these shows are fictional and are in large part written for theatrical effect rather
than for accuracy, the shows are examples of how proxemics could work in the courtroom.
202.
See supra note 201.
Science of Persuasion
2005]
distractions or stimuli in the courtroom may help downout evidence presented by the opposing party. Clarence
to have pushed a wire through the center of his cigar to
from falling.2 15 He lit the cigar and as the ash grew impos-
203.
Brodsky, supra note 146,
204.
Brodsky, supranote 146,
205.
Brodsky, supranote 146,
Brodsky, supra note 146,
206.
2.50, 3.38.
207.
Brodsky, supra note 146,
Sp. 1981, at 14).
208.
Id. at 59.
Id.
209.
210.
Id. at 52.
at 59.
at 50; KESTLER, supra note 47, 3:37.
at 58-59; KESTLER, supra note 47, 2.50, 3:38.
at 64 app. (citing Klein, supranote 187); KESTLER, supra note 47,
at 68 app. (citing David B. Givens, Posture is Power, BARRISTER,
211.
Id. at 64 app. (citing Stephen H. Peskin, Nonverbal Communication in the Courtroom, TRIAL
DIPL. J. (1980)).
212.
213.
214.
215.
Id. at 52.
Id. at 53.
Id.
SANNITO & McGOVERN, supra note 6, 5.1; Sannito, supra note 3.
[Vol. 29
sibly longer, all eyes in the courtroom were focused on the ash rather than
the witness.216 The author observed a trial in which plaintiff's counsel took
full advantage of a distraction in the courtroom. During an especially
damaging video shown by the defense, several loud car horns blew outside
the courtroom and tires were heard screeching and sliding. A paralegal, as
well as another audience member slipped to the back of the courtroom to
peer out a window to find out what happened. The jury's eyes were transfixed on the window and the paralegal in an effort to determine what had
occurred outside. Several minutes passed before the jury regained focus.
One behavioral psychologist notes that attorneys can drown out the
opposing attorney's argument and evidence by presenting a variety of
stimuli in an effort to compete against the opposing attorney for the jury's
attention. 217 Psychologists suggest, as a defensive tactic, that an attorney
"load the courtroom with spectators." 2 18 The loaded courtroom-providing
distracting stimuli-could make a damaging witness blend
in, making it
2 19
difficult for the jury to focus on the witnesses' testimony.
III. ETHICAL CONCERNS
Trial consulting has been a controversial issue for both attorneys and
social scientists.22 One of the main points at issue is whether the use of
trial consultants is "fair" or "ethical. ,221 It has been criticized "as a service for the rich and a disservice for justice. 222 Typical beneficiaries of
scientific trial consulting are wealthy and privileged clients.223 Because of
a lack of empirical data on the effects of trial consulting,2 24 the debate has
consisted largely of opinion and speculation.2 25 The difficulty in quantifying subjective assessments such as 'fairness' has attributed to the lack of
empirical data.22 6
The jury is the most evident symbol of democracy in the courtroom.227
It is one of the most distinguishing characteristics of the American judicial
216.
SANNITO & McGOVERN, supra note 6, 5.1.
217.
Donald E. Vinson, Juries: Perception and the Decision-makingProcess, TRIAL, Mar. 1982,
at 52-54.
218.
Id.
219.
See SANNITO & McGOVERN, supra note 6, 5.1.
220.
Dennis P. Stolle et al., The PerceivedFairnessof the Psychologist Trial Consultant: An EmpiricalInvestigation,20 L. & PSYCHOL. REV. 139 (1996).
221.
Id.
222.
Id. at 147.
223.
Franklin Strier & Donna Shestowsky, Profilingthe Profilers:A Study of the Tial Consulting
Profession, Its Impact on Trial Justice and What, if Anything, To Do About It, 1999 Wis. L. REv 446
(1999).
224.
225.
226.
227.
20051
Science of Persuasion
Id.
233.
Id. at 498.
234.
Id.
235.
Id.
236.
Id.
237.
d.; It is thought that there are two levels of mental activity: the conscious and preconscious.
"The conscious level is characterized by the ability to recall and discuss surrounding events immediately .... The preconscious level [is characterized by] mental activity ...
immediately recalled and discussed. Id. at 494 n.95 (citing J. KATZ, J. GOLDSTEIN & A.
DERSHOWITZ, PSYCHOANALYSIS, PSYCHIATRY AND LAW 274 (1967)).
238.
Id. at 502 (citing Note, The Subconscious Taken Captive: A Social, Ethical, and Legal
Analysis of Subininal Communication Technology, 54 S.CAL. L. REv. 1077, 1094 (1981)).
239.
Id.
240.
241.
242.
Id. at n.95.
Id. at 498.
Id. at 503.
Id.
243.
[Vol. 29
244.
Id.
245.
Stolle, supra note 220, at 149, 167.
246.
Id. at 150.
247.
Id.
248.
Id. at 151.
249.
Id.
250.
See Gold, supra note 3.
See, e.g., Irvin v. Dowd, 366 U.S. 717, 722 (1961); In re Murchison, 349 U.S. 133, 136
251.
(1955) ("[Flair trial in a fair tribunal is a basic requirement of due process. Fairness . . . requires an
absence of actual bias."); United States v Wright, 340 F.3d 724 (8th Cir. 2003); Moran v Clarke, 323
F. Supp. 2d 974 (E.D. Mo. 2004).
See, e.g., Irvin, 366 U.S. at 722 (stating that jurors must be indifferent to the case and base
252.
their verdicts on evidence presented at trial). The need for objectivity, however, has not been construed to require complete ignorance concerning the facts of a case.
253.
Reynolds v. United States, 98 U.S. 145, 155 (1878) (stating that a preconceived opinion is
sufficient cause to discharge a juror); Sims v. United States, 405 F.2d 1381, 1384 n.5 (D.C. Cir.
1968) (stating that jurors can be discharged for cause if they are related to victim or hold the same
occupation as victim).
254.
Gold, supra note 3, at 492 (citing Call, Psychologyin Litigation,TRIAL, Mar., 1985, at 48).
255.
See supranotes 251-253.
Ralph W. Gallagher, The Use of a Consultantin Voir dire, TRIAL DIPL. J., Winter 1984, at
256.
25 ("A consultant ...
must . . . be willing to participate in a process which has as its goal the selec-
tion of the maximum number of jurors favorable to your case. It is of no use to have an 'ivory tower'
consultant assist in selecting a 'fair and impartial jury' because the opponent will be seeking jurors
favorable to his or her position.").
Science of Persuasion
2005]
and, sometimes, produces unbalanced juries.257 One article states that the
mission of an attorney during voir dire is "to seat a jury that will give her
client a fair trial," 25 8 yet the author later suggests that a person could be a
good juror for the defense in a medical malpractice case if that person's
father and brother were both physicians.9 Choosing a juror whose father
and brother are physicians is likely not an attempt to secure a fair and impartial jury. One psychologist recommends explicitly that the attorney tell
potential jurors that the purpose of jury selection is to seat a fair jury to
conceal the attorney's actual goal of seating the most favorably biased
jury. 260 One article states that the goals of empathy-based voir dire strategy are to (1) obtain information (2) generate empathy of the client (3)
identify and minimize bias against the client (4) educate the jury about the
facts of the case and (5) develop a theme.2 6 1 However, only two of these
objectives are permissible under case law and procedure.262 The article
acknowledges this fact but suggests that an attorney may achieve these
objectives through clever advocacy.263
Professor Gold also expresses concerns about the introduction of extra-legal factors into the jury's decision-making process. 264 Gold considers
"irrelevant legal or factual issues" and that which "is considered by the
law to be an otherwise improper basis for decision-making" [sic] as extralegal bases for decision-making.265 In theory, the jury must decide a case
on the evidence presented in court, not on outside knowledge or beliefs.2 6
However, through the exploitation of psychological techniques, attorneys
can introduce facts to the jury that are not in evidence. Where an attorney
willfully uses "powerful" speech to enhance his credibility in the minds of
the jurors, the attorney is focusing the jury's attention on an extra-legal
matter; the credibility of the attorney is irrelevant and it is not evidence.26 7
O'Barr's study of "powerful" speech found that although those that used
"powerful" speech seem credible, "powerful" speech was not found to be
an indicator of truthfulness.2 68 Other observers note that attorneys have
257.
258.
259.
260.
COURTROOM PSYCHOLOGY: HOW TO APPLY BEHAVIORAL SCIENCE TECHNIQUES FOR NEW TRIAL
SUCCESS (1980).
261.
Kerper, supra note 18, at 5.
262.
28 U.S.C.A. 1870; FED. R. Civ. P. 47(b); FED. R. CRIM. P. 24(b); A.R.S. 21-221;
Dixon v. Hardey, 591 So. 2d 3 (Ala. 1991); State v. Richards, 391 S.E. 2d 354 (1990).
263.
Kerper, supra note 18, at 5.
264.
Gold, supra note 3, at 484.
265.
Id. at 484.
266.
See supra note 252.
267.
See C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND PROCEDURE 5163, at 29 (1978).
268.
[Vol. 29
ethical obligations with respect to speech style.269 One article states clearly
that one's vocal characteristics can be used unethically. 270 "[T]he line over
which ethical speakers do not pass is vocal exaggeration, inference and
allusion which clouds the truth of a matter, leading jurors to emotionally
react and affect or subvert truth and justice." 271 The article notes that temporarily using emotions to manipulate jurors is unethical .272 "Attorneys
have a special responsibility to avoid distortion of meaning and manipulaWhen an attorney exploits human psychotion of emotions . ..
linguistic tendencies regarding indirect assertions of fact and innuendo, the
attorney is attempting to induce the jury to employ an extra-legal basis for
decision-making; an attorney's questions are not themselves evidence.274
Social scientific recommendations on physical appearance and nonverbal
communication techniques also focus the jury's attention on extra-legal
matters .275
Professor Gold expresses concerns that some social scientific techniques seek to induce the jury to evaluate the evidence illogically. Professor Gold believes that a jury commits an error of logic if it "incorrectly
decides that evidence is or is not probative" or if it gives greater or lesser
weight to evidence than the probative value of the evidence.276 Primacy,
inoculation, defensive examination and other techniques used to emphasize
or de-emphasize could induce the jury to commit an error of logic.277
Prolonging a trial in an effort to lessen the prosecution's or plaintiff's advantage of the primacy effect may raise procedural and ethical issues for
attorneys.2 78
Currently there is no formal monitoring system of any type for trial
consultants.27 9 Anyone can hold themselves out as a trial consultant.28
Trial consultants have a professional organization, the American Society
of Trial Consultants (ASTC) but the organization has not formulated any
269.
Childress, supra note 46, at 8; Childress, supra note 46, at 8 (citing JAMES C.
opportunity to learn to speak well, and to be eloquent [advocates of] truth and justice. [They have]
ethical obligation[s].").
270.
Id.
271.
Id.
Id.
272.
273.
Id.
See WRIGHT & GRAHAM, supra note 259, at 29.
274.
275.
Gold, supra note 3, at 486.
Id. at 494.
276.
277.
See generally id.
FED. R. Civ. P. 1 states in part: "[the rules] shall be construed and administer to secure the
278.
just, speedy and inexpensive determination of every action."; MODEL RULES OF PROF'L CONDUCT R.
3.2 (1983). Comment 1 to Rule 3.2 states in part: "a failure to expedite [will not be deemed] reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or
repose." Id.
279.
Stolle, supra note 220, at 171.
280.
Strier, supra note 223, at 478.
2005]
Science of Persuasion
281.
282.
283.
284.
285.
Id.
Stolle, supra note 220, at 171.
Strier, supra note 223, at 478.
Gold, supranote 3, at 498.
Id. at 508.
*
I would like to thank Jereme Logan for his dedication and attention to detail in editing this
work, and Hannah Averitt for never losing faith in me. I also want to thank Katie Finch for her patience and unconditional support.