Influencing the jury

Virtually nothing is known of jury dynamics - how the jury perceives the trial process and what factors influence its decisions.

Typically, the sum total of a practising lawyer’s knowledge of jury dynamics is nothing more than anecdote, wishful thinking and old wives’ tales. In truth, every day, lawyers appear almost naked before juries - they have no idea what works and what doesn’t (although some believe they do). Every question asked, objection taken, witness called and speech made, is a shot in the dark.

Successful jury pleading remains a black art. It shouldn’t be. When a lawyer takes a particular line, asks a question or makes a speech he should do so secure in the knowledge that it will be to his client’s benefit. The court practitioner should be operating within the boundaries of knowledge. The need to speculate about how the jury may react should be kept to a minimum.

Recent research in New Zealand gives us, for the first time, an insight into jury dynamics. Some of the research findings can be directly applied to practice. There are good reasons for believing that this may assist the court advocate in improving his success rate. The research also gives important clues on what tactics are well received by a jury and which turn them off. This research has resulted in some fundamental rethinking in the practice of advocacy in New Zealand and Australia.

This article considers some of the New Zealand Law Commission’s findings and attempts to put them into a Scottish context.

The New Zealand research considered a total of 48 jury trials. The trials varied from burglary to murder and ranged from the simple to the complex with multiple accused and multiple charges. All of the judges involved and over 53% of the jurors responded.

The trial environment

Within every trial both sides have some control over the proceedings. You can exercise control whenever a choice becomes available to you or your opponent. A choice forces a decision. In exercising his judgment a lawyer attempts to predict the potential impact his intervention (or passivity) will have upon the case and the jury’s deliberation. These decisions are taken with the object of affecting the outcome of the trial in your client’s favour.

The difficulty with advocacy in the jury trial setting is that you get very little feedback and never really know if a particular strategy has worked. As will be seen from the research, some jury decisions cannot be rationally explained and therefore prediction can be redundant. However, the research does give clues as to which strategies are likely to bear more fruit than others. The research also points to sometimes obvious strategies, which will allow you to hold the jury’s interest and involve them.

The New Zealand research is therefore of considerable importance to practising court lawyers as it gives guidance on tactics that may be deployed in your client’s favour and what may work against you.

The early evidence in a case - setting the scene

“A significant number of jurors took an appreciable time to get over their surprise and shock at being on a jury and to focus on the opening stages of the trial. Both the judge’s opening comments and the Crown opening  went unheard by some jurors and were largely unattended to by others... In 20 of the 48 cases, one or more jurors commented on their failure to absorb material during the early part of the trial to this settling in process.”

All juries begin a case in a state of ignorance. Civil juries have opening speeches to point the way but in the criminal court only the indictment is read out. In the early stages of the trial it is important to set the scene for the jury. This allows them to visualise and focus upon the subject matter - it engages the jury and prepares them for the substantive evidence to follow.

Setting the scene by the use of visual material may be an appropriate method of catching the jury’s attention and helping  them settle into a case.  Visual evidence includes photographs, video, maps and diagrams.

The impact of real evidence and visual aids cannot be underestimated. In 29 of 33 trials an overwhelming number of jurors found visual aids helpful. Jurors used this type of evidence to resolve discrepancies in the evidence, work out sequences of events and consider contradictions in the evidence. Setting the scene allows visualisation of the locus and the subject matter - it allows the jury to put evidence in its proper context.

If no visual aids are available or appropriate an alternative would be to ease a witness into his evidence and allowing the witness, through his evidence, to set the scene before he goes onto give more substantive evidence. This approach has the dual advantage of settling both the witness and the jury.

The pace and flow of evidence

“In 11 of the 48 trials at least one juror, and sometimes up to half of those interviewed for a particular trial, volunteered that they or other jurors had difficulty concentrating. These difficulties were exacerbated when the oral evidence was boring or presented in a boring fashion, was confusing or repetitive, or involved lengthy technical evidence.”

This finding presents a very real challenge to the court practitioner and has implications for the pace of the evidence and how it is presented.

Some jurors are unused to assimilating large volumes of information presented orally. It is likely that many receive most of their information visually through television. Assimilating large quantities of evidence in an oral form will be a new experience for some. It may be difficult to make evidence interesting and compelling for the jury but an attempt should be made, otherwise some of it will be lost.

Tone of voice, modulation and keeping to the point all assist in keeping the jury’s attention. One fact per question will keep the evidence palatable for the jury as well as ensuring structure and focus to examination. Long and wandering cross-examination is a put-off. The research suggests that even where laborious examination results in worthwhile material, it may be lost to the jury who have by this time switched off. This finding also links up with the last one.Visual aids will assist in clarifying difficult or obscure issues and holding the jury’s attention.

Complex cases

“Jurors routinely encountered problems in assessing evidence in multiple-charge trials. In particular, they found it difficult to identify what evidence related to which charges.”

In 14 trials there were some jurors who lacked the capacity to understand the evidence.  Jurors were often critical of both the Crown and the defence’s inability to ensure clarity. Questioning by the defence in particular was described as “poor”, “difficult to follow” and “fumbling”.

This finding presents another challenge to the court practitioner. The use of focused, signposted questions to identify what evidence relates to particular accused or charge may assist the jury to follow the evidence.

The defence’s inability to focus on and clarify the issues caused confusion in the minds of the jury, resulting in them attaching little weight to the evidence elicited by poor examination.

This finding points to a need for a clear strategy whenever examining a witness. There is no point in questioning for its own sake. A clear line of investigation needs to be established, questions should be simple and purposeful and when the evidence has been adduced you should sit down.

Objections to questions

“In 16 (of the 48) trials, at least some jurors formed the view that evidence was being deliberately withheld from them.”

Some jurors believed they weren’t getting the full story. Some jurors accepted this as a legitimate part of the proceedings. However, in three of the trials the perceived gaps in evidence did lead the jury to draw unjustified conclusions, which did influence their deliberations.

This finding suggests careful thought should be given to taking objections and indeed whether they should be taken at all. Objections should only be taken where necessary and always in a measured manner. A voluble and outraged objection may only raise suspicions in the mind of the jury. There is also a danger that frequent interruptions may cause the evidence to become fragmented.

The accused as a witness

“When jurors were asked about the impact of the failure of the accused to give evidence.... virtually all of the jurors interviewed... maintained that.... they attached no weight to this.”

Some jurors believed that a failure to give evidence prevented an accused from incriminating himself and this was a factor in obtaining an acquittal.  In contrast, there was some evidence of jurors concluding that an innocent accused should account for himself by giving evidence.

This finding presents the defence lawyer with a dilemma. Some cases cry out for an explanation by the accused; these should be identified and the accused prepared for the experience of giving evidence. A defence of consent in rape and possession of stolen goods are two obvious examples where the jury will expect explanations from the accused.

Although the research did not directly address the issue, juries appear to ignore a judge’s direction that if they believe the accused is telling lies nothing can be inferred from this and that they must return to the Crown evidence in order to satisfy themselves that the Crown has proved its case. Some jurors attached considerable weight to the belief that the accused was lying.

The cases where no evidence should be given are perhaps more difficult to identify. It may be implicit that a jury can comprehend the Crown must prove their case. Indeed when asked, the majority of jurors remembered the judge’s direction that the accused was not obliged to give evidence and that the onus was on the Crown.

The research indicates that no disadvantage will arise when an accused person remains silent and indeed some good (for the accused) may be the result. This suggests a general rule: an accused should not give evidence in the absence of certain factors which indicate he should.

The prejudiced jury

“Inevitably, some jurors sometimes allowed emotions of sympathy or prejudice to influence their reaction to the evidence and their decision making.”

On six occasions out of 48, the jury were influenced in their decision by feelings of sympathy and prejudice. This resulted in one perverse verdict and two correct verdicts reached by dubious reasoning.

Juries are charged to put these feelings to one side. Nevertheless, sympathy seems to be a powerful motivator for a jury. This can work both ways: for the victim of crime or for the accused or his situation. Although frowned upon, a plea of sympathy clearly plays a part in jury dynamics. The effect of emotional subject matter is well understood in Scotland and this research merely confirms the common practice of court practitioners who tread carefully in emotive cases.

Explaining the law to a jury

“There (was) widespread misunderstandings about aspects of the law which persisted through to, and significantly influenced, jury deliberations.”

In 35 of the 48 trials fundamental misunderstandings of the law emerged during jury deliberations. In particular the meaning of intent and the concept of beyond reasonable doubt caused juries difficulties. In Scotland there is evidence that the Moorov doctrine causes juries problems.

A substantial number of jurors struggled to grasp the concept of making inferences from the evidence. Some jurors had no idea what the judge meant when he was talking about inferences.

The opportunity for practitioners to mitigate the potential for misunderstanding on the law is limited to the jury speech. Many judges provide tried and tested definitions of the applicable law and many practitioners mirror the anticipated charge in their speech, thus reinforcing the message.

The Jury Speech

“(J)urors had difficulty in recalling the details of (evidence) during deliberations. (These difficulties) were particularly acute where the evidence was confused or contradictory...”

This finding, allied with the difficulties some jurors have in comprehending legal concepts, confirms the importance of the jury speech.

The jury speech is the last opportunity the practitioner has to put his case across. It is an opportunity to focus on the evidence and put it in a form palatable to the jury. A good speech assists the jury in sorting through the evidence and reminds the jury of important passages in the evidence. Visual aids in the form of slides, overheads and the use of lodged evidence can be used to reinforce points.

When addressing the issues of fact and law a jury’s comprehension may be assisted by the use of example or analogy. A sound bite or pithy phrase may encapsulate succinctly a difficult legal concept allowing you to get your point across, although this will not always be easy to do.

The last impression a jury will have of your client’s case will be the speech.

Conclusions

The New Zealand research opens the door to a more considered approach to court craft. Although it is one of the mainstays of legal practice, advocacy skills have rarely been taught in Scotland and do not attract research interest. In part this is because jury research is illegal. The impact of this research in the Southern Hemisphere has been considerable. Many of its lessons can easily be applied in the Scottish courts to the benefit of the client.