Montana Lawyer October/November 2024

Should You Actively Persuade In Voir Dire? THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS

dire. The voir dire may have “conditioned” perceptions, but it did not condition results. The data against attempting to persuade in voir dire gets better. Even more important is the series of 2018 studies by Joseph Vitriol and Margaret Bull Kovera extending the prior line of 2011 research. The 2018 studies also evaluated the impact of conditioning voir dire on verdict decisions in a criminal trial setting – specifically evaluating whether voir dire could condition potential jurors (i.e. to be “death qualified” in a capital murder case), and whether such conditioning led to more conviction-prone decisions. As in prior studies, condi tioning voir dire shaped perceptions of a criminal defendant – a “death qualifying” voir dire approach increased pretrial perceptions that a defendant was guilty. Surely, there must be a relationship between increased pretrial perceptions of a defen dants’ guilt and guilty verdict decisions, right? The research ers did find a relationship. They found that people exposed to conditioning voir dire that increased their pretrial perceptions of defendant guilt were less likely to convict the actual defen dant than people who experienced a standard voir dire. So, in this series of studies, if you can persuade jurors of your view of a key case issue in voir dire, it decreased your chances of persuading the jury of your ultimate verdict. How could shaping people’s perceptions to perceive defen dants as more likely to be guilty lead to fewer guilty verdicts? Here are three interesting points about how jurors make decisions and how a process like voir dire can influence that process. 1. Expectations Set the Stage . First, expectations matter. It is worth noting that the 2018 studies showed that conditioning people in voir dire had an impact. In the authors’ words, “Our results are consistent with research demonstrating that pretrial knowledge structures influence jurors’ expectations for and evaluations of evidence.” They also note that a conditioning voir dire can shift jurors’ expectations about the evidence they should see in trial, influ encing their ultimate evaluation of the evidence they actually

Like taxes, getting older, and gravity, voir dire does not care how you feel about it. Potential jurors experience it as human beings with all the quirks and nuances of human psychology at play. And far too often voir dire happens with trial lawyers using the invaluable time to “chat” about their case, introduce their ideas, and attempt to “condition” the jury to see the case from their perspective. Is treating voir dire this way worth the limited time and effort these trial lawyers put into it? Is persuasion – or even just planting seeds – a reasonable and achievable goal of voir dire? The belief that trial lawyers should use voir dire to per suade jurors is everywhere. Perhaps the myth persists be cause of its “truthiness” – it does feel like it could work – or because it gives less comfortable lawyers a sense of control over an inherently uncontrollable process. Undoubtedly some trial attorneys have felt their brilliant persuasion in voir dire helped them win a case or two at some point in the past. It’s possible. But we spend this column exploring the research and our experience on this question so we can offer insights into whether your precious voir dire time is better spent with a different focus and approach. Take a series of 2011 studies by Sarah Greathouse and her colleagues. They evaluated how potential jurors’ pretrial perceptions formed during voir dire might influence verdict decisions. They found, as others have found and many have surmised, that a voir dire approach attempting to persuade or “condition” jurors could influence people’s pretrial per ceptions related to the case-specific issues. In their studies, a “conditioning” voir dire shaped potential jurors’ percep tions about a juvenile defendant’s probability of guilt before hearing the trial evidence and arguments. This led to more pretrial conviction-prone attitudes compared to people who experienced a standard approach to voir dire (i.e. without persuasive conditioning). This seems like evidence you should attempt to persuade jurors in voir dire, right? The conditioning changed people’s initial perceptions so it must be helpful? Not so fast. The Greathouse studies also found those initial perceptions influenced by voir dire did not persist and play a role in the actual verdict decisions people rendered in the study. In other words, people rendered guilty verdicts at about the same rate whether they were exposed to the conditioning voir dire or a standard voir Let’s start with legitimate research. Believe it or not, some of the best and most useful re search on the issue shows that “conditioning” a jury during voir dire, to the extent you can do it, does not ultimately impact verdict decisions – and if it does, it probably isn’t in the way you would expect – the key word being expect.

16 MONTANA LAWYER

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