Montana Lawyer October/November 2024

see in trial. The resulting contrast between expectation and reality can explain reduced conviction rates in “con ditioned” jurors compared to those who were not condi tioned. Makes sense. The first time I saw a fireworks show was far more impressive than the last. This contrast between expectation and reality can function very simply by raising the bar of what evidence a person expects to see in a trial involving a murder, leav ing the actual evidence to fall short and result in acquit tal. This is known as contrast theory. We see it all the time in trials where an attorney overpromises and jurors contrast their actual perceptions with their preliminary expectations. This result can also function through a psychologi cal phenomenon known as reactance. Trial lawyer John Blumberg gives his opinion about conditioning jurors in voir dire in Plaintiff magazine, saying: “[Y]ou are not persuading anyone. In fact, the more you try to get jurors to agree with the proposition you’re advocating, the more they will resent your intrusion into their private thoughts and beliefs.” Why? They react to your condition ing attempts and build resistance to you and your target belief. This reactance is probably most easily recognized in young children. Think basic “reverse psychology.” Why does it work to ask a child to do the opposite of what you want? Because they can react with such a strong and impulsive resistance that they move strongly in the op posite direction. In jurors this happens more subtly and less impulsively but it happens nonetheless, particularly in today’s post-pandemic, 2020 jurors who do not want to be told what to think or what to decide. If jurors sense you trying to persuade them in voir dire, they often react in opposition and begin to build counterarguments and resistance before you’ve even begun to make your case. 2. Evidence Matters More. Perhaps the most important takeaway from the research is the consistent finding that evidence matters most to people’s ultimate case decisions. In both the 2011 and 2018 studies described above, the researchers varied the strength of the evidence against the defendant to evaluate how strength of evidence may impact the various voir dire strategies, including the impact of conditioning voir dire. Would conditioning voir dire lead to comparable con viction rates regardless of the evidence? Could voir dire “condition” people to find guilt even when the evidence wasn’t clear or would the evidence matter? It’s critical that the strength of evidence was the most important influence on verdict decisions, consistent with research by Visher and others going back as far as 1987. As Greathouse and her colleagues wrote in 2011: “Participants’ post-trial ver dict decisions were only influenced by the strength of the trial evidence.” This is, and should be, a reassuring finding for trial lawyers and a reminder that jurors are diligent and effective fact-finders who get the result right most of the time.

3. Deselection Over Persuasion . As so many of our fine colleagues have written, and as we advise our clients over and over again – your priority in voir dire should be to identify and strike jurors most likely to be unwilling or unable to give your case a fair hearing. Period. Stop. This means prioritizing the goal of probing and incisive voir dire over the unpredictable goal of condi tioning and persuading jurors in the jury selection process. Turning again to quality research, we cite a fantastic 2021 study by Jessica Salerno and her colleagues evaluating the impact of minimal voir dire compared to extended voir dire. Is it effective to simply hit the top of the waves while performing voir dire or do you need to dig in with more depth and detailed questioning? While the study is more than worthy of your time, and a worthy read for judges and members of the judiciary more broadly, the researchers conclude that “attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases has little utility.” They go on to say, specifically, that “generic questions requiring jurors to spontaneously and explicitly acknowledge that they cannot be impartial are unlikely to aid attorneys or presiding judges.” This is important because you have limited time in voir dire and efforts to persuade directly trade off with efforts to deselect. Practically speaking, efforts to persuade jurors in voir dire more often result in “outing” your good jurors to the other side, aiding your opponent in their assessment of how to use their peremptory strikes. So while you may think you are gaining advocates in voir dire, you are actu ally losing advocates in the deliberation room as the other side discovers where their problems might be and removes them from the venire. The much more important and influ ential approach to voir dire is to identify and deselect jurors most likely to be biased against you. So, next time you begin thinking about voir dire as an opportunity to persuade the jury of your case, think harder again and again until you’ve identified the questioning approach that will best identify biases against you. Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO. The net effect of the research and our expe rience is to acknowledge that conditioning a jury during voir dire is possible, but there is no guarantee doing so is helpful to your goal of persuading jurors’ verdict decisions (there is actually research showing it could be harmful).

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