The American Legal System is an ever-growing web of complexity. It is the cornerstone of the standards and practices within our country, but the sad reality is, it is far from perfect. The flaws within our system range from basic procedural inefficiencies to inadequate representation of clients, to biases in decision-making. Within these challenges is an underlying foundational aspect that is filled with problems and is often overlooked – the jury system.

The Role of the Jury

Before trial begins, the attorneys from both sides can begin the voir dire of the jury, better known as, the jury selection process. The attorneys and judge ask questions to uncover biases, preconceived notions, and any potential conflicts of interest to weed out the jurors who may be unable to be objective during the trial. The processes of screening jurors are done in an effort to ensure that the scales of justice do not tip unfairly in one’s favor over another’s. Jurors play a key role in interpreting the facts of a case and weighing the probative value of the evidence that is presented. However, despite all the efforts put forth, is our legal system as impartial and just as we make it seem?

Biases, whether conscious or unconscious, persist throughout the trial. Often, these biases influence a juror’s perception from the moment they enter the courtroom, all the way to deliberations. Jurors are actively observing the events taking place in the courtroom, processing the information being given to them, and forming opinions. But it’s important to note, they are not just taking in the aspects of the trial. Jurors will watch how the attorneys, the clients, and the judge act, and this can shape how they interpret the evidence.

In a NYU Psychological Science article, Brian H. Bornstein and Edie Greene discussed how jurors’ active processing of the information being presented to them is much more than what it seems to be on the surface[1]. They found that, “Jurors attend also to peripheral cues associated with the evidence, such as the perceived credibility of a lay witness, the credentials of an expert witness, or the attractiveness of various legal actors.” Id at 65. Not only are the members of the jury assessing the evidence itself, but they’re also assessing who is presenting that evidence. On top of that, the juror’s assessments are affected by other factors, such as emotions and moods. Id. Bornstein and Greene found that these internal factors can affect the jury’s judgment in various ways, such as, “influencing the type of information processing in which they engage, by inclining them to construe evidence in a direction consistent with their moods, and by providing informational cues about the appropriate verdict.” Id.

The article by Bornstein and Greene just scratches the surface of the psychological science behind a trial. As stated by Janet Lee Hoffman and Andrew Weiner in the Oregon State Bar Litigation Journal, we cannot look at the courtroom as a laboratory; we cannot expect the jurors to sit throughout the trial and in deliberations scientifically evaluating the evidence in a “sterile environment.”[2] Meaning, we cannot expect the deliberations to strictly discuss the key aspects of the trial. Whether spoken or unspoken, all the little things that took place during the trial come into play during that decision making process. A jury trial “boils down to formally introduced evidence and argument mixed with a variety of non-verbal communication, which may at times yield unpredictable results.” Id at 2. The average juror leads a vastly different life in terms of education and career compared to someone in law and may have never stepped foot in a courtroom before. Because of this, jurors “often arrive with an expectation that their experience in court will mirror scenes from popular movies and television.” Id. The fact that jurors arrive with this preconceived notion shifts their focus from the evidence to extraneous factors. Hoffman and Weiner quote Tom Capps, who noted, “jurors often try to uncover some of the drama they expected by closely observing all of the participants in the courtroom.” Id. By actively observing the participants in the courtroom, the jurors are attempting to unveil hidden narratives they think in the evidence and testimony being presented. Id. While judging the credibility of a witness is a key aspect of trial, and how “the assumption that a witness’s testimony is truthful may be overcome by the manner in which the witness testifies and nature and quality of that testimony,” it’s almost impossible for the average juror to separate the two. Id. This was noted in the infamous Menedez brothers’ trial from 1993. Popular now due to the Netflix drama series, the trial was about Erik and Lyle Menendez who were convicted of murdering their parents. But it was noted that in their first trial, the jury deliberations consisted of conversations regarding their outfits. Id at 4. That’s because their outfits, crewneck sweaters and button downs with slacks, “gave them an appearance of youthful innocence compared with a more formal suit and tie.” Id. The inability to distinguish facts from external observations paves the way for emotional biases to influence the jury’s decision-making process.

Emotional Biases

The great Aristotle once said, “The law is reason, free from passion.” Despite being a great philosopher, who in many ways paved the way for our legal structure today, he overlooked the fact that, though we try to avoid passion in legal decisions, passion will always be there. Emotions play a factor in almost every decision we make. To expect jurors, attorneys, and even judges to come into the courtroom and turn off this innate human process would be near impossible. The only thing we can do to get around this, is to better understand the role of emotions in decision-making. Desirée A. Griffin and Emily Patty, former PhD students, tackled this concept in their article titled Emotions in the courtroom: “Need for affect” in juror decision-making[3]. The article focuses on the emotion involved in legal decision-making and the introduction of the psychological construct of “need for affect.” Id at 61. During their research, they found a discussion by Forgas and Bower[4], who found that, “judgments are more likely to be affected by mood-congruent information when the target is complex, ambiguous, and there is no preexisting evaluation of the target.” Id. Mood-congruent judgments help an individual recall information congruent to their present mood at the time of receiving the information about a particular defendant[5]. One example is, “a juror who viewed gruesome pictures of a crime scene is likely to feel disgusted and/or angry and is subsequently more likely to remember case information that is not in favor of the defendant (i.e., the target of the decision-making) and to judge the defendant more negatively” Id.  Another example: one juror just received news that their wife is pregnant, while the other was fired from their job. The juror who received the positive news will tend to focus more on the positive information about the defendant, while the other juror will tend to focus on the negative.

To further explain their position, Griffin and Patty cite to the construct referred to above, “need for affect” (NFA), which was designed by Maio and Esses[6]. NFA assesses a person’s motivation to either approach or avoid an emotion-inducing situation. Id. This construct helped them to conclude that some individuals are more motivated to approach situations that are emotion-inducing and thus internally seek out their emotions. Jurors are either classified as individuals with a high NFA or a low NFA. “Individuals with high NFA were more likely to approach emotional experiences and use emotions to help guide their behavior and judgments, whereas individuals with low NFA were motivated to avoid emotional experiences, especially when the emotions were intense and dangerous.” Id at 62. Maio and Esses’ research shows that individuals with a high NFA (labeled emotion-approach tactic) tend to have more intense moods, a greater willingness to explore emotions—especially positive ones—and an enhanced ability to understand and use emotions. Id. They also exhibit a high need for cognition and are more open to experiencing strong negative emotions. Id. Conversely, individuals with low NFA (labeled emotion-avoidance tactic) often struggle to identify, describe, and express their emotions. Id. They show uncertainty toward emotional expression and are more likely to avoid difficult or anxiety-inducing emotions. Id. Maio’s later research[7], as discussed by Griffin and Patty, explores the concepts of an affect-based and cognitive-based message. Id. Building off the NFA foundation, two types of messages were studied to see how they would affect the listener: affect-based and cognitive-based. The affect-based message is one catered to appeal to a person’s emotions, and thus generate an emotional response, while the cognitive-based message is one in which the message caters to a person’s logic to create new beliefs or ideas. Id. It was found that the higher a person’s NFA, the more information they recalled from the affect-based message. Id. This follows through with Maio’s earlier research discussed above – the more a person uses their emotions to guide their decision making, the more emotion inducing information, messages or concepts, stick with them.

The role of emotions in a juror’s decision making and understanding of information is an undefeatable obstacle. At the end of the day (or trial), we are all human, and our emotions can cloud our judgment. But, by understanding how emotions can influence a juror, attorneys can use this strategically and add it to their tool belt. As we will discuss in later, the NFA construct can be used during the voir dire process to help create a more favorable outcome for an attorney, and their client. However, even with these tools, another challenge exists – implicit biases. These biases are more subtle, but their impact can be just as profound in shaping the outcome of a trial.

Implicit Biases
Biases against Defendants

             “Implicit bias” is an overarching term used to describe the many inherent biases a person may have. To better understand these biases, it is helpful to break them down into stages. First, we will discuss the implicit bias against defendants. In their 2022 article[8], Lee J. Curley, James Munro and Itiel E. Dror breakdown a variety of different biases (which we will later discuss) into the three main stages of trial, pre-evidence presentation (Biases against Defendants), during evidence presentation (Cognitive Biases), and post-evidence presentation (Deliberations). Id. Biases against defendants are usually most prevalent during the pre-evidence stage. To measure the presence of the bias, there are two main tests: the Juror Bias Scale (JBS) and the Pre-Trial Juror Attitude Questionnaire (PJAQ). Id. Although pre-trial biases may seem minor, they tend to snowball with other biases and the emotional factors during decision-making.

The JBS is a 17-item questionnaire, created by Kassin and Wrightsman[9], and consists of two constructs: 1) the probability of commission and 2) reasonable doubt[10]. Probability of commission measures prior beliefs and attitudes about evidence, which reflects the extent to which a person believes the accused individual is likely to commit a crime and how guilty they perceive the defendant to be. Id. Of the 17-items, nine are based on the probability of commission. An example of one is, “defense lawyers don’t really care about guilt or innocence, they are just in business to make money.” Id. High scores related to this construct indicate both a conviction bias and a bias more in favor of the prosecution. Id. The reasonable doubt construct contains the remaining eight items, and measures how certain the juror needs to be to convict the defendant. Id. An example of one item is, “For serious crimes like murder, a defendant should be found guilty so long as there is a 90% chance that he committed the crime” Id. Scores on the JBS can vary from 17 to 85, which can help the attorney assess the bias that the juror may have. A high score on the JBS indicates that they may have a prosecution bias, while a low score suggests a defense bias. Id.

Curley, Munro and Dror note that after the JBS was developed, further research was conducted and eventually, Lecci and Myers developed the PJAQ[11]. The PJAQ contains six bias constructs, including “1) conviction proneness; 2) system confidence; 3) cynicism towards the defence; 4) social justice; 5) racial bias; 6) innate criminality” Id. A study using the PJAQ examined how each construct related to juror outcomes, with the “r” value indicating the strength of the relationship (ranging from -1 for a strong negative relationship to 1 for a strong positive). Conviction proneness showed the strongest correlation with pre-deliberation verdicts (r = .39), followed by system confidence (r = .34), social justice (r = .15), and innate criminality (r = .16). Id. Constructs like cynicism toward the defense (r = .12) and racial bias (r = .06) had little impact on pre-deliberation outcomes, possibly due to the lack of racial relevance in the mock trial. Id.

While the JBS and PJAQ help identify and measure pre-trial biases, these biases are not the only factors influencing juror decisions. Jurors can also be influenced by cognitive biases—inherent mental shortcuts or thinking patterns that can affect their reasoning and judgment throughout the trial. Unlike the more straightforward pre-trial biases, cognitive biases operate at a deeper, often unconscious level, shaping how jurors interpret evidence, weigh credibility, and ultimately arrive at a verdict. Understanding cognitive biases is crucial in assessing how jurors’ judgments may be distorted during the trial, even after they have heard all the evidence.

Cognitive Biases

            Cognitive biases are not a recent development within the brain by any means. Cognitive biases can be traced back thousands of years, as they were produced by “1) Homo Sapiens having a limited cognitive capacity and thus striving for efficiency when making decisions; and 2) personal and subjectively perceived experiences gained from the environment.” Id at 208. Our brain uses these cognitive shortcuts (heuristics) to save time. But short-cuts can often lead to lapses in judgment, which don’t play out well in the courtroom. Because cognitive biases are such an innate human function, lay jurors, and even experts are not immune to their effects. Id.

            Curley, Munro and Dror cite to a landmark study on the effect of cognitive bias on jurors that was conducted by Carlson and Russo[12]. In this study, Carlson and Russo focused on a branch of cognitive bias known as pre-decisional distortion, which is defined as a “jurors’ biased interpretation of new evidence to support whichever verdict is tentatively favored as a trial progresses.” Id. They found that “jurors tended to favor a verdict before all the evidence was presented,” and viewed the evidence as favoring whichever side was “leading” in their mind. Id.

Pre-decisional distortion differs, however, from confirmation bias. Confirmation bias, in a courtroom setting, occurs when a juror focuses on evidence that supports their preconceived notions about the defendant. Curley, Munro and Dror note that bad publicity, and this confirmation bias, is more prevalent today than ever before[13]. Pre-trial publicity surrounding a case used to only influence the jury in high-profile cases, “[h]owever, in the current digital age, jurors could be infected with biasing information regarding any defendant through information that is shared on the internet or on social media sites; a type of viral bias.” Id. Focusing on negative publicity surrounding a defendant and pre-trial biases discussed earlier, it was found that someone who was in a “negative pre-trial publicity condition” compared to those in a control group, “had a preference towards the prosecution (making the guilty verdict their leading verdict).” Id. Confirmation bias can also be based on gender, religion, economic status, or even education. However, quite possibly the biggest of them all, is racial and prejudicial confirmation status.

Race and Prejudice Biases

            Racial and Prejudicial biases stem from various sources. They can be instilled from childhood, learned from media, or even adopted through development. Regardless of their source, they have no place in the courtroom or in society. Elizabeth Ingriselli tackles this important issue in her article, discussing aversive racism, defining it as, “a modern form of racism in which whites exhibit implicit biases-biases of which they are unaware but that have discriminatory effects against blacks.” Id. To be clear, “aversive racism theory is not limited to whites and blacks, the theory has typically focused on whites’ biases against blacks.” Id. While Ingriselli’s article focuses on racism towards blacks, the principles extend to other races and ethnicities. In a separate article, Jody Armour noted that other groups experience the same issues in our legal system. Armour noted the ways in which stereotyped groups are discussed in legal proceedings, and how the discussions can vary in content and subtlety[14]. She stated, “[t]he content of a group reference concerns the specific aspect of the stereotype that the reference invokes. For example, fairly recent cases record attorneys playing on stereotypes of blacks, Italians, and Native Americans as more prone to violence and criminality than other Americans.” Id.

            Ingriselli breaks her article down into two theories, the Social Identity Theory and the Aversive Racism Theory. “According to social identity theory, individuals categorize others into ingroups or outgroups and favor members of the ingroup to enhance their own self-image.”[15] This is because individuals seek high self-esteem and, within social groups, emphasize their group’s positive values based on societal evaluations, aiming to make their ingroup appear superior to others. Id. By favoring their in-group, they are in turn favoring themselves. Id. In the legal context, “[i]f ingroup members are suspected of having committed a crime, individual members of the group may be more lenient in judging the ingroup member. Otherwise, an ingroup member’s conviction might suggest the proclivity of the ingroup toward crime.” Id at 1697.

On the other hand, the Aversive Racism Theory emphasizes race salience in a trial, which refers to, “how prominently race is highlighted during a trial, either explicitly through direct mention or implicitly through societal or contextual cues.” Id at 1698. Explicit race salience is when race is a central idea to the case, while implicit race salience can occur when there are societal racial tensions. Id. A notable historical example of implicit race salience is the O.J. Simpson trial. Ingriselli cites to study conducted during the trial by Paul Skolnick and Jerry Shaw, which found that the racial tensions in Los Angeles at the time of the trial influenced the jury’s decision making[16]. Despite race not being an issue in the trial, Skolnick and Shaw found that white jurors were, “equally likely to convict white and black defendants.” Id.

Ingriselli emphasizes the need for heterogenous juries by citing another study conducted by Samuel Sommers[17]. Sommers found that, “when whites were told that they would serve on a heterogeneous jury, they were significantly less likely to think that the black defendant was guilty than were white jurors who were told they would serve on a homogeneous all-white jury.”[18] Sommers further found that, “diverse groups discussed more facts, evidence that was missing, and race-related concepts than all-white groups.” Id. Once again, this an important principle that emphasizes the need for diversity amongst the jury, no matter the circumstances.

Going back to the study conducted by Curley, Munro and Dror, they examine the concept of stereotyping in the jury through the representativeness heuristic. “The representativeness heuristic causes decision makers to equate the similarity between a description and a possible outcome with the likelihood of that particular outcome being correct.” Id. We often judge something based on how similar it may seem to a familiar idea, such as a stereotype. If a juror has a stereotype about how a person from a particular group may act (the outgroup, like mentioned above), they may decide that person is guilty because that particular person’s behavior aligns with that stereotype. Id. When a juror of a particular group (the ingroup, like mentioned above) goes through trial with this mindset, it overrides their ability to judge the actual evidence, and ultimately leads to biased decisions.

Perceptions of the Attorney

            Just as biases can affect a juror’s evaluation of a party in a lawsuit, they can also alter how a juror interprets the arguments and credibility of the attorneys involved. A juror’s perception of an attorney’s competence, demeanor and persuasion style can significantly influence their judgment through subtle and unconscious ways. For attorneys who actively try cases, understanding this concept is crucial.

            Non-verbal communication plays a key role in a juror’s perceptions of an attorney’s competence and credibility. Hoffman and Weiner, as discussed earlier, touched upon this subject, referring to the non-verbal communication by attorneys as “body language.”[19] Non-verbal communication can include, “[e]ye contact, facial expressions, gestures, and posture.” Id. But it’s not just limited to the basics – non-verbal communication can go as far how the attorney dresses, their appearance (attractiveness, stature, physique), and their proximity to the jury. Id. For communication to the jury, speech rate, volume and variations in pitch all come into play. Id. Factors such as eye contact, higher or lower vocal value and hand gestures have been associated with confidence and persuasiveness. Id. The jurors are the eyes and ears of the courtroom, picking up on the most subtle things. Attorneys should be aware of their presence in the courtroom, because if they are lacking in any of these areas, the effects may compound and affect the trial outcome.

In a 2011 study, Steve M. Wood and colleagues examined how various aspects of attorney performance influenced the verdicts of 572 jurors from Iowa[20]. The survey rated the opening statements, evidence presentation and preparedness, closing arguments, and the overall competence, sincerity and demeanor. Id. Starting with the prosecution/plaintiff, it was found that, the opening statements failed to significantly predict verdicts. Id at 26. This is because opening statements depend things such as, “juror characteristics, strength of case evidence, or whether attorneys “follow through” on initial promises to present crucial facts and evidence to prove their case.” Id. The jurors in the study seemed to be more focused on the actual evidence being presented – both evidence presentation and preparedness were significant predictors of verdict. For every point increase in the scores for these categories (e.g., a 2 to a 3 on a 5-point scaled), jurors were 2.05 times more likely to side with the plaintiff/prosecution, and 3.23 times more likely based on preparedness. Id at 27. The researchers found this to be “not surprising”, as “well prepared cases are often characterized by the presentation of well-organized, clear, and convincing evidence.” Id. Even more fascinating was the closing arguments. For every one-point increase, jurors were 5.27 times more likely to favor the plaintiff/prosecution, suggesting that jurors were, “more susceptible to closing arguments, particularly if the attorneys presented cohesive summaries of well-prepared, strongly supported cases.” Id. Sincerity and demeanor only showed an increase of .25. Interestingly, plaintiff/prosecution attorneys were less likely to prevail the more sincere they were. Hahn and Clayton, found that, “mock jurors are more likely to acquit a defendant with an aggressive, rather than passive, attorney. Mock jurors also perceived aggressive attorneys as more competent, but less friendly than their counterparts.”[21] This underscores the idea that jurors’ perceptions of an attorney’s style and demeanor can dramatically affect their decision-making, especially if the attorney presents a strong and coherent case.

Moving on to the defense, there was a significant difference. Opening statements were a significant predictor of verdict in a very shocking way. As the quality of the opening increased by one point, the odds a juror sided with the defense decreased by 7.05 times[22]. The explanation for this is key – defense opening statements almost always favor the prosecution, and thus, “defense attorneys should concentrate on refuting prosecutors’ arguments and undermining their credibility.”[23] There is also other factors that play into these extreme results, such as if the defense attorney advanced new or extreme theories, or if they undermined their own strategies by “inadvertently expressing a strong intent to persuade their audience or by promising, but failing to deliver, evidence that would exonerate their client. Attitude change and persuasion research indicates that either of these missteps may undermine attorneys’ credibility and decrease acceptance of a message.”[24] As far as evidence presentation and preparedness, as the quality level of both decreased by one point, the odds of favoring the defense decreased by .20 and .29 times, respectively. Id. Similarly, sincerity and demeanor failed to significantly predict verdicts. Id.

The study focused on the fact that, “[a]ttorneys should generally focus on improving specific elements of their performance during trial and overall preparation, which predicted positive outcomes for both sides.” Id. Ultimately, attorneys must actively be aware of how they are perceived. Id. A big part of the trial process is knowing your audience and playing to likes and dislikes – attorneys must tailor their approach to align with the jurors’ preferences, as this can play a significant role in their likeability, and the overall trial’s outcome.

The Judge’s Influence on the Courtroom

            While attorneys play a significant role in shaping jurors’ perceptions, the judge also holds considerable influence, as the judge’s instructions, rulings, and overall conduct can guide the jury’s interpretation of the law and evidence, thereby impacting the trial’s outcome. Understanding the judge’s role in this context is crucial, as their influence extends beyond the courtroom’s procedural aspects, directly affecting how jurors engage with the case at hand.

In a 2008 American Psychological Association article, the pressures on the jury stemming from a judge’s use of a “dynamite charge” were shown to make the jurors change their votes[25]. A “dynamite charge” was originally discussed in the case of Allen v. United States, in which the U.S. Supreme Court approved instructions ordering a deadlocked jury to continue deliberations.[26] The Court advised dissenting jurors to evaluate whether their doubt was reasonable, given that it failed to sway their equally honest peers. Id. The APA article notes that a judge’s dynamite charge could pressure juries and make them feel persuaded into changing their votes, and “leads those in the majority to exert more pressure on jurors in the minority.”[27] This research suggests that minority jurors are not conforming due to actual persuasion (informational influence), but rather because of social pressure (normative influence). Id.

Hoffman and Weiner explored this further, noting the Rosenthal Effect. Named after Robert Rosenthal, this effect “occurs when individuals modify their behavior to conform with what they perceive to be the expectation of the person in authority.”[28] They cite to an Oregon Supreme Court case as part of their discussion in recognizing jurors’ sensitivity to words and non-verbal communications, where the court notes that excessive intervention by a trial judge “diminishes the effectiveness of the adversary system and may deprive a litigant of his right to an impartially administered trial.” Id[29]. Overall, Hoffman and Weiner emphasize that the role of the judge in the courtroom should be impartial – remaining unbiased in its actions and avoiding even the appearance of prejudice through language or conduct.[30] While they recognize that judges may fall victim to their own human nature, they emphasize the need for judges to recognize that they are in a position of power and of access to information that was never presented to jurors. Id. Judges may draw their own mental conclusions regarding evidence, and they must do their best to avoid sending messages to the jurors through non-verbal communication.

Deliberations

            Jury deliberations, touched upon earlier, bring their own set of problems. “Legal scholars commonly cite jury deliberations as an important factor that helps to attenuate the effects of bias in the criminal justice system.”[31] It is believed that by randomly selecting members of society and putting them together in one large group, all of their beliefs, upbringings and backgrounds will blend together and cancel out any biases. Id. However, there are two areas of research that counter that theory: classical psychological research on group decision making and jury decision-making research. Classical psychological research, more commonly known as groupthink and group polarization, emphasizes that group decision making can lead to “poor decision performance and extreme, and/or biased, positions” Id. External influences such as media exposure, which we touched on earlier, also impacts jurors’ biases. Jurors who expose themselves to negative publicity surrounding a trial are often swayed by what they found, and it is a common misconception that the deliberations will reduce that bias as proven in a study conducted by Ruva and Guenther[32]. The study showed that jurors who were not exposed to negative pre-trial publicity were more favorable towards an acquittal post-deliberation, which showed a leniency bias. Id. However, jurors that were exposed to negative pre-trial publicity were unable to source monitor were likely to confuse the negative pre-trial publicity as being part of the actual trial. Id.

Curley, Munro & Dror discuss another study that also emphasizes the need for a diverse jury for deliberations. In a study by De La Fuente[33], mock jurors completed the JBS to determine whether they were pro-prosecution or pro-defense. Id. They were then separated by belief and asked to deliberate. “The results of the study highlighted that jurors with a pro-prosecution (pro-defense) bias gave significantly more (fewer) guilty verdicts post deliberation in comparison to pre-deliberation when the evidence presented was ambiguous.” Id.  The results of the test showed that, by placing jurors together who had common beliefs, their views became amplified.

But even in the absence of negative pre-trial publicity or homogenous deliberations, issues persist. Most jurors don’t understand their role during the deliberations. Jurors are there to deliberate on the evidence and voice their opinions – that’s the foundation of the deliberation system. However, studies show that, “[t]he strongest predictor of a jury’s verdict is the distribution of individual pre-deliberation verdicts: In approximately 90% of trials, the position favored by the majority at the beginning of deliberations becomes the jury verdict.”[34] Further, it was found that, “[v]erdict-driven juries take an early vote and then structure the discussion around available verdict options, seeking to identify the option that is most acceptable to jurors. Evidence driven juries spend time evaluating the evidence and attempting to discern the ‘‘truth’’ from conflicting facts.” Id. It is important that jurors go into the trial knowing exactly what their job is, so that when it comes time for deliberations, they know exactly what needs to be done.

Recommendations

            While jury biases are never going to go away, there are some steps that we can take to do our best to mitigate the effects. As mentioned above, the NFA Scale could be incorporated into the voir dire process, which would allow attorneys to identify jurors who are more or less likely to make decisions based on their feels. Some examples of questions could be, “It is important for me to be in touch with my feelings,” or “I find strong emotions overwhelming and therefore try to avoid them.”[35] Depending on the case, prosecution/plaintiff attorneys should look to strike jurors who are less in touch with their feelings, while defense attorneys should do the opposite.

After conducting this process, attorneys should then focus on presenting the trial to their selected jurors in a clear and concise manner. The problem is knowing. Attorneys know the case better than anyone in the room, and often overlook the fact that they may be overlooking key facts to address, or moving too quickly, or just not laying enough foundation for the story.

Another problem under this same concept is that, overall, the trial can be confusing for jurors. Once again, this could be the first time they have ever been in a courtroom, and the terminology and language used from the beginning of the trial all the way to the jury instructions can be confusing. Curley, Munro & Dror discuss another study by De La Fuente and Garcia, who found that ambiguous evidence allows jurors to interpret evidence in a way that aligns with their personal beliefs. Id. They cite to a psychological theory, the elaboration likelihood model, which suggests that when the evidence is presented in comprehensive manner, “individuals are much more likely to be motivated to use cognitive resources in order to engage in the debate and attend to relevant information, thus allowing them to make a decision based on the evidence.” Id. Breaking the case down, not using legalese, and trying to relate the information to the audience will help attorneys to be less ambiguous in their presentation, which will lead to a better understanding by the jury. However, this burden cannot be strictly placed on attorneys – judges also need to incorporate these practices into their jury instructions. We cannot expect jurors to understand legal concepts in a single day of teaching – the same legal concepts we learned over a period of months. By taking the time to explain the legal concepts in a digestible manner, jurors will be able to grasp the concepts in front of them, which will lead to more informed decisions in the deliberations.

Conclusion

            While the jury system is one of the many threads in the judicial system’s web of complexity, it is inevitable. The best we can do as attorneys use it to grow – weave future reforms, use it to our advantage, and try not to get tangled in it.

[1] Brian H. Bornstein & Edie Greene, Jury Decision Making: Implications For and From Psychology, Current Directions in Psychological Science 20(1) 63-67 (2011).

[2] Janet Lee Hoffman & Andrew Weiner, The Juror as Audience: The Impact of Non-Verbal Communication at Trial, Oregon State Bar Litigation Journal Volume 32 Number 3 (Fall 2013).

[3] Desiree A. Griffin & Emily Patty, Emotions in the Courtroom: Need for Affect in Juror Decision-Making, 22 JURY EXPERT 61 (July 2010)

[4] Forgas, J. P., & Bower, G. H. Affect in social judgments. Australian Journal of Psychology, 40, 125-145. (1988).

[5] Griffin & Patty, supra note 3, 61

[6] Maio, G. R., & Esses, V. M. The need for affect: Individual differences in the motivation to approach or avoid emotions. Journal of Personality, 69, 583-615. (2001).

[7] Haddock, G., Maio, G. R., Arnold, K, & Huskinson, T. Should persuasion be affective or cognitive? The moderating effects of need for affect and need for cognition. Personality and Social Psychology Bulletin, 34, 769-778. (2008)

[8] Lee J. Curley, James Munro and Itiel E. Dror. Cognitive and human factors in legal layperson decision making: Sources of bias in juror decision making. Medicine, Science and the Law 2022, Vol. 62(3) 206–215 (2022)

[9] Kassin SM and Wrightsman LS. The construction and validation of a juror bias scale. J Res Pers; 17: 423–442. (1983)

[10] Id 8, 207

[11] Myers B and Lecci L. Revising the factor structure of the juror bias scale: a method for the empirical validation of theoretical constructs. Law Hum Behav 22: 239–256. (1998)

[12] Carlson KA and Russo JE. Biased interpretation of evidence by mock jurors. J Exp Psychol: Appl; 7: 91 (2001)

[13] Curley, Munro & Dror, supra 8, 208

[14] Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 CALIF. L. REV. 733 (May 1995).

[15] Elizabeth Ingriselli, Mitigating Jurors’ Racial Biases: The Effects of Content and Timing of Jury Instructions, 124 YALE L. J. 1690 (March 2015).

[16] Paul Skolnick & Jerry I. Shaw, The O.J. Simpson Criminal Trial Verdict: Racism or Status Shield?, 53 J. Soc. ISSUES 503, 513 (1997)

[17] Ingriselli, supra 15, 1701

[18] Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. PERSONALITY & Soc. PSYCHOL. 597, 607 (2006)

[19] Hoffman & Weiner, supra 2, 3

[20] Steve M. Wood, Lorie L. Sicafuse, Monica K. Miller, & Julianna C. Chomos, The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict, American Society of Trial Consultants (January 2011).

[21] Hahn, P. W., & Clayton, S. D. The effects of attorney presentation style, attorney gender, and juror gender on juror decisions. Law and Human Behavior, 20, 533-554 (1996)

[22] Wood, Sicafuse, Miller, & Chomos, supra 20, 28

[23] Greenberg, M. S., & Ruback, R. B. Social psychology of the criminal justice system. Monterey, CA: Brooks/Cole (1982)

[24] Id at 22.

[25] Miller, M. K., & Bornstein, B. H. (2008, March 1). Do juror pressures lead to unfair verdicts? Monitor on Psychology, 39(3). https://www.apa.org/monitor/2008/03/jn

[26] Allen v United States, 164 US 492 [1896]

[27] Id 25

[28] Hoffman and Weiner, supra 3, 4

[29] Id at 28. See also, State v Mains, 295 Or 640, 669 P2d 1112 [1983]

[30] Id at 28.

[31] Curley, Munro & Dror, supra 8, 210

[32] Ruva CL and Guenther CC. From the shadows into the light: how pretrial publicity and deliberation affect mock jurors’ decisions, impressions, and memory. Law Hum Behav; 39: 294 (2015)

[33] De La Fuente L, De La Fuente EI and Garcia J. Effects of pretrial juror bias, strength of evidence and deliberation process on juror decisions: new validity evidence of the juror bias scale scores. Psychology Crime & Law 2003 1; 9: 197–209.

[34] Bornstein & Greene, supra 1, 65

[35] Griffin & Patty, supra 3, 64