Citation: 29 Law & Psychol. Rev. 301 2005
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THE SCIENCE OF PERSUASION: AN EXPLORATION OF
ADVOCACY AND THE SCIENCE BEHIND THE ART OFPERSUASION IN THE COURTROOM
Persuasion has been defined as the "act of influencing the minds ofothers by arguments or reasons, by appeals to both feeling and intellect; itis the art of leading another man's will to a particular choice, or course ofconduct."' In the context of a trial, persuasion is the organization of legalarguments and evidence within the framework of court procedures in away likely to cause the jury to make a certain decision.2 For decades, trialattorneys have acted as amateur psychologists; through intuition and ex-perience, trial attorneys have developed techniques of persuasion in aneffort to be more effective in the courtroom.3 These amateur techniqueshave led to a more scientific approach to jury persuasion. One expert ob-served that, "all in all, [trial consultants] help lawyers position their casesto juries in much the same way you would sell a bar of soap . . . ."4 For-mer Supreme Court Justice Tom Clark has suggested that attorneys payattention to communications research in order to understand the kinds oftechniques that influence a jury.
Since the 1970s, volumes of scientific literature have been publishedon trial advocacy and the psychological principles associated with jurypersuasion; 6 continuing legal education seminars are offered in this area as
1. William C. Costopoulos, Persuasion in the Courtroom, 10 DUQ. L. REV. 384 (1972), re-printed in PSYCHOLOGY & PERSUASION IN ADVOCACY (Louis N. Massery II, ed., Association of TrialLawyers of America, 1978).
2. Steven Lubet, Persuasion at Trail, 21 AM. J. TRIAL ADVOC. 325, 342 (1997).3. Victor Gold, Covert Advocacy. Reflections on the Use of Psychological Persuasion Tech-
niques in the Courtroom, 65 N.C. L. REV. 481, 481 (1987); Thomas Sannito, Psychological Court-room Strategies, TRIAL DIPL. J., Summer 1981, at 30.
4. Gold, supra note 3, at 481 (citing Dancoff, H-idden Persuaders ofthe Courtroom, BARRISTER,Winter 1982, at 8, 17).
5. Daniel G. Linz & Steven Penrod, Increasing Attorney Persuasiveness in the Courtroom, 8LAW & PSYCHOL. REV. 1, 2 (1984).
6. See generally Michael Owen Miller & Thomas A. Mauet, The Psychology of Jury Persua-sion, 22 AM. J. TRIAL ADvOC. 549 (1999); ROBERT L. HABUSH, ART OF ADVOCACY: CROSSEXAMINATION OF NON-MEDICAL EXPERTS (1986); ROBERTO ARON ET AL., TRIAL COMMUNICATIONSKILLS (2004) [hereinafter COMMUNICATION]; DAVID B. BAUM, ART OF ADVOCACY: PREPARATIONOF THE CASE (1986); RICHARD A. GIVENS, ART OF PLEADING A CAUSE (2004); RUSS M. HERMAN,COURTROOM PERSUASION: WINNING WITH ART, DRAMA AND SCIENCE (1997); THE PSYCHOLOGY OFTHE 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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well.7 Although psychologists are employed in cases where the economicor political issues warrant such an expense, attorneys have increasinglyapplied these scientific techniques on their own.8 Just as professionals inother fields eagerly employ the latest and greatest technologies, attorneyshave also eagerly embraced social-scientific principles of persuasion in aneffort to gain a competitive edge in the courtroom.9 With these powerfulnew tools comes responsibility; some experts have raised concerns overpossible unethical use of scientific techniques of persuasion.10 Expertswarn that persuasive techniques could lead to an erosion of the judicialsystem in the United States."
II. TECHNIQUES OF PERSUASION
It has been said that trial advocacy "requires the lawyer to engage in apractical application of psychological knowledge, and it is the obligationof every lawyer to succeed in doing so., 12 Through anecdotal stories pre-sented in trial advocacy literature and personal experiences, this sectiondiscusses various advocacy techniques and explores the scientific basisbehind them.
A. Jury Selection Techniques
For the trial attorney, persuasion starts with jury selection. 3 Psy-chologists suggest that jury selection be used as an opportunity to deter-mine which jurors are susceptible to the attorney's influence and whichmight be biased in favor of a particular attorney's argument. 14 For decadesattorneys have tried to get into the minds of potential jurors in an effort topick the best jury for the case. Social scientists, over the last several dec-ades, have used their expertise in a quest to discover the perfect juror; as aresult, 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 INSTITUTEFOR CONTINUING EDUCATION (2001); Jury selection: who to strike and how to do it presented in adynamic 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 generally Gold, supra note 3.11. Id.12. ROBERTO ARON & JONATHAN L. ROSNER, How TO PREPARE WITNESSES FOR TRIAL 2d.
3.17 (1998) [hereinafter WITNESSES].13. Lubet, supra note 2, at 337 ("In a very real sense, [a lawyer is] on trial from the first moment
[he] steps in front of the (jury] .... The judge and the jury will constantly evaluate and reevaluate [anattorney's] credibility [while assessing the attorney's] behavior, appearance, bearing and conduct.").Generally, voir dire is an attorney's first opportunity to use the persuasive techniques discussed in thisarticle. Although an attorney is not arguing his case during voire dire and will not likely use tech-niques such as primacy and recency, clothing recommendations and techniques focused on buildingcredibility with the jury are applicable during voir dire.
14. SANNITO & McGOVERN, supra note 6, 2.5.
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ticular case.' 5 This section does not purport to be a compendium of knowl-edge on scientific jury selection; rather, it serves to help the reader under-stand that persuasion in the courtroom starts with picking the right jury.
Many attorneys begin the voir dire process with stereotypes and gen-eral assumptions about groups of people in an effort to distill the mountainof uncertainties posed by the jury pool. For example, in personal injurycases, attorneys often assume that more liberally minded people will tendto favor the plaintiff and more conservative minded people will tend tofavor the defense. 16 From the plaintiff's perspective, attorneys generallydo not consider middle to upper class white men and women, especiallybusiness owners, as "good" jurors for personal injury suits. 7 ClarenceDarrow once weighed in on jury selection saying, "[i]f a Presbyterianenters the jury box, carefully rolls up his umbrella, and calmly and criti-cally sits down, let him go. He is as cold as the grave; he knows rightfrom wrong, although he seldom finds anything right .... Get rid of him.. . before he contaminates the others."18 Another factor commonly thoughtto have bearing on jurors' attitudes and predispositions is body shape. Itwas generally thought that taller, skinnier people were conservative, andlarger more obese persons were friendlier and more likely to award dam-ages. 19 Prior to scientific jury selection, these are the types of "hit ormiss" generalizations and stereotyping that occurred. 20 The process of juryselection has been an especially uncertain endeavor; although social scien-tists have not completely eliminated uncertainty, scientific research haslikely decreased the uncertainty surrounding jury selection.2'
Attorneys have been known to consult U.S. Census Bureau informa-tion 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 JURYSELECTION: GAINING AN EDGE IN QUESTIONING AND SELECTING A JURY (1995); ANN FAGANGINGER, 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); WARDWAGNER, 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 preferencemerely 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, 1.04.18. 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[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 thinlips will help a plaintiff ... highly educated jurors are better in complex cases . . . [and] widowsaward high punitive damages." Id. He suggests that these myths lead to errors in judgment. Id Theauthor is aware of a lawsuit where a female plaintiff broke her pelvis in nine places as a result of acollision with a tractor trailer truck. Because of the severity of her injuries she was unable to ever beintimate with her husband. The plaintiffs attorney in that case thought he needed as many youngmarried persons on the jury as possible.
21. See sources cited supra note 15.
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success.22 Attorneys have also photographed the homes of potential jurors,taking note of the condition of the lawn, type of vehicles present andwhether there are toys on the lawn, or whether outdoor equipment such asboats and motorcycles are present. 23 Attorneys have also considered in-formation such as where potential jurors work and attend -religious ser-vices. All of these factors are believed to be helpful in picking the rightjury.
Social scientists have developed a number of techniques generally re-ferred to as "scientific" or "systematic" jury selection in an effort to cre-ate some sense of certainty out of a wildly uncertain endeavor. 25 The mostwell known technique associated with scientific jury selection is the demo-graphic survey. 26 Such surveys seek to discover the attitudes among vari-ous groups in the community toward certain issues.27 Social scientists usethese surveys to develop a profile of jurors with favorable and unfavorablebiases.28 Demographic information about potential jurors can be found onthe jury list itself; often it will contain information such as race, sex, ageand home address. Information may also be obtained through private in-vestigators, voter registration lists, credit reports and membership lists.
It is noted that an attorney should know the age, sex, occupation, maritalstatus, spouse's occupation, and number of children of all potential jurorsbefore any meaningful analysis can be done.3
Trial simulations and focus groups are also employed by social scien-tists as a method of evaluating issues that will arise at trial.31 A trial simu-lation is a kind of dress rehearsal and miniature trial.32 The major issues ofthe trial are presented to the mock jury and the jury's reaction to the issuesis measured. Trial simulation can be helpful in measuring the effectivenessof the attorney, expert witnesses and evidence and in determining desir-able and undesirable jurors.33
After having done demographic surveys and other research, psycholo-gists suggest that in an effort to illicit further responses from potentialjurors during voir dire, the attorney should reinforce any initial responses
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 em-
ploy 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. HANS & NEIL VIDMAR, Jury Selection, in THE PSYCHOLOGY OF THE
COURTROOM, at 68-72 (N. Kerr & R. Bray eds., 1982).26. Gold, supra note 3, at 493.27. Id.28. HANS & VIDMAR, supra note 25, at 68-72.29. V. HALE STARR & MARK MCCORMICK, JURY SELECTION 6.02 (2001).30. Id.31. FREDERICK, supra note 15, at 152.32. STARR, supra note 29, 7.01.33. Id.
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he receives. 34 This technique, referred to as deconditioning, can be used toreinforce the idea that it is acceptable for the potential jurors to voice theiropinions even if the opinions are negative.35 Public speaking is the numberone fear in the United States.36 When prospective jurors speak out duringvoir dire the attorney must commend the answer and encourage other po-tential jurors to speak up as well.3 An abrasive or combative response to anegative answer might discourage other potential jurors from speakingup.
One voir dire tactic is designed to increase the credibility of the attor-ney by sacrificing a favorable juror.39 This tactic can be used in situationswhere a juror plainly states that he or she is biased in favor of a particularside. This tactic suggests that even though the potential juror is biased infavor of a particular side and will most likely be struck by the opposingside, the attorney for whom the prospective juror is in favor, may gaincredibility and increase his perceived fairness if he strikes the juror ratherthan allowing the opposing attorney to strike the biased juror. 40 For exam-ple, this display of fairness-"Mr. Smith, I appreciate your support of ourside but with your permission I would like to excuse you because youwould be biased in my favor and would not be able to look at both sides ofthe argument fairly"--could increase the attorneys trustworthiness in theeyes of the remaining jurors.4
B. What is Said, How it is Said, and What You Look LikeWhen You Say it.
Having selected a favorable jury, an attorney presents the evidenceand his arguments in a way that he hopes will persuade the jury that inlight of the evidence, his interpretation of the event or act in question iscorrect. Attorneys have long used personal charisma and skillful orationsto persuade juries. Although attorneys have developed their own persua-sive techniques as a result of experience, social scientists have been ex-ploring the scientific basis of persuasion.
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 andaccompanying text.40. Id.41. Id.
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1. Word Choice and Speech Patterns
Social scientists have found that speech patterns, word choice andone's overall style of speech are powerful tools of persuasion. 42 It is thedifference between $4.99 for a hamburger and $5.00 for a hamburger(Five "whole" dollars). It is the difference between "who are you?" and"who are you?" and the difference between "well Iguess so" and "YES. "Attorneys have long manipulated their speech patterns and word choice inan effort to persuade juries. Sociolinguists have found that linguistic char-acteristics of a speaker affect the persuasiveness of the speaker.43 The ma-jority of the research on verbal characteristics and persuasiveness in thecourtroom has been conducted by anthropologist William M. O'Barr andhis associates.4a
O'Barr found that the "powerfulness" of a person's speech has an af-fect on that person's persuasiveness. 45 Sociolinguists have found that at-torneys can encourage jurors to make judgments about the credibility of awitness by manipulating the "powerfulness" of the witness's speech.46
Researchers found that "powerless" speakers use hedge words (sort of,kind of, maybe, around, I think, it seems like), intensifiers (very, really,lots, surely, definitely), filler words (you know, and all, um) and terms ofpersonal reference (my old pal, my buddy Jim); avoiding these phrasestends to increases the "powerfulness" of a speaker's message.47 In anotherstudy, constant use of phrases such as "to be honest with you" or "to tellthe truth" was perceived as a marker of untruthfulness. 48 Using an inquisi-tive intonation at the end of a sentence, suggests that the speaker seeks thelistener's approval for the declaration-also conveying a lack of confi-dence .49
The O'Barr study found that "powerless" attorneys engage in verbalclashes with witnesses, that is, where both the attorney and witness speakat the same time. 50 Research revealed that even when the attorney domi-
42. John M. Conley et al., The Power of Language: Presentational Styles in the Courtroom, 1978DUKE L.J. 1375, 1399.
43. Id. at 1392, 1399; JEFFEREY T. FREDERICK, THE PSYCHOLOGY OF THE AMERICAN JURY 169(1987).
44. A summary of this research can be found in O'BARR & LIND, Ethnography and Experimenta-tion: Partners in Legal Research, in THE TRIAL PROCESS, VOL. 2 OF PERSPECTIVES IN LAW ANDPSYCHOLOGY 181-207 (B. Sales ed., 1981); see also COMMUNICATION, supra note 6, at 15.06; JohnM. Conley, Language in 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. Lubet, supra note 2, at 354-55.49. SANNITO & McGOVERN, supra note 6, at 5.35; Childress, supra note 46, 24, 48-49, 53;
Conley et al., supra note 42, at 1380.50. Conley et al., supra note 42, at 1392.
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nated the cross-examination, the attorney was perceived as having lostcontrol of the witness.5 ' Psychologists suggest that verbal clashes shouldbe avoided because of the negative effects on the attorney's image.52 TheO'Barr study also suggests that an attorney not interrupt witnesses becauseit is perceived by the jury as unfair.53
Social scientists also caution attorneys against using complex languageand hypercorrect speech. Experts suggest that an attorney use vocabularyon an eighth-grade reading level .54 Hypercorrect speech refers to the ex-cessive use of "bookish" grammar, overly formal or technical language.Research indicates that hypercorrect speech is detrimental; witnesses thatuse hypercorrect language are perceived as significantly less credible thanthose that do not use hypercorrect language.56
One study found that witnesses displaying characteristics of "power-ful" speech were perceived as "more competent, attractive, trustworthy,dynamic, and convincing. "57 Studies have found that jurors perceive"powerful" speakers as credible and give larger damage awards to plain-tiffs with powerful witnesses than plaintiffs with "powerless" witnesses.58
The perceived connection between speech style and credibility is strong; inone study, jurors linked credibility with powerful speech even when thejudge cautioned against making such a connection.59 Psychologists suggestthat attorneys coach witnesses to remove these negatively perceived char-acteristics. 6 O'Barr's findings encourage attorneys not only to use "pow-erful" speech themselves but to coach witnesses to use "powerful" speechas well.
As a corollary to "powerful" speech, studies have shown that nounsand verbs are the most evocative words.61 It is thought that adjectives-large, minuscule, tiny, gruesome, bloody, beautiful, pretty-create thebest mental pictures; 62 however, adjectives tend to convey a subjectiveanalysis of the event or action. 63 Because these words are subjective, stud-ies show that a description using too many adjectives may come across as
51. FREDERICK, supra note 43, at 171; Conley et al., supa note 42, at 1392; KESTLER, supranote 47, at 2:31.
52. FREDERICK, supra note 43, at 172; Conley et al., supra note 42, at 1392.53. Conley et al., supra note 42, at 1392.54. STARR, supra note 29, at 10.04[A].55. FREDERICK, supra note 43, at 169-70.56. Id. at 169-70; see also Conley et al., supra note 42, at 1389-90; WrNESSES, supra note 12,
11.09 (West 1998) (using everyday language in the courtroom is preferable to sophisticated or gran-dious language).
57. 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, supra note 2, at 334-35.
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unreliable to a jury. 64 Nouns and verbs are not generally subjective; theysuggest something about the event or action itself.65 Consider a situationwhere an attorney states that an accident was a horrendous, gruesome,terrible, deadly, awful accident. The use of these, although vivid, descrip-tors is a subjective judgment.66 In contrast, consider where an attorneydescribes the accident in these terms: "the roof of the car was smashed inon top of the driver; blood dripped down the side of the car door, splat-tered on the grass and soaked into the dirt; the front wheels and hood ofthe car were ripped off during the plunge down the ravine." These nounand verb combinations-roof, smashed; blood, dripped; splattered, grass;soaked, dirt; wheels and hood, ripped-provide a more concrete descrip-tion 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 todifferent people. The jury is more likely to find the noun/verb descriptionconcrete and dependable.67
Further, defense attorneys will generally refer to an event as an acci-dent, while plaintiff's attorneys will generally refer to the same event as atragedy or horrific crash.68 In a series of studies conducted by psycholo-gists, subjects were shown a film of a vehicle accident and asked to esti-mate the speed of the vehicle on impact. 69 The study used different verbsto describe the accident and found that the estimates varied depending onword choice. 70 Witness estimates were found to be higher when the sub-jects were asked how fast the vehicle was going when the vehicle"smashed" into the other vehicle.71 Estimates were lower when the ques-tion was phrased such that the vehicle "contacted" the other vehicle.72
A defense attorney, particularly in criminal cases, can gain an advan-tage by making the meaning of the evidence vague or unclear. One studysuggests that criminal defense attorneys can increase their chances of anacquittal by using "abstract or vague language. ,73 Further, the study statedthat successful defense attorneys used fewer adverbs. Adverbs tend to in-crease specificity; thus, a decrease in the use of adverbs increases vague-
64. Id. at 335.65. Id.66. Id. at 334-35.67. 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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ness. 74 Because the burden of proof in criminal trials is high, the defendantshould be acquitted if the jury is confused.75
One successful trial attorney stated that one would be a fool if he didnot prepare his witness before trial or depositions.76 Social scientists haveuncovered two traits that stand-out as indicators of truthfulness: certaintyand detail .77 Preparing a witness before a deposition or trial, giving par-ticular attention to certainty and detail can have a considerable impact on awitness's credibility. Even witnesses that are confident and certain abouttheir conduct or observations may appear surprised or uncertain uponhearing a question for the first time at trial.78 Some have stated that anattorney would be well-advised to inform the witness of the topics to becovered in both direct-examination and cross-examination. 79
A command of detail has been found to increases credibility.8 Studiessuggest that assumptions of witness credibility were made on the basis ofthe level of detail the witness reported, even when the details were irrele-vant to the case.8I One article states quite emphatically that "supportivedetails . . . add credibility and weight, 82 while an apparent lack of knowl-edge tends to erode the credibility of witnesses and attorneys .83 One psy-chologist suggests that an attorney ask his witness to recount as many de-tails that they can remember about the incident in question. 84 Effectivecross-examination could take advantage of this tendency;85 to underminean adverse witness' credibility, it is suggested that the attorney ask ques-tions about details the witness is unlikely to know or remember.86
Varying the speed of one's speech affects credibility and helps create atemporal framework for events or actions. Studies show that "rapid speak-ing (to a point) tends to increase believability," 87 while "unnaturally slowspeech is [perceived] as an indicator of uncertainty .... "88 "Reflectivequestioning" 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 amethod by which the attorney can present his case more effectively. Several works have been pub-lished 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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convey a sense of time, distance or intensity . 9 "Reflective questioning" isbased on the idea that speaking slowly makes the event or action seem asthough it occurred slowly; conversely, speaking faster makes the event oraction seem faster or more intense. 90 Where the attorney believes that anevent occurred so fast that a witness could not have seen what the witnessclaims to have seen, the attorney should cross-examine the witness in afast paced manner so as to convey a sense of speed.9 However, where anattorney's goal is to emphasize a witness's opportunity to act or to ob-serve, the attorney is advised to slow the examination and proceed in adrawn out manner.92
2. Indirect Assertion of Facts
Often, merely asking a question or making a statement loaded with as-sertions will introduce a fact to the jury, regardless of whether the witnessanswers the question. 93 Research suggests that jurors can be strongly in-fluenced in this way.94 Simply asking a question sometimes is sufficient toinduce the jury to draw an inference, even in the absence of confirmingtestimony. The form of the question influences the witness and the jury;the question itself becomes a message.96 This influence is known as "thebiasing effect;" regardless of the answer, jurors tend to misperceive theevidence due to indirect assertions contained in the question itself.97 Re-search indicates that when an attorney asks a question loaded with an as-sertion, jurors tend to believe that the attorney has some basis to make the
98 iassertion. Even in the absence of corroborating evidence, questions suchas "isn't it true that your work is poorly regarded by your colleagues?"have been found to reduce the expert's credibility in the eyes of the jury.99
89. Id. at 334.90. Id.91. Id.92. Id.93. Underwood, supra note 68, at 190.94. 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 publicofficial for ethics violations. At the close of the prosecution's case, the defense attorney, sitting at histable, 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. Hecalled two witnesses and rested his case within four hours. The individual was acquitted. Althoughthere may be ethical issues here, the defense attorney, without any justification asserted that the prose-cution 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 Ex-
amination, 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 overher head, was caught on video tape in a grocery store reaching over her head to grab what appeared tobe a one gallon milk container (one gallon of milk weighs over eight pounds). After an in camem
2005] Science of Persuasion
Other examples of indirect assertion of facts include questions such as:"Have you stopped beating your wife?" and "What did you do with themoney you stole?"'
C. Emphasis and De-Emphasis of Evidence
Attorneys can increase or decrease the weight given to a particularpiece of evidence by understanding how to apply some basic psychologicalprinciples. Understanding the psychological effects of the presentation ofinformation in various sequences can help attorneys maximize the impactof favorable evidence, while minimizing the impact of unfavorable evi-dence. Acknowledging negative evidence before the opponent presents ithas the effect of softening the impact of the negative message. Repeatingimportant pieces of evidence through several witnesses can also be a per-suasive tool if used in moderation.
1. Primacy and Recency
Primacy and recency are theories suggesting when to present evidencein trial to gain the greatest possible effect from that evidence. 1' Althoughexperts disagree on which is most effective, all agree that an argument orpiece of evidence has more of an impact if presented at the beginning orend of a witnesses' examination. 10 2 The law of primacy in persuasion,formulated by F.H. Lund, holds that people are influenced most by theinformation received first.10 3 Lund found that in a debate the first argu-ment presented had the greatest impact on the audience.' 4 Similarly, a
viewing of the video with the judge, the plaintiffs attorney sent an assistant out for a scale and a onequart milk container. After the jury viewed the video, the plaintiffs' attorney put the plaintiff on thestand. In front of the jury he put the one quart container on the scale and asked the plaintiff if shecould pick up a two pound container, to which she said "yes." He asked the plaintiff if she was in painwhen she reached for the container, she said "yes." The attorney continued to question her about thefact that even though she was in pain, she had to purchase food and provide a meal for the family. Inthese follow-up questions the attorney indirectly asserted that the container was a quart containerrather than a gallon container.100. Id.; The author has seen attorneys use the indirect assertion of facts as a method of criticismtoward opposing counsel. For example, it is not uncommon for rural people to have a general mistrustof lawyers; they also may have a sense of apprehension toward large cities and a mistrust of outsiders.Home-town attorneys can take advantage of this fear by referring to opposing counsel (most oftendefense counsel) as "big city lawyers." For instance, a lawyer could say, "those big-time slick lawyersfrom [insert big city name] think they can come down here and tell you what's right and what'swrong." While indirectly asserting that the "big city" lawyers are untrustworthy, the home-townlawyer also highlights the fact that the opposing counsel is an outsider.101. COMMUNICATION, supm note 6, at 15.04102. Id. Interment, a companion principle to the primacy effect, holds that evidence presentedbetween the first and last bits of evidence will be remembered least. Lubet, supra note 2, at 327-28.To minimize the impact of information that must be mentioned but is negative or embarrassing, anattorney should present the evidence in the middle of trial between more positive evidence. Id.103. SANNITO & McGOVERN, supra note 6, at 5.4. See also COMMUNICATION, supra note 6, at 15.04; Sannito, supmanote 3, at 31.104. See supra note 103.
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jury uses the first arguments and pieces of evidence to form preliminaryopinions about the case.10 5 These initial opinions have been found to biasthe interpretation of subsequent evidence. 0 6 Inconsistent evidence, re-ceived later, "tends to be disregarded or misinterpreted" by the jury. 10 7
Several articles suggest that the most favorable evidence will have itsgreatest impact if presented first.108 Experts have found that "jurors tendto sustain belief in the validity of their initial theories long after logic sug-gests those theories have been discredited."'09 The principle of recencyasserts that people are more likely to remember what they have been ex-posed to most recently.10 Generally, the prosecution or the plaintiff hasthe advantage of primacy, however, the defense is not lacking in methodsto counteract it.' Psychologists offer two strategies to minimize the de-fense-induced primacy effect: (1) lengthen the trial 1 2 (2) examine manycharacter witnesses.
The above research must also be tempered with other findings that themore 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 presentedevidence "fit" with early encountered emotional evidence. 15 In light ofthese findings, Psychologist Sannito has suggested several sequencingstrategies for attorneys." 16 Emotional evidence should be put on first to getthe primacy effect and factual evidence should be put on last to gain therecency effect.' 1 7 Because factual information fades faster, putting factualevidence on last will increase the chance that the jury will remember cer-tain factual information.
2. Inoculation and Forewarning
Another technique attorneys often use is to acknowledge negative evi-dence and forewarn of false evidence. The technique of inoculation works
105. Gold, supra note 3, at 495 (citing R. NISBETr & L. ROSS, HUMAN INTERFERENCE:STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 167, 172 (1980)).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 162-63.109. 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 pri-macy 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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like a vaccination to prevent jurors from being persuaded by an opposingargument." 8 Psychologists found that by "presenting a weakened form of[the] opposition's arguments stimulates [the jury] to think about defensesto these weakened arguments .. .'"19 The opposition's arguments willlose their impact before the opposition has a chance to present them.120 Aclosely related technique, known as the defensive direct examination, alsoseeks to blunt the impact of negative evidence 12 1 For example, during adefensive direct examination an attorney might prompt his own witness toreveal weaknesses or shortcomings-that the defendant had consumed a"few drinks" or that the defendant did get into an argument with his wifethe night of her disappearance. 22 Further, during introductory phases ofdirect examination, particularly of expert witnesses, attorneys often at-tempt to make the fact that the expert is paid a non-issue by bringing thatfact out early-on. 2 3 Along with questions about their education and ex-perience, attorneys often ask their own expert witnesses whether or notthey are being compensated for their services. Having already establishedthat the expert witness is being paid and cannot work for free, the attorneyhas lessened the effect of any attempt by the opposing party to criticize theexpert as a "hired gun" or "yes man."
Finally, a jury is less likely to accept evidence or arguments if theyhave been forewarned of a reason to reject it. 124 Known as the forewarningprinciple, the principle suggests that once the jury is made aware of flawsin the evidence, they may devalue or reject the evidence altogether. 25 Oneattorney states that he often asks potential jurors, "do you think you cansmell out when a person's telling the truth or lying?" 26 If the potential
118. Lubet, supra note 2, at 354; VINSON, supra note 20, at 127-29.119. Kim Macinnis Munsinger & Harry L. Munsinger, Seven Psychological Principles You CanUse To Become A More Effective Lawyer, 62 TEX. B.J. 894, 96 (1999). See also Linz & Penrod,supra note 5, at 23.120. Munsinger & Munsinger, supra note 119, at 896.121. Lubet, supra note 2, at 354.122. For example, the author is familiar with a case where a young man burned to death in a onevehicle accident. The young man lost control of his car and crashed. Because of a known manufactur-ing flaw, the gas tank ruptured and caused the car to burst into flames. An autopsy confirmed that notonly did the young man burn to death, but that he had a blood alcohol level of 0.9, making him legallyintoxicated at the time of the accident. Although the fact that he was legally drunk did not have any-thing to do with the manufacturing flaw, this fact would surely be damning, especially because of therelatively conservative venue. The plaintiffs attorney forcefully and bluntly acknowledged that theyoung man was drunk; the attorney stated that "just because someone is drunk and crashes their cardoes not make it acceptable that they burn to death as a result of a manufacturing defect. The youngman would most likely have survived the accident if it were not for the defendant's negligence. Youngpeople make mistakes; had he not been burned to death due to the defendant's manufacturing defect,he would have walked away from the crash and learned a valuable life lesson." The case settled mid-way through the plaintiff's case-in-chief for over four million dollars.123. In the author's experience, attorneys commonly use this line of questioning during directexamination.124. Lubet, supra note 2, at 353-54.125. Id.126. Munsinger & Munsinger, supra note 119, at 896.
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juror says "yes" then he continues saying "because in this case there'sgonna be some lying going on coming from that witness stand."427 Thisstatement has the effect of forewarning the jury that someone will be un-truthful; having been forewarned of an untruthful witness, the jurors willtend to devalue or reject testimony.
3. Repetition, Duration, And The Von Restorff Effect
Through repetition and duration principles and the Von Restorff ef-fect, emphasis can be placed on importance pieces of evidence. Repetitionand duration principles seek to emphasize the significance of evidence orarguments; the more time the attorney spends on an idea or assertion, themore important it will seem to the jurors. 28 The more something is saidthe more likely it will be believed and remembered.12 9 Repetition createsattitudes that are more readily retrieved from memory.130 As for duration,the more jurors are exposed to a statement, the more they will becomecomfortable with that statement.
The Von Restorff principle holds that unique events are almost unfor-gettable. 131 For example, one probably does not remember what one wasdoing on any given day during the month of September 2001. However,one probably remembers where one was and what one was doing on themorning of September 11, 2001. Similarly, many people remember wherethey were or what they were doing when John F. Kennedy was assassi-nated, when Neil Armstrong stepped foot on the moon, and when Elvisdied. 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 acase where a man was run over and severely injured by the alleged negligent acts of a cable televisionworker. The wife of the victim stated in her deposition that, as a result of the injuries her husbandsustained, one of her husband's testicles swelled to the size of a football and appeared blue. After thedeposition, 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'swife testified only briefly at trial about the extent of her husband's injuries and his home health careneeds, because the defense allowed the blue football to remain in sight of the jury, the blue footballand the wife's testimony had a lasting impact on the jury. That the victim's testicle was the size of afootball had very little evidentiary value as to negligence, but because the football was in viewthroughout the trial it made a significant impact on the jury.
Another example of repetition and duration occurred in a trial resulting from a swimmingpool accident. Gold, supra note 3, at 495. A woman drowned in a swimming pool; she was pulled outof the swimming pool and the rescuers noticed that one of her arms appeared bright blue. Experts forboth parties could not provide an explanation for the phenomenon. Mock jury trials, conducted bysocial scientists, suggested that the blue arm evidence would be important to the jury. Psychologistsrecommended "that [the] defense . . . 'constantly infer' . . . throughout the trial that the blue armmeant that the woman had some prior [medical] problem that made her susceptible to drowning." IdDefense attorneys highlighted evidence with little or no value simply by referring to it throughout thetrial. Id.129. See Lubet, supra note 2, at 331.130. VINSON, supra note 20, at 54.131. Sannito, supra note 3, at 32.
314 [Vol. 29
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what he is about to hear is unique or novel, the person is substantiallymore influenced by the message than if he is not told that the message isunique or novel. 132 One psychologist suggests that, in light of the VonRestorff Effect, judges should be conservative with the use of an order tostrike from the record and subsequent statement to the jury to disregardthe stricken statement. 133 Halting the attorney's presentation and ruling onthe motion to strike makes the statement stand out and, in effect, helps thejury remember the stricken evidence or statement.
These techniques are often used effectively, but can also be over-done. 135 The old saying, "moderation is the key" is applicable here;"[e]mphasizing everything is the equivalent of emphasizing nothing."
An example of the concern here is mirrored in many young college stu-dents. Often students highlight or underline too many phrases or ideas intheir textbooks; when test time approaches, the overabundance of high-lighted or underlined material gives the student no direction as to the coreconcepts of the course. Similarly, if an attorney emphasizes too many factsor arguments the jury will not pick up on the core arguments or most fa-vorable facts.
4. Developing a Theme and Telling a Story
It is noted in many trial advocacy works that an attorney should have atheme and tell his version of the facts in story form. 13 7 Humans havecommunicated through storytelling since the beginning of time and instinc-tively use stories as a method of communication. 38 Good stories organizeevents, humanize the people involved and dramatize the action. 139 Conse-quently, storytelling is key tool in a trial attorney's arsenal. 14 Many atton-rys agree that "[e]ffective storytelling is the basis for much of what occursduring a trial." 14 1 Social scientists state that providing the jury with atheme or story serves three major functions: (1) it serves as a frameworkfor memory; (2) it helps the juror draw inferences from evidence pre-sented; and, (3) it helps with the decision-making process. 42 An attorneycan increase jurors' comprehension and recall through a theme or storyline because it is such a powerful organizing device. 43
132. Id.133. Id. at 171.134. Id.135. Lubet, supm note 2, at 331; VINSON, supra note 20, at 54.136. Id.137. Linz & Penrod, supra note 5, at 3.138. Miller, supra note 6, at 568.139. Id. at 569.140. Id.141. Id.142. Id. at 5-6.143. Linz & Penrod, supra note 5, at 6.
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D. Non- Verbal Communications
Psychologists have found that non-verbal communication accounts for65-70% of the total communication between humans.' 44 Recommendationsconcerning physical appearance,"' 5 physical positioning of the attorney inthe courtroom, 146 and other aspects of courtroom conduct, 147 attempts toenhance the credibility of attorneys, clients and witnesses through non-verbal means. 148 One author states quite frankly, "If I had a weak case, Iwould certainly want to lend it some help through my personal cha-risma."1 49 "Lawyers can increase their charisma by demonstrating a posi-tive outlook, by showing enthusiasm, by acting assertively, and by beingemphatic." 150 One practice manual states that "there is no question thatyou can enhance your credibility by the way you act, dress [and] conductyourself. ... ""'
1. Physical Appearance
An old saying warns that, 'you can't judge a book by its cover'.However, social scientists have found that juries often do just that. Physi-cal appearance has been found to have a strong correlation to believabil-ity.152 Many attorneys wear blue suits on the first day of trial because blueis believed to be a trusting, calming color. 153 One attorney routinely sendsassociates out shopping with clients before a trial to purchase what he re-ferred to as "appropriate dress for trial."154 A doctor defendant in a medi-cal malpractice case appeared for the first day of trial wearing cufflinks.155 The defense attorney noticed the cuff links and told the doctor togo to the men's room, take off the cuff links, and roll up his sleeves. Theattorney asked the doctor to wear a dress shirt without French cuffs for theremainder of the trial to which the doctor replied "I do not have any dress
144. STARR, supra note 29, at 12.02.145. SANNITO & McGOVERN, supra note 6, at 5.22; see also DAVID BALL, NAT'L INST. TRIALAD., THEATER TIPS AND STRATEGIES FOR JURY TRIALS 7 (1994) (outlining what attorneys should dowith their hair, hands, clothing and other accessories).146. 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 ofRhetorical Theory, 24 AM. J. TRIAL ADVOC. 313, 339 (2000).151. WAGNER, supra note 15, at 1.11.152. 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; theseattorneys 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 clothingfor clients and witnesses.155. This story was relayed to the author by a medical malpractice defense attorney in Birming-ham, Alabama.
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shirts without French cuffs." Through the remainder of the trial, the doc-tor came to trial with his sleeves rolled up. The attorney's reasoning wasthat the appearance of cuff links further alienated the already assumedlywealthy doctor from the every-day juror; the cuff links increased the doc-tor's perceived wealth and gave him an aristocratic air. No better examplecan be presented to illustrate the relationship between physical appearanceand persuasion than a defendant in a rape/murder trial who wore a T-shirtand blue-jeans to trial. 1 6 The short sleeved shirt revealed a tattoo of anoctopus engulfing a nude female. 157 The defendant was convicted.
Research shows that people who are perceived as credible and attrac-tive are generally more persuasive than those that do not have these char-acteristics; 5 9 "[s]tudies have shown that jurors are more likely to creditthe arguments of lawyers who are tall, attractive [and] ...similar to thejurors themselves." 160 One psychologist suggests that an attorney "stresssimilarities between himself and the jury, 'particularly in beliefs, attitudes,values, and goals' because people view those similar to themselves ascredible." 161 It is thought that an attractive person is more persuasive be-cause the "listener adopts the position of an attractive speaker . . becausehe wishes to perceive himself as associated with [the attractive person]."
One psychologist, in his discussion on physical appearance and persua-sion, states that "beautiful is good and ugly is bad." 163 Studies have shownthat unattractive defendants are found guilty more often than attractivedefendants.' 64 Research also indicates that the victim's attractiveness alsohad a tremendous impact on verdicts. 165 Psychologists suggest that an at-torney can minimize the negative correlation between attractiveness andperceived guilt "by making [the defendant] more pleasing in appear-ance."166 For plaintiffs, psychologists suggest they present an understatedimage. 16 Plaintiffs should dress down, particularly female plaintiffs; it isthought that female jurors will resent attractive female plaintiffs. 68 Ex-perts suggest that defendants accused of abuse of power or any kind of
156. KESTLER, supra note 47, at 9:44.157. Id.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 OFPUBLIC SPEAKING 397 (6th ed., 1997)). See also Sannito, supra note 3, at 33.162. Linz & Penrod, supra note 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, Inter-personal Attraction and Severity of Recommended Punishment in a Simulated Jury 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 lightblue) and a pale tie" to weaken his authoritative appearance.169 One prac-tice manual states that, "in the final analysis . . . the attorney must makethe final intuitive conclusion whether the witness will or will not be attrac-tive to [the jury]. ,,170
"Conservative" is generally the style of dress recommended for attor-neys. 171 There is a social stereotype that males with long hair are morepolitically liberal and males with short hair are more conservative.172 Astudy has found that male attorneys who tend to have problems establish-ing authority should wear a dark-blue pin-striped suit to increase their per-ceived authority. 173 It is recommended that men avoid bright yellow, red,pink, lavender, gold, green or gray shirts and avoid bow ties, large pat-terned 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 arealmost always negatively perceived.
2. Non-verbal Cues
Over the last three decades, there has been a growing appreciation ofnon-verbal communication. 176 However, there is some confusion overbody language and non-verbal communication. Body movements do com-municate meaning, but that is not the only source of non-verbal mean-ing. 77 Scholars are in agreement that an official, uniform "body lan-guage" does not exist; if it did, one could look up a body movement in adictionary and find that a particular movement means a particular thing. 78
If an observer is knowledgeable about general body movements and mean-ings, as well as how individuals might adapt these movements and howstress affects body movement, one could only make general conclusionsabout an individual's personality. 7 9 Attorneys should note that non-verbalcharacteristics discussed here are not separate and distinct from verbalcharacteristics discussed earlier in this article. In order to understand what
169. STARR, supra note 29, at 13.04[E] (citing J. MOLLEY, DRESS FOR SUCCESS (1988)).170. WITNESSES, supra note 12, at 2.13.171. STARR, supra note 29, at 13.04[E].172. STARR, supra note 29, at 13.03[A] (citing KAISER, THE SOCIAL PSYCHOLOGY OF
CLOTHING (1990)).173. Id. at 13.04[F]. See STARR, supra note 29, 13.04[F] table 13-1 to 13-4 for clothing sug-gestions for men and women attorneys.174. Id.175. Id. at 13.04[F].176. STARR, supra note 29, at 12.01.177. Id.178. Id. at 12.03[A].179. Id.
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is being communicated, it is important that an attorney take note of boththe non-verbal and verbal messages being sent. 8 '
I. Body Movement and Eye Contact
Studies have found that a jury is more likely to believe someone whois "likable, [sic] engaging, interested, committed and lively." 181 An attor-ney is perceived as more credible if he makes frequent eye contact withjurors and uses gestures. 82 As a sign of cooperation, attorneys shouldaddress other courtroom participants face to face. 83 Experts suggest thatattorneys' eliminate physical barriers-legal pads, books, desks, tables,lecterns, articles of clothing such as vests and buttoned suit coats-between themselves and the jury.184 These physical barriers serve as psy-chological barriers between the attorney and the witness; 185 physical barri-ers serve as a psychological security blanket for the adverse witness butserve only to weaken the attorney's physical presence. 86 Experts suggestthat attorneys stand straight up to convey authority, credibility and confi-dence. 87 An attorney should also smile and maintain eye contact with thejury. 188 Experts discourage pacing in the courtroom because it conveysuncertainty. 189 Studies have found that "blinking, grinning, shifting pos-ture, and frequent hand movements" are perceived as non-verbal indica-tions of untruthfulness. 190 Although there are no proven indications of un-truthfulness, attorneys must be aware that some behaviors are likely to beperceived as such.' 91
Although unnecessary pacing is discouraged, psychologists encourageattorneys to make the courtroom their "territory" by moving confidentlythroughout the courtroom.192 Similarly, although frequent hand movementsand fidgeting are discouraged, broad gestures were found to project self-
180. Id. at 12.03[C].181. Lubet, supra note 2, at 351; For an exhaustive discussion of body movement and its implica-tions in the courtroom see COMMUNICATION, supla note 6, at 2-8.182. Brodsky, supra note 146, at 64 app. (citing Elizabeth A. Levan, Nonverbal Communication inthe Courtroom: Attorney Beware, 8 LAW & PSYCHOL. REv. 83 (1984)).183. Brodsky, supra note 146, at 58 (citing Constance Bernstein, Winning Trials Nonverbally: SixWays to Establish Control in the Courtroom, TRIAL, Jan. 1994, at 61).184. KESTLER, supra note 47, at 3:37; Brodsky, supra note 146, at 58 (citing Bernstein, supranote 183, at 61).185. KESTLER, supra note 47, at 3:37.186. Id.187. Brodsky, supra note 146, at 68 app. (citing Richard B. Klein, Winning Cases with BodyLanguage, TRIAL, Oct. 1993, at 56). Vinson states that an attorney should "stand with an erect postureand a strong stare to convey superiority." Brodsky, supra note 146, at 68 app. (citing Philip K. An-thony & Donald E. Vinson, Nonverbal Communication in the Courtroom: You Don't Say, TRIALDIPL. J., Spring 1981, at 14).188. Id.189. Id. at 68 app. (citing Klein, supra note 187).190. Lubet, supra note 2, at 354.191. Id. at 354-55.192. Brodsky, supra note 146, at 64 app. (citing Klein, supra note 187).
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confidence and control in the courtroom. 19 3 Women, in particular, shoulduse broad gestures to compensate for their physical size. 94 "The assump-tion is that the courtroom is a battlefield; [tihe more territory you canclaim, the more importance and power jurors will ascribe to you.,,1
ii. Proxemics, Power And Personal Space
Proxemics is the study of personal space and how humans react whenpersonal space is violated. 196 Personal space has been defined as a "typeof 'body buffer zone' that an individual may increase or decrease in pro-portion to perceived threat[s]. ", 9' Even in situations where one is notphysically threatened by another's presence, people often back up to main-tain a "comfortable distance." Often where one violates an individual'spersonal space, one is considered to be "uncomfortably close." Thiscommon phrase reflects some of the psychological effects that manifestwhen personal space is manipulated. 198 One trial manual states plainly:"physical proximity is intimidating." 199
Attorneys exhibit various spatial tendencies and use many spatial tech-niques in an effort to persuade the jury. Some attorneys stand behind po-diums; others move freely around the courtroom, often to the point ofappearing nervous .2 Although not a wholly accurate representation,many courtroom scenes in movies and television provide good examples ofproxemics in action. Often movies depict an attorney standing very closeto the witness with eyes locked and in a loud authoritative voice, question:"You murdered Mr. Smith didn't you?" is almost a staple of cinematichistory.2 1 Other movies depict attorneys flailing their arms and pointing atthe defendant with exaggerated accusatory arm movements.20 2 Where theattorney stands close to the jury box and in an almost sermon-like mannerimplores the jury to convict the accused, is another scene in movies andtelevision depicting proxemics. However, in real courtroom situations,some judges may require attorneys to examine witnesses from behind a
193. Id.194. Id. at 68 app. (citing Mary E. Ryan & David Svaldi, Women in the Courtroom: IncreasingCredibility 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 ofstyles of spatial manipulation and usage in court.201. Any number of television shows depict scenes such as the one described. Shows such asMatlock, Perry Mason, and Law and Order depict attorneys using proxemics to threaten or intimidatewitnesses. Although these shows are fictional and are in large part written for theatrical effect ratherthan for accuracy, the shows are examples of how proxemics could work in the courtroom.202. See supra note 201.
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podium or table, thus thwarting the full potential of proxemics.2 3 In thosecourtrooms where the attorney has the liberty and latitude of movement toexamine and cross-examine from various locations, proxemics can bebrought to bear as a persuasive tool.
Research suggests that manipulation of a witness's personal space inthe courtroom may induce stress, anxiety or anger.204 Trial attorneys canincrease the anxiety level of adverse witnesses if the attorney enters thewitness's personal space.25 It is also suggested that an attorney invade awitness's personal space to suggest dominance and increase nervousnessand anxiety. 2 One article suggests that an attorney invade the space of theopposing counsel to appear in control.20 7 Responding to questions whenthe questioner is within one's personal space is thought to make confidentanswers difficult.20 8 When an attorney invades a witness's personal space,"the witness often becomes anxious and testimony may appear more hesi-tant and uncertain. ,
Gender seems to affect the efficacy of the use of proxemics for thepurpose of intimidating a witness.2 1 Closeness between men is threateningwhile closeness between women is more tolerated.211 Studies show thatboth men and women allowed women to invade their space more thanmen.212 Men let invading women approach the closest.21 3 In the courtroomone must consider the gender of both the attorney and witness. Femaleattorneys will likely have less success in inducing stress and anxiety inwitnesses than male attorneys, especially when a female attorney cross-examines a male witness.2 14
Non-verbal distractions or stimuli in the courtroom may help down-play or drown out evidence presented by the opposing party. ClarenceDarrow is said to have pushed a wire through the center of his cigar toprevent the ash from falling.215 He lit the cigar and as the ash grew impos-
203. Brodsky, supra note 146, at 59.204. Brodsky, supra note 146, at 50; KESTLER, supra note 47, 3:37.205. Brodsky, supra note 146, at 58-59; KESTLER, supra note 47, 2.50, 3:38.206. Brodsky, supra note 146, at 64 app. (citing Klein, supra note 187); KESTLER, supra note 47, 2.50, 3.38.207. Brodsky, supra note 146, at 68 app. (citing David B. Givens, Posture is Power, BARRISTER,Sp. 1981, at 14).208. Id. at 59.209. Id.210. Id. at 52.211. Id. at 64 app. (citing Stephen H. Peskin, Nonverbal Communication in the Courtroom, TRIAL
DIPL. J. (1980)).212. Id. at 52.213. Id. at 53.214. Id.215. SANNITO & McGOVERN, supra note 6, 5.1; Sannito, supra note 3.
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sibly longer, all eyes in the courtroom were focused on the ash rather thanthe witness.216 The author observed a trial in which plaintiff's counsel tookfull advantage of a distraction in the courtroom. During an especiallydamaging video shown by the defense, several loud car horns blew outsidethe courtroom and tires were heard screeching and sliding. A paralegal, aswell as another audience member slipped to the back of the courtroom topeer out a window to find out what happened. The jury's eyes were trans-fixed on the window and the paralegal in an effort to determine what hadoccurred outside. Several minutes passed before the jury regained focus.
One behavioral psychologist notes that attorneys can drown out theopposing attorney's argument and evidence by presenting a variety ofstimuli in an effort to compete against the opposing attorney for the jury's
217attention. Psychologists suggest, as a defensive tactic, that an attorney"load the courtroom with spectators." 218 The loaded courtroom-providingdistracting stimuli-could make a damaging witness blend in, making itdifficult for the jury to focus on the witnesses' testimony.
III. ETHICAL CONCERNS
Trial consulting has been a controversial issue for both attorneys andsocial scientists.22 One of the main points at issue is whether the use oftrial consultants is "fair" or "ethical. ,221 It has been criticized "as a ser-vice for the rich and a disservice for justice. 222 Typical beneficiaries ofscientific trial consulting are wealthy and privileged clients.223 Because ofa lack of empirical data on the effects of trial consulting,224 the debate hasconsisted largely of opinion and speculation.225 The difficulty in quantify-ing subjective assessments such as 'fairness' has attributed to the lack ofempirical data.226
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-making Process, TRIAL, Mar. 1982,at 52-54.218. Id.219. See SANNITO & McGOVERN, supra note 6, 5.1.220. Dennis P. Stolle et al., The Perceived Fairness of the Psychologist Trial Consultant: An Em-piricalInvestigation, 20 L. & PSYCHOL. REV. 139 (1996).221. Id.222. Id. at 147.223. Franklin Strier & Donna Shestowsky, Profiling the Profilers: A Study of the Tial ConsultingProfession, Its Impact on Trial Justice and What, if Anything, To Do About It, 1999 Wis. L. REv 446(1999).224. Stolle, supra note 220, at 147.225. Id. at 149.226. Id.227. Gold, supra note 3, at 498.
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system. 228 The jury system is thought of as a protection against arbitraryaction by the government.229 Professor Victor Gold expresses a concernthat many social scientific techniques seek to exert influence on juries sub-consciously.23 Professor Gold suggests that social scientific techniquesgive attorneys tools to affect the jury's ability to make decisions based onthe evidence. 231 He suggests that the use of these techniques compromisethe legitimacy of the judicial system.232 Professor Gold states that "thelegitimacy of the jury system is based on the assumption that, when per-mitted to choose what evidence to accept and what community values toreflect in its verdict, the jury has the ability to choose consistent with bothlogic and fairness. , 233 This legitimacy depends upon a jury's independencein decision-making. 234 A jury's decision must be made by the jury aloneand not for it by the parties at issue.235 If the jury cannot freely make deci-sions, it cannot represent the community or contain judicial power.236
Professor Gold suggests that many social scientific techniques bridlethe independence of the jury and affect a jury's decision-making processthrough subconscious persuasion; 237 the jury cannot act independently if itis influenced subconsciously. Only when a jury is conscious of the party'spersuasive techniques is autonomy possible.238 Without this awareness, thejury cannot distinguish between its values and values asserted by the op-posing parties. 239 Although the jury is consciously aware of the input, it isnot aware of the effect of that input on its decision-making process.24
Professor Gold further asserts that many social scientific techniques ofpersuasion bridle the jury's cognitive independence. 24' When an attorneyconveys information subconsciously, the jury is likely unaware of the con-
242veyance. As a result, the jury may be unaware of illogical or biasedinformation in their decision-making.243 The jury's inability to reach a
228. Id.229. Amina Memon & Daniel W. Shuman, Juror Perception of Experts in Civil Disputes: TheRole of Race and Gender, 22 LAW & PSYCHOL. REV. 179 (1998).230. Gold, supra note 3, at 481.231. See generally id.232. 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 immedi-ately .... The preconscious level [is characterized by] mental activity ... that is incapable of beingimmediately 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 LegalAnalysis of Subininal Communication Technology, 54 S. CAL. L. REv. 1077, 1094 (1981)).239. Id.240. Id. at n.95.241. Id. at 498.242. Id. at 503.243. Id.
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rational decision based on the evidence "may present [constitutional] is-sues that. . . question the ... legitimacy of the jury system."
Another observer suggests that the legitimacy of the jury system couldbe eroded even if scientific techniques are merely perceived as unfair.245
The procedural justice theory, a framework used to assess the perceivedfairness of legal procedures, suggests "that the perceived fairness of aprocedure is directly related to the amount of control an individual in thedecision making process." 246 Within the procedural justice framework,professors John Thibaut and Laurens Walker identified two types of con-trol over decision-making: "decision control" and "process control."
Decision control is the amount of control a jury member has over the ver-dict.248 Process control is the amount of control one has "over the oppor-tunity to voice their side of the story. ,
Professor Gold cautions that social scientific techniques affect thejury's independence in three ways: (1) through the inducement of bias (2)through illogical analysis of the evidence and (3) through extra-legal fac-tors.250 The jury's lack of bias is elemental to the idea of fairness.25 ' Intheory, the jury decides a case using only the evidence presented in court,not on outside knowledge or beliefs.252 Any indication of bias is cause fordismissal from the jury.25 3 However, social scientists believe that there is
",254 255no "unbiased juror. In contrast to case law and legal theory, somepsychologists suggest that jury selection is not the selection of an impartialjury; rather, it is the selection of the most favorably biased jury.256 Expertshave asserted that scientific jury selection creates unrepresentative juries
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 3.251. See, e.g., Irvin v. Dowd, 366 U.S. 717, 722 (1961); In re Murchison, 349 U.S. 133, 136(1955) ("[Flair trial in a fair tribunal is a basic requirement of due process. Fairness . . . requires anabsence of actual bias."); United States v Wright, 340 F.3d 724 (8th Cir. 2003); Moran v Clarke, 323F. Supp. 2d 974 (E.D. Mo. 2004).252. See, e.g., Irvin, 366 U.S. at 722 (stating that jurors must be indifferent to the case and basetheir verdicts on evidence presented at trial). The need for objectivity, however, has not been con-strued 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 issufficient 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 sameoccupation as victim).254. Gold, supra note 3, at 492 (citing Call, Psychology in Litigation, TRIAL, Mar., 1985, at 48).255. See supra notes 251-253.256. Ralph W. Gallagher, The Use of a Consultant in Voir dire, TRIAL DIPL. J., Winter 1984, at25 ("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 jurorsfavorable to his or her position.").
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and, sometimes, produces unbalanced juries.257 One article states that themission of an attorney during voir dire is "to seat a jury that will give herclient a fair trial," 25 8 yet the author later suggests that a person could be agood juror for the defense in a medical malpractice case if that person'sfather and brother were both physicians.9 Choosing a juror whose fatherand brother are physicians is likely not an attempt to secure a fair and im-partial jury. One psychologist recommends explicitly that the attorney tellpotential jurors that the purpose of jury selection is to seat a fair jury toconceal the attorney's actual goal of seating the most favorably biasedjury. 260 One article states that the goals of empathy-based voir dire strat-egy are to (1) obtain information (2) generate empathy of the client (3)identify and minimize bias against the client (4) educate the jury about thefacts of the case and (5) develop a theme.261 However, only two of theseobjectives are permissible under case law and procedure.262 The articleacknowledges this fact but suggests that an attorney may achieve theseobjectives through clever advocacy.263
Professor Gold also expresses concerns about the introduction of ex-tra-legal factors into the jury's decision-making process. 264 Gold considers"irrelevant legal or factual issues" and that which "is considered by thelaw to be an otherwise improper basis for decision-making" [sic] as extra-legal bases for decision-making.265 In theory, the jury must decide a caseon the evidence presented in court, not on outside knowledge or beliefs.26
However, through the exploitation of psychological techniques, attorneyscan introduce facts to the jury that are not in evidence. Where an attorneywillfully uses "powerful" speech to enhance his credibility in the minds ofthe jurors, the attorney is focusing the jury's attention on an extra-legalmatter; the credibility of the attorney is irrelevant and it is not evidence.267
O'Barr's study of "powerful" speech found that although those that used"powerful" speech seem credible, "powerful" speech was not found to bean indicator of truthfulness.2 68 Other observers note that attorneys have
257. Strier, supm note 223, at 472.258. Blue, supra note 34, at 234.259. Id. at 235.260. Gold, supra note 3, at 493 (citing D. HERBERT & R. BARRET, ATrORNEY'S GUIDE TOCOURTROOM PSYCHOLOGY: HOW TO APPLY BEHAVIORAL SCIENCE TECHNIQUES FOR NEW TRIALSUCCESS (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. Gold, supra note 3, at 485.
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ethical obligations with respect to speech style.269 One article states clearlythat one's vocal characteristics can be used unethically. 270 "[T]he line overwhich ethical speakers do not pass is vocal exaggeration, inference andallusion which clouds the truth of a matter, leading jurors to emotionallyreact and affect or subvert truth and justice." 271 The article notes that tem-porarily using emotions to manipulate jurors is unethical .272 "Attorneyshave a special responsibility to avoid distortion of meaning and manipula-tion of emotions . .. When an attorney exploits human psycho-linguistic tendencies regarding indirect assertions of fact and innuendo, theattorney is attempting to induce the jury to employ an extra-legal basis fordecision-making; an attorney's questions are not themselves evidence.274
Social scientific recommendations on physical appearance and nonverbalcommunication techniques also focus the jury's attention on extra-legalmatters .275
Professor Gold expresses concerns that some social scientific tech-niques seek to induce the jury to evaluate the evidence illogically. Profes-sor Gold believes that a jury commits an error of logic if it "incorrectlydecides that evidence is or is not probative" or if it gives greater or lesserweight to evidence than the probative value of the evidence.276 Primacy,inoculation, defensive examination and other techniques used to emphasizeor 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 ad-vantage of the primacy effect may raise procedural and ethical issues forattorneys.278
Currently there is no formal monitoring system of any type for trialconsultants.27 9 Anyone can hold themselves out as a trial consultant.28
Trial consultants have a professional organization, the American Societyof 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.MCCROSKEY, AN INTRODUCTION TO RHETORICAL COMMUNICATION (1968)) ("[Lawyers have] theopportunity to learn to speak well, and to be eloquent [advocates of] truth and justice. [They have]ethical obligation[s].").270. Id.271. Id.272. Id.273. Id.274. See WRIGHT & GRAHAM, supra note 259, at 29.275. Gold, supra note 3, at 486.276. Id. at 494.277. See generally id.278. FED. R. Civ. P. 1 states in part: "[the rules] shall be construed and administer to secure thejust, 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] reason-able if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress orrepose." Id.279. Stolle, supra note 220, at 171.280. Strier, supra note 223, at 478.
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specific membership requirements.28' Past presidents of the ASTC haveexpressed concerns over the ethical issues of consultants advertising a win-lose record.282Although the ASTC has a code of ethical standards, thestandards are not as strict as the standards set by the American Psycho-
In past decades, attorneys have relied on tips, tricks and techniquesbased on years of experience with "hit and miss" results. These techniqueshave been handed down from hardened litigators to newly minted attor-neys over the decades. Since the 1970s, social scientists have explored theefficacy of these techniques. Through empirical evidence and other scien-tific means, scientists have examined the effects of these techniques andhave helped attorneys become more persuasive in the courtroom. Althoughthese techniques can be a powerful tool in the courtroom, attorneys shouldbe aware that scientific persuasion may have adverse effects on the integ-rity of the judicial process. Professor Gold and others raise compellingethical questions concerning the use of social scientific techniques in thecourtroom. The erosion of jury independence and the introduction of bias,extra-legal factors and illogic could prevent the jury system from function-ing properly. 284 Although psychological techniques are not 100% accurate,they increase the probability that parties will bridle the jury's decision-making independence.285 The social scientific and legal communitiesshould be concerned that some day attorneys may become too good atwhat they do-they may become too good at persuasion. Although master-ing these persuasive techniques could help trial attorneys be more persua-sive, the integrity of the judicial process would suffer greatly as a result oftheir misuse. It seems clear that the science of persuasion will remain animportant tool for attorneys, however, the ethical issues raised by Goldand others are not likely to disappear.
281. Id.282. Stolle, supra note 220, at 171.283. Strier, supra note 223, at 478.284. Gold, supra note 3, at 498.285. Id. at 508.
* I would like to thank Jereme Logan for his dedication and attention to detail in editing thiswork, and Hannah Averitt for never losing faith in me. I also want to thank Katie Finch for her pa-tience and unconditional support.