Defendant testimony—or the absence thereof—may play a dramatic role in the trial setting. In one of the few controlled experiments on the subject, three stereotypical signals of lying (fidgeting, avoiding eye contact, and disfluencies) were used in a deposition by an African American defendant accused of breaking and entering (Pryor & Buchanan, 1984). Not surprisingly, student jurors rated the defendant as least guilty when the signs of nervousness were minimized. A defendant tended to receive more lenient verdicts when they appeared distressed (Savitsky, Czyzewski, Dubord, & Kaminsky, 1976) or remorseful (Bornstein, Rung, & Miller, 2002), especially when compared to a defendant who appeared angry (MacLin, Downs, MacLin, & Caspers, 2009).
Eyewitness testimony can be quite influential with jurors (Lindsay, 1994), with as many as 83% of mock jurors influenced by such evidence (Brigham & Bouthwell, 1983). Yet, the fallibility of eyewitness testimony is well established. For example, Lindsay, Lim, Marando, and Cully (1986) exposed mock jurors to various numbers of eyewitnesses testifying for the prosecution and defense in a purse-snatching case. Although unopposed witnesses were most effective, internally inconsistent testimony (including alibi testimony) also was persuasive for the defense. Whether the eyewitness identified or failed to identify the suspect made a difference. Student jurors were presented with two types of nonidentification information (eyewitness testimony and fingerprint evidence) in situations where there were one or two eyewitnesses or contradictory evidence (McAllister & Bregman, 1986). Regardless of evidence type, identifications influenced decisions more than did nonidentifications (i.e., statements that a person was not at a location).
In other inquiry, when eyewitness evidence and fingerprint evidence were contrasted, positive examples of each were most influential on verdicts, and the absence of interactions indicated that the effects were independent of each other (Bregman & McAllister, 1987). Similarly, when an alibi eyewitness claimed that the defendant either was or was not at another location when a crime was committed, mock jurors tended to discount nonidentification information if it failed to meet their expectations (McAllister & Bregman, 1989). Jurors treated “earwitness testimony” (identification made on the basis of overheard voices) with the same credibility as eyewitness testimony, despite warnings that earwitness identifications were highly fallible (Laub, 2010).
Expert witnesses tend to be influential, especially when the testimony was presented early in the trial, when it was specifically linked to the case under consideration (Brekke & Borgida, 1988), and when there was no opposing expert witness (Levett & Kovera, 2009). In contrasts of expert witness varieties (e.g., physicians, psychiatrists, psychologists, chemists, document examiners, polygraph examiners, police, eyewitnesses, firearms experts, accountants, appraisers), members of the professions were most persuasive with actual jurors, although other experts could be influential when the relevance of their testimony could be established (Saks & Wissler, 1984). Jurors were strongly influenced by testimony from psychiatrists (McMahon, 1974).
In related inquiry, judges and lawyers considered forensic evidence on mental health to be most useful when it dealt with clinical diagnoses and analyses of whether legal thresholds had been met (Redding, Floyd, & Hawk, 2001). In another study, jurors were persuaded by expert presentation of data about groups of people most likely to commit rape (Brekke & Borgida, 1988). In a civil case, expert economic testimony of the plaintiff’s loss of wages and benefits seemed influential to juries (Greene, Downey, & Goodman-Delahunty, 1999), whereas juries tended to discount the lawyer’s recommendations about “pain and suffering” awards. When judges admitted expert testimony into evidence, mock jurors were more persuaded by it than when the same evidence was presented in speeches outside the courtroom (Schweitzer & Saks, 2009). In other work (McKimmie, Newton, Terry, & Schuller, 2004), mock jurors responded most positively to expert testimony when the sex of the expert was compatible with the case gender orientation.
Scientific evidence is often presented to jurors, and they often have a difficult time understanding it (Daftary-Kapur, Dumas, & Penrod, 2010). When mock jurors were presented with ambiguous technical evidence in a civil case, information processing was hindered (Horowitz, Bordens, Victor, Bourgeois, & Forster-Lee, 2001), but when the technical evidence was clear, the credibility of witness introducing it was increased. In one study involving DNA evidence, jurors separated or combined probabilities incorrectly and gave such probabilistic evidence less influence than it should have received (Schklar & Diamond, 1999). Juries sometimes do not know what to do with statistics.
For instance, Thompson and Schumann (1987) examined a case in which blood typing evidence showed that only 1 person in 100 shared the actual perpetrator’s blood type. Fully 60% of the jurors decided for the defendant when the defense responded by arguing that such numbers meant that in the city of 100,000 people, 1,000 people had the same blood type. Using tortured statistical sophistry, the defense attorney opined that because the defendant was only 1 of the 1,000 people in the city with the culprit’s blood type, that fact meant that there was only 1 chance in 1,000 that the defendant committed the crime. The problem of dealing with statistical evidence has been vexing, and proper interpretation of statistics presented by expert witnesses remains at an unsatisfactory level (see Fienberg, 1989, esp. pp. 149–189). Inadmissible evidence sometimes is presented to jurors. Although few claim that jurors can “unlisten” to what they have heard, the most common remedy is for judges to instruct jurors to disregard the questionable material.4 Yet, such instructions are not always effective. In their literature review of inadmissible testimony research, Daftary-Kapur, Dumas, and Penrod (2010) observed that additional attention to forgetting inadmissible material usually anchored it further. In the first place, few jurors seem able to remember the instructions to disregard the testimony (Henkel, 2008). In the second place, jurors seem able to disregard only mundane information (Hirsch, Reinard, & Reynolds, 1976). In fact, jurors who heard unusual evidence (in language or in form) damaging to a defendant, rendered more guilty verdicts when the evidence was ruled inadmissible than when it was ruled admissible (Pickel, Karam, & Warner, 2009). Evidence of a past criminal record (Greene & Dodge, 1995) especially if the past record involved crimes similar to the trial subject (Allison & Brimacombe, 2010), and emotional materials remained influential and were amplified by judges’ instructions (Edwards & Bryan, 1997). Similar effects also were found on perceptions of witness credibility (Horn, 1976). Disturbingly, the little research on the subject indicates that judges are not superior to juries in ignoring biasing or inadmissible material (Wistrich, Guthrie, & Rachlinski, 2005).
If there is a pattern to the matter, it seems that jurors use inadmissible materials along with other case arguments and evidence when they believe such information is true and relevant (Mosmann, 1998). In a meta-analysis of 48 studies, it was discovered that the instruction to disregard inadmissible material amplified the impact of the evidence (especially when attorneys were heard arguing over inadmissibility), except when judges offered a rationale for the inadmissibility ruling (Steblay, Hosch, Culhane, & McWethy, 2006).
Even judges’ instructions to disregard the inadmissible material are not always effective. As far back as 1977, Wolf and Montgomery exposed mock jurors to inadmissible testimony in which the questionable evidence was ruled either admissible, inadmissible, or inadmissible accompanied by the judge’s instruction to disregard the evidence. Biasing effects were eliminated when the judge ruled the material inadmissible, whereas the testimony was amplified when the judge ordered jurors to disregard it. Reinard and Reynolds (1978) found that raising an objection to inadmissible testimony in a criminal trial amplified it despite the judge’s ruling, and when a defense objection was overruled, the bias was greatest.
Yet research also shows that jurors were most likely to reject inadmissible materials: when the judge gave detailed explanations as to why coerced confessions were both unreliable and unjust (Kassin & Wrightsman, 1981); when juro
rs with a highly developed sense of justice received reminders of their mortality (Cook, Arndt, & Lieberman, 2004); when wiretap evidence in a murder trial was explained to be unreliable (as opposed to reasoning that it violated due process protections; Kassin & Sommers, 1997; Mallard & Perkins, 2005); when jurors were given reason to be suspicious about the motives of the advocates and witnesses who introduced the inadmissible evidence (Fein, McCloskey, & Tomlinson, 1997); when an official source (Reinard, 1989), especially a police officer (Reinard, 1981) or a county government fingerprint expert (Reinard, 1985), introduced the inadmissible materials; when the jurors had negative attitudes toward the criminal justice system and the police (Casper & Benedict, 1993); and when inadmissible testimony involved a “mild” violation of due process guarantees (Fleming, Wegener, & Petty, 1999).
In civil cases (Cox & Tanford, 1989), inadmissible testimony by itself was most persuasive when favoring the defendant instead of the victim or others in the trial. Adult jurors presented with inadmissible evidence were unable to disregard inadmissible evidence when objections to it were sustained unless the judge also gave a specific instruction on the matter (Shaffer, 1985). How inadmissible testimony produces its effects has been investigated. In two separate efforts (one with single cases and one across two case types) to develop causal models of the impact of inadmissible testimony, inadmissible testimony was found to affect sentence recommendations as a function of the verdict and the character perceptions of the defendant (Geck & Reinard, 2009; Reinard, 1989) found that the nature of the inadmissible testimony, the type of witness introducing it (official or nonofficial source), and the perceived character of the defendant influenced verdicts.
Manner of Evidence Presentation
Not surprisingly, sensational visual materials possessed by prosecutors may influence decisions if judges permit their introduction. As a rule, when jurors are presented gruesome photographs, they tend to show increased anger toward the defendant (Bright & Goodman-Delahunty, 2006), which biases jury decision making (Semmler & Brewer, 2002). Other work has found that being shown photos of victim injuries in vandalism, arson, child abuse, child molestation, or homicide cases led mock jurors to increase recommendations of sentence lengths (Ahola, Hellstrom, & Christianson, 2010). Juries easily discount recreations, as in the case of video reenactments in a wrongful death civil case (Fishfader, Howells, Katz, & Teresi, 1996).
The language and manner of trial participants can influence jurors. In particular, disfluent witnesses, witnesses with poor grammar, and witnesses who used lower-class language styles were viewed as less credible than those whose speech approximated Standard English (Conley, O’Barr, & Lind, 1978). The phrasings of defendants also affected jurors. A defendant who loudly denied the charges and intemperately protested against them was likely to be perceived as guiltier than a defendant who testified with a tone of moderation (Yandell, 1979). Yet, a study of 13 trials showed no changes in credibility or believability when the witness made repeated use of disclaimers in reaction to assertions from the questioning attorneys (Stutman, 1986b).
Witnesses occasionally appear in some form of disguise or identity masking, such as when government agents or organized crime informants present evidence. One study attempted to check the effect of electronic masking of videotaped testimony (Towell, Kemp, & Pike, 1996). None of the methods (placing a gray circle over the witness’s face, using pixilation masking, using negation of the witness’s face, repeating out of synchrony video images of the courtroom, or placing a static image of a witness’s face before jurors as the audio portion of the testimony was played to them) affected witness credibility ratings, but all methods except the negation and out of synchrony conditions impaired jurors’ ability to remember the testimony.
Direct Examination and Cross-Examination
Direct examination is the chance for one side to introduce evidence to support essential claims. One might imagine that the opposition would have its own plan for undermining this set of claims through cross-examination. But in a study of rape trials, whatever the direct examination covered tended to be reviewed in the same order in all subsequent questioning (Sanford, 1987). The agenda-setting function of the direct examination is quite strong. Although attorneys might wish to read a physician’s deposition into the record, controlled experimentation in an industrial accident case revealed that direct testimony was more influential on the awards granted (Jacoubovitch, Bermant, Crockett, McKinley, & Sanstad, 1977). Based on observations of actual trials, Antieau (1999) found that attorneys using indirect language in direct examination enhanced jurors’ favorable impressions of witnesses. The phrasing of questions made a significant difference in the answers secured and, as a consequence, in the potential influence produced.
In one study, simply asking a car crash eyewitness, “About how fast were the cars going when they smashed into each other?,” increased mock jurors’ perceptions of the speed of the cars more than when the collision was described as cars that “hit” or “contacted” each other (Loftus & Palmer, 1974). Similar work involving car crashes revealed that attorneys who used unmarked adverbs (“How fast was the car going?”) during witness questioning induced more extreme perceptions of speed and damage (Lipscomb, McAllister, & Bregman, 1985). Jurors also seemed to pay attention to the practical implications of witness answers. If the witness made a statement with indirect language (e.g., “After I heard the shot, I went to the telephone”), jurors completed the implication in their own minds (e.g., inferring that the witness made a phone call, probably to the police; Harris, Teske, & Ginns, 1978).
Cross-examination can be very influential, sometimes even reversing juror decisions. In the case of eyewitnesses, defense attorney cross-examination that exposed inconsistencies in testimony reduced rates of conviction among mock jurors (Berman & Cutler, 1996). These effects were great even when the inconsistencies dealt with peripheral rather than central case facts (Berman, Narby, & Cutler, 1995). Even among highly credible witnesses, exposing inconsistencies in testimony resulted in discounting the evidence (Devine & Ostrom, 1985). The phrasing of cross-examination questions can influence jurors. A lawyer’s asking for very brief responses to specific questions stimulated the impression that witnesses were not as competent, intelligent, or assertive as those whose answers were not so constricted by the cross-examiner (Conley, O’Barr, & Lind, 1978).
Cross-examining attorneys often use leading questions that suggest desired answer and some research has revealed that defense attorneys using them decrease the frequency of guilty verdicts (Gibbs, Sigel, Adams, & Grossman, 1989). In one study of 42 cross-examination sessions, student jurors exposed to extensive use of leading questions during cross-examination were more likely to believe accurate than inaccurate witnesses, whereas nonleading questions were most likely to stimulate belief in inaccurate witnesses (Wells, Lindsay, & Ferguson, 1979). Even so, the use of leading questions and questions designed to increase control over the witness resulted in decreased amounts of the witness’s testimony (Stutman, 1986a). Other work has found that the prosecuting attorneys’ attempts to attack the experts by asking personally intrusive cross-examination questions (e.g., “has your own husband/wife ever cheated on you?” “do you often encourage your clients to talk about their sexuality and sexual concerns with you?”) backfired and actually led higher witness credibility ratings than when nonintrusive questions were asked (Larson & Brodsky, 2010).
Closing Statements
Much lore and some research have been dedicated to the closing statement. Jurors reported believing that the closing argument was vital, some rating it as second only to the presentation of evidence (Matlon, Davis, Catchings, Derr, & Waldron, 1985). Furthermore, 75% of lawyers believed that the closing arguments could have decisive effects in close cases (Walter-Goldberg, 1985). Disturbingly, in death penalty cases, improper statements made by prosecuting attorneys in the closing statements increased the rates at which jurors voted for the death penalty (Platania, 1996). Significant re
lationships existed among actual jurors’ favoring the prosecutor’s closing argument and juror recall, belief, and interestingness. Yet no relationship was found among these elements and juror verdicts. Some studies noted a general recency effect favoring the influence of closing arguments over opening statements (e.g., Wood, Sicafuse, Miller, & Chomos, 2011). During argument in the sentencing portion of a trial, the prosecution (which speaks first in that portion of the trial) has an advantage over the defense because the defense must respond to the prosecution demands and, hence, the prosecution gets to structure the flow of the argument (Englich, Mussweiler, & Strack, 2005).
Judges’ Instructions
Judges are considered the captains of the court. Although lawyers’ lore probably exaggerates this effect, there is little doubt that judges’ comments affect jurors. Jurors have been found to return verdicts that please the judge (O’Mara, 1972). In one experiment with jury-eligible adults, even when admonished to disregard the judge’s behavior and form their own opinions, jurors returned verdicts in accordance with the judge’s dispositions (Hart, 1995).
The judge’s instructions are designed to influence jurors to promote the cause of justice, but they have often featured jargon, passive voice, and odd syntax (Buchanan, Pryor, Taylor, & Strawn, 1978). By one estimate, 45% of judges’ instructions may be misunderstood (Charrow & Charrow, 1979). Even in capital cases, where courts have paid great attention to refining instructions, jurors tend not to understand them, and closing arguments by attorneys have seemed impotent to overcome the defect (Haney & Lynch, 1997).
The Status of Legal Persuasion Research
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Since the first edition of this volume, much has changed, but many of the concerns expressed in 2002 still remain. Because many studies of legal persuasion have reflected variable-by-variable inquiry, advances in the study of persuasion in the law have suffered by the failure to guide much research by relevant theories or conceptualizations. To be sure, the story model has focused much research, but the failure to provide consistent support for this theory may be taken as a general sign that the search for theoretic alternatives still is required. Some have thought of enlisting the contributions of other theories designed for the general study of persuasion, and there is little question that such an approach may be of some benefit. Yet, it also must be recognized that the legal setting is a genre of communication (the forensic setting) that also is typified by distinct forms of language, lines of argument, and case construction forms. Thus, it would make sense for legal persuasion theorists to search for new analogies to guide research or, at least, to adapt existing theories to the unique influences of the legal setting. Such projects require movement beyond simple appropriation of influence theories to the full development of new applications. In short, there is a pressing need for new theory that is purpose-built for the study of persuasion in the legal setting.
The SAGE Handbook of Persuasion Page 69
