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CHAPTER 20
Persuasion in the Legal Setting
John C. Reinard
The study of persuasion in the courts has a lengthy history among scholars of communication. Aristotle (trans. 1941) identified the forensic exchange as a major division of oratory (1358b6) and explained the close link:
Since rhetoric exists to affect the giving of decisions—the hearers decide between one political speaker and another, and a legal verdict is a decision—the orator must not only try to make the argument of his speech de
monstrative and worthy of belief; he must also make his own character look right and put his hearers, who are to decide, into the right frame of mind. (1377b21–1377b24)
With the founding of European universities during the Middle Ages, the study of rhetoric (expanded to include law) was at the center of the core curriculum. Despite a few breaks in the chain along the way, this close linkage has endured as a standard part of both communication studies and the practice of law. Today, the study of communication and the law has grown from a cottage industry to a major part of the communication field. Each professional organization in the field has an interest group, division, or commission dedicated to legal communication. The American Society of Trial Consultants has nearly 500 members (up over 40% since the first edition of this chapter was written in 2002). There is little doubt that legal persuasion is a major part of the field. Indeed, it has grown to such an extent that an exhaustive overview is nearly impossible. Accordingly, this chapter reviews elements of persuasion in the legal setting with a close focus on social scientific research on message form.1 The next section presents a brief summary of events and media coverage that occur prior to the trial itself. The following section, and the bulk of this chapter, offers a close examination of persuasive communication as it occurs during the trial. The final section considers issues for future research.
The Pretrial Phase
* * *
The possible impact of pretrial publicity remains a concern among constitutional scholars as well as persuasion researchers. The American Bar Association reported that pretrial publicity descriptions of 27% of criminal suspects were “problematic” (Imrich, Mullin, & Linz, 1995). Furthermore, between 1994 and 2004, over 7,000 defendants claimed that pretrial publicity made it impossible for them to receive fair trials (Chrzanowski, 2006). Not surprisingly, most research has indicated that pretrial publicity influences jurors (e.g., Daftary-Kapur, Dumas, & Penrod, 2010; Kovera & Greathouse, 2008). This appears to be true regardless of whether the trial is short or long (Kramer & Kerr, 1989) or whether measures are taken before or after evidence is presented (Studebaker & Penrod, 2005). Importantly, jurors exposed to pretrial publicity confused the information in the publicity with evidence actually presented in the trial (Ruva & McEvoy, 2008; Ruva, McEvoy, & Bryant, 2007). Although most pretrial publicity was inimical to defendants (Imrich et al., 1995), sometimes it benefited defendants, as when (1) the pretrial publicity reports also included the suggestion that there were racist intentions behind spreading the publicity (Fein, Morgan, Norton, & Sommers, 1997), (2) the publicity involved stories of mistaken identification of an innocent man (Greene & Loftus, 1984), (3) the publicity was generally hostile to the prosecution (Daftary-Kapur, 2010), or (4) the publicity involved trials similar to the defendant’s (Greene & Wade, 1988).
Not all pretrial publicity is equal. Hvistendahl (1979) found that information about a prior criminal record led to significantly increased numbers of guilty verdicts especially when compared to publicity about the defendant’s use of a fictitious address, information regarding the defendant’s race, or the defendant’s gang membership. Prejudicial effects were also potent when the publicity involved eyewitness identifications (Devenport, Studebaker, & Penrod, 1999), character evidence (Otto, Penrod, & Dexter, 1994), and reports of physical evidence (Shaw & Skolnick, 2004).
Naturally, pretrial publicity affects jurors differently. Mock jurors with high ego-involvement become less confident in their verdicts (Freundlich, 1985). One study (Hoiberg & Stires, 1973) found that relatively less intelligent women presented with strongly biased pretrial publicity of a heinous rape were most influenced by it, although men and highly intelligent women were not. Even among men, the publicity sometimes can backfire. Men presented with pretrial publicity portraying perpetrators of acquaintance rape as predators responded with increased pro-defendant judgments in an acquaintance rape case (Mullin, 1997; Mullin, Imrich, & Linz, 1996). Butler (2007) found that death-qualified jurors tended to believe that pretrial publicity had minimal effect on the defendant’s right to due process. Kovera (2002) found that jurors’ attitudes toward rape affected how much pretrial publicity affected juror decisions.
Attorneys and judges seem assured that intensive voir dire examinations to select jurors can protect against pretrial publicity bias (Hans & Vidmar, 1986, pp. 63–78). Attorneys rarely present change of venue motions, and 88% of judges have never ruled on one (Siebert, Wilcox, & Hough, 1970, pp. 4–6). Yet, research does not suggest that active voir dire actually reduces pretrial publicity effects (Dexter, Cutler, & Moran, 1992; Kerr, Kramer, Carroll, & Alfini, 1991; Kerr, Niedermeier, & Kaplan, 1999; Sue, Smith, & Pedroza, 1975; but see Padawer-Singer, Singer, & Singer, 1974). Even when a judge admonished jurors to disregard any pretrial publicity, jurors still were influenced by the damaging publicity (Sue, Smith, & Gilbert, 1974). Another method of control, a continuance or delay for a couple of days, appeared to help partially overcome the effects of pretrial publicity bias (Kramer, Kerr, & Carroll, 1990).
Messages In the Courtroom
* * *
Charges
The charge itself is a proposition that may sensitize some jurors. For instance, in criminal trials, as the severity of the charges and penalties increase, juries become less and less willing to convict, even if the defendants are viewed as guilty (Grofman, 1985). Increasing the number of options to return reduced charges seems to enhance the chances that jurors will convict on one (Larntz, 1975). Jurors given the option of returning “guilty but mentally ill” rendered that verdict two thirds of the time instead of using the options of “guilty” and “not guilty by reason of insanity” (Poulson, 1990). To convict on a case involving severe penalties, jurors seemed to demand increased amounts of evidence (Thomas & Hogue, 1976), and they usually reduced their overall rates of conviction (Kerr, 1978). Sometimes trials involve multiple counts of crimes alleged against defendants. Experiments using both actual jurors and student jurors and controlling for similarity of the charges, evidence, and judges’ instructions found that defendants charged with three crimes were most likely to be convicted (Tanford, 1985; Tanford & Penrod, 1984).
Burden of Proof
Verdicts are also affected by the burden of proof shouldered by prosecutors and plaintiffs. The standard of proof required for a decision against the defendant may be proof “beyond a reasonable doubt,” “by a preponderance of the evidence,” or “clear and convincing evidence.” As the standard of proof increases, rates of guilty verdicts decline (see Kagehiro, 1990). Yet, when the judge defined “beyond a reasonable doubt” as one’s being firmly convinced of guilt, rates of guilty verdicts for murder increased (Koch & Devine, 1999). When the judge explained that the standard did not mean that one had to be “absolutely certain of guilt” rates of guilty verdicts of mock jurors increased (Wright & Hall, 2007).
Formal presumptions on the interpretation of evidence are meaningful elements of jurors’ decision making when jurors are made aware of them. Three types of presumptions (conclusive, mandatory, and permissive) were presented to student jurors as part of criminal trials in which the defendant blameworthiness was manipulated (Schmolesky, Cutler, & Penrod, 1988). The conclusive presumption used to suggest defendant guilt increased the numbers of guilty verdicts, although other presumptions did not. Even so, when ratings of defendant culpability were high, jurors were willing to discount presumptions that tended to benefit the defendant.
In civil cases, the higher the damages plaintiffs request, the more money they seem to receive. Of course, judging whether this pattern is causal requires experimental work holding the trial evidence constant. Such work with mock jurors supported these expectations (Hastie, Schkade, & Payne, 1999; Raitz, Greene, Goodman, & Loftus, 1990) across types of personal injury cases, regardless of victim sex and race (Malouff & Schutte, 1989). When the defense made an award recommendation, jurors were increasingly likely to return verdicts for the plaintiff (Ellis, 2002).
Persuasion During Jury S
election
Voir dire, or the questioning of potential jurors to select a jury, may be a persuasive process in which attorneys build rapport, obtain commitments, preview the case, introduce the client in a favorable light, begin arguing the case, guide the jury in its methods of deliberating, commence the process of image-building, humanize the defendant, and familiarize the jury with relevant factual and legal concepts. In practice, statements and questions from judges and attorneys accounted for approximately 60% of the sentences uttered during the voir dire “questioning” of potential jurors (Johnson & Haney, 1994). Defense attorneys used voir dire more aggressively than did prosecutors (Johnson & Haney, 1994), and attorney-led questioning stimulated more candid self-disclosure than did judge questioning (Jones, 1987).
Ironically, in California, where substantial restrictions have been placed on attorney questioning, judges were pleased with their own abilities to conduct voir dire examinations, though they believed that attorneys took too much time with juror questioning (Smith, 1995). When voir dire questions were completed individually rather than en masse, attorneys raised increased numbers of objections to jurors for cause (Nietzel & Dillehay, 1982). Yet this aggressive questioning still often failed to exclude jurors who were opposed to basic foundations of the U.S. legal system (Johnson & Haney, 1994). Sometimes jurors admit biases but are asked by judges whether they believe that they could set aside their biases and be fair. If jurors answer affirmatively, the jurors are considered “rehabilitated” and may be accepted in the empanelled jury. Rehabilitated jurors’ verdicts have not been found to differ from those of unrehabilitated jurors when participating in murder trials involving an insanity defense (Crocker & Kovera, 2010).
Voir dire can influence verdicts. Jurors exposed to extensive voir dire examination perceived the defendant as less culpable than did other jurors (Dexter et al., 1992). Indeed, lawyers were least effective in securing desired verdicts when they avoided the use of voir dire questions strategically designed to influence jurors (Arsenault & Reinard, 1997; Reinard & Arsenault, 2000). Such strategic questions functioned by altering perceptions of the defendant’s character that, in turn, affected verdicts (Reinard, Arsenault, & Geck, 1998). On the other hand, the attorney’s use of strategic questions asking jurors to overlook the defendant’s undesirable past reduced verdicts of guilt (Reinard & Arsenault, 2000).
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