Extending this work into contrasts of strategic questions attempting to promote a sense of juror rapport or empathy with the defense, Reinard, Khalid, and Liso (2001) found that verdicts for the defense were enhanced by the use of questions that requested jurors to reciprocate positively to the defense expressions of trust in them. Yet, verdicts for the defense were not enhanced by questions that previewed the case or that attempted to create rapport through similarity appeals. Reinard (2009) found that verdicts were positively affected by the use of voir dire questions that attempted to promote positive attitudes toward the defendant by showing empathy. In follow-up work, it was discovered that the interaction of the use of all three voir dire question forms actually produced their effects by promoting positive changes in the character assessments of the defendant and the defense attorney and a negative shift in the perception of the prosecuting attorney’s competence (Reinard, 2010).
Voir dire questions have been examined as a deterrent to racial bias against defendants from ethnic minority groups. The U.S. Supreme Court ruling in Batson v. Kentucky, 476 U.S. 79 (1986) forbade lawyers from using preemptory challenges to eliminate potential jurors because of race. Yet, enforcement of the ruling has been difficult. In experimental work with lawyers, law students, and other college students, mock jurors showed a strong disposition to exclude jurors based on race, though they usually explained the challenge in race-neutral terms (Sommers & Norton, 2008). Another study found that when voir dire questioning involved questions about racism, mock jurors deliberating in a trial involving an African American defendant compensated by producing increasingly lenient verdicts (Sommers, 2006). In a review of the literature, two authors (Sommers & Norton, 2008) lamented that lawyers’ continued exclusion of ethnic minorities from juries (all the while denying any racial decision making) may make it impossible to rely on voir dire processes as a solution to racial prejudice in the courtroom.
Opening Statements
Attorneys’ opening statements are supposed to provide a case preview rather than extended argument. Nevertheless, one should not be surprised that opening statements can have powerful argumentative functions (see Perrin, 1999, esp. pp. 110–132), even though such strategies as fanciful name calling (People v. Johnston, 1994), directly refuting the opposition’s case (e.g., State v. Bell, 1972), and interpreting upcoming evidence (Strong, 1992, pp. 17–19) have been ruled argumentative. Indeed, an examination of 19 opening statements found that all were subject to some objection from the opposition, the plurality of which involved “various types of circumstantial evidence—using a theme, drawing inferences for the jury, characterizing a person or event in some argumentative way, or discussing the mental condition of a person” (Perrin, 1999, p. 140).
Opening statements also are believed to be influential since jurors are believed to make decisions early in the trial process (e.g., Freundlich, 1985; but see Weld & Danzig, 1940).2 Yet, a review of 50 trials revealed that juries thought defense opening statements were less well prepared than prosecutors’ statements, even though, of course, defense attorneys did not perceive any inferiority in themselves (Linz, Penrod, & McDonald, 1986). Even so, the influence of the prosecution’s opening statement was reduced when the following defense argument was strong (Wallace & Wilson, 1969). Yet, the first opening statement juries hear seems to be particularly important in a couple of ways. First, the first opening statement serves a strong agenda-setting function and appears to “prime the pump” such that jurors’ assessments of witnesses and evidence tend to follow its organization (Bayly, 1989). Second, the length of the first opening statement appears to affect reactions to others that follow. The defense gained an advantage if it followed a brief opening statement with an extensive one (Pyszczynski & Wrightsman, 1981).
Opening statement structure has been examined. Evidence is mixed regarding whether a story format is superior to a legal comparison-expository structure (e.g., McCullough, 2007). If the defense attorney’s opening statement promised evidence exonerating the defendant and then failed to introduce such proof, the prosecution’s reminder to the jury (in this case, presentation of an alibi witness) reduced the defense attorney’s influence on the verdict (Pyszczynski, Greenberg, Mack, & Wrightsman, 1981). Yet if the prosecution failed to remind jurors of the broken promise, the defense opening statement increased the likelihood of an acquittal. In fact, if a promised witness were absent, the mere mention of that fact by the judge or by the attorney affected jury decision making against the side that was expected to produce the witness (Johnstone, 1994).
Many times opening statements include inoculation of jurors against counterpersuasion (cf., chapter 14 in this volume). Researchers found that such a strategy was effective when the defense inoculated mock jurors against damaging evidence by mentioning it early in the trial, unless the prosecuting attorney explained “to the mock jurors that the stealing thunder tactic had been used” (Dolnik, Case, & Williams, 2003, p. 267). Bucolo and Cohn (2010) found that when attorneys included comments in the opening and closing statements to make race of the African American defendant a salient matter (in other words, playing the “race card”), jurors rendered significantly fewer guilty verdicts than when the materials were deleted.
Language can play a role in this process. In adapting to jurors, African American attorneys speaking to predominantly African American juries often used African American vernacular English (Hobbs, 2003). When plaintiffs’ lawyers’ opening and closing statements used “personal language” and a preemptive attack that the defense had a weak case, the strategy stimulated judgments for the plaintiffs unless the jurors had low need for cognition (Payne, 2007).
Defense Case Strategies
Defendants may deny charges, or they may present affirmative defenses that offer outside explanations as excuses. When simply denying the charges, exonerating and incriminating facts about the defendant were most influential on intensifying jurors’ verdict dispositions when the attorney presented the information in a heterogeneous, rather than a homogeneous order (Kaplan & Miller, 1977).
Affirmative defenses seem difficult to argue. For instance, when defendants gave affirmative defenses for retracting confessions, they were more likely to be convicted of murder than when pleas included appeals to the Fifth Amendment or denial of the charges by reference to an alibi (Fischer & Fehr, 1985). Even so, an affirmative defense including testimony to prove mitigating circumstances was effective in reducing mock jurors’ recommended sentence (Suggs & Berman, 1979). Mock jurors were least likely to recommend the death penalty when mitigating evidence showed “The defendant was (i) diagnosed with schizophrenia, not medicated, and suffered from severe delusions and hallucinations, (ii) drug addicted and high at the time of the murder, (iii) diagnosed as borderline mentally retarded during childhood, or (iv) severely physically and verbally abused by his parents during childhood” (Barnett, Brodsky, & Davis, 2004).
When defendants invoked the Fifth Amendment by itself, simulated jurors increased rates of guilty verdicts (Shaffer, Case, & Brannen, 1979). In one experiment, mock jurors placed approximately the same proof obligations on both sides in a murder case, regardless of the defense strategy (simple denial or self-defense) and despite the judge’s instruction about the location of the burden of proof (Posey, 1996). Consistent with the law, in a medical malpractice lawsuit, damage awards were cut in half when the plaintiff was shown to be partially negligent (Zickafoose & Bornstein, 1999). Not surprisingly, an eccentric defense seemed to be rejected by jurors.
An attempt to create juror empathy with the defendant was tested in a patricide trial in which a child defendant claimed self-defense due to sexual abuse by the victim (Haegerich & Bottoms, 2000). When student jurors were asked to take the perspective of the defendant and to consider how they would feel under the circumstances of the trial, jurors were most likely to decide not guilty. When a landlord defendant treated tenants coldly and as objects, the plaintiff awards increased (Holt, O’Connor, Smith, Gessner, C
lifton, & Mumford, 1997). On the other hand, when criminal defendants already had suffered greatly, the severity of jury decisions was reduced (Shaffer, Plummer, & Hammock, 1986).
Insanity Defenses
Arguing the insanity defense is particularly challenging. It appears to succeed slightly less than 1% of the time (Cirincione, Steadman, & McGreevy, 1995) and only when defendants suffer from the most severe mental disorders (Lymburner & Roesch, 1999). Yet, these statistics somewhat overstate things. In reality, mental health examiners agree on insanity decisions 81% of the time, and fully 86% of insanity defense cases are not contested by the prosecutors (Rogers, Bloom, & Manson, 1984).
There are many reasons insanity defenses are risky. In the first place, the insanity defense is often misperceived and unpopular with the public (Borum & Fulero, 1999). In the second place, defining “insanity” has proven to be quite nettlesome, and lawyers and psychiatrists sometimes bewilder each other (Gutheil, 1999). Because insanity is not a medical term describing a particular malady, complicated rules such as the M’Naghten, the Durham, the Brawner, Michigan’s Guilty But Mentally Ill statute, and the American Law Institute’s Model Penal Code have formed various notions of insanity. When jurors have been tested on their understanding of the various rules on which they have been instructed, comprehension has averaged between 40% (Arens, Granfield, & Susman, 1965) and slightly more than 50% accuracy (Ogloff, 1993).
Recovered Memory Cases
In some cases, counselors and hypnotists have encouraged children and adult witnesses—often believed to be victims of sexual abuse—to testify about “events” they had “forgotten” or “repressed.” Although this controversial approach has been attacked as little more than the power of suggestion, in a criminal case, repressed testimony was only slightly less influential on convictions (58%) than was nonrepressed testimony (67%; Key, Warren, & Ross, 1996). Whether jurors believed in such evidence depended on the perceived strength of evidence, their belief in the repression of memory, and the kinds of mass media news stories they had heard about the credibility of recovered memories (Rosen, 1997). In child abuse cases featuring repressed memory evidence, victims who were either 3 or 13 years old at the time were not as believable as 8-year-old victims (Key et al., 1996). In a case involving delayed charges of child sexual abuse, evidence of threats and evidence of a relationship between the defendant and the victim influenced jury verdicts (Read, Connolly, & Welsh, 2006). Yet, in nonjury trials, verdicts were predicted by the length of the delayed memory of abuse, the severity of the offence, claims of repression of memory generally, a past relationship between defense and the victim, and the presence of evidence of an expert witness testifying to the credibility of delayed memory of sexual abuse.
Use of the Entrapment Defense
One way to respond to criminal charges is by claiming that defendants were induced to engage in illegal behavior by law enforcement officials. Because such a strategy admits the illegal behavior itself, it requires subtle argument, and jurors have had difficulty in understanding judges’ instructions on the defense (Borgida & Park, 1988). As a result, juries have relied predominately on evidence of the defendants’ past criminal conduct to reach verdicts. Lewis (1997) found that jurors in a drug case carefully tracked information about the number of times that the defendant refused enticements from law enforcement officers. If the defendant initially turned down suggestions from law enforcement officials, the jury grew increasingly receptive to the entrapment defense.
The Battered Woman Defense
The defense has been made that a “battered woman’s” homicide is a form of preemptive self-defense against her chronic beating by an abusive spouse. Research is mixed on whether expert testimony has great (Kasian, Spanos, Terrance, & Peebles, 1993) or limited influence on jurors’ decisions (Mechanic, 1997). The battered woman syndrome defense seemed increasingly persuasive for the defense when an expert witness was added to the defense case evidence (Schuller, McKimmie, & Janz, 2004).
Case Evidence
Survey research has shown that case evidence is the most potent single influence on verdicts (e.g., Poulson, Braithwaite, Brondino, & Wuensch, 1997).3 But, what makes evidence strong or weak is an open issue. One explanation was offered by Pettus (1990): “The clear and well told story is considered effective evidence, whereas the unclear, nonsensical story is considered ineffective evidence” (p. 92). The tone set by key witnesses can make a difference. When testimony against a defendant in a murder case was introduced in an opinionated manner, judgments of guilt increased. But when the testimony was presented in an unopinionated way, student jurors were likely to find the defendant guilty of the lesser charge of manslaughter (Ludwig & Fontaine, 1978). Beyond verdicts alone, jurors’ overall interpretations were affected by the placement of judges’ instructions to jurors (Elwork, Sales, & Alfini, 1977). When the judge explained the burden of proof before the presentation of evidence, conviction rates declined (Kerr, Atkin, Stasser, Meek, Holt, & Davis, 1976). Furthermore, when an active judge commented on testimony from a doubtful eyewitness by issuing limiting instructions, summarizing relevant testimony, and explaining the role of eyewitness testimony, the jury disregarded the troubled material during its deliberations (Katzev & Wishart, 1985).
The impact of emotional evidence has attracted increased interest among researchers. For mock jurors looking at a transcript of the testimony, credibility was reduced when witnesses used neutral or incongruent emotions to deliver emotional material (Kaufmann, Drevland, Wessel, Overskeid, & Magnussen, 2003). One study found that although individual mock jurors tended to be influenced by emotional testimony from a rape victim (in contrast to a neutral emotional presentation), but these effects disappeared when the jurors deliberated (Dahl, Enemo, Drevland, Wessel, Eilertsen, & Magnussen, 2007). Furthermore, the impact of emotional testimony from a female rape victim also was reduced when the judge instructed jurors that such emotional material did not indicate believable reactions (Bollingmo, Wessel, Sandvold, Eilertsen, & Magnussen, 2009).
Confession evidence often is used by prosecutors in criminal cases and it tends to be persuasive, often more persuasive than eyewitness identifications or character testimony (Kassin & Neumann, 1997). Although student jurors rejected confessions that were the result of threats of punishment against the defendants, they were strongly influenced when confessions were either freely given or the products of offers of leniency (Kassin & Wrightsman, 1980). Evidence that the police used interrogation strategies to trick or deceive defendants by claiming that they had evidence against the defendant that they did not, resulted in reduced guilty verdicts (Woody & Forrest, 2009; but Henkel, 2008). When the defense added expert testimony from psychologists explaining how false-evidence methods and other common police interrogation strategies produced false confessions, jurors responded with enhanced rejection of evidence from police. When the camera angle in a video recording of a confession included only the defendant, mock jurors returned more guilty verdicts than when the recording was framed to show both the defendant and the police interrogators (Lassiter et al., 2005). If the recanted confession were claimed to have been influenced by the defendant’s medical condition or the defendant’s mental illness, conviction ratings increased in frequency (Henkel, 2008). When confession evidence was introduced from an accomplice, a jailhouse informant, or a member of the community, the material was persuasive, despite evidence produced to show that the witness may have received a reward for offering such testimony (Neuschatz, Lawson, Swanner, Meissner, & Neuschatz, 2008).
Alibi Evidence
One of the most obvious ways to defend against a criminal charge is to argue that a defendant could not have committed a crime because she or he was at another location at the time. In recent years this topic has become an established area for research (see Burke & Turtle, 2003). Since strong alibis appear to have great influence on juries (Allison & Brimacombe, 2010; Olson & Wells, 2004b), the dominant issue involves identifying what makes a strong
alibi strong. On one hand, alibi evidence usually is made most believable when corroborated by other evidence (Olson & Wells, 2004a). On the other hand, under some circumstances, corroboration can decrease an alibi’s impact (Burke & Turtle, 2004; Culhane & Hosch, 2004b). A weak alibi actually may increase the possibility of false convictions (Olson & Wells, 2004a). When an alibi was supplied by a defendant’s girlfriend, it was not as persuasive as when the witness was a neighbor, even when the girlfriend offered an unambiguous alibi (Culhane & Hosch, 2004a). Yet, others found that unambiguous alibi evidence from a close significant other reduced guilty verdicts more than when alibi evidence was completely absent (Olson & Wells, 2004a). Some research has found that alibi evidence presented during a police investigation is more persuasive when corroborated by other witnesses than when presented at trial (Sommers & Douglass, 2007). This curious finding was explained by “the fact that a case has proceeded to trial implies to perceivers that the alibi is relatively weak” (p. 41).
Witness Evidence
Research on the presentation of evidence by witnesses involves the study of testimony from defendants, eyewitness testimony, expert testimony, and scientific evidence. In addition, the impact of inadmissible evidence has been investigated.
The SAGE Handbook of Persuasion Page 68