Despite the contributions of research in legal persuasion, considerable criticism—often from practitioners—has been directed at the entire domain of study. Though recognizing the benefit of laboratory research, DeMatteo and Anumba (2009) urged caution in generalizing about demographic variables in jury research. The primary charges involve issues of research using mock jurors and the realism of laboratory research in legal persuasion. Future research on legal communication should utilize samples that show close correspondence with jury pools and methods that accurately capture and control the real-world exigencies of the domain.
Most research in legal persuasion has involved the trial setting, and though it is justifiably the focus of this chapter, one may wonder if the most important legal persuasion is ignored by this approach. In reality, “Only about 5 to 15 percent of felony cases actually go to trial” (Kressel & Kressel, 2002, p. 6). Thus, most persuasion takes place in negotiations settings other than the court. Yet, this form of persuasion is difficult to study and, hence, it rarely is the object of inquiry. Without discounting the value of trial research, scholarly inquiry in legal communication would be wise to broaden the scope of investigation to include alternative locations for persuasive legal argument.
Summary
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The role of legal persuasion as a branch of communication studies has grown dramatically over the recent years. The study of persuasion in the courtroom has shown great contributions to the research and theory in the areas of pretrial publicity messages, courtroom messages (including the impact of trial charges, juror assessment of issue surrounding the burden of proof, persuasion during voir dire proceedings, the impact of opening statements, defense case strategies including insanity defenses, recovered memory cases, use of the entrapment defense, the battered woman defense), case evidence (confession evidence, alibi evidence), witness evidence (defendant testimony, eyewitness testimony, expert witnesses, scientific evidence, inadmissible evidence), the manner of evidence presentation, direct and cross-examination, closing statements, and judges’ instructions. This chapter makes a selective review of each of these topics and concludes with a discussion of the general status of work in legal persuasion research as it enters the first year of the 21st century.
Notes
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1. It should be mentioned that this chapter is limited to trial-related persuasion although, of course, lawyers often have to persuade their clients during interviews. Furthermore, negotiation and alternative dispute resolution issues are excluded from this discussion largely for practical reasons of space limitations. Similarly, parole board decisions, juvenile justice hearings, and family court hearings are excluded. In addition, unlike the previous version of this chapter, sections on theoretic orientations, source characteristics (including race), and juror dispositions have been excluded, though they are available from the author on request.
2. A popular claim has been the assertion that 80% of jurors make up their minds during the opening statement (see Perrin, 1999, p. 124). Apparently, this often cited statistic was based on a misreading of the American Jury Project of Kalven and Zeisel (1966, esp. p. 488). These authors found that in nearly 90% of the cases, the jurors’ initial opinions on entering the jury rooms did not change. In addition, because more than 80% of the criminal cases were decided in favor of the prosecution, there was opportunity for the statistic to take on a life of its own as it was retold as trial lore. In 1988, Zeisel responded to users of the misrepresented statistic and encouraged them to use caution (Zeisel, 1988).
3. Indeed, both race and juror dispositions often are vital influences. Quite the contrary is the case. In their summary of the literature on race in trial persuasion, Sommers (2007) explained, “Though the extant literature is not always consistent and has devoted too little attention to the psychological mechanisms underlying the influence of race, this body of research clearly demonstrates that race has the potential to impact trial outcomes” (p. 171). Jury dispositions similarly are known to have a strong influence on the reception of attempts at attorney persuasion.
4. Some studies claimed to investigate inadmissible testimony but really did not. For instance, Carretta and Moreland (1983), J. Johnson (1994), Sue, Smith, and Caldwell (1973), and Werner, Kagehiro, and Strube (1982) presented participants with newspaper-style summaries of trials in which inadmissible testimony was included. Participants did not actually hear or read trials in which the evidence was or was not presented.
References
* * *
Ahola, A. S., Hellstrom, A, & Christianson, S. A. (2010). Is justice really blind? Effects of crime descriptions, defendant gender and appearance, and legal practitioner gender on sentences and defendant evaluations in a mock trial. Psychiatry, Psychology and Law, 17, 304–324.
Allison, M., & Brimacombe, C. (2010). Alibi believability: The effect of prior convictions and judicial instructions. Journal of Applied Social Psychology, 40, 1054–1084.
Antieau, L. D. (1999). Indirectness in the courtroom: A question of politeness or control? Masters Abstracts International, 37, 0430.
Arens, R., Granfield, D. D., & Susman, J. (1965). Jurors, jury charges, and insanity. Catholic University Law Review, 14, 1–29.
Aristotle. (1941). Rhetorica. In W. R. Roberts (Trans.), The works of Aristotle (Vol. 11). Oxford UK: Clarendon Press.
Arsenault, D. J., & Reinard, J. C. (1997, April). The effect of attorney-directed question types in voir dire upon jury deliberation, defendant culpability, and attorney sociability. Paper presented at the meeting of the Western Psychological Association, Seattle, WA.
Barnett, M., Brodsky, S., & Davis, C. (2004). When mitigation evidence makes a difference: Effects of psychological mitigating evidence on sentencing decisions in capital trials. Behavioral Sciences & the Law, 22, 751–770.
Bayly, M. J. (1989). The impact of opening statement presentation order and trial information content on jurors’ evaluations of the trial and defendant. Dissertation Abstracts International: Section B: The Sciences and Engineering, 50(5), 2203B.
Berman, G. L., & Cutler, B. L. (1996). Effects of inconsistencies in eyewitness testimony on mock juror decision making. Journal of Applied Psychology, 81, 170–177.
Berman, G. L., Narby, D. J., & Cutler, B. L. (1995). Effects of inconsistent eyewitness statements on mock-jurors’ evaluations of the eyewitness, perceptions of defendant culpability, and verdicts. Law and Human Behavior, 19, 79–88.
Bollingmo, G., Wessel, E., Sandvold, Y., Eilertsen, D., & Magnussen, S. (2009). The effect of biased and non-biased information on judgments of witness credibility. Psychology Crime & Law, 15, 61–71.
Borgida, E., & Park, R. (1988). The entrapment defense: Juror comprehension and decision making. Law and Human Behavior, 12, 19–40.
Bornstein, B. H., Rung, L. M., & Miller, M. K. (2002). The effects of defendant remorse on mock juror decisions in a malpractice case. Behavioral Sciences & the Law, 20, 393–409.
Bregman, N. J., & McAllister, H. A. (1987). Perceived innocence or guilt: Role of eyewitness identification and fingerprints. Southern Psychologist, 3, 49–52.
Brekke, N., & Borgida, E. (1988). Expert psychological testimony in rape trials: A social-cognitive analysis. Journal of Personality and Social Psychology, 55, 372–386.
Brigham, J. C., & Bouthwell, R. K. (1983). The ability of prospective jurors to estimate the accuracy of eyewitness identifications. Law and Human Behavior, 7, 19–30.
Bright, D. A., & Goodman-Delahunty, J. (2006). Gruesome evidence and emotion: Anger, blame, and jury decision-making. Law and Human Behavior, 30, 183–202.
Buchanan, R. W., Pryor, A., Taylor, K. P., & Strawn, D. (1978). Legal communication: An investigation of juror comprehension of pattern instructions. Communication Quarterly, 26, 31–35.
Bucolo, D., & Cohn, E. (2010). Playing the race card: Making race salient in defence opening and closing statements. Legal and Criminological Psychology, 15, 293–303.
Burke, T
. M., & Turtle, J. W. (2003). Alibi evidence in criminal investigations and trials: Psychological and legal factors. Canadian Journal of Police and Security Services, 1, 286–294.
Burke, T., & Turtle, J. (2004, March). Can you back me up? How the perception of an alibi is affected by the characteristics of the corroborator. Paper presented at the annual meeting of the American Psychology-Law Society, Scottsdale, AZ.
Butler, B. (2007). The role of death qualification in jurors’ susceptibility to pretrial publicity. Journal of Applied Social Psychology, 37, 115–123.
Casper, J. D., & Benedict, K. M. (1993). The influence of outcome information and attitudes on juror decision making in search and seizure cases. In R. Hastie (Ed.), Inside the juror: The psychology of juror decision making (pp. 65–83). New York, NY: Cambridge University Press.
Charrow, R. P., & Charrow, V. R. (1979). Making legal language understandable: A psycholinguistic study of jury instructions. Columbia Law Review, 79, 208–218.
Chrzanowski, L. (2006). Rape? Truth? And the media: Laboratory and field assessments of pretrial publicity in a real case. Dissertation Abstracts International: Section B: The Sciences and Engineering, 67(1), 580B.
Cirincione, C., Steadman, H. J., & McGreevy, M. A. (1995). Rates of insanity acquittals and the factors associated with successful insanity pleas. Bulletin of the American Academy of Psychiatry and the Law, 23, 399–409.
Conley, J. M., O’Barr, W. M., & Lind, E. A. (1978). The power of language: Presentation style in the courtroom. Duke Law Journal, 6, 1375–1399.
Cook, A., Arndt, J., & Lieberman, J. (2004). Firing back at the backfire effect: The influence of mortality salience and nullification beliefs on reactions to inadmissible evidence. Law and Human Behavior, 28, 389–410.
Cox, M., & Tanford, S. (1989). Effects of evidence and instructions in civil trials: An experimental investigation of rules of admissibility. Social Behavior, 4, 31–55.
Crocker, C., & Kovera, M. (2010). The effects of rehabilitative voir dire on juror bias and decision making. Law and Human Behavior, 34, 212–226. doi: 10.1007/s10979-009-9193-9
Daftary-Kapur, T. (2010). The effects of pre- and post-venire publicity on juror decision-making. Dissertation Abstracts International: Section B: The Sciences and Engineering, 70(10), 6605B.
Daftary-Kapur, T., Dumas, R., & Penrod, S. (2010). Jury decision-making biases and methods to counter them. Legal and Criminological Psychology, 15, 133–154.
Dahl, J., Enemo, I., Drevland, G., Wessel, E., Eilertsen, D., & Magnussen, S. (2007). Displayed emotions and witness credibility: A comparison of judgements by individuals and mock juries. Applied Cognitive Psychology, 21, 1145–1155.
DeMatteo, D., & Anumba, N. (2009). The validity of jury decision-making research. In J. D. Lieberman & D. A. Krauss (Eds.), Jury psychology: Social aspects of trial processes: Psychology in the courtroom (Vol. 1, pp. 1–23). Burlington, VT: Ashgate.
Devenport, J. L., Cutler, B. L., & Penrod, S. D. (1998, March). The impact of opposing expert testimony in cases involving eyewitness identification evidence. Paper presented at the biannual meeting of the American Psychology-Law Society, Redondo Beach, CA.
Devenport, J. L., Studebaker, C. A., & Penrod, S. D. (1999). Perspectives on jury decision making: Cases with pretrial publicity and cases based on eyewitness identifications. In F. T. Durso, R. Nickerson, S. Dumais, R. Schvaneveldt, M. Chu, & S. Lindsay (Eds.), Handbook of applied cognition (pp. 819–845). New York, NY: Wiley.
Devine, P. G., & Ostrom, T. M. (1985). Cognitive mediation of inconsistency discounting. Journal of Personality and Social Psychology, 49, 5–21.
Dexter, H. R., Cutler, B. L., & Moran, G. (1992). A test of voir dire as a remedy for the prejudicial effects of pretrial publicity. Journal of Applied Social Psychology, 22, 819–832.
Dolnik, L., Case, T., & Williams, K. (2003). Stealing thunder as a courtroom tactic revisited: Processes and boundaries. Law and Human Behavior, 27, 267–287.
Edwards, K., & Bryan, T. S. (1997). Judgmental biases produced by instructions to disregard: The (paradoxical) case of emotional information. Personality and Social Psychology Bulletin, 23, 849–864.
Ellis, L. (2002). Don’t find my client liable, but if you do … Defense recommendations, liability verdicts, and general damage awards. Dissertation Abstracts International: Section B: The Sciences and Engineering, 63(3-B), 1608.
Elwork, A., Sales, B. D., & Alfini, J. J. (1977). Juridic decisions: In ignorance of the law or in light of it? Law and Human Behavior, 1, 163–169.
Englich, B., Mussweiler, T., & Strack, F. (2005). The last word in court: A hidden disadvantage for the defense. Law and Human Behavior, 29, 705–722.
Fein, S., McCloskey, A. L., & Tomlinson, T. M. (1997). Can the jury disregard that information? The use of suspicion to reduce the prejudicial effects of pretrial publicity and inadmissible testimony. Personality and Social Psychology Bulletin, 23, 1215–1226.
Fein, S., Morgan, S. J., Norton, M. I., & Sommers, S. R. (1997). Hype and suspicion: The effects of pre-trial publicity, race, and suspicion of jurors’ verdicts. Journal of Social Issues, 53, 487–502.
Fienberg, S. E. (Ed.). (1989). The evolving role of statistical assessments as evidence in the courts. New York, NY: Springer-Verlag.
Fischer, S. M., & Fehr, L. A. (1985). The effect of defendant’s plea on mock juror decisions. Journal of Social Psychology, 125, 531–533.
Fishfader, V. L., Howells, G. N., Katz, R. C., & Teresi, P. S. (1996). Evidential and extralegal factors in juror decisions: Presentation mode, retention, and level of emotionality. Law and Human Behavior, 20, 565–572.
Fleming, M. A., Wegener, D. T., & Petty, R. E. (1999). Procedural and legal motivations to correct for perceived judicial biases. Journal of Experimental Social Psychology, 35, 186–203.
Freundlich, K. F. (1985). Effects of pretrial publicity and ego level on verdict and jury deliberation styles. Dissertation Abstracts International: Section B: The Sciences and Engineering, 45, 3055B–3056B.
Geck, S., & Reinard, J. C. (2009, February). A model of the biasing effects of inadmissible testimony on jury decisions. Paper presented at the Western States Communication Association Convention, Phoenix-Mesa, AZ.
Gibbs, M. S., Sigal, J., Adams, B., & Grossman, B. (1989). Cross-examination of the expert witness: Do hostile tactics affect impressions of a simulated jury? Behavioral Sciences & Law, 7, 275–281.
Greene, E., & Dodge, M. (1995). The influence of prior record evidence on juror decision making. Law and Human Behavior, 19, 67–78.
Greene, E., Downey, C., & Goodman-Delahunty, J. (1999). Juror decisions about damages in employment discrimination cases. Behavioral Sciences & the Law, 17, 107–121.
Greene, E., & Loftus, E. F. (1984). What’s new in the news? The influence of well-publicized news events on psychological research and courtroom trials. Basic and Applied Social Psychology, 5, 211–221.
Greene, E., & Wade, R. (1988). Of private talk and public print: General pre-trial publicity and juror decision-making. Applied Cognitive Psychology, 2, 123–135.
Grofman, B. (1985). The effect of restricted and unrestricted verdict options on juror choice. Social Science Research, 14, 195–204.
Gutheil, T. G. (1999). A confusion of tongues: Competence, insanity, psychiatry, and the law. Psychiatric Services, 50, 767–773.
Haegerich, T., & Bottoms, B. L. (2000). Empathy and jurors’ decisions in patricide trials involving child sexual assault allegations. Law and Human Behavior, 24, 421–448.
Haney, C. (1984). On the selection of capital juries: The biasing effects of the death-qualification process. Law and Human Behavior, 8, 121–132.
Haney, C., & Lynch, M. (1997). Clarifying life and death matters: An analysis of instructional comprehension and penalty phase closing arguments. Law and Human Behavior, 21, 575–595.
Hans, V. P., & Vidmar, N. (1986). Judging the jury. New York, NY: Plenum Press.
Harris, R. J., Teske, R. R., & Ginns, M. J. (1978
). Memory for pragmatic implications from courtroom testimony. Bulletin of the Psychonomic Society, 6, 494–496.
Hart, A. J. (1995). Naturally occurring expectation effects. Journal of Personality and Social Psychology, 68, 109–115.
Hastie, R., Schkade, D. A., & Payne, J. W. (1999). Juror judgments in civil cases: Effects of plaintiff’s requests and plaintiff’s identity on punitive damage awards. Law and Human Behavior, 23, 445–470.
Henkel, L. (2008). Jurors’ reactions to recanted confessions: Do the defendant’s personal and dispositional characteristics play a role? Psychology, Crime & Law, 14, 565–578.
Hirsch, R. O., Reinard, J. C., & Reynolds, R. A. (1976, May). The influence of objection to mundane and sensational testimony on attorney credibility. Paper presented at the meeting of the Rocky Mountain Psychological Association, Phoenix, AZ.
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