Like taxes, getting older, and gravity, voir dire does not care how you feel about it. Potential jurors experience it as human beings with all the quirks and nuances of human psychology at play. And far too often voir dire happens with trial lawyers using the invaluable time to “chat” about their case, introduce their ideas, and attempt to “condition” the jury to see the case from their perspective. Is treating voir dire this way worth the limited time and effort these trial lawyers put into it? Is persuasion — or even just planting seeds — a reasonable and achievable goal of voir dire?
The belief that trial lawyers should use voir dire to persuade jurors is everywhere. Perhaps the myth persists because of its “truthiness” — it does feel like it could work — or because it gives less comfortable lawyers a sense of control over an inherently uncontrollable process. Undoubtedly some trial attorneys have felt their brilliant persuasion in voir dire helped them win a case or two at some point in the past. It’s possible. But we spend this column exploring the research and our experience on this question so we can offer insights into whether your precious voir dire time is better spent with a different focus and approach.
Let’s start with legitimate research. Believe it or not, some of the best and most useful research on the issue shows that “conditioning” a jury during voir dire, to the extent you can do it, does not ultimately impact verdict decisions — and if it does, it probably isn’t in the way you would expect — the key word being expect.
Take a series of 2011 studies by Sarah Greathouse and her colleagues. They evaluated how potential jurors’ pretrial perceptions formed during voir dire might influence verdict decisions. They found, as others have found and many have surmised, that a voir dire approach attempting to persuade or “condition” jurors could influence people’s pretrial perceptions related to the case-specific issues. In their studies, a “conditioning” voir dire shaped potential jurors’ perceptions about a juvenile defendant’s probability of guilt before hearing the trial evidence and arguments. This led to more pretrial conviction-prone attitudes compared to people who experienced a standard approach to voir dire (i.e. without persuasive conditioning). This seems like evidence you should attempt to persuade jurors in voir dire, right? The conditioning changed people’s initial perceptions so it must be helpful? Not so fast. The Greathouse studies also found those initial perceptions influenced by voir dire did not persist and play a role in the actual verdict decisions people rendered in the study. In other words, people rendered guilty verdicts at about the same rate whether they were exposed to the conditioning voir dire or a standard voir dire. The voir dire may have “conditioned” perceptions, but it did not condition results.
The data against attempting to persuade in voir dire gets better. Even more important is the series of 2018 studies by Joseph Vitriol and Margaret Bull Kovera extending the prior line of 2011 research. The 2018 studies also evaluated the impact of conditioning voir dire on verdict decisions in a criminal trial setting — specifically evaluating whether voir dire could condition potential jurors (i.e. to be “death qualified” in a capital murder case), and whether such conditioning led to more conviction-prone decisions. As in prior studies, conditioning voir dire shaped perceptions of a criminal defendant — a “death qualifying” voir dire approach increased pretrial perceptions that a defendant was guilty. Surely, there must be a relationship between increased pretrial perceptions of a defendants’ guilt and guilty verdict decisions, right? The researchers did find a relationship. They found that people exposed to conditioning voir dire that increased their pretrial perceptions of defendant guilt were less likely to convict the actual defendant than people who experienced a standard voir dire. So, in this series of studies, if you can persuade jurors of your view of a key case issue in voir dire, it decreased your chances of persuading the jury of your ultimate verdict.
How could shaping people’s perceptions to perceive defendants as more likely to be guilty lead to fewer guilty verdicts? Here are three interesting points about how jurors make decisions and how a process like voir dire can influence that process.
1. Expectations Set the Stage. First, expectations matter. It is worth noting that the 2018 studies showed that conditioning people in voir dire had an impact. In the authors’ words, “Our results are consistent with research demonstrating that pretrial knowledge structures influence jurors’ expectations for and evaluations of evidence.” They also note that a conditioning voir dire can shift jurors’ expectations about the evidence they should see in trial, influencing their ultimate evaluation of the evidence they actually see in trial. The resulting contrast between expectation and reality can explain reduced conviction rates in “conditioned” jurors compared to those who were not conditioned. Makes sense. The first time I saw a fireworks show was far more impressive than the last.
This contrast between expectation and reality can function very simply by raising the bar of what evidence a person expects to see in a trial involving a murder, leaving the actual evidence to fall short and result in acquittal. This is known as contrast theory. We see it all the time in trials where an attorney overpromises and jurors contrast their actual perceptions with their preliminary expectations.
This result can also function through a psychological phenomenon known as reactance. Trial lawyer John Blumberg gives his opinion about conditioning jurors in voir dire in Plaintiff magazine, saying: “[Y]ou are not persuading anyone. In fact, the more you try to get jurors to agree with the proposition you’re advocating, the more they will resent your intrusion into their private thoughts and beliefs.” Why? They react to your conditioning attempts and build resistance to you and your target belief. This reactance is probably most easily recognized in young children. Think basic “reverse psychology.” Why does it work to ask a child to do the opposite of what you want? Because they can react with such a strong and impulsive resistance that they move strongly in the opposite direction. In jurors this happens more subtly and less impulsively but it happens nonetheless, particularly in today’s post-pandemic, 2020 jurors who do not want to be told what to think or what to decide. If jurors sense you trying to persuade them in voir dire, they often react in opposition and begin to build counterarguments and resistance before you’ve even begun to make your case.
2. Evidence Matters More. Perhaps the most important takeaway from the research is the consistent finding that evidence matters most to people’s ultimate case decisions. In both the 2011 and 2018 studies described above, the researchers varied the strength of the evidence against the defendant to evaluate how strength of evidence may impact the various voir dire strategies, including the impact of conditioning voir dire. Would conditioning voir dire lead to comparable conviction rates regardless of the evidence? Could voir dire “condition” people to find guilt even when the evidence wasn’t clear or would the evidence matter? It’s critical that the strength of evidence was the most important influence on verdict decisions, consistent with research by Visher and others going back as far as 1987. As Greathouse and her colleagues wrote in 2011: “Participants’ post-trial verdict decisions were only influenced by the strength of the trial evidence.” This is, and should be, a reassuring finding for trial lawyers and a reminder that jurors are diligent and effective fact-finders who get the result right most of the time.
3. Deselection Over Persuasion. As so many of our fine colleagues have written, and as we advise our clients over and over again — your priority in voir dire should be to identify and strike jurors most likely to be unwilling or unable to give your case a fair hearing. Period. Stop. This means prioritizing the goal of probing and incisive voir dire over the unpredictable goal of conditioning and persuading jurors in the jury selection process. Turning again to quality research, we cite a fantastic 2021 study by Jessica Salerno and her colleagues evaluating the impact of minimal voir dire compared to extended voir dire. Is it effective to simply hit the top of the waves while performing voir dire or do you need to dig in with more depth and detailed questioning?
While the study is more than worthy of your time, and a worthy read for judges and members of the judiciary more broadly, the researchers conclude that “attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases has little utility.” They go on to say, specifically, that “generic questions requiring jurors to spontaneously and explicitly acknowledge that they cannot be impartial are unlikely to aid attorneys or presiding judges.”
The net effect of the research and our experience is to acknowledge that conditioning a jury during voir dire is possible, but there is no guarantee doing so is helpful to your goal of persuading jurors’ verdict decisions (there is actually research showing it could be harmful). This is important because you have limited time in voir dire and efforts to persuade directly trade off with efforts to deselect. Practically speaking, efforts to persuade jurors in voir dire more often result in “outing” your good jurors to the other side, aiding your opponent in their assessment of how to use their peremptory strikes. So, while you may think you are gaining advocates in voir dire, you are actually losing advocates in the deliberation room as the other side discovers where their problems might be and removes them from the venire. The much more important and influential approach to voir dire is to identify and deselect jurors most likely to be biased against you. So, next time you begin thinking about voir dire as an opportunity to persuade the jury of your case, think harder again and again until you’ve identified the questioning approach that will best identify biases against you.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
