It may be the single most frustrating piece of jury advice for young lawyers: “Watch the jury.” Watch them what?, I used to think. They’re just sitting there! I felt like I could watch the jury for hours and never see a facial expression.
There are many exceptions, but often, jurors keep very straight faces through even the most disturbing evidence. A new study suggests this may be harder on them than it is on you, enough so that it might make a difference in your trial.
. . . and now we’ll show you — oh yuck.
This would have been a fun study for ten-year-old boys to plan. The researchers asked half their subjects to hold a pen between their lips, not telling them the reason for this was to hold their facial muscles still. Then they showed all the subjects a series of really disgusting images, like a dirty toilet or film of an amputation. (The press release doesn’t say how much they paid the subjects, and I can’t find the paper itself. I hope it was a lot.)
The subjects who couldn’t move their facial muscles experienced more negative emotions and held them longer, in what lead researcher Judith Grob called a “negative spiral.” This happened even though the subjects didn’t realize that their facial expressions were being blocked by the pen.
The researchers wonder about the implications for Botox®. I’m wondering about the implications for jurors. They don’t all succeed, but most jurors try very hard not to let their emotions show in court. When the evidence is difficult, does this effort itself make them react more strongly? And if so — or if maybe — is there something you should do?
Think about voir dire questions asking not just how jurors feel about disturbing images (you’d ask that anyway, right?), but also how they react, whether they tend to be stone-faced or expressive. Think too about a sentence in opening statement that gives them permission to react in the moment. “I know we’ll be able to see on your faces how difficult it is to look at those pictures,” you might tell them. For one or two, it might be that momentary “rehearsal” that will let them respond fully when the pictures come.
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