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Citation: 29 Law & Psychol. Rev. 301 2005
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THE SCIENCE OF PERSUASION: AN EXPLORATION OF
ADVOCACY AND THE SCIENCE BEHIND THE ART OFPERSUASION IN THE
COURTROOM
I. INTRODUCTION
Persuasion has been defined as the "act of influencing the minds
ofothers by arguments or reasons, by appeals to both feeling and
intellect; itis the art of leading another man's will to a
particular choice, or course ofconduct."' In the context of a
trial, persuasion is the organization of legalarguments and
evidence within the framework of court procedures in away likely to
cause the jury to make a certain decision.2 For decades,
trialattorneys have acted as amateur psychologists; through
intuition and ex-perience, trial attorneys have developed
techniques of persuasion in aneffort to be more effective in the
courtroom.3 These amateur techniqueshave led to a more scientific
approach to jury persuasion. One expert ob-served that, "all in
all, [trial consultants] help lawyers position their casesto juries
in much the same way you would sell a bar of soap . . . ."4 For-mer
Supreme Court Justice Tom Clark has suggested that attorneys
payattention to communications research in order to understand the
kinds oftechniques that influence a jury.
Since the 1970s, volumes of scientific literature have been
publishedon trial advocacy and the psychological principles
associated with jurypersuasion; 6 continuing legal education
seminars are offered in this area as
1. William C. Costopoulos, Persuasion in the Courtroom, 10 DUQ.
L. REV. 384 (1972), re-printed in PSYCHOLOGY & PERSUASION IN
ADVOCACY (Louis N. Massery II, ed., Association of TrialLawyers of
America, 1978).
2. Steven Lubet, Persuasion at Trail, 21 AM. J. TRIAL ADVOC.
325, 342 (1997).3. Victor Gold, Covert Advocacy. Reflections on the
Use of Psychological Persuasion Tech-
niques in the Courtroom, 65 N.C. L. REV. 481, 481 (1987); Thomas
Sannito, Psychological Court-room Strategies, TRIAL DIPL. J.,
Summer 1981, at 30.
4. Gold, supra note 3, at 481 (citing Dancoff, H-idden
Persuaders ofthe Courtroom, BARRISTER,Winter 1982, at 8, 17).
5. Daniel G. Linz & Steven Penrod, Increasing Attorney
Persuasiveness in the Courtroom, 8LAW & PSYCHOL. REV. 1, 2
(1984).
6. See generally Michael Owen Miller & Thomas A. Mauet, The
Psychology of Jury Persua-sion, 22 AM. J. TRIAL ADvOC. 549 (1999);
ROBERT L. HABUSH, ART OF ADVOCACY: CROSSEXAMINATION OF NON-MEDICAL
EXPERTS (1986); ROBERTO ARON ET AL., TRIAL COMMUNICATIONSKILLS
(2004) [hereinafter COMMUNICATION]; DAVID B. BAUM, ART OF ADVOCACY:
PREPARATIONOF THE CASE (1986); RICHARD A. GIVENS, ART OF PLEADING A
CAUSE (2004); RUSS M. HERMAN,COURTROOM PERSUASION: WINNING WITH
ART, DRAMA AND SCIENCE (1997); THE PSYCHOLOGY OFTHE COURTROOM, Ed.
Norbert L. Kerr & Rober M. Bray (1982); THOMAS SANNITO &
PETER J.McGOVERN, COURTROOM PSYCHOLOGY FOR TRIAL LAWYERS (1985); L.
TIMOTHY PERRIN ET AL.,THE ART & SCIENCE OF TRIAL ADVOCACY
(2003).
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Law & Psychology Review
well.7 Although psychologists are employed in cases where the
economicor political issues warrant such an expense, attorneys have
increasinglyapplied these scientific techniques on their own.8 Just
as professionals inother fields eagerly employ the latest and
greatest technologies, attorneyshave also eagerly embraced
social-scientific principles of persuasion in aneffort to gain a
competitive edge in the courtroom.9 With these powerfulnew tools
comes responsibility; some experts have raised concerns
overpossible unethical use of scientific techniques of
persuasion.10 Expertswarn that persuasive techniques could lead to
an erosion of the judicialsystem in the United States."
II. TECHNIQUES OF PERSUASION
It has been said that trial advocacy "requires the lawyer to
engage in apractical application of psychological knowledge, and it
is the obligationof every lawyer to succeed in doing so., 12
Through anecdotal stories pre-sented in trial advocacy literature
and personal experiences, this sectiondiscusses various advocacy
techniques and explores the scientific basisbehind them.
A. Jury Selection Techniques
For the trial attorney, persuasion starts with jury selection. 3
Psy-chologists suggest that jury selection be used as an
opportunity to deter-mine which jurors are susceptible to the
attorney's influence and whichmight be biased in favor of a
particular attorney's argument. 14 For decadesattorneys have tried
to get into the minds of potential jurors in an effort topick the
best jury for the case. Social scientists, over the last several
dec-ades, have used their expertise in a quest to discover the
perfect juror; as aresult, volumes have been written on how to
select the best jury for a par-
7. See generally Mastering the fundamentals of advocacy seminar,
ALABAMA BAR INSTITUTEFOR CONTINUING EDUCATION (2001); Jury
selection: who to strike and how to do it presented in adynamic
format, ALABAMA BAR INSTITUTE FOR CONTINUING EDUCATION (2001).
8. Gold, supra note 3, at 482.9. Gold, supra note 3, at
482-483.
10. See generally Gold, supra note 3.11. Id.12. ROBERTO ARON
& JONATHAN L. ROSNER, How TO PREPARE WITNESSES FOR TRIAL
2d.
3.17 (1998) [hereinafter WITNESSES].13. Lubet, supra note 2, at
337 ("In a very real sense, [a lawyer is] on trial from the first
moment
[he] steps in front of the (jury] .... The judge and the jury
will constantly evaluate and reevaluate [anattorney's] credibility
[while assessing the attorney's] behavior, appearance, bearing and
conduct.").Generally, voir dire is an attorney's first opportunity
to use the persuasive techniques discussed in thisarticle. Although
an attorney is not arguing his case during voire dire and will not
likely use tech-niques such as primacy and recency, clothing
recommendations and techniques focused on buildingcredibility with
the jury are applicable during voir dire.
14. SANNITO & McGOVERN, supra note 6, 2.5.
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Science of Persuasion
ticular case.' 5 This section does not purport to be a
compendium of knowl-edge on scientific jury selection; rather, it
serves to help the reader under-stand that persuasion in the
courtroom starts with picking the right jury.
Many attorneys begin the voir dire process with stereotypes and
gen-eral assumptions about groups of people in an effort to distill
the mountainof uncertainties posed by the jury pool. For example,
in personal injurycases, attorneys often assume that more liberally
minded people will tendto favor the plaintiff and more conservative
minded people will tend tofavor the defense. 16 From the
plaintiff's perspective, attorneys generallydo not consider middle
to upper class white men and women, especiallybusiness owners, as
"good" jurors for personal injury suits. 7 ClarenceDarrow once
weighed in on jury selection saying, "[i]f a Presbyterianenters the
jury box, carefully rolls up his umbrella, and calmly and
criti-cally sits down, let him go. He is as cold as the grave; he
knows rightfrom wrong, although he seldom finds anything right ....
Get rid of him.. . before he contaminates the others."18 Another
factor commonly thoughtto have bearing on jurors' attitudes and
predispositions is body shape. Itwas generally thought that taller,
skinnier people were conservative, andlarger more obese persons
were friendlier and more likely to award dam-ages. 19 Prior to
scientific jury selection, these are the types of "hit ormiss"
generalizations and stereotyping that occurred. 20 The process of
juryselection has been an especially uncertain endeavor; although
social scien-tists have not completely eliminated uncertainty,
scientific research haslikely decreased the uncertainty surrounding
jury selection.2'
Attorneys have been known to consult U.S. Census Bureau
informa-tion on the demographics of a particular venue to determine
the chances of
15. See generally JEFFEREY T. FREDERICK, AM. BAR ASS'N,
MASTERING VOIR DIRE AND JURYSELECTION: GAINING AN EDGE IN
QUESTIONING AND SELECTING A JURY (1995); ANN FAGANGINGER, JURY
SELECTION IN CIVIL AND CRIMINAL TRIALS (2004); JAMES J. GOBERT
& WALTER E.JORDAN, JURY SELECTION: THE LAW, ART, AND SCIENCE OF
SELECTING A JURY (2005); WARDWAGNER, JR., ART OF ADVOCACY: JURY
SELECTION (1986).
16. In the author's experience many attorneys make assumptions
about jurors based on the jurors'political preferences. In many
cases, lawyers make assumptions about a juror's political
preferencemerely on the physical appearance of the juror. For
example, men with long hair, tattoos or ear rings,are sometimes
assumed to be politically liberal.
17. WAGNER, supra note 15, 1.04[8].18. Janeen Kerper, The Art
and Ethics of Jury Selection, 24 AM. J. TRIAL ADVOC. 1, 1
(2000)
(citing Clarence Darrow, Selecting a Jury, ESQUIRE MAG.
(1936)).19. WAGNER, supra note 15, 1.04[3][g].20. See DONALD E.
VINSON, JURY PERSUASION: PSYCHOLOGICAL STRATEGIES AND TRIAL
TECHNIQUES 132-34 (1993). Vinson mentions various jury selection
myths such as "women with thinlips will help a plaintiff ... highly
educated jurors are better in complex cases . . . [and] widowsaward
high punitive damages." Id. He suggests that these myths lead to
errors in judgment. Id Theauthor is aware of a lawsuit where a
female plaintiff broke her pelvis in nine places as a result of
acollision with a tractor trailer truck. Because of the severity of
her injuries she was unable to ever beintimate with her husband.
The plaintiffs attorney in that case thought he needed as many
youngmarried persons on the jury as possible.
21. See sources cited supra note 15.
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Law & Psychology Review
success.22 Attorneys have also photographed the homes of
potential jurors,taking note of the condition of the lawn, type of
vehicles present andwhether there are toys on the lawn, or whether
outdoor equipment such asboats and motorcycles are present. 23
Attorneys have also considered in-formation such as where potential
jurors work and attend -religious ser-vices. All of these factors
are believed to be helpful in picking the rightjury.
24
Social scientists have developed a number of techniques
generally re-ferred to as "scientific" or "systematic" jury
selection in an effort to cre-ate some sense of certainty out of a
wildly uncertain endeavor. 25 The mostwell known technique
associated with scientific jury selection is the demo-graphic
survey. 26 Such surveys seek to discover the attitudes among
vari-ous groups in the community toward certain issues.27 Social
scientists usethese surveys to develop a profile of jurors with
favorable and unfavorablebiases.28 Demographic information about
potential jurors can be found onthe jury list itself; often it will
contain information such as race, sex, ageand home address.
Information may also be obtained through private in-vestigators,
voter registration lists, credit reports and membership lists.
29
It is noted that an attorney should know the age, sex,
occupation, maritalstatus, spouse's occupation, and number of
children of all potential jurorsbefore any meaningful analysis can
be done.3
Trial simulations and focus groups are also employed by social
scien-tists as a method of evaluating issues that will arise at
trial.31 A trial simu-lation is a kind of dress rehearsal and
miniature trial.32 The major issues ofthe trial are presented to
the mock jury and the jury's reaction to the issuesis measured.
Trial simulation can be helpful in measuring the effectivenessof
the attorney, expert witnesses and evidence and in determining
desir-able and undesirable jurors.33
After having done demographic surveys and other research,
psycholo-gists suggest that in an effort to illicit further
responses from potentialjurors during voir dire, the attorney
should reinforce any initial responses
22. See United States Census Bureau, available at www.census.gov
(last visited Mar. 19, 2005).23. In his discussions with members of
the Bar, the author has learned that some attorneys em-
ploy this practice.24. According to attorneys with whom the
author has spoken, the attorneys who investigate jurors
in this way find such information quite relevant and helpful
during the jury selection process.25. VALERIE P. HANS & NEIL
VIDMAR, Jury Selection, in THE PSYCHOLOGY OF THE
COURTROOM, at 68-72 (N. Kerr & R. Bray eds., 1982).26. Gold,
supra note 3, at 493.27. Id.28. HANS & VIDMAR, supra note 25,
at 68-72.29. V. HALE STARR & MARK MCCORMICK, JURY SELECTION
6.02 (2001).30. Id.31. FREDERICK, supra note 15, at 152.32. STARR,
supra note 29, 7.01.33. Id.
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Science of Persuasion
he receives. 34 This technique, referred to as deconditioning,
can be used toreinforce the idea that it is acceptable for the
potential jurors to voice theiropinions even if the opinions are
negative.35 Public speaking is the numberone fear in the United
States.36 When prospective jurors speak out duringvoir dire the
attorney must commend the answer and encourage other po-tential
jurors to speak up as well.3 An abrasive or combative response to
anegative answer might discourage other potential jurors from
speakingup.
38
One voir dire tactic is designed to increase the credibility of
the attor-ney by sacrificing a favorable juror.39 This tactic can
be used in situationswhere a juror plainly states that he or she is
biased in favor of a particularside. This tactic suggests that even
though the potential juror is biased infavor of a particular side
and will most likely be struck by the opposingside, the attorney
for whom the prospective juror is in favor, may gaincredibility and
increase his perceived fairness if he strikes the juror ratherthan
allowing the opposing attorney to strike the biased juror. 40 For
exam-ple, this display of fairness-"Mr. Smith, I appreciate your
support of ourside but with your permission I would like to excuse
you because youwould be biased in my favor and would not be able to
look at both sides ofthe argument fairly"--could increase the
attorneys trustworthiness in theeyes of the remaining jurors.4
B. What is Said, How it is Said, and What You Look LikeWhen You
Say it.
Having selected a favorable jury, an attorney presents the
evidenceand his arguments in a way that he hopes will persuade the
jury that inlight of the evidence, his interpretation of the event
or act in question iscorrect. Attorneys have long used personal
charisma and skillful orationsto persuade juries. Although
attorneys have developed their own persua-sive techniques as a
result of experience, social scientists have been ex-ploring the
scientific basis of persuasion.
34. Lisa A. Blue & Robert B. Hirschhorn, Goals and Practical
Tips For Voir Dire, 26 AM. J.TRIAL ADVOC. 233, 241 (2002).
35. Id.36. Id.37. Id.38. Id. at 239-240.39. Id. at 252. It is
important for attorneys to appear credible because people who are
perceived
as credible are generally more persuasive than those that are
not credible. See infra note 159 andaccompanying text.40. Id.41.
Id.
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1. Word Choice and Speech Patterns
Social scientists have found that speech patterns, word choice
andone's overall style of speech are powerful tools of persuasion.
42 It is thedifference between $4.99 for a hamburger and $5.00 for
a hamburger(Five "whole" dollars). It is the difference between
"who are you?" and"who are you?" and the difference between "well
Iguess so" and "YES. "Attorneys have long manipulated their speech
patterns and word choice inan effort to persuade juries.
Sociolinguists have found that linguistic char-acteristics of a
speaker affect the persuasiveness of the speaker.43 The ma-jority
of the research on verbal characteristics and persuasiveness in
thecourtroom has been conducted by anthropologist William M. O'Barr
andhis associates.4a
O'Barr found that the "powerfulness" of a person's speech has an
af-fect on that person's persuasiveness. 45 Sociolinguists have
found that at-torneys can encourage jurors to make judgments about
the credibility of awitness by manipulating the "powerfulness" of
the witness's speech.46
Researchers found that "powerless" speakers use hedge words
(sort of,kind of, maybe, around, I think, it seems like),
intensifiers (very, really,lots, surely, definitely), filler words
(you know, and all, um) and terms ofpersonal reference (my old pal,
my buddy Jim); avoiding these phrasestends to increases the
"powerfulness" of a speaker's message.47 In anotherstudy, constant
use of phrases such as "to be honest with you" or "to tellthe
truth" was perceived as a marker of untruthfulness. 48 Using an
inquisi-tive intonation at the end of a sentence, suggests that the
speaker seeks thelistener's approval for the declaration-also
conveying a lack of confi-dence .49
The O'Barr study found that "powerless" attorneys engage in
verbalclashes with witnesses, that is, where both the attorney and
witness speakat the same time. 50 Research revealed that even when
the attorney domi-
42. John M. Conley et al., The Power of Language: Presentational
Styles in the Courtroom, 1978DUKE L.J. 1375, 1399.
43. Id. at 1392, 1399; JEFFEREY T. FREDERICK, THE PSYCHOLOGY OF
THE AMERICAN JURY 169(1987).
44. A summary of this research can be found in O'BARR &
LIND, Ethnography and Experimenta-tion: Partners in Legal Research,
in THE TRIAL PROCESS, VOL. 2 OF PERSPECTIVES IN LAW ANDPSYCHOLOGY
181-207 (B. Sales ed., 1981); see also COMMUNICATION, supra note 6,
at 15.06; JohnM. Conley, Language in the Courtroom, TRIAL,
September 1979, at 32.
45. SANNITO & McGOVERN, supra note 6, at 5.35; Lubet, supra
note 2, 325.46. Id.; see also Celia W. Childress, The Trial
Lawyer's Persuasive Speaking Voice, 81 AM.
JUR. TRIALS 317 25.47. FREDERICK, supra note 43, at 169; Conley
et al., supra note 42, at 1380; JEFFERY L.
KESTLER, QUESTIONING TECHNIQUES AND TACTICS (3rd. ed. 1999)
9:56.48. Lubet, supra note 2, at 354-55.49. SANNITO & McGOVERN,
supra note 6, at 5.35; Childress, supra note 46, 24, 48-49, 53;
Conley et al., supra note 42, at 1380.50. Conley et al., supra
note 42, at 1392.
[Vol. 29
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Science of Persuasion
nated the cross-examination, the attorney was perceived as
having lostcontrol of the witness.5 ' Psychologists suggest that
verbal clashes shouldbe avoided because of the negative effects on
the attorney's image.52 TheO'Barr study also suggests that an
attorney not interrupt witnesses becauseit is perceived by the jury
as unfair.53
Social scientists also caution attorneys against using complex
languageand hypercorrect speech. Experts suggest that an attorney
use vocabularyon an eighth-grade reading level .54 Hypercorrect
speech refers to the ex-cessive use of "bookish" grammar, overly
formal or technical language.Research indicates that hypercorrect
speech is detrimental; witnesses thatuse hypercorrect language are
perceived as significantly less credible thanthose that do not use
hypercorrect language.56
One study found that witnesses displaying characteristics of
"power-ful" speech were perceived as "more competent, attractive,
trustworthy,dynamic, and convincing. "57 Studies have found that
jurors perceive"powerful" speakers as credible and give larger
damage awards to plain-tiffs with powerful witnesses than
plaintiffs with "powerless" witnesses.58
The perceived connection between speech style and credibility is
strong; inone study, jurors linked credibility with powerful speech
even when thejudge cautioned against making such a connection.59
Psychologists suggestthat attorneys coach witnesses to remove these
negatively perceived char-acteristics. 6 O'Barr's findings
encourage attorneys not only to use "pow-erful" speech themselves
but to coach witnesses to use "powerful" speechas well.
As a corollary to "powerful" speech, studies have shown that
nounsand verbs are the most evocative words.61 It is thought that
adjectives-large, minuscule, tiny, gruesome, bloody, beautiful,
pretty-create thebest mental pictures; 62 however, adjectives tend
to convey a subjectiveanalysis of the event or action. 63 Because
these words are subjective, stud-ies show that a description using
too many adjectives may come across as
51. FREDERICK, supra note 43, at 171; Conley et al., supa note
42, at 1392; KESTLER, supranote 47, at 2:31.
52. FREDERICK, supra note 43, at 172; Conley et al., supra note
42, at 1392.53. Conley et al., supra note 42, at 1392.54. STARR,
supra note 29, at 10.04[A].55. FREDERICK, supra note 43, at
169-70.56. Id. at 169-70; see also Conley et al., supra note 42, at
1389-90; WrNESSES, supra note 12,
11.09 (West 1998) (using everyday language in the courtroom is
preferable to sophisticated or gran-dious language).
57. MICHAEL J. SAKS & REID HASTIE, SOCIAL PSYCHOLOGY IN
COURT 114 (1978).58. Gold, supra note 3, at 485 (citing W. O'BARR,
LINGUISTIC EVIDENCE, LANGUAGE, POWER
AND STRATEGY IN THE COURTROOM 71-75 (1982)).59. Id. (citing
O'BARR, supra note 58, at 94-96).60. FREDERICK, supra note 43, at
171; Conley et al., supra note 42, at 1395.61. Lubet, supra note 2,
at 334.62. Id.63. Lubet, supra note 2, at 334-35.
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Law & Psychology Review
unreliable to a jury. 64 Nouns and verbs are not generally
subjective; theysuggest something about the event or action
itself.65 Consider a situationwhere an attorney states that an
accident was a horrendous, gruesome,terrible, deadly, awful
accident. The use of these, although vivid, descrip-tors is a
subjective judgment.66 In contrast, consider where an
attorneydescribes the accident in these terms: "the roof of the car
was smashed inon top of the driver; blood dripped down the side of
the car door, splat-tered on the grass and soaked into the dirt;
the front wheels and hood ofthe car were ripped off during the
plunge down the ravine." These nounand verb combinations-roof,
smashed; blood, dripped; splattered, grass;soaked, dirt; wheels and
hood, ripped-provide a more concrete descrip-tion of the accident.
The roof of the car can either be smashed in or not;however, that
the accident was terrible, could mean different things todifferent
people. The jury is more likely to find the noun/verb
descriptionconcrete and dependable.67
Further, defense attorneys will generally refer to an event as
an acci-dent, while plaintiff's attorneys will generally refer to
the same event as atragedy or horrific crash.68 In a series of
studies conducted by psycholo-gists, subjects were shown a film of
a vehicle accident and asked to esti-mate the speed of the vehicle
on impact. 69 The study used different verbsto describe the
accident and found that the estimates varied depending onword
choice. 70 Witness estimates were found to be higher when the
sub-jects were asked how fast the vehicle was going when the
vehicle"smashed" into the other vehicle.71 Estimates were lower
when the ques-tion was phrased such that the vehicle "contacted"
the other vehicle.72
A defense attorney, particularly in criminal cases, can gain an
advan-tage by making the meaning of the evidence vague or unclear.
One studysuggests that criminal defense attorneys can increase
their chances of anacquittal by using "abstract or vague language.
,73 Further, the study statedthat successful defense attorneys used
fewer adverbs. Adverbs tend to in-crease specificity; thus, a
decrease in the use of adverbs increases vague-
64. Id. at 335.65. Id.66. Id. at 334-35.67. Id.; See also
Michael G. Parkinson & L. Marie Parkinson, Speech Tactics for
Successful
Trials, TRIAL, Sept. 1979, at 36.68. Richard H. Underwood, Logic
and the Common Law Trial, 18 AM. J. TRIAL ADVOc. 151
(1994), at 187; Theodore I. Koskoff, Words & Action:
Convincing the Jury, in PSYCHOLOGY &PERSUASION IN ADVOCACY 334,
350-51 (Louis N. Massery II, ed., Ass'n of Trial Lawyers of
Am.,1978).69. SAKS & HASTIE, supra note 57, at 115.70. Id.71.
Id.72. Id.73. Parkinson & Parkinson, supra note 67, at 36.
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Science of Persuasion
ness. 74 Because the burden of proof in criminal trials is high,
the defendantshould be acquitted if the jury is confused.75
One successful trial attorney stated that one would be a fool if
he didnot prepare his witness before trial or depositions.76 Social
scientists haveuncovered two traits that stand-out as indicators of
truthfulness: certaintyand detail .77 Preparing a witness before a
deposition or trial, giving par-ticular attention to certainty and
detail can have a considerable impact on awitness's credibility.
Even witnesses that are confident and certain abouttheir conduct or
observations may appear surprised or uncertain uponhearing a
question for the first time at trial.78 Some have stated that
anattorney would be well-advised to inform the witness of the
topics to becovered in both direct-examination and
cross-examination. 79
A command of detail has been found to increases credibility.8
Studiessuggest that assumptions of witness credibility were made on
the basis ofthe level of detail the witness reported, even when the
details were irrele-vant to the case.8I One article states quite
emphatically that "supportivedetails . . . add credibility and
weight, 82 while an apparent lack of knowl-edge tends to erode the
credibility of witnesses and attorneys .83 One psy-chologist
suggests that an attorney ask his witness to recount as many
de-tails that they can remember about the incident in question. 84
Effectivecross-examination could take advantage of this tendency;85
to underminean adverse witness' credibility, it is suggested that
the attorney ask ques-tions about details the witness is unlikely
to know or remember.86
Varying the speed of one's speech affects credibility and helps
create atemporal framework for events or actions. Studies show that
"rapid speak-ing (to a point) tends to increase believability," 87
while "unnaturally slowspeech is [perceived] as an indicator of
uncertainty .... "88 "Reflectivequestioning" is a technique where
one varies the pace of his speech to
74. Id.75. Gold, supra note 3, at 496.76. This statement was
made to the author by a prominent defense attorney. Witness
preparation
as it is discussed in this work is not a method to encourage a
witness to be untruthful; rather it is amethod by which the
attorney can present his case more effectively. Several works have
been pub-lished on witness preparation. See generally WrrNSSES,
supra note 12.
77. Lubet, supa note 2, at 341.78. Id.79. Id.80. Id. at 332.81.
HANDBOOK OF PSYCHOLOGY IN LEGAL CONTEXTs 551 (Ray Bull & David
Carson eds., 1995)
[hereinafter HANDBOOK].82. Lubet, supr note 2, at 332.83. Id. at
352.84. HANDBOOK, supra note 81.85. Lubet, supra note 2, at 352.86.
Id.87. Id. at 353.88. Id.
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convey a sense of time, distance or intensity . 9 "Reflective
questioning" isbased on the idea that speaking slowly makes the
event or action seem asthough it occurred slowly; conversely,
speaking faster makes the event oraction seem faster or more
intense. 90 Where the attorney believes that anevent occurred so
fast that a witness could not have seen what the witnessclaims to
have seen, the attorney should cross-examine the witness in afast
paced manner so as to convey a sense of speed.9 However, where
anattorney's goal is to emphasize a witness's opportunity to act or
to ob-serve, the attorney is advised to slow the examination and
proceed in adrawn out manner.92
2. Indirect Assertion of Facts
Often, merely asking a question or making a statement loaded
with as-sertions will introduce a fact to the jury, regardless of
whether the witnessanswers the question. 93 Research suggests that
jurors can be strongly in-fluenced in this way.94 Simply asking a
question sometimes is sufficient toinduce the jury to draw an
inference, even in the absence of confirmingtestimony. The form of
the question influences the witness and the jury;the question
itself becomes a message.96 This influence is known as "thebiasing
effect;" regardless of the answer, jurors tend to misperceive
theevidence due to indirect assertions contained in the question
itself.97 Re-search indicates that when an attorney asks a question
loaded with an as-sertion, jurors tend to believe that the attorney
has some basis to make the
98 iassertion. Even in the absence of corroborating evidence,
questions suchas "isn't it true that your work is poorly regarded
by your colleagues?"have been found to reduce the expert's
credibility in the eyes of the jury.99
89. Id. at 334.90. Id.91. Id.92. Id.93. Underwood, supra note
68, at 190.94. Id. at 191. The author is aware of an example of
indirect assertion of facts in an ethics case.
After three-and-a-half days of presenting evidence, the
prosecution rested its case against a publicofficial for ethics
violations. At the close of the prosecution's case, the defense
attorney, sitting at histable, leaned toward the jury, at a volume
just loud enough for some of the jurors to hear he ex-claimed,
"They haven't proven a damn thing." The defense attorney then
proceeded with his case. Hecalled two witnesses and rested his case
within four hours. The individual was acquitted. Althoughthere may
be ethical issues here, the defense attorney, without any
justification asserted that the prose-cution had not proven its
case.
95. Miller, supra note 6, at 560.96. Id.97. Gold, supra note 3,
at 488 (citing Goodman & Loftus, Social Science Looks at
Witness Ex-
amination, TRIAL, Ap. 1984, at 52, 55).98. Miller, supra note 6,
at 560.99. Id. Another example from the author's experiences with
indirect assertion of facts follows. A
plaintiff, who testified that she could not lift more than three
pounds and could not lift her arm overher head, was caught on video
tape in a grocery store reaching over her head to grab what
appeared tobe a one gallon milk container (one gallon of milk
weighs over eight pounds). After an in camem
[Vol. 29
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2005] Science of Persuasion
Other examples of indirect assertion of facts include questions
such as:"Have you stopped beating your wife?" and "What did you do
with themoney you stole?"'
C. Emphasis and De-Emphasis of Evidence
Attorneys can increase or decrease the weight given to a
particularpiece of evidence by understanding how to apply some
basic psychologicalprinciples. Understanding the psychological
effects of the presentation ofinformation in various sequences can
help attorneys maximize the impactof favorable evidence, while
minimizing the impact of unfavorable evi-dence. Acknowledging
negative evidence before the opponent presents ithas the effect of
softening the impact of the negative message. Repeatingimportant
pieces of evidence through several witnesses can also be a
per-suasive tool if used in moderation.
1. Primacy and Recency
Primacy and recency are theories suggesting when to present
evidencein trial to gain the greatest possible effect from that
evidence. 1' Althoughexperts disagree on which is most effective,
all agree that an argument orpiece of evidence has more of an
impact if presented at the beginning orend of a witnesses'
examination. 10 2 The law of primacy in persuasion,formulated by
F.H. Lund, holds that people are influenced most by theinformation
received first.10 3 Lund found that in a debate the first argu-ment
presented had the greatest impact on the audience.' 4 Similarly,
a
viewing of the video with the judge, the plaintiffs attorney
sent an assistant out for a scale and a onequart milk container.
After the jury viewed the video, the plaintiffs' attorney put the
plaintiff on thestand. In front of the jury he put the one quart
container on the scale and asked the plaintiff if shecould pick up
a two pound container, to which she said "yes." He asked the
plaintiff if she was in painwhen she reached for the container, she
said "yes." The attorney continued to question her about thefact
that even though she was in pain, she had to purchase food and
provide a meal for the family. Inthese follow-up questions the
attorney indirectly asserted that the container was a quart
containerrather than a gallon container.100. Id.; The author has
seen attorneys use the indirect assertion of facts as a method of
criticismtoward opposing counsel. For example, it is not uncommon
for rural people to have a general mistrustof lawyers; they also
may have a sense of apprehension toward large cities and a mistrust
of outsiders.Home-town attorneys can take advantage of this fear by
referring to opposing counsel (most oftendefense counsel) as "big
city lawyers." For instance, a lawyer could say, "those big-time
slick lawyersfrom [insert big city name] think they can come down
here and tell you what's right and what'swrong." While indirectly
asserting that the "big city" lawyers are untrustworthy, the
home-townlawyer also highlights the fact that the opposing counsel
is an outsider.101. COMMUNICATION, supm note 6, at 15.04102. Id.
Interment, a companion principle to the primacy effect, holds that
evidence presentedbetween the first and last bits of evidence will
be remembered least. Lubet, supra note 2, at 327-28.To minimize the
impact of information that must be mentioned but is negative or
embarrassing, anattorney should present the evidence in the middle
of trial between more positive evidence. Id.103. SANNITO &
McGOVERN, supra note 6, at 5.4. See also COMMUNICATION, supra note
6, at 15.04; Sannito, supmanote 3, at 31.104. See supra note
103.
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Law & Psychology Review
jury uses the first arguments and pieces of evidence to form
preliminaryopinions about the case.10 5 These initial opinions have
been found to biasthe interpretation of subsequent evidence. 0 6
Inconsistent evidence, re-ceived later, "tends to be disregarded or
misinterpreted" by the jury. 10 7
Several articles suggest that the most favorable evidence will
have itsgreatest impact if presented first.108 Experts have found
that "jurors tendto sustain belief in the validity of their initial
theories long after logic sug-gests those theories have been
discredited."'09 The principle of recencyasserts that people are
more likely to remember what they have been ex-posed to most
recently.10 Generally, the prosecution or the plaintiff hasthe
advantage of primacy, however, the defense is not lacking in
methodsto counteract it.' Psychologists offer two strategies to
minimize the de-fense-induced primacy effect: (1) lengthen the
trial 1 2 (2) examine manycharacter witnesses.
1 13
The above research must also be tempered with other findings
that themore factual the communication, the more quickly it loses
its power."1
4
Also, when emotional evidence is presented first, jurors are
likely to"construct a logic to justify it;" that is, jurors tend to
make later presentedevidence "fit" with early encountered emotional
evidence. 15 In light ofthese findings, Psychologist Sannito has
suggested several sequencingstrategies for attorneys." 16 Emotional
evidence should be put on first to getthe primacy effect and
factual evidence should be put on last to gain therecency effect.'
1 7 Because factual information fades faster, putting
factualevidence on last will increase the chance that the jury will
remember cer-tain factual information.
2. Inoculation and Forewarning
Another technique attorneys often use is to acknowledge negative
evi-dence and forewarn of false evidence. The technique of
inoculation works
105. Gold, supra note 3, at 495 (citing R. NISBETr & L.
ROSS, HUMAN INTERFERENCE:STRATEGIES AND SHORTCOMINGS OF SOCIAL
JUDGMENT 167, 172 (1980)).106. Id.107. Id. at 496.108. Sannito,
supra note 3, at 31; Lubet, supra note 2, at 325-26; VINSON, supra
note 20, at 162-63.109. Gold, supra note 3, at 496 (citing NISBETr
& Ross, supra note 105, at 167-92); Sannito,supra note 3, at
31.110. COMMUNICATION, supra note 6, at 15.04.111. SANNITO &
McGOVERN, supra note 6, at 5.4, 5.5; Sannito, supra note 3, at
31.112. The longer the defense's case-in-chief, the less effect
primacy has. SANNITO & MCGOVERN,supra note 6, at 5.4, 5.5;
Sannito, supra note 3, at 31.113. Psychologists suggest that
character witnesses, by their sheer number will weaken the pri-macy
effect. SANNITO & McGOVERN, supra note 6, at 5.5; Sannito,
supra note 3, at 31.114. Sannito, supra note 3, at 32.115. Id.116.
Id.117. Id.
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Science of Persuasion
like a vaccination to prevent jurors from being persuaded by an
opposingargument." 8 Psychologists found that by "presenting a
weakened form of[the] opposition's arguments stimulates [the jury]
to think about defensesto these weakened arguments .. .'"19 The
opposition's arguments willlose their impact before the opposition
has a chance to present them.120 Aclosely related technique, known
as the defensive direct examination, alsoseeks to blunt the impact
of negative evidence 12 1 For example, during adefensive direct
examination an attorney might prompt his own witness toreveal
weaknesses or shortcomings-that the defendant had consumed a"few
drinks" or that the defendant did get into an argument with his
wifethe night of her disappearance. 22 Further, during introductory
phases ofdirect examination, particularly of expert witnesses,
attorneys often at-tempt to make the fact that the expert is paid a
non-issue by bringing thatfact out early-on. 2 3 Along with
questions about their education and ex-perience, attorneys often
ask their own expert witnesses whether or notthey are being
compensated for their services. Having already establishedthat the
expert witness is being paid and cannot work for free, the
attorneyhas lessened the effect of any attempt by the opposing
party to criticize theexpert as a "hired gun" or "yes man."
Finally, a jury is less likely to accept evidence or arguments
if theyhave been forewarned of a reason to reject it. 124 Known as
the forewarningprinciple, the principle suggests that once the jury
is made aware of flawsin the evidence, they may devalue or reject
the evidence altogether. 25 Oneattorney states that he often asks
potential jurors, "do you think you cansmell out when a person's
telling the truth or lying?" 26 If the potential
118. Lubet, supra note 2, at 354; VINSON, supra note 20, at
127-29.119. Kim Macinnis Munsinger & Harry L. Munsinger, Seven
Psychological Principles You CanUse To Become A More Effective
Lawyer, 62 TEX. B.J. 894, 96 (1999). See also Linz &
Penrod,supra note 5, at 23.120. Munsinger & Munsinger, supra
note 119, at 896.121. Lubet, supra note 2, at 354.122. For example,
the author is familiar with a case where a young man burned to
death in a onevehicle accident. The young man lost control of his
car and crashed. Because of a known manufactur-ing flaw, the gas
tank ruptured and caused the car to burst into flames. An autopsy
confirmed that notonly did the young man burn to death, but that he
had a blood alcohol level of 0.9, making him legallyintoxicated at
the time of the accident. Although the fact that he was legally
drunk did not have any-thing to do with the manufacturing flaw,
this fact would surely be damning, especially because of
therelatively conservative venue. The plaintiffs attorney
forcefully and bluntly acknowledged that theyoung man was drunk;
the attorney stated that "just because someone is drunk and crashes
their cardoes not make it acceptable that they burn to death as a
result of a manufacturing defect. The youngman would most likely
have survived the accident if it were not for the defendant's
negligence. Youngpeople make mistakes; had he not been burned to
death due to the defendant's manufacturing defect,he would have
walked away from the crash and learned a valuable life lesson." The
case settled mid-way through the plaintiff's case-in-chief for over
four million dollars.123. In the author's experience, attorneys
commonly use this line of questioning during directexamination.124.
Lubet, supra note 2, at 353-54.125. Id.126. Munsinger &
Munsinger, supra note 119, at 896.
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juror says "yes" then he continues saying "because in this case
there'sgonna be some lying going on coming from that witness
stand."427 Thisstatement has the effect of forewarning the jury
that someone will be un-truthful; having been forewarned of an
untruthful witness, the jurors willtend to devalue or reject
testimony.
3. Repetition, Duration, And The Von Restorff Effect
Through repetition and duration principles and the Von Restorff
ef-fect, emphasis can be placed on importance pieces of evidence.
Repetitionand duration principles seek to emphasize the
significance of evidence orarguments; the more time the attorney
spends on an idea or assertion, themore important it will seem to
the jurors. 28 The more something is saidthe more likely it will be
believed and remembered.12 9 Repetition createsattitudes that are
more readily retrieved from memory.130 As for duration,the more
jurors are exposed to a statement, the more they will
becomecomfortable with that statement.
The Von Restorff principle holds that unique events are almost
unfor-gettable. 131 For example, one probably does not remember
what one wasdoing on any given day during the month of September
2001. However,one probably remembers where one was and what one was
doing on themorning of September 11, 2001. Similarly, many people
remember wherethey were or what they were doing when John F.
Kennedy was assassi-nated, when Neil Armstrong stepped foot on the
moon, and when Elvisdied. Researchers have found that even when a
person is merely told that
127. Id.128. An example of repetition and duration with which
the author is familiar, occurred during acase where a man was run
over and severely injured by the alleged negligent acts of a cable
televisionworker. The wife of the victim stated in her deposition
that, as a result of the injuries her husbandsustained, one of her
husband's testicles swelled to the size of a football and appeared
blue. After thedeposition, the plaintiffs attorney had an assistant
paint a football blue in preparation for the trial.During the trial
the blue football was placed on a file box in view of the jury.
Although the victim'swife testified only briefly at trial about the
extent of her husband's injuries and his home health careneeds,
because the defense allowed the blue football to remain in sight of
the jury, the blue footballand the wife's testimony had a lasting
impact on the jury. That the victim's testicle was the size of
afootball had very little evidentiary value as to negligence, but
because the football was in viewthroughout the trial it made a
significant impact on the jury.
Another example of repetition and duration occurred in a trial
resulting from a swimmingpool accident. Gold, supra note 3, at 495.
A woman drowned in a swimming pool; she was pulled outof the
swimming pool and the rescuers noticed that one of her arms
appeared bright blue. Experts forboth parties could not provide an
explanation for the phenomenon. Mock jury trials, conducted
bysocial scientists, suggested that the blue arm evidence would be
important to the jury. Psychologistsrecommended "that [the] defense
. . . 'constantly infer' . . . throughout the trial that the blue
armmeant that the woman had some prior [medical] problem that made
her susceptible to drowning." IdDefense attorneys highlighted
evidence with little or no value simply by referring to it
throughout thetrial. Id.129. See Lubet, supra note 2, at 331.130.
VINSON, supra note 20, at 54.131. Sannito, supra note 3, at 32.
314 [Vol. 29
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what he is about to hear is unique or novel, the person is
substantiallymore influenced by the message than if he is not told
that the message isunique or novel. 132 One psychologist suggests
that, in light of the VonRestorff Effect, judges should be
conservative with the use of an order tostrike from the record and
subsequent statement to the jury to disregardthe stricken
statement. 133 Halting the attorney's presentation and ruling onthe
motion to strike makes the statement stand out and, in effect,
helps thejury remember the stricken evidence or statement.
134
These techniques are often used effectively, but can also be
over-done. 135 The old saying, "moderation is the key" is
applicable here;"[e]mphasizing everything is the equivalent of
emphasizing nothing."
136
An example of the concern here is mirrored in many young college
stu-dents. Often students highlight or underline too many phrases
or ideas intheir textbooks; when test time approaches, the
overabundance of high-lighted or underlined material gives the
student no direction as to the coreconcepts of the course.
Similarly, if an attorney emphasizes too many factsor arguments the
jury will not pick up on the core arguments or most fa-vorable
facts.
4. Developing a Theme and Telling a Story
It is noted in many trial advocacy works that an attorney should
have atheme and tell his version of the facts in story form. 13 7
Humans havecommunicated through storytelling since the beginning of
time and instinc-tively use stories as a method of communication.
38 Good stories organizeevents, humanize the people involved and
dramatize the action. 139 Conse-quently, storytelling is key tool
in a trial attorney's arsenal. 14 Many atton-rys agree that
"[e]ffective storytelling is the basis for much of what
occursduring a trial." 14 1 Social scientists state that providing
the jury with atheme or story serves three major functions: (1) it
serves as a frameworkfor memory; (2) it helps the juror draw
inferences from evidence pre-sented; and, (3) it helps with the
decision-making process. 42 An attorneycan increase jurors'
comprehension and recall through a theme or storyline because it is
such a powerful organizing device. 43
132. Id.133. Id. at 171.134. Id.135. Lubet, supm note 2, at 331;
VINSON, supra note 20, at 54.136. Id.137. Linz & Penrod, supra
note 5, at 3.138. Miller, supra note 6, at 568.139. Id. at 569.140.
Id.141. Id.142. Id. at 5-6.143. Linz & Penrod, supra note 5, at
6.
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D. Non- Verbal Communications
Psychologists have found that non-verbal communication accounts
for65-70% of the total communication between humans.' 44
Recommendationsconcerning physical appearance,"' 5 physical
positioning of the attorney inthe courtroom, 146 and other aspects
of courtroom conduct, 147 attempts toenhance the credibility of
attorneys, clients and witnesses through non-verbal means. 148 One
author states quite frankly, "If I had a weak case, Iwould
certainly want to lend it some help through my personal
cha-risma."1 49 "Lawyers can increase their charisma by
demonstrating a posi-tive outlook, by showing enthusiasm, by acting
assertively, and by beingemphatic." 150 One practice manual states
that "there is no question thatyou can enhance your credibility by
the way you act, dress [and] conductyourself. ... ""'
1. Physical Appearance
An old saying warns that, 'you can't judge a book by its
cover'.However, social scientists have found that juries often do
just that. Physi-cal appearance has been found to have a strong
correlation to believabil-ity.152 Many attorneys wear blue suits on
the first day of trial because blueis believed to be a trusting,
calming color. 153 One attorney routinely sendsassociates out
shopping with clients before a trial to purchase what he re-ferred
to as "appropriate dress for trial."154 A doctor defendant in a
medi-cal malpractice case appeared for the first day of trial
wearing cufflinks.155 The defense attorney noticed the cuff links
and told the doctor togo to the men's room, take off the cuff
links, and roll up his sleeves. Theattorney asked the doctor to
wear a dress shirt without French cuffs for theremainder of the
trial to which the doctor replied "I do not have any dress
144. STARR, supra note 29, at 12.02.145. SANNITO & McGOVERN,
supra note 6, at 5.22; see also DAVID BALL, NAT'L INST. TRIALAD.,
THEATER TIPS AND STRATEGIES FOR JURY TRIALS 7 (1994) (outlining
what attorneys should dowith their hair, hands, clothing and other
accessories).146. Stanley L. Brodsky et al., Attorney Invasion of
Witness Space, 23 LAW & PSYCHOL. REv. 49(1999).147. SANNITO
& McGOVERN, supra note 6, at 5.24-5.36.148. Id. at 5.22.149.
Childress, supra note 46, at 5.150. Jennifer Fowler-Hermes,
Improving Persuasive Effects in the Courtroom: An application
ofRhetorical Theory, 24 AM. J. TRIAL ADVOC. 313, 339 (2000).151.
WAGNER, supra note 15, at 1.11[4].152. STARR, supra note 29, at
13.02.153. The author is personally aware of attorneys who wear
blue suits on the first day of trial; theseattorneys believe blue
suits to have a calming effect and believe them to convey
trust.154. The author is aware of several law firms that make
suggestions regarding appropriate clothingfor clients and
witnesses.155. This story was relayed to the author by a medical
malpractice defense attorney in Birming-ham, Alabama.
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shirts without French cuffs." Through the remainder of the
trial, the doc-tor came to trial with his sleeves rolled up. The
attorney's reasoning wasthat the appearance of cuff links further
alienated the already assumedlywealthy doctor from the every-day
juror; the cuff links increased the doc-tor's perceived wealth and
gave him an aristocratic air. No better examplecan be presented to
illustrate the relationship between physical appearanceand
persuasion than a defendant in a rape/murder trial who wore a
T-shirtand blue-jeans to trial. 1 6 The short sleeved shirt
revealed a tattoo of anoctopus engulfing a nude female. 157 The
defendant was convicted.
58
Research shows that people who are perceived as credible and
attrac-tive are generally more persuasive than those that do not
have these char-acteristics; 5 9 "[s]tudies have shown that jurors
are more likely to creditthe arguments of lawyers who are tall,
attractive [and] ...similar to thejurors themselves." 160 One
psychologist suggests that an attorney "stresssimilarities between
himself and the jury, 'particularly in beliefs, attitudes,values,
and goals' because people view those similar to themselves
ascredible." 161 It is thought that an attractive person is more
persuasive be-cause the "listener adopts the position of an
attractive speaker . . becausehe wishes to perceive himself as
associated with [the attractive person]."
62
One psychologist, in his discussion on physical appearance and
persua-sion, states that "beautiful is good and ugly is bad." 163
Studies have shownthat unattractive defendants are found guilty
more often than attractivedefendants.' 64 Research also indicates
that the victim's attractiveness alsohad a tremendous impact on
verdicts. 165 Psychologists suggest that an at-torney can minimize
the negative correlation between attractiveness andperceived guilt
"by making [the defendant] more pleasing in appear-ance."166 For
plaintiffs, psychologists suggest they present an understatedimage.
16 Plaintiffs should dress down, particularly female plaintiffs; it
isthought that female jurors will resent attractive female
plaintiffs. 68 Ex-perts suggest that defendants accused of abuse of
power or any kind of
156. KESTLER, supra note 47, at 9:44.157. Id.158. Id.159. Linz
& Penrod, supra note 5, at 29.160. Lubet, supra note 2, at 351;
See also COMMUNICATION, supra note 6, at 1:15; Sannito,supra note
3, at 33; Linz & Penrod, supra note 5, at 38-39.161.
Fowler-Hermes, supra note 146, at 338 (citing JOSEPH A. DEVITO, THE
ELEMENTS OFPUBLIC SPEAKING 397 (6th ed., 1997)). See also Sannito,
supra note 3, at 33.162. Linz & Penrod, supra note 5, at
39.163. Sannito, supra note 3, at 33.164. Id. (citing M.G. Efran,
The Effect of Physical Appearance on the Judgment of Guilt,
Inter-personal Attraction and Severity of Recommended Punishment in
a Simulated Jury Task. 1974 J. RES.PERSONALITY 8, 45-54); HANS
& VIDMAR, supra note 25, at 103.165. STARR, supra note 29, at
13.02.166. Sannito, supra note 3, at 34.167. Id.168. Id.
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white collar crime, should "wear a pale beige suit, a pale shirt
(not lightblue) and a pale tie" to weaken his authoritative
appearance.169 One prac-tice manual states that, "in the final
analysis . . . the attorney must makethe final intuitive conclusion
whether the witness will or will not be attrac-tive to [the jury].
,,170
"Conservative" is generally the style of dress recommended for
attor-neys. 171 There is a social stereotype that males with long
hair are morepolitically liberal and males with short hair are more
conservative.172 Astudy has found that male attorneys who tend to
have problems establish-ing authority should wear a dark-blue
pin-striped suit to increase their per-ceived authority. 173 It is
recommended that men avoid bright yellow, red,pink, lavender, gold,
green or gray shirts and avoid bow ties, large pat-terned or
pictured ties and purple or black ties.174 For female
attorneys,plunging necklines, clingy or flowy fabrics, very short
skirts, sweaters,see-through fabrics, glittery fabric, pants and
tight clothing of any kind arealmost always negatively
perceived.
175
2. Non-verbal Cues
Over the last three decades, there has been a growing
appreciation ofnon-verbal communication. 176 However, there is some
confusion overbody language and non-verbal communication. Body
movements do com-municate meaning, but that is not the only source
of non-verbal mean-ing. 77 Scholars are in agreement that an
official, uniform "body lan-guage" does not exist; if it did, one
could look up a body movement in adictionary and find that a
particular movement means a particular thing. 78
If an observer is knowledgeable about general body movements and
mean-ings, as well as how individuals might adapt these movements
and howstress affects body movement, one could only make general
conclusionsabout an individual's personality. 7 9 Attorneys should
note that non-verbalcharacteristics discussed here are not separate
and distinct from verbalcharacteristics discussed earlier in this
article. In order to understand what
169. STARR, supra note 29, at 13.04[E] (citing J. MOLLEY, DRESS
FOR SUCCESS (1988)).170. WITNESSES, supra note 12, at 2.13.171.
STARR, supra note 29, at 13.04[E].172. STARR, supra note 29, at
13.03[A] (citing KAISER, THE SOCIAL PSYCHOLOGY OF
CLOTHING (1990)).173. Id. at 13.04[F]. See STARR, supra note 29,
13.04[F] table 13-1 to 13-4 for clothing sug-gestions for men and
women attorneys.174. Id.175. Id. at 13.04[F].176. STARR, supra note
29, at 12.01.177. Id.178. Id. at 12.03[A].179. Id.
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Science of Persuasion
is being communicated, it is important that an attorney take
note of boththe non-verbal and verbal messages being sent. 8 '
I. Body Movement and Eye Contact
Studies have found that a jury is more likely to believe someone
whois "likable, [sic] engaging, interested, committed and lively."
181 An attor-ney is perceived as more credible if he makes frequent
eye contact withjurors and uses gestures. 82 As a sign of
cooperation, attorneys shouldaddress other courtroom participants
face to face. 83 Experts suggest thatattorneys' eliminate physical
barriers-legal pads, books, desks, tables,lecterns, articles of
clothing such as vests and buttoned suit coats-between themselves
and the jury.184 These physical barriers serve as psy-chological
barriers between the attorney and the witness; 185 physical
barri-ers serve as a psychological security blanket for the adverse
witness butserve only to weaken the attorney's physical presence.
86 Experts suggestthat attorneys stand straight up to convey
authority, credibility and confi-dence. 87 An attorney should also
smile and maintain eye contact with thejury. 188 Experts discourage
pacing in the courtroom because it conveysuncertainty. 189 Studies
have found that "blinking, grinning, shifting pos-ture, and
frequent hand movements" are perceived as non-verbal indica-tions
of untruthfulness. 190 Although there are no proven indications of
un-truthfulness, attorneys must be aware that some behaviors are
likely to beperceived as such.' 91
Although unnecessary pacing is discouraged, psychologists
encourageattorneys to make the courtroom their "territory" by
moving confidentlythroughout the courtroom.192 Similarly, although
frequent hand movementsand fidgeting are discouraged, broad
gestures were found to project self-
180. Id. at 12.03[C].181. Lubet, supra note 2, at 351; For an
exhaustive discussion of body movement and its implica-tions in the
courtroom see COMMUNICATION, supla note 6, at 2-8.182. Brodsky,
supra note 146, at 64 app. (citing Elizabeth A. Levan, Nonverbal
Communication inthe Courtroom: Attorney Beware, 8 LAW &
PSYCHOL. REv. 83 (1984)).183. Brodsky, supra note 146, at 58
(citing Constance Bernstein, Winning Trials Nonverbally: SixWays to
Establish Control in the Courtroom, TRIAL, Jan. 1994, at 61).184.
KESTLER, supra note 47, at 3:37; Brodsky, supra note 146, at 58
(citing Bernstein, supranote 183, at 61).185. KESTLER, supra note
47, at 3:37.186. Id.187. Brodsky, supra note 146, at 68 app.
(citing Richard B. Klein, Winning Cases with BodyLanguage, TRIAL,
Oct. 1993, at 56). Vinson states that an attorney should "stand
with an erect postureand a strong stare to convey superiority."
Brodsky, supra note 146, at 68 app. (citing Philip K. An-thony
& Donald E. Vinson, Nonverbal Communication in the Courtroom:
You Don't Say, TRIALDIPL. J., Spring 1981, at 14).188. Id.189. Id.
at 68 app. (citing Klein, supra note 187).190. Lubet, supra note 2,
at 354.191. Id. at 354-55.192. Brodsky, supra note 146, at 64 app.
(citing Klein, supra note 187).
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confidence and control in the courtroom. 19 3 Women, in
particular, shoulduse broad gestures to compensate for their
physical size. 94 "The assump-tion is that the courtroom is a
battlefield; [tihe more territory you canclaim, the more importance
and power jurors will ascribe to you.,,1
95
ii. Proxemics, Power And Personal Space
Proxemics is the study of personal space and how humans react
whenpersonal space is violated. 196 Personal space has been defined
as a "typeof 'body buffer zone' that an individual may increase or
decrease in pro-portion to perceived threat[s]. ", 9' Even in
situations where one is notphysically threatened by another's
presence, people often back up to main-tain a "comfortable
distance." Often where one violates an individual'spersonal space,
one is considered to be "uncomfortably close." Thiscommon phrase
reflects some of the psychological effects that manifestwhen
personal space is manipulated. 198 One trial manual states
plainly:"physical proximity is intimidating." 199
Attorneys exhibit various spatial tendencies and use many
spatial tech-niques in an effort to persuade the jury. Some
attorneys stand behind po-diums; others move freely around the
courtroom, often to the point ofappearing nervous .2 Although not a
wholly accurate representation,many courtroom scenes in movies and
television provide good examples ofproxemics in action. Often
movies depict an attorney standing very closeto the witness with
eyes locked and in a loud authoritative voice, question:"You
murdered Mr. Smith didn't you?" is almost a staple of
cinematichistory.2 1 Other movies depict attorneys flailing their
arms and pointing atthe defendant with exaggerated accusatory arm
movements.20 2 Where theattorney stands close to the jury box and
in an almost sermon-like mannerimplores the jury to convict the
accused, is another scene in movies andtelevision depicting
proxemics. However, in real courtroom situations,some judges may
require attorneys to examine witnesses from behind a
193. Id.194. Id. at 68 app. (citing Mary E. Ryan & David
Svaldi, Women in the Courtroom: IncreasingCredibility Through
Nonverbal Behavior Change, 16 TRIAL DIPL. J. 253 (1993)).195. Id.
at 58 (citing Bernstein, supra note 183, at 94).196. KESTLER, supra
note 47, 3:38; Brodsky, supra note 146, at 50.197. Brodsky, supra
note 146, at 50.198. For a further discussion of proxemics, see
COMMUNICATION, supra note 6, at 9.199. KESTLER, supra note 47, at
3:37.200. From the author's experiences in state and federal court,
attorneys display a wide variety ofstyles of spatial manipulation
and usage in court.201. Any number of television shows depict
scenes such as the one described. Shows such asMatlock, Perry
Mason, and Law and Order depict attorneys using proxemics to
threaten or intimidatewitnesses. Although these shows are fictional
and are in large part written for theatrical effect ratherthan for
accuracy, the shows are examples of how proxemics could work in the
courtroom.202. See supra note 201.
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podium or table, thus thwarting the full potential of
proxemics.2 3 In thosecourtrooms where the attorney has the liberty
and latitude of movement toexamine and cross-examine from various
locations, proxemics can bebrought to bear as a persuasive
tool.
Research suggests that manipulation of a witness's personal
space inthe courtroom may induce stress, anxiety or anger.204 Trial
attorneys canincrease the anxiety level of adverse witnesses if the
attorney enters thewitness's personal space.25 It is also suggested
that an attorney invade awitness's personal space to suggest
dominance and increase nervousnessand anxiety. 2 One article
suggests that an attorney invade the space of theopposing counsel
to appear in control.20 7 Responding to questions whenthe
questioner is within one's personal space is thought to make
confidentanswers difficult.20 8 When an attorney invades a
witness's personal space,"the witness often becomes anxious and
testimony may appear more hesi-tant and uncertain. ,
209
Gender seems to affect the efficacy of the use of proxemics for
thepurpose of intimidating a witness.2 1 Closeness between men is
threateningwhile closeness between women is more tolerated.211
Studies show thatboth men and women allowed women to invade their
space more thanmen.212 Men let invading women approach the
closest.21 3 In the courtroomone must consider the gender of both
the attorney and witness. Femaleattorneys will likely have less
success in inducing stress and anxiety inwitnesses than male
attorneys, especially when a female attorney cross-examines a male
witness.2 14
ii. Stimuli
Non-verbal distractions or stimuli in the courtroom may help
down-play or drown out evidence presented by the opposing party.
ClarenceDarrow is said to have pushed a wire through the center of
his cigar toprevent the ash from falling.215 He lit the cigar and
as the ash grew impos-
203. Brodsky, supra note 146, at 59.204. Brodsky, supra note
146, at 50; KESTLER, supra note 47, 3:37.205. Brodsky, supra note
146, at 58-59; KESTLER, supra note 47, 2.50, 3:38.206. Brodsky,
supra note 146, at 64 app. (citing Klein, supra note 187); KESTLER,
supra note 47, 2.50, 3.38.207. Brodsky, supra note 146, at 68 app.
(citing David B. Givens, Posture is Power, BARRISTER,Sp. 1981, at
14).208. Id. at 59.209. Id.210. Id. at 52.211. Id. at 64 app.
(citing Stephen H. Peskin, Nonverbal Communication in the
Courtroom, TRIAL
DIPL. J. (1980)).212. Id. at 52.213. Id. at 53.214. Id.215.
SANNITO & McGOVERN, supra note 6, 5.1; Sannito, supra note
3.
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Law & Psychology Review
sibly longer, all eyes in the courtroom were focused on the ash
rather thanthe witness.216 The author observed a trial in which
plaintiff's counsel tookfull advantage of a distraction in the
courtroom. During an especiallydamaging video shown by the defense,
several loud car horns blew outsidethe courtroom and tires were
heard screeching and sliding. A paralegal, aswell as another
audience member slipped to the back of the courtroom topeer out a
window to find out what happened. The jury's eyes were trans-fixed
on the window and the paralegal in an effort to determine what
hadoccurred outside. Several minutes passed before the jury
regained focus.
One behavioral psychologist notes that attorneys can drown out
theopposing attorney's argument and evidence by presenting a
variety ofstimuli in an effort to compete against the opposing
attorney for the jury's
217attention. Psychologists suggest, as a defensive tactic, that
an attorney"load the courtroom with spectators." 218 The loaded
courtroom-providingdistracting stimuli-could make a damaging
witness blend in, making itdifficult for the jury to focus on the
witnesses' testimony.
219
III. ETHICAL CONCERNS
Trial consulting has been a controversial issue for both
attorneys andsocial scientists.22 One of the main points at issue
is whether the use oftrial consultants is "fair" or "ethical. ,221
It has been criticized "as a ser-vice for the rich and a disservice
for justice. 222 Typical beneficiaries ofscientific trial
consulting are wealthy and privileged clients.223 Because ofa lack
of empirical data on the effects of trial consulting,224 the debate
hasconsisted largely of opinion and speculation.225 The difficulty
in quantify-ing subjective assessments such as 'fairness' has
attributed to the lack ofempirical data.226
The jury is the most evident symbol of democracy in the
courtroom.227
It is one of the most distinguishing characteristics of the
American judicial
216. SANNITO & McGOVERN, supra note 6, 5.1.217. Donald E.
Vinson, Juries: Perception and the Decision-making Process, TRIAL,
Mar. 1982,at 52-54.218. Id.219. See SANNITO & McGOVERN, supra
note 6, 5.1.220. Dennis P. Stolle et al., The Perceived Fairness of
the Psychologist Trial Consultant: An Em-piricalInvestigation, 20
L. & PSYCHOL. REV. 139 (1996).221. Id.222. Id. at 147.223.
Franklin Strier & Donna Shestowsky, Profiling the Profilers: A
Study of the Tial ConsultingProfession, Its Impact on Trial Justice
and What, if Anything, To Do About It, 1999 Wis. L. REv
446(1999).224. Stolle, supra note 220, at 147.225. Id. at 149.226.
Id.227. Gold, supra note 3, at 498.
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Science of Persuasion
system. 228 The jury system is thought of as a protection
against arbitraryaction by the government.229 Professor Victor Gold
expresses a concernthat many social scientific techniques seek to
exert influence on juries sub-consciously.23 Professor Gold
suggests that social scientific techniquesgive attorneys tools to
affect the jury's ability to make decisions based onthe evidence.
231 He suggests that the use of these techniques compromisethe
legitimacy of the judicial system.232 Professor Gold states that
"thelegitimacy of the jury system is based on the assumption that,
when per-mitted to choose what evidence to accept and what
community values toreflect in its verdict, the jury has the ability
to choose consistent with bothlogic and fairness. , 233 This
legitimacy depends upon a jury's independencein decision-making.
234 A jury's decision must be made by the jury aloneand not for it
by the parties at issue.235 If the jury cannot freely make
deci-sions, it cannot represent the community or contain judicial
power.236
Professor Gold suggests that many social scientific techniques
bridlethe independence of the jury and affect a jury's
decision-making processthrough subconscious persuasion; 237 the
jury cannot act independently if itis influenced subconsciously.
Only when a jury is conscious of the party'spersuasive techniques
is autonomy possible.238 Without this awareness, thejury cannot
distinguish between its values and values asserted by the op-posing
parties. 239 Although the jury is consciously aware of the input,
it isnot aware of the effect of that input on its decision-making
process.24
Professor Gold further asserts that many social scientific
techniques ofpersuasion bridle the jury's cognitive independence.
24' When an attorneyconveys information subconsciously, the jury is
likely unaware of the con-
242veyance. As a result, the jury may be unaware of illogical or
biasedinformation in their decision-making.243 The jury's inability
to reach a
228. Id.229. Amina Memon & Daniel W. Shuman, Juror
Perception of Experts in Civil Disputes: TheRole of Race and
Gender, 22 LAW & PSYCHOL. REV. 179 (1998).230. Gold, supra note
3, at 481.231. See generally id.232. Id.233. Id. at 498.234.
Id.235. Id.236. Id.237. d.; It is thought that there are two levels
of mental activity: the conscious and preconscious."The conscious
level is characterized by the ability to recall and discuss
surrounding events immedi-ately .... The preconscious level [is
characterized by] mental activity ... that is incapable of
beingimmediately recalled and discussed. Id. at 494 n.95 (citing J.
KATZ, J. GOLDSTEIN & A.DERSHOWITZ, PSYCHOANALYSIS, PSYCHIATRY
AND LAW 274 (1967)).238. Id. at 502 (citing Note, The Subconscious
Taken Captive: A Social, Ethical, and LegalAnalysis of Subininal
Communication Technology, 54 S. CAL. L. REv. 1077, 1094
(1981)).239. Id.240. Id. at n.95.241. Id. at 498.242. Id. at
503.243. Id.
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Law & Psychology Review
rational decision based on the evidence "may present
[constitutional] is-sues that. . . question the ... legitimacy of
the jury system."
244
Another observer suggests that the legitimacy of the jury system
couldbe eroded even if scientific techniques are merely perceived
as unfair.245
The procedural justice theory, a framework used to assess the
perceivedfairness of legal procedures, suggests "that the perceived
fairness of aprocedure is directly related to the amount of control
an individual in thedecision making process." 246 Within the
procedural justice framework,professors John Thibaut and Laurens
Walker identified two types of con-trol over decision-making:
"decision control" and "process control."
247
Decision control is the amount of control a jury member has over
the ver-dict.248 Process control is the amount of control one has
"over the oppor-tunity to voice their side of the story. ,
249
Professor Gold cautions that social scientific techniques affect
thejury's independence in three ways: (1) through the inducement of
bias (2)through illogical analysis of the evidence and (3) through
extra-legal fac-tors.250 The jury's lack of bias is elemental to
the idea of fairness.25 ' Intheory, the jury decides a case using
only the evidence presented in court,not on outside knowledge or
beliefs.252 Any indication of bias is cause fordismissal from the
jury.25 3 However, social scientists believe that there is
",254 255no "unbiased juror. In contrast to case law and legal
theory, somepsychologists suggest that jury selection is not the
selection of an impartialjury; rather, it is the selection of the
most favorably biased jury.256 Expertshave asserted that scientific
jury selection creates unrepresentative juries
244. Id.245. Stolle, supra note 220, at 149, 167.246. Id. at
150.247. Id.248. Id. at 151.249. Id.250. See Gold, supra note
3.251. See, e.g., Irvin v. Dowd, 366 U.S. 717, 722 (1961); In re
Murchison, 349 U.S. 133, 136(1955) ("[Flair trial in a fair
tribunal is a basic requirement of due process. Fairness . . .
requires anabsence of actual bias."); United States v Wright, 340
F.3d 724 (8th Cir. 2003); Moran v Clarke, 323F. Supp. 2d 974 (E.D.
Mo. 2004).252. See, e.g., Irvin, 366 U.S. at 722 (stating that
jurors must be indifferent to the case and basetheir verdicts on
evidence presented at trial). The need for objectivity, however,
has not been con-strued to require complete ignorance concerning
the facts of a case.253. Reynolds v. United States, 98 U.S. 145,
155 (1878) (stating that a preconceived opinion issufficient cause
to discharge a juror); Sims v. United States, 405 F.2d 1381, 1384
n.5 (D.C. Cir.1968) (stating that jurors can be discharged for
cause if they are related to victim or hold the sameoccupation as
victim).254. Gold, supra note 3, at 492 (citing Call, Psychology in
Litigation, TRIAL, Mar., 1985, at 48).255. See supra notes
251-253.256. Ralph W. Gallagher, The Use of a Consultant in Voir
dire, TRIAL DIPL. J., Winter 1984, at25 ("A consultant ... must . .
. be willing to participate in a process which has as its goal the
selec-tion of the maximum number of jurors favorable to your case.
It is of no use to have an 'ivory tower'consultant assist in
selecting a 'fair and impartial jury' because the opponent will be
seeking jurorsfavorable to his or her position.").
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Science of Persuasion
and, sometimes, produces unbalanced juries.257 One article
states that themission of an attorney during voir dire is "to seat
a jury that will give herclient a fair trial," 25 8 yet the author
later suggests that a person could be agood juror for the defense
in a medical malpractice case if that person'sfather and brother
were both physicians.9 Choosing a juror whose fatherand brother are
physicians is likely not an attempt to secure a fair and im-partial
jury. One psychologist recommends explicitly that the attorney
tellpotential jurors that the purpose of jury selection is to seat
a fair jury toconceal the attorney's actual goal of seating the
most favorably biasedjury. 260 One article states that the goals of
empathy-based voir dire strat-egy are to (1) obtain information (2)
generate empathy of the client (3)identify and minimize bias
against the client (4) educate the jury about thefacts of the case
and (5) develop a theme.261 However, only two of theseobjectives
are permissible under case law and procedure.262 The
articleacknowledges this fact but suggests that an attorney may
achieve theseobjectives through clever advocacy.263
Professor Gold also expresses concerns about the introduction of
ex-tra-legal factors into the jury's decision-making process. 264
Gold considers"irrelevant legal or factual issues" and that which
"is considered by thelaw to be an otherwise improper basis for
decision-making" [sic] as extra-legal bases for decision-making.265
In theory, the jury must decide a caseon the evidence presented in
court, not on outside knowledge or beliefs.26
However, through the exploitation of psychological techniques,
attorneyscan introduce facts to the jury that are not in evidence.
Where an attorneywillfully uses "powerful" speech to enhance his
credibility in the minds ofthe jurors, the attorney is focusing the
jury's attention on an extra-legalmatter; the credibility of the
attorney is irrelevant and it is not evidence.267
O'Barr's study of "powerful" speech found that although those
that used"powerful" speech seem credible, "powerful" speech was not
found to bean indicator of truthfulness.2 68 Other observers note
that attorneys have
257. Strier, supm note 223, at 472.258. Blue, supra note 34, at
234.259. Id. at 235.260. Gold, supra note 3, at 493 (citing D.
HERBERT & R. BARRET, ATrORNEY'S GUIDE TOCOURTROOM PSYCHOLOGY:
HOW TO APPLY BEHAVIORAL SCIENCE TECHNIQUES FOR NEW TRIALSUCCESS
(1980).261. Kerper, supra note 18, at 5.262. 28 U.S.C.A. 1870; FED.
R. Civ. P. 47(b); FED. R. CRIM. P. 24(b); A.R.S. 21-221;Dixon v.
Hardey, 591 So. 2d 3 (Ala. 1991); State v. Richards, 391 S.E. 2d
354 (1990).263. Kerper, supra note 18, at 5.264. Gold, supra note
3, at 484.265. Id. at 484.266. See supra note 252.267. See C.
WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND PROCEDURE 5163, at 29
(1978).268. Gold, supra note 3, at 485.
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Law & Psychology Review
ethical obligations with respect to speech style.269 One article
states clearlythat one's vocal characteristics can be used
unethically. 270 "[T]he line overwhich ethical speakers do not pass
is vocal exaggeration, inference andallusion which clouds the truth
of a matter, leading jurors to emotionallyreact and affect or
subvert truth and justice." 271 The article notes that tem-porarily
using emotions to manipulate jurors is unethical .272
"Attorneyshave a special responsibility to avoid distortion of
meaning and manipula-tion of emotions . .. When an attorney
exploits human psycho-linguistic tendencies regarding indirect
assertions of fact and innuendo, theattorney is attempting to
induce the jury to employ an extra-legal basis fordecision-making;
an attorney's questions are not themselves evidence.274
Social scientific recommendations on physical appearance and
nonverbalcommunication techniques also focus the jury's attention
on extra-legalmatters .275
Professor Gold expresses concerns that some social scientific
tech-niques seek to induce the jury to evaluate the evidence
illogically. Profes-sor Gold believes that a jury commits an error
of logic if it "incorrectlydecides that evidence is or is not
probative" or if it gives greater or lesserweight to evidence than
the probative value of the evidence.276 Primacy,inoculation,
defensive examination and other techniques used to emphasizeor
de-emphasize could induce the jury to commit an error of
logic.277
Prolonging a trial in an effort to lessen the prosecution's or
plaintiff's ad-vantage of the primacy effect may raise procedural
and ethical issues forattorneys.278
Currently there is no formal monitoring system of any type for
trialconsultants.27 9 Anyone can hold themselves out as a trial
consultant.28
Trial consultants have a professional organization, the American
Societyof Trial Consultants (ASTC) but the organization has not
formulated any
269. Childress, supra note 46, at 8; Childress, supra note 46,
at 8 (citing JAMES C.MCCROSKEY, AN INTRODUCTION TO RHETORICAL
COMMUNICATION (1968)) ("[Lawyers have] theopportunity to learn to
speak well, and to be eloquent [advocates of] truth and justice.
[They have]ethical obligation[s].").270. Id.271. Id.272. Id.273.
Id.274. See WRIGHT & GRAHAM, supra note 259, at 29.275. Gold,
supra note 3, at 486.276. Id. at 494.277. See generally id.278.
FED. R. Civ. P. 1 states in part: "[the rules] shall be construed
and administer to secure thejust, speedy and inexpensive
determination of every action."; MODEL RULES OF PROF'L CONDUCT
R.3.2 (1983). Comment 1 to Rule 3.2 states in part: "a failure to
expedite [will not be deemed] reason-able if done for the purpose
of frustrating an opposing party's attempt to obtain rightful
redress orrepose." Id.279. Stolle, supra note 220, at 171.280.
Strier, supra note 223, at 478.
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specific membership requirements.28' Past presidents of the ASTC
haveexpressed concerns over the ethical issues of consultants
advertising a win-lose record.282Although the ASTC has a code of
ethical standards, thestandards are not as strict as the standards
set by the American Psycho-
283logical Association.
IV. CONCLUSION
In past decades, attorneys have relied on tips, tricks and
techniquesbased on years of experience with "hit and miss" results.
These techniqueshave been handed down from hardened litigators to
newly minted attor-neys over the decades. Since the 1970s, social
scientists have explored theefficacy of these techniques. Through
empirical evidence and other scien-tific means, scientists have
examined the effects of these techniques andhave helped attorneys
become more persuasive in the courtroom. Althoughthese techniques
can be a powerful tool in the courtroom, attorneys shouldbe aware
that scientific persuasion may have adverse effects on the
integ-rity of the judicial process. Professor Gold and others raise
compellingethical questions concerning the use of social scientific
techniques in thecourtroom. The erosion of jury independence and
the introduction of bias,extra-legal factors and illogic could
prevent the jury system from function-ing properly. 284 Although
psychological techniques are not 100% accurate,they increase the
probability that parties will bridle the jury's decision-making
independence.285 The social scientific and legal communitiesshould
be concerned that some day attorneys may become too good atwhat
they do-they may become too good at persuasion. Although master-ing
these persuasive techniques could help trial attorneys be more
persua-sive, the integrity of the judicial process would suffer
greatly as a result oftheir misuse. It seems clear that the science
of persuasion will remain animportant tool for attorneys, however,
the ethical issues raised by Goldand others are not likely to
disappear.
Jansen Voss*
281. Id.282. Stolle, supra note 220, at 171.283. Strier, supra
note 223, at 478.284. Gold, supra note 3, at 498.285. Id. at
508.
* I would like to thank Jereme Logan for his dedication and
attention to detail in editing thiswork, and Hannah Averitt for
never losing faith in me. I also want to thank Katie Finch for her
pa-tience and unconditional support.
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