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Frequently Asked Questions

by Susan E. Jones, Ph. D.

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1.Have jurors made up their minds by the end of the opening statement?

It is an overstatement to assert that "most jurors have made up their minds by the end of opening statement." Jurors have not necessarily reached a firm conclusion regarding their verdict by the end of opening statement. However, something very important has happened by this point in the trial that strongly influences all subsequent incoming evidence.

Researchers have consistently found, both from systematic evaluations and from observational data of jury deliberations, that jurors reach tentative conclusions very early in the trial. These tentative conclusions are often highly correlated with individual verdicts taken just prior to group deliberations. Social psychologists refer to these tentative conclusions as "conceptual frameworks." It appears that jurors, early in the case, adopt a point of view (or a frame of reference) for subsequent information. This frame-of-reference becomes a filter for information, resulting in new facts being adopted or rejected, depending upon how consistent the information is with their frame of reference. Essentially, jurors develop selective perception of incoming information. They accept and attend to those things which fit with their initial orientation and "forget" or fail to hear inconsistent information. Researchers have found that jurors can describe their conceptual framework early in the case, frequently after voir dire is completed.

Developing a frame of reference for filtering incoming information is a natural, adaptive human information processing tool. People do not attend equally to every bit of information that is presented to them. We would be overwhelmed with isolated bits of information if we did. Rather, perceptions are organized, either based upon previous experiences, beliefs and attitudes, or upon conceptual schemes that are presented to us. That's why public speakers are advised to "tell them what you're going to tell them; tell them; then tell them what you told them". People organize and retain information through frameworks.

Clearly, the fact that jurors must develop some type of organizational reference for incoming information underscores the importance of providing jurors with a frame of reference favorable to the litigant's position. Counsel must identify central themes which can be used by the jurors as reference points for organizing incoming information. We have found repeatedly in observing the jury deliberations through one-way mirrors that jurors often become "advocates" for one side or another. The most effective juror advocates are those who can call up cogent summaries or "refrains" from the case. When representing a corporate defendant in a multi-million dollar personal injury suit stemming from an accident involving a corporate owned vehicle, the defense asserted they were a "scapegoat," and that the true driver at fault in the accident the drunk driver. The refrain was repeatedly used from opening statement to closing argument. In post-trial interviews we learned that pro-defense jurors repeatedly asserted this 'scapegoat' refrain during deliberations. The actual jury returned a defense verdict for the client.

Essentially, research suggests that not every juror has closed his/her mind toby the conclusion of opening statements, but most jurors have adopted some type of conceptual framework which serves as an organizing vehicle for incoming information. Information that is consistent with this framework is apparently attended to. In fact, we often find that this information is contained in jurors' notes. Information that is inconsistent with this framework is often disregarded or simply "not heard". Many jurors, in post-trial interviews, will earnestly assert that evidence supporting positions opposed their viewpoints never came up at trial. It is clear that they simply did not "hear" the evidence or subconsciously disregarded it.

  1. 1. Have jurors made up their minds by the end of the opening statement?
  2. 2. What do jurors look for in assessing the credibility of a witness?
  3. 3. What about making objections? Do jurors view the attorney unfavorably?
  4. 4. Should witness preparation be kept to a minimum so that a witness does not appear to have rehearsed his/her testimony?