A 2010 study in the Journal of Law and Human Behavior, conducted by Rose, Diamond, and Baker, examined the effects of ‘off-stage’ observations on actual jury deliberations in civil trials. ‘Off-stage’ observations are defined as the jury watching attorneys, clients, judges, and support staff. The findings from the research are quite surprising and indicate that ‘off-stage’ observations have little to no effect on jury verdicts. Furthermore, the research indicated that juries only used 1.5% of deliberation time on ‘off-stage’ observations.
Rose, Diamond, and Baker received special permission to evaluate all of the transcripts and recorded deliberations from the Arizona Jury Project; all research findings are based on actual jury deliberations. The overall findings of the research indicated that 1.5% of deliberation focused on ‘off-stage’ observations. Ninety-eight point five percent (98.5%) of the deliberations focused on trial content (i.e. evidence and demeanor of expert and lay witnesses), also referred to as ‘on-stage focus’, and discussions about jury awards. It is worth mentioning that there was one outlier jury that focused more heavily on ‘off-stage’ observations during jury deliberations at the rate of 2.3% reducing the jury’s focus on trial content deliberations to 97.7%. According to Rose, Diamond, and Baker, their findings are contrary to the extensive opinion articles and training material which posit that ‘off-stage’ observations affect jury attitudes in civil litigation.
The findings from Rose’s et al. research showed no correlation between ‘off-stage’ observations and jury verdicts. In fact, the findings from the research indicated that plaintiff losses had the lowest recorded amount of ‘off-stage’ comments and the lowest recorded time spent discussing those comments. There was, though, one outlying jury where ‘off-stage’ observations influenced the jury’s verdict. In that particular case, there was more than one plaintiff. The jury observed that certain plaintiffs were only present during certain points of the trial. According to the trial transcripts, the jury speculated that the plaintiffs were working during the trial to keep their income source. Even though the jury sided with the defense, they set aside a daily rate that paid the plaintiffs for their lost wages while attending court. In that particular case more time was spent on ‘off-stage’ observations than any other case reviewed by the researchers. It is important to explore in more detail how the majority of juries handled the ‘off-stage’ observations during deliberation.
When a juror offered an ‘off-stage’ observation, the jury members set aside a short period of time to deliberate the veracity and germaneness of the observation to the deliberation. In the majority of instances where an ‘off-stage’ observation was mentioned it was challenged by another juror. This is exampled by a case where the evidence claimed that the plaintiff had difficulty sitting for long periods of time. Upon hearing the evidence one juror observed the plaintiff and took notes on the plaintiffs’ behavior. During deliberations that juror (juror A) claimed that the plaintiff appeared to be able to sit for long periods of time without pain. Another juror (juror B) challenged the validity of the observation and suggested that the way the plaintiff was sitting may have been the only comfortable position and the observation was not germane to the evidence presented. Juror A became defensive, interrupted juror B and stated that the evidence clearly specified that the plaintiff could not sit for long periods of time. This type of interaction leads to the next most logical question; what are the effects of ‘off-stage’ comments on jury verdicts?
According to Rose et al., ‘off-stage’ observations do not effect jury deliberations. ‘Off-stage’ observations have an after effect. The researchers reported that once the verdict was reached by the jury a discussion that included ‘off-stage’ observations about the plaintiff and defendant was used in support of the jury verdict. It appears that these comments were used to express and validate juror values that they used to evaluate evidence veracity and determine a verdict.
For Your Trial:
An important ancillary outcome from the analysis of the jury deliberation tapes and transcripts was the “spin and theatrics bias” towards the plaintiff and defense. Even more interesting was the finding that the majority of jury members talked about actively seeking to identify and reject those moments of perceived spin and theatrics.
There are research-based techniques to control for the spin and theatrics bias. One control is salient and evidence based voir dire questions derived from valid and reliable psychological assessments. Potential jurors hold many hidden biases and the questions from psychological assessments are scientifically designed to elicit the hidden; as Rose et al. indicated it is the juror’s value system that influences and validates verdicts. ‘Off-stage’ observations are only rationales for existing values. Another trigger for the spin and theatrics bias is the expert witness. As a consultant providing real time trial support I have seen juries trust wane and disappear at the realization that the expert on the stand has worked with the plaintiff or defense attorney on multiple occasions especially when trust with the jury was well established early in the trial. We have also seen the spin and theatrics bias triggered when an expert witness becomes an advocate, is egotistical, and/or exceedingly argumentative. These are all areas that can be controlled for with effective witness preparation and the use of multiple experts. As previously reported, juries make their decisions from an ‘on-stage’ focus (i.e. evidence and demeanor of expert and lay witnesses). One highly effective technique for setting the ‘on-stage’ focus and controlling for the spin and theatrics bias is enhancing the client’s story through visual imagery, specifically the learn-retain-transfer model, which has powerful influences upon jury decision making. Secondarily, is the staging of witness order and evidence as it relates to the client’s story.
Rose, Diamond, and Baker gave us an advantageous insight into jury deliberations through their ‘off-stage’ observation research. The research also provided us awareness into how the jury perceived and processed the material that occurred outside the witness stand and podium. Lastly, the research provided us explanations regarding how juries rationalize their own value systems into verdicts and how we can implement proven techniques to assist jurors with their ‘on-stage’ view of the trial and look past their biases.
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