The September 2019 King County bar bulletin featured an article by Thomas M. O’Toole, PhD, who is a jury consultant at www.soundjuryconsulting.com. Dr. O’Toole writes about a research studies in the article.
One study was done at Duke University. Students were offered two samples of beer. Both were Budweiser, but the students were told that one beer was a standard commercial beer and the other was called “MIT brew.” Unknown to participants this beer had been treated with drops of balsamic vinegar. After tasting each beer, the participants were asked which one they preferred. Most participants favored the “MIT brew.” The next group of participants were offered two free samples of beer. These participants were told one was a standard commercial beer but that the other had been doctored with a few drops of balsamic vinegar. This group strongly favored the first sample without the vinegar.
The analysis was that the two totally different reactions to the same beer was due to what the participants were told before they sampled. Students who were told about the balsamic vinegar created an expectation before tasting it. They expected the second beer to be terrible when they heard it had been doctored with vinegar and that’s exactly how they experienced it. The conclusion drawn was that if you tell people a description of what to expect they will end up agreeing with you. Not because of their experience, but because of the expectations they created in advance.
From that study Dr. O’Toole concludes that attorneys should be careful about how they prime jurors to think about issues in their case. He gives the example of advising jurors that a key witness might be a “odd person” and does not present well. While the intention might be to mitigate the impact of a potentially poor presentation, O’Toole suggests that in fact it will prime jurors to think about exactly what you’re trying to minimize. He concludes:
“…the research suggests attorneys may be better off avoiding these kinds of descriptions and allowing jurors to reach their own conclusions.”
My own viewpoint is that the conclusion he draws is accurate but only because there was a failure to properly present the issue. Simply disclosing a negative aspect without any explanation or discussion would obviously cause a negative expectation. My experience has been that one should inoculate the jury by early and full disclosure of negative facts or issues in your case, but only with full discussion and explanation. It’s my belief early disclosure and discussion eliminates the potential drama and harm about it. However, there has to be full discussion about it at the same time. Otherwise, the result will be the same as reached in the study. It is in the discussion that the impact of the information and the expectation is mitigated. When we ask the jurors about their own experiences regarding similar issues and attitudes we open discussion from other viewpoints. For example, if we disclose that our client is a convicted felon without discussion, the likely reaction is quite different than if we discuss whether a convicted felon is entitled to a fair trial or the jury should simply find him guilty without wasting more time.
My belief and experience is that it is in the exchange of experiences and viewpoints about negative issues in our case that the issues are mitigated against and expectations are changed. Furthermore, I think a failure to address negative issues that you know are going to come up in the case beforehand result in drama with significant emotional reaction. Given the choice, my experience has been it is always better to be the first person to tell the truth about the negative facts or issues and encourage discussion is early in the trial as possible.