In previous articles we have examined many factors that have influenced jury deliberations. We have also reconnoitered on the partial effects of extraneous material on deliberations. The research indicated that approximately 2% of deliberation time focused on offstage observation proving that this concept has little effect on civil verdicts. The percentages are very similar for the criminal arena. So why write about how the face of your client and witnesses informs a jury on such characteristics as likeability, dishonesty or reliability? The answer is right in front of our own faces because new research, illustrated in the December 2012 issue of “Psychology Today”, indicates that one or more jurors can correctly identify character types from a cursory glance. Unlike our previous examination of offstage observations, which occur in the conscious mind, these observations happen in the preconscious mind which directly influences juror feelings about your client and witnesses’ characters. These types of judgments have an accuracy rate of at least 60% and usually occur the first time the jury observes your client(s) and witness(es).
A series of psychology researchers from Tufts and Toronto University banded together and conducted an exhaustive examination on the accuracy rate of a person’s ability to identify personality traits. The researcher garnered a series of expressionless head-shots and tested each participant’s ability to identify a specific trait. In other words, the researcher measured the research participant’s accuracy rate when asked to identify the Mormons from a series of the head-shots. Of course a certain number of the actors for the head-shots were Mormon. In order to control for ‘random success’ some of the head shots facial features were blurred; astoundingly this did not alter the success rate of correct selections. The researchers from Tufts and Toronto University coined this process “Thin-Slicing” or the aptitude to discern features of a person’s character after only a brief viewing and/or interaction. Thin slicing works when it is a gut reaction; so the next time you experience a ‘connection’ with a potential juror during voir dire you are experiencing thin slicing in action. The research unambiguously indicated that extensive cognitive processing sharply decreased prediction exactitude, which is an important factor to remember in trial tactics. This may be one reason why Jerry Spence focuses on jurors that he feels he could sit on a log with and have a beer. The description of our style is somewhat less eloquent but parallel; along with a variety of pre-trial research and voir dire techniques we utilize thin slicing as part of our psychological profiling. Identifying strong personality matches between trial lawyer and juror is essential. Since thin slicing’s accuracy rate hovers on an average of 60% we never solely rely on that modality.
Just like psychological profiling, there are a number of brain functions involved when thin slicing; for our discussion we need to be aware that the amygdala, where we assess threat and survival, is a significant component. Secondarily and interestingly the zone of the brain that assesses health or illness as viability for mating must work with the amygdala to create thin slicing. It appears from the research of Naini Ambady and Nicholas Rule that this innate evaluation skill is “borrowed” for processing judgments about people.
So how do we counter or capitalize on Thin Slicing?
Ingrid Olson and Christy Marshuetz, neuroscientists with the University of Pennsylvania conducted large scale research on any possible connection between perceived attractiveness and ascribed personality traits. Olsen and Marshuetz assembled an assortment of volunteers to view a series of slides containing a mixture of attractive (better than average looking) and unattractive people. The slides flashed for as little as 13 milliseconds a speed that is too fast for the conscious mind to register yet slow enough to enter into the preconscious mind. Because of the speed of each slide many of the research participants were reluctant to label which slides contained attractive or homely people. The researchers encouraged those respondents to provide their best guess. The accuracy rate was astounding. Click now for their research.
This research may be innovative to some, reinforce what we have ascertained through trial experience, or even feel a bit uncomfortable, yet it is a cold hard psychological fact. Attractiveness is correlated with honesty and positive feelings. These aforementioned assumptions occur because we are evaluating quality of health through skin condition and facial symmetry. In essence, we are evaluating genetic structures for mating and with suitable genetics we infer safety, honesty, intelligence, agreeableness, and trustworthiness. Lītigāre was engaged to assist with a very specific problem. The primary witness was an older woman who had been marked by an arduous life from Nazi Germany that altered her physically and emotionally. In essence, her genes looked bad. Her English was modest and she scored low in honesty in our focus groups. A common description from the respondents was a feeling that the witness was withholding something about the case. Well, our client was obscuring yet it had nothing to do with testimony or the facts of the case. She was hiding from the horrors of internment. The focus group was aware of her history. These realities, though, do not always counter the limbic systems influence on character assessment. Our correction was two-fold, after the jury heard our client’s story we hired a young attractive female translator for direct and cross. This tactic countered the assumptions that our client was untrustworthy. Hearing her responses through an attractive translator defused the negative suppositions from thin slicing and allowed the jury an opportunity to examine the evidence devoid of bias.
The aforementioned short solution-based narrative prompts us to consider another important feature about the human face. Our experiences and by what method we modulated the corresponding emotions literally shapes our face and facial expressions. Princeton University’s Alexander Todorov was one of a group of researchers who conducted a progression of research studies that revealed a strong causal relationship between felt emotions, altered face shape, and modified facial expressions. Prolonged exposure to high levels stress produce significantly increased levels of testosterone and cortisol. These chemicals, according to Todorov, alter facial structures. It appears from Todorov’s research that your mother was comparatively correct when she said “if you keep making that face it will stick”!
A significant factor to deliberate in trial strategy is that negative assumptions connected to your client are not always adverse when thin slicing indicates negative personality traits. For example, lītigāre was engaged to assist a trial team seeking damages due to a severe trucking accident. The client’s face was not permanently damaged yet he was an unpleasant person and that was clearly indicated in his face. We utilized (demonstratively) before and after the accident photographs of the plaintiff’s face as we described how the accident had changed this person. Sometimes, a trusting and loving face that has been permanently altered by the sheer emotion of the accident can be a polarizing moment for a jury and provide a clear explanation for why a client looks a certain way.
Client versus Witness:
I have mentioned that thin slicing not only occurs with your client but also with witnesses. In this article we have explored some strategies to correct for and use thin slicing to our advantage with your clients. What do we do for witnesses? This is obviously a trickier situation and there is no direct research on this subject matter. We recognize that the same snap judgments about our clients occur with our witnesses. We also do not have the luxuries we have with your clients. The best bet is evaluating your witnesses in a focus group. This can be as simple as showing a photograph of what the witness will look like at trial, remove the photo and ask for the groups thoughts. This will give you a keen insight into what the jury will perceive at a glance. Focus grouping a portion of testimony (both direct and cross) is even more helpful. I will leave you with this, I have seen good experts who have a keen and strong grasp of the science be ignored by the jury because they just did not look honest. When they appear defensive during cross the initial judgments are solidified. If I feel it then I know the jury feels it.
As we have described in our numerous presentations and articles there are a multitude of psychological elements occurring concurrently throughout trial and settlement. Thin slicing is just one of these processes and it will never be a stand-alone technique that wins and loses a trial, yet it is a contributing influence and should be treated as such. For instance, we lost the case with the elderly holocaust survivor. The jury was willing to meet with us; I believe particularly because they collectively felt dreadful about their verdict, so our translator technique was highly effective. They expressed a profound emotional connection with our client and felt regretful for her situation but they also believed that the law was in favor of the defense. While with our trucking accident case, the jurors who agreed to be interviewed after the trial expressed that seeing the physical transformation of the plaintiff’s face helped them to realize the severity of the accident, explained why the plaintiff looked so “mean”, and increased their anger towards the defendant. In that conversation it became clear that some of the jurors expressed uncertainty about our client because he looked so aggressive. Various jurors articulated that early in the trail they wondered if he was driving aggressively before the accident. As we portrayed here, elements like thin slicing do not win or lose trials, yet it is essential that they are taken seriously in trial and settlement strategy as I am sure our trucking client would agree.