Jurors’ Body Language: Why We Look, What To Notice – and What To Ignore
What Are They Thinking?
You are sitting in the courtroom watching the jurors during jury selection. As the defendant, you want to know how the jurors are interpreting the plaintiff’s questions. You note that Jurors 1 and 3 looked bored (Juror 1 has been yawning), Juror 2 has his arms crossed against his chest, and Juror 5 keeps frowning and looking away. Juror 6 looks over at Juror 7 and smiles and shakes her head. Juror 7 looks down. You turn to your trusty jury consultant, who will surely be able to give you a definitive answer, and ask, “What does any of this mean?”
If your consultant is honest, he or she will tell you that it could mean something, or it could mean nothing – nothing that is reliable or scientifically predictable that is. Though many so-called communication experts claim that you can “read people,” this observation process is not yet a true science. Actual jury research and analysis of verbal responses at trial are the best ways to assist with jury selection; without these tools, “reading” jurors, in its grossest form, is similar to using a psychic to find clues to a missing person case. Psychics might be helpful, no doubt, but their contribution to a case lacks credibility and is not reliable, otherwise there would be no unsolved crimes. Sure, jurors’ non-verbal behavior (the scientific word for “body language”) means something, but not anything that you could always predict without scientific analysis, research and studied clinical observation. Though some have purported to study various aspects of non-verbal behavior, such as the way someone looks when he or she is lying (e.g., Ekman, 2003), the research on the application to jury behavior is sparse.
Jury consultants can truly make a difference in interpreting juror behavior because what you can’t determine from observing body language, can be accomplished through pre-trial jury research (small group and survey research to predict jury pool patterns and message themes) and analysis of jurors’ verbal reactions to your case issues at trial. Through years of practical experience, we have developed a few guidelines for voir dire and the trial process that can assist you in becoming a savvy observer of nonverbal cues and behavior.
But first – why do lawyers always ask what a particular juror’s non-verbal behavior means either during the jury selection process or during trial? Why do lawyers take notes of their behavior and make charts? Why do they believe those advertisements that tell them that they can learn to interpret eye movements or gestures of jurors?
Attorneys and consultants do so perhaps because we all want to believe that there is some way that we can predict what someone is thinking based on what he or she looks like, especially in situations in which we are not allowed to talk to that individual and to ask what they are thinking. We have all learned that there are situations in which we can at least guess at what someone is thinking based upon what they look like. We think that we can know something about (or should learn to interpret) others’ thoughts or feelings based on their facial expressions or body movements, and most of us rely on non-verbal communication (including cues from vocal pitch and intonation) to a much greater extent than verbal behavior, particularly in situations when we do not know someone well.
And knowing the impact of non-verbal behavior can be important for the trial process. For example, we know that the way that attorneys and witnesses portray themselves through their non-verbal behavior will be extremely important in the jurors’ perception of them. This understanding is often more important than the content of the opening or testimony. In fact, jurors fall prey to the same human desire that attorneys and consultants do: They overestimate what you can know about a person based on his or her non-verbal behavior. Jurors assume that a person whose lips are pursed is rigid or arrogant, that someone who cocks his head back is condescending, that a person who fidgets is lying. This analysis fails to take into account that the witness is trying to concentrate, is likely very nervous about being in a new situation, and is trying to make a good impression. Nervousness is not lying, but over-interpretation of non-verbal behavior leads jurors to this assumption.
Learning To Be a Savvy Observer
So, what am I suggesting? To be savvy about jury behavior means learning when non-verbal behavior is important in the courtroom, and when it should not be ignored, or at a minimum, considered indeterminate. Non-verbal behavior alone cannot be considered to be a reliable predictor of future complex behavior. Favorable verdicts come from jurors you would never suspect. The typical logic is that jurors are “closed” or unreceptive to your arguments when their arms are folded on their chests – but this non-verbal behavior does not automatically mean hostility – it may just mean that jurors are cold or tired. Non-verbal behavior is only one clue as to how someone might be feeling at any given moment, not an indicator of basic attitudes or biases. While non-verbal behavior cannot be ignored, it must be considered in context with other factors.
Since jurors spend most of their time listening, there are few opportunities to match their verbal communication with non-verbal or vocal behavior. The three opportunities that do arise to compare verbal and non-verbal behavior (and thus to assess the accuracy of our perceptions of them and their opinions) are voir dire, mock trials, and post-trial interviews. We will focus on what we have learned in these environments and how that applies to the selection of jurors and observing them at trial.
During voir dire we have some minimal opportunity to observe how non-verbal behavior may not match up with verbal behavior or vice versa. In my opinion, jurors’ body language may not be predictive of their attitudes toward your case, is rarely predictive of their personalities, and is certainly not predictive of their willingness or ability to serve as jurors.
Why? First, because jurors regard the jury selection process as tremendously boring, “hurrying up and then waiting,” and most of their non-verbal behavior reflects their boredom, their annoyance with the lack of control they experience, and even just their fatigue from weathering the long hours and hard benches. So the first thing to consider is that many jurors may simply be bored, which is an almost universal reaction to the process, given that “boredom” is one of the first things mentioned by lawyers who have participated in actual jury selections (Kole, 2004).
Other jurors, those who have high “social desirability” needs (they want to be liked), are worried about making a good impression, so they respond to the “demand characteristics” of the situation (e.g., the formality of the courtroom, the expectations of the judge), and they try to look attentive and appropriate. Some people are skilled at “impression management” and act like they would in a job interview. As any skilled manager knows, interview behavior is not necessarily indicative of actual job performance.
Other jurors do not respond to demand characteristics to any great extent, and may allow themselves to appear bored, unhappy, and even angry about being at the selection, in order to suggest to counsel that they will be angry if they remain on the panel at the end of the day. In my experience, most counsel – plaintiff and defense – are afraid to leave these individuals on panels.
Recently we have seen jurors characterized by the movie, Runaway Jury, who want to make the “right” impression so that they can remain on the jury to either influence the outcome of, or write a book about, the trial. There are also jurors in our own backyards who, in trials not highly publicized, keep silent about their views, and try to look perfectly comfortable with subject matter about which they have strong opinions and prejudices.
There are reasons to be disingenuous (hide feelings) and there are reasons to be transparent (wear feelings on one’s sleeve), but it is difficult to know which of the jurors are just being themselves. Given that jurors are in a new and largely unknown environment, with formal rules and perceptions of pressures felt by the parties themselves, it is no wonder attorneys don’t know what to make of jurors’ non-verbal behavior during voir dire.
But there are a few things to look for. For example:
- Look for “glimmers.” When jurors hear your questions, they may have slight non-verbal reactions, for example, looking away, a slight flush, an eyeblink, that suggests that their first (non-verbal) reaction is their real reaction. It is hard to see these reactions, and some jurors are better at maintaining a “poker face” than others, but with skill and experience you and/or a consultant can catch these responses. Make sure you are looking at jurors’ faces particularly when you ask a question, in order to catch these, what I call, “glimmers” of real reaction to your question.
- Look for inconsistencies. Whenever non-verbal behavior doesn’t match a verbal report, you should be thinking about what might be going on. For example, when a juror reports that she has never been harassed at her workplace,, but her non-verbals suggest that she does not believe what she is saying, this could mean there is an important experience in her background that could affect her perceptions of the case. Instead of drawing conclusions, the appropriate step is to follow up with a question, such as, “Have you ever thought that you received any form of unwelcome attention?” or use a general question, “Tell me if I am wrong, but you look as though you have something more to say about this issue – either now, or we can do this at sidebar later if you would be more comfortable.”” Looking for inconsistencies between verbal and non-verbal behavior is an important use of observation time during voir dire.
- Look at clothing/jewelry/hair. Clothing, jewelry and hairstyles can be an indication of socioeconomic status, personality, or even occupation, but again, one must be very careful. Once, a farmer in dirty overalls came to court, and the team assumed that he must truly not want to be in court and was somewhat disrespectful of the process. Before the selection ended, he voluntarily stood up and apologized for being late and being poorly dressed, and explained that his tractor had broken down in the fields and he had not had time to change. That juror went from being a poor defense juror to an excellent defense juror in about 20 seconds. In another example, while piercings have become the norm with youth and in some sub-cultures, they still typically represent opportunities to either rebel or share a group culture. Many of these potential jurors are more open to the plaintiff’s viewpoint, given that they consider the plaintiff to be the underdog, and as rebels often value the party who is perceived as being victimized. While not an automatic way to understand attitudes and beliefs, these outward signs can be signals regarding group memberships and self-perceptions.
- Look for surreptitious signals. Sometimes jurors provide non-verbal clues to their thoughts that may be a truer indication of their attitudes than their verbal responses. Glances to other jurors that they don’t think will be observed are good examples of surreptitious communications. As an example, a juror in the back row at a jury selection met a number of criteria for being a good defense juror, including what we had discovered through jury research. However, when the judge raised the idea that a corporation should receive equal treatment under the law, he shook his head “no” very subtly, but did not think anyone had seen him. He did not raise his hand to disagree with this statement, but he was clearly a poor risk as a defense juror. Had I not witnessed his unconscious and, what he believed undiscovered, non-verbal signal, I would not have suggested him as a strike.
- Check your own stereotypes. Know how your own stereotypes set you up to be deceived by jurors’ non-verbal appearance and behavior. When you see someone you think fits your stereotype, increase your efforts to listen that that person’s verbal responses. You may be surprised to hear that this individual will support your case based on their values, their attitudes and their core beliefs.
- Focus on beliefs, not appearances. The faces that jurors put on or show at jury selection often mask their true feelings. Ask questions about specific experiences and/or attitudes jurors have about the issues in your case. This is the surest way to reduce judgment errors inherent in any jury selection.
But what about at trial? If you think that jurors are then more comfortable, are reacting to the substantive issues, and are showing their true feelings through their body language, you need to think again.
Misinterpretations about non-verbal behavior happen just as often during trial as they do during the jury selection. When a juror is sleeping or looks bored, it does not automatically mean that he or she doesn’t like what you are saying. As noted above, boredom is a part of a trial – despite attempts to make the material dynamic and interesting. Based on our mock trial studies, we know that sleepy jurors are notoriously active in deliberations. Sometimes if they like what you are saying or have already been convinced, they believe they don’t need to stay awake or to take notes, which means they look like they are disinterested or even sleeping. Seeing a sleeping juror doesn’t mean that a juror is automatically in your corner – but it doesn’t mean that juror is automatically against you either.
Don’t let your biases affect your ability to judge jurors’ real reactions to your case. Have you experienced the elated feeling of having several jurors nod during your opening, only to see them smile and nod during your opponent’s opening? Smilers and nodders can smile you all the way to a profound loss, so don’t assume too much when someone offers this non-verbal signal. Jurors who act predictably can be a bundle of surprises when it comes to deliberations. As I have discovered in many mock trials and post-trial interviews, many jurors who are smiling are simply being nice, and have truly disliked the position that lawyer was taking.
So what is a savvy attorney to do?
- Don’t be misled by juror non-verbals at trial. The jury has been seated. Now sell the jurors on your view of the case, and don’t waste much time trying to analyze their body language which is, as described above, often not predictive. Like the questions that come from the jury room, jurors’ facial expressions and gestures often are misleading if you are trying to guess what the jury is thinking. Don’t waste your time beyond global observations.
- One exception: Consider confusion. While wrinkled brows can mean a number of things, most likely they suggest confusion about the subject matter. If several jurors appear to be confused by what a witness (or the attorney) is saying, then think about where the confusion lies, and how you can be clearer in your communication, use better visuals, etc.
- Consider a shadow jury. Using a shadow jury (a number of jurors selected to observe the trial anywhere from a few days to the entire trial) allows you to get a glimpse of the understanding the actual jurors might have during the trial. Shadow jurors are interviewed each evening with a view to understanding which themes and what evidence is making sense and what is persuasive. Of course these are different individuals, not clones of the seated jury, but this is often a better method than observing the seated jurors and trying to guess their thoughts.
- Conduct jury research in advance of trial. If you really want to know what non-verbals mean for jurors’ thinking processes, consider testing your case with a mock jury before you ever get to trial. That way you can know the potential reactions to your case, and to plan your trial strategy accordingly. Remember your influence over the message you send is typically greater than over the type of jurors you select. Thus, in any trial, you should use jury research to focus on understanding your case the way actual jurors will understand it, not on investing inordinate energy in watching prospective jurors during voir dire or observing actual jurors’ faces for clues as to their reactions to your case. Jury research and other consulting techniques will be more fruitful than observation techniques in the search for the right jurors and trial strategy.
Ekman, P. (2003), Emotions Revealed: Recognizing Faces and Feelings to Improve Communication and Emotional Life. New York: Times Books/Henry Holt and Co.
Kole, J.S. (2004), “The Care and Feeding of Jurors” Litigation (30), Vol. 2.