June 23, 2016

See It Through the Jury’s Eyes: A Trial Consultant Does Jury Duty

Interview of Dr. Shelley Spiecker (by Dr. Ken Broda-Bahm):

Juror badge squareMy colleague, Dr. Shelley Spiecker, is one of the sharpest and most experienced trial consultants in the country. So, it was with some surprise that she recently found herself on a Denver County jury. I took the opportunity to sit down with her for a chat. To hear the full interview, click below (or follow this link).

Ken: Thanks for agreeing to talk with me. We’re happy that you’re back from your jury duty and happy that you’re willing to talk with us about your experience. First of all, Shelley, I think the attorneys and trial consultants that you know and work with might originally, initially wonder how did you come to be on a jury?

Shelley: Well, I kind of wondered the same thing, actually. We were each asked to complete a one-page questionnaire – the particular criminal case was an issue of sexual molestation of two grandchildren alleged against their grandfather. I think they were aware I was a trial consultant. I think that perhaps part of the reason I was not called back for cause questioning is that a lot of people had experiences in their backgrounds that the attorneys needed to talk with them about. So I suspect that my professional experience didn’t rise to the level of a personal inquiry.

Interestingly, the next morning, the prosecutors spent a fair amount of their time focusing on me specifically, and asking me how I would assess witness credibility and, particularly, the credibility of children. And, pointedly, how much weight I would put on nonverbal and demeanor queues vis-à-vis testimony. So I think that they wanted some confirmation that I was going to not exert any disproportional influence in assessing credibility.

Surprises

Ken: Okay. Now, you probably know better than the average juror what to expect, but what was surprising to you about the whole process?

Shelley: Several things caught me off guard. The first was, frankly, how fatiguing the entire process was. You know, as consultants, we have at times spent 12-1/2 hours in a courtroom — one time in jury selection in Dallas a couple of years ago — and my 8 to 5 jury service was incredibly more fatiguing than any time I’ve ever spent in the courtroom.

Ken: Why do you think it was so taxing?

Shelley: I think for a couple of reasons. I think as a juror you’re trying to take everything in and processing minute detailed pieces of information. The other thing that was difficult is you’re put in a room with 12 strangers. There was a lot of tension in the jury room, so people would walk back on a break and immediately look at their phones or open their reading materials, and attempts by one or more jurors to strike up casual conversation were pretty much shut down by others in the jury room. So this was a fairly fatiguing intense process.

On the positive side, all of the jurors took notes. I was surprised by the detailed level of notes from 13 people with varied backgrounds. And the last thing I wanted to share with you, it reminded me of the importance of first impressions. You know, we live in a world of themes and silver bullets and opening statements and I think that’s absolutely true. The Defense came out with a very strong theme. The prosecution really didn’t have a theme until closing arguments and I think that it definitely made a difference.

Lessons for Attorneys and Witnesses

Ken: Okay. Now, is there any way you think advocates, parties, attorneys, or even witnesses could adapt or should adapt to the kind of taxing nature of jury service as you’ve observed it?

Shelley: I think so. It really reminded me how important it is to not have repetition. To have very succinct presentations. The opening statements were limited to 20 minutes per side and I was grateful. I found, given the taxing nature, that after about 20 minutes I really couldn’t take in all of the information that I wanted to take in. The other thing I think is critical is the use of visuals. Neither side showed any visual information in opening statements. And it was interesting, when the prosecution was talking about the familial relationship, I had a juror on the left and a juror on the right who were trying to create organizational charts of the family to give themselves some kind of a visual. And I think the importance of visual presentation—absolutely critical.

Ken: Is there anything else that you would advise attorneys to bear in mind, based on this experience?

Shelley: I think, going along with the issue of first impressions, the prosecution did a fair amount of inoculation in their opening statement. You know, we talk about the importance of embracing a bad fact if you’ve got it. Get it out early. I’m actually going to change my thinking on that a little bit. Because the prosecution did so much inoculation, my impression was that they had a very weak case at the beginning. In fact they didn’t. And in fact the jury ultimately voted for conviction on all four counts. But I think we need to be careful about how we inoculate and how we introduce inoculation points.

Ken: All right, Shelley, is there anything else that you would say to attorneys and witnesses?

Shelley: I would. I think that oftentimes we emphasize, when we work with witnesses, kind of preparing them for cross-examination and how to maintain control and credibility on cross. One of the interesting takeaways, we had a witness, a social worker actually, who’s testified over 100 times. She was a fantastic witness, a great storyteller. She had wonderful natural analogies in her testimony, great explanations. But because she was such a good witness, the prosecution failed to break up her testimony. They would just kind of give a head note and then she’d talk for five minutes. And, going back to the issue of you’ve really got to maintain juror’s attention, I think it’s critical that we look at preparing witnesses for effective direct testimony, as well, even when they’re great witnesses. In this particular situation, the prosecution erred in not breaking up this testimony with Q & A. You know, I think an answer that’s longer than two sentences, three sentences, even on direct, becomes too long. So, the effect of her testimony was not as great as I think it would have been had her testimony been broken up on direct with appropriate Q & A.

Lessons for Trial Consultants

Ken: Now, how about you? Are there any ways in which the experience as a juror will change the way you work with attorneys?

Shelley: A couple of ways, absolutely. Being more insistent on the use of visuals in presentation like I referenced. But another interesting way in working with witnesses, I think my focus has been almost primarily on the witness. And what I want to take away from this is the importance of helping attorneys in witness preparation, as well. In other words, suggesting specific questions to them, listening to how they’re asking questions of the witness and giving them feedback.

And I’ll give you a specific example. Part of the taxing nature that I talked about, I think anything that advocates can do to gain jurors’ attention is helpful. And so, sometimes, we’ll recommend treating one of your own witnesses as a hostile witness, for example. And, at one point, you could tell that the prosecution was trying to establish that the witness who was struggling with some memory issues had a history of having poor memory. And I think she asked the question, “Do you generally have a poor memory for details?” As I heard that, I thought, that’s not nearly as strategic as if she had treated the witness as hostile, and said, “Are you trying to tell this court and this jury that you don’t remember such-and-such?”  And that would have been more attention-gaining, and I think it also would have been helpful because the former looked almost as if she was trying to lead the witness.

There was one more factor that we had in this particular case, and that’s the court allowed the jurors to submit questions. And it was interesting. I felt the dynamic in the room kind of perked up when the judge was asking one of the questions that the jurors had submitted, even by fellow jurors that hadn’t submitted the question. So, anything that can gain attention is strategic.

Ken: Okay. So, you and I run mock trials, which are very condensed versions of what you went through, is there any way in which the experience of being a juror changes your perspective on pretrial research like mock trials or focus groups?

Shelley: You know, it really confirmed for me that what we do is a good test and a good strategy to help advocates get ready for presentations. I think that what we do, you and I in our practice, with testing exhibits, is very important. I think our use of testing jury instructions, absolutely critical. I think that when we are gathering feedback on what jurors questions are is extremely important because, to the extent that you can anticipate and answer a juror’s questions at trial, you’re inherently gaining credibility. The other thing that struck me, the backgrounds of my fellow jurors were extremely varied. I mean, I sat next to a woman who’s currently unemployed and going to school to be a canine masseuse.  Just the varied backgrounds – it was really shocking. And so, to the extent that when we are recruiting, and recruiting people randomly and recruiting people from various backgrounds, I think that’s absolutely critical to replicate the experience that you’re gonna have in court.

Trust in the Jury

Ken: Now, getting a little bit more broad in focus, we know that the jury as an institution is threatened these days. And the proportion of conflicts that end with a jury verdict or a jury trial has been in decline. I think that’s particularly acute in the civil arena, but also in criminal as well. Is there anything about your experience that speaks to the faith that we do, or should place in the jury system?

Shelley: Absolutely. I was shocked, as I mentioned, at the intense and extensive note taking by my fellow jurors. A couple of other things stood out that really give, solidify my trust in the jury system. I think I might have mentioned that there were four criminal counts against this Defendant. And they were fairly straightforward. And basically two counts for one victim and two counts for another. The jurors spent over five hours deliberating these four very simple counts, because they wanted to make sure that everybody poured over their notes. I was also struck by how closely jurors paid attention to the judge’s admonitions. On Friday morning when we knew that closing arguments were going to be later that afternoon, one of the women on the jury, who had actually served on three prior juries, just made a very brief statement. Again, the room is primarily quiet, and she said, “You might just want to start getting your thoughts together, because when we come in for deliberations after closing arguments, I found in my experience the voting goes pretty quickly.” And immediately, a male juror to my right said, “The judge told us that we’re not supposed to form an opinion until all of the evidence is in. And all of the evidence is not in.” So it was really interesting to see how closely people paid attention to the admonitions and how encouraging that was.

Final Words

Ken: Well, a lot of active trial lawyers and litigation consultants really aren’t ever going to get that chance to sit on a jury. So, is there any final words of advice that you’d have to a lawyer or consultant that doesn’t have that chance?

Shelley: I guess to an attorney, I would just beware of repetition. For years I’ve talked about the importance of telling jurors what you’re going to tell them, tell them, and then tell them what you told them. And in my experience sitting as a juror, I think some of that repetition is overkill.

I was, as I mentioned, so pleased by how detailed and focused my fellow jurors were that we got it. And I think the prosecution did an excellent job of not having any overlapping witnesses. For example, one fact witness was put on direct, for only five minutes. And that fact witness was extremely important because they were on for such a short time. So, not belaboring points, when the prosecution would stand up and say, “no redirect,” that sent a strong message that the Defense hadn’t done anything damaging on the cross-examination. So, my takeaway is, oftentimes less is more when it comes to presentation. And particularly in persuading jurors today. You know, in our environment, we got it. We came and we were ready to do our job. And took it seriously.

Ken: Okay. All right. Well, thank you very much for your time. We’re very happy to have you back. But it sounds like it was a very interesting experience for you.

Shelley: It was fascinating. Thanks, Ken.

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Other Posts on the Role of the Jury:

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Image Credit: It is Shelley’s Actual “Juror” Sticker.

 

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