The Domino Effect of Juror Decision-Making

Jonathan M. Lytle, Ph.D. / November 22, 2010

Print/Download as PDF

A familiar refrain from trial consultants is that attorneys should give the strongest possible opening statement. Consultants grant so much weight to these first words partially based on intuition and anecdotal evidence, but also because actual social scientific research supports them as a powerful tool. An opening statement allows the attorney to provide the framework through which jurors view a case and process evidence. Information that fits into the established framework is easily remembered. Information that does not sync is discarded or distorted by jurors. Research has demonstrated that jurors make their decisions early in a trial. So, the faster an attorney can get the jury on their side, the better.

As a general rule, decision-makers lack objectivity. People usually favor one choice over the others and evaluate subsequent information to conform to that leaning. For example, most people form initial opinions of political candidates based solely upon political party affiliation. During the weeks leading up to the election, both positive and negative information emerges about the candidates. A typical voter will pay greater attention to (and attribute greater weight to) the positive information about his or her preferred candidate and ignore (or discount) the negative information. That same voter will exhibit the opposite tendency with the non-preferred candidate: they will likely ignore or discount positive information about opposing candidates, and give more weight or credence to the negative information. Importantly, voters likely have no conscious awareness that they are acting with bias. This type of information distortion occurs automatically, at a subconscious level for people faced with decisions.

One underlying reason bias exists in decision-makers is peoples’ desire to be consistent. When information does not match expectations, people become uncomfortable. To resolve this discomfort, people tend to distort inconsistent information in order to match their expectations. Once a voter has given his or her support for a candidate, they are less likely to evaluate all other options objectively; in this way, they maintain their expectation that the candidate they endorsed is the best choice. Social scientists use a variety of terms to describe this general process (e.g. confirmation bias, cognitive dissonance, belief persistence, etc.). In research on juror decision-making, this process has been called predecisional distortion.

Predecisional distortion is the biased interpretation or evaluation of information to support the currently leading alternative throughout a decision process. Consider how this may reveal itself with jurors seated on the same criminal trial: As soon as each juror is persuaded by either attorney to favor one side or the other, predecisional distortion kicks in for the remainder of the trial. Thus, as soon as jurors have an inclination to prefer one side or the other, they will discount, ignore, focus on, or attribute differing weight to each piece of new information in ways that are congruent with his or her originally preferred outcome. Critically, this distortion does not depend on the strength of the evidence; research demonstrates that jurors distort ambiguous information and information that clearly favors one side or the other.

Predecisional distortion also has a cumulative effect. If a juror has even a slight initial leaning toward one side or the other, the distortion process during the evidence phase will increase that leaning exponentially. By distorting evidence and information to fit with their leanings, jurors will become increasingly confident in their choice and less and less likely to change their minds as the trial goes on. Imagine this process as a series of dominoes standing on end: As soon as the first domino falls, the rest will follow.

Even though jurors are generally motivated to reach an accurate verdict, distortion does occur. Because jurors distort the evidence unconsciously and without malicious intent to misinterpret the evidence, this effect is likely to factor into a jury’s decision, regardless of the judge’s instructions to the contrary. Yet, attorneys who are aware of predecisional distortion can employ two key techniques in the courtroom.

First, the importance of a strong opening statement cannot be overstated, given that a juror’s mind may be made up before any actual evidence is presented. Think of the opening statement as the first domino, or an attorney’s first opportunity to convince jurors of their case. If you can get that first domino to fall in your favor, the remaining arguments are likely to follow. In fact, attorneys can take advantage of this knowledge even before opening statements, during voir dire. Asking the right questions will plant ideas in the jurors’ minds and begin to frame the case according to your position. A strong voir dire strategy will almost certainly inform the jurors’ initial impressions of the case.

Second, attorneys should consider the impact of predecisional distortion when determining the order of evidence to be presented. Although evidence is typically introduced in chronological order, this research suggests that attorneys might win jurors to their side early in the trial by presenting the strongest evidence first. Then, jurors who were convinced by the strong initial evidence are likely to subject the remaining evidence to distortion and evaluate the case based on their already-established leanings. As with dominoes, setting the dominoes in motion earlier in the chain will maximize the number that will eventually fall.

In sum, attorneys should not leave the good stuff until the end!

Jonathan M. Lytle, Ph.D.  is a trial consultant at Prolumina in Seattle, Washington. He can be reached at (206) 622-6700 or jlytle@prolumina.net