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Detecting Juror Deception by Brad Bradshaw
Cite as 3 Litigation Commentary & Rev. 7 (April/May 2010)
Jurors lie for a number of reasons – most typically to get out of jury duty. They have other things they would rather be doing so they overstress the hardship that the trial will cause in hopes of getting excused by the court. In my opinion, if a juror is that serious about not being there, I don’t want him there either. The more problematic lie is when a juror lies to remain on the jury. That is, maybe he knows more about the case than he portrays or he has a bias that he is unwilling to share in open court because the bias is not socially acceptable (e.g., prejudice towards minorities comes to mind). Identifying these jurors, although complicated, is critical.
Lie detection, although far from being an exact science, has come a long way over the past several years. The problem is that many of the ways liars reveal themselves is not easily identifiable in a court setting. For example, polygraphs (i.e., lie detectors) work because most people have a physiological response to lying. It is difficult to know that a person’s heart rate has increased or his hands have begun to sweat from looking at him across the room. Pupil dilation is also a potential indicator of dishonesty but if you are close enough to see a change in the juror’s pupils you are invading that juror’s personal space. So in an experimental setting (i.e., research laboratory with polygraph machines) it may be possible to identify deceit from the physiological change. In the courtroom, however, those methods are not a viable option. You are also limited to the extent that you almost never see more than half of the juror anyway. If the juror is in the jury box you probably will not see more than his chest, shoulders, and face. So if the indicator of deceit is the anxious tapping of a foot, you won’t be able to see that.
So what other options are there? One possible predictor of deception in a non-laboratory setting is voice pitch. For many people, even during little white lies, the pitch of their voice gets higher. People also tend to talk more when lying, because they feel the need to provide a lot of information in order to convince the listener. (Remember that the next time your kid misses his or her curfew.) That information may or may not be riddled with pauses, “ums,” etc, as the person is piecing the lie together. The problem is that some people talk that way all of the time so you must have a baseline for comparison before you can conclude that a person is lying. I am pretty good at detecting deceit in my friends because I am familiar with their behavior when I know they are telling the truth. If the first statement out of a juror’s mouth is a lie, it will be difficult to detect.
However, the single best predictor of deception is a quick, unconscious movement made by the person talking. That is, the person says “yes,” and shakes his head, indicating “no.” Or he says “no,” especially when denying something, but his head nods up and then down. Experts on lie detection have reviewed countless videos where a statement was later proven to be a lie (e.g., President Clinton denying a relationship with Monica Lewinski; Alex Rodriguez denying the use of steroids in his interview with Katie Couric) and the person’s head movement was one of the few consistent predictors of deception. Therefore, when asking a juror about whether or not he will have a problem with some aspect of the case, pay close attention to the movement of his head as he answers. Additionally, look for general inconsistencies in behavior. Does the juror’s body language match what the juror is saying? To large extent, this is based on gut feeling and intuition but we are all better at identifying when something is wrong, as opposed to what is wrong. So if you have a bad feeling about a juror, it should not be ignored.
The three keys to understanding body language are attention, intuition, and practice. You can practice by watching the body language of people you know well, when you know how they feel. Does what the person says match the way he says it? Pay attention to your own body language as well. What kind of things do you do naturally without thinking about it? Do you chew your nails? Is it because you are nervous about a lie you just told? Probably not. You are probably just bored. You must account for the context of the situation. A courtroom can be a scary place and most people are uncomfortable speaking in public. That can make it is easy to misinterpret anxiety cause by an external factor (e.g., the courtroom) with anxiety caused by an internal factor (e.g., lying). So the next time a juror looks at you with his arms crossed, don’t rush to judgment. Sometimes jurors cross their arms because it is a comfortable way to sit – not because they hate the attorney.
Gregory (Brad) Bradshaw, Ph.D. is a litigation consultant based in
