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Fall 2002

Vol. 03, No. 1


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Guilty?   Not Guilty?

The boy was on the stand, doing his best.

It wasn't easy. After all, this was a criminal case in which he was the primary witness. The 11-year-old - dressed in a white shirt, tie and khakis - possessed a slight build, light-brown hair and a sweetly guileless face. As he spoke, somehow finding all the right words, everyone in the room seemed to be with him. What a nice kid, they thought. Just like my own son. What a shame he had to go through this.

When the boy finished, he was instructed to leave the courtroom. Several jurors could still see him through the windows of the courtroom door in the hallway outside the court. Those same jurors watched as he high-fived a friend in the hall. In a slap of the palms, those jurors' trust crumbled. While the perpetrator was found guilty, that child's seemingly innocuous actions almost made a few jury members rethink their votes.

And so it goes in the dramatic stage of the courtroom, where every gesture, expression and, yes, high-five counts. If anyone knows that, it's Ann Burnett, an associate professor in communication and women's studies, and one of a handful of experts nationwide who researches courtroom communication.

Burnett studied the previous case, as she has studied hundreds of other courtroom cases since turning in her doctoral dissertation on jury decision-making at the University of Utah in 1986.

Interested in law since she was an undergraduate, Burnett now works in law offices - sort of. Besides her research and teaching, she also consults for local law firms. In that capacity, she does everything from train witnesses on how to appear credible to conduct mock trials to see how mock jurors view defendants.

What she's found: Details count, as jurors see all. Juries need stories that make sense. And jury members hold distinct expectations for how judges, lawyers and the people they represent should act. Shatter those expectations, and you're in trouble.

"There's a theory in communication called 'expectancy violation theory,' " Burnett says. "If you violate people's expectations too much, you're going to repel them. If you went on a blind date with somebody and they showed up wearing a clown costume ... you'll probably never be able to get beyond that."

The same applies to a judge who looks groggy or the lawyer who dons a shocking pink suit for trial. Jurors are more apt to vote against the defendant who Judge Yawn presides over and Ms. Gaudy represents.

"You can say, 'To heck with expectations, I'm going to wear my red suit, this is who I am, so you're just going to have to tough it out,'" Burnett says. "Well, on the other hand, do you want to win? You've got to play the game." The game is so essential because jurors often determine guilt or lack thereof very early in the proceedings. According to Burnett's research, many reach that determination by the end of opening statements.

They do so by cobbling together the early facts presented to form some sort of comprehensible story. Naturally, as our gray matter is constantly comparing and contrasting, determining greater and lesser, it will discern which one of those two stories makes more sense. The best story, the most sensible one, usually earns the jurors' vote.

But a flurry of other factors also sways the people in the jury box. If members of the jury don't like an attorney, for instance, they are more likely to vote against him or her. Burnett tells of a lawyer who promised the judge they could break for lunch after his closing arguments, which surely would last no longer than a half hour. Instead, the barrister droned on for 60 minutes.

"The jurors were so mad," Burnett says. "He broke his promise."

She believes that could be one reason why his client was convicted.

In other cases, jurors will display a laser-like eye for every shortcoming - even something as teensy as a tailoring flaw.

Once, as Burnett interviewed a jury about an attorney who had lost a case, a juror remarked: "I noticed one button on the sleeve of his coat was hanging there, and it looked really bad. He should have had that sewn on."

Jurors hold the same expectations for witnesses. Burnett tells of a man who came into court sporting the unfortunate combination of a midriff-baring T-shirt and a beer belly. "They had no respect for that guy," she says.

The defendant's body language can hold great power as well. Jurors don't take kindly to defendants who appear deadpan, arrogant or sans remorse.

So Burnett coaches defendants and witnesses for the prosecution, encouraging them to take notes, lean forward and act alert. Such cues tell everyone there they are engaged and interested.

Skeptics might scoff that this coaching is another tool the guilty can use to appear innocent. Not so, Burnett says. "I'm not coaching people to lie by any means. I'm just trying to get them to be effective in the way they convey their information to the jury."

-Tammy Swift

Student Focused. Land Grant. Research University.