The Advantage Blog

Have a Heart: How to Tread Carefully into Sensitive Topics

December 22, 2018 | By | ,

A recent episode of This American Life, entitled “The Unhappy Deciders,” described a man named Sven’s experience serving on a jury charged with deciding whether a defendant deserved life without parole or the death penalty. There was no doubt about the defendant’s guilt for robbery and murder – the only question was whether he should live or die for his crime. Eleven of the twelve jurors felt strongly the defendant deserved the death penalty; Sven was the lone hold-out in favor of life without parole. His youth and non-confrontational nature stopped him from going against the group and he voted for the death penalty. What Sven didn’t know is this decision – a decision he felt was a mistake – would lead to self medicating with alcohol and possibly contributed to his divorce.

And then that was that, it was over. I went on with my life. But what do you do with these feelings? I was just stuck. It was done, it was cast in stone. And yeah, no, I felt terrible. I felt massive amounts of regret. I felt guilty, sending someone to death row.

Sven experienced secondary trauma symptoms not only from the weighty decision he had to make, but also due to the graphic nature of the murder trial. The host explains that when people think about how crime and litigation impact people, they think about the victims, the accused, the witnesses, but they don’t often think about the impact trials can have on jurors.

Although this is a somewhat extreme example, it is widely publicized that graphic trial content and the weight of being the final decider can have negative impacts on jurors’ mental health. And some courts have tried to come up with creative solutions to this issue. For example, some now offer post-jury service counseling or more extensive debriefings following the resolution of the case. Earlier this year, the Justice Committee of Canada’s House of Commons recommended that all provinces offer psychological support to jurors following their service. Yet there is no similar requirement in the U.S., and offering some support for jurors following jury service continues to be the exception rather than the rule.

We, as trial consultants, and our attorney clients are exposed to this type of information often, and for better or worse, can become desensitized to graphic content. Most jurors, however, have not. And when charged with evaluating evidence on sensitive topics such as sexual abuse, harassment, disfigurement, disability, and death, it’s possible they will experience negative effects from the exposure.

Even less considered is the psychological impact mock trials or focus groups can have on participants, particularly when they can’t talk about the information afterward due to confidentiality. Presenting sensitive information to mock jurors is a great opportunity to practice for trial, but considering the way in which this information is presented is important.

Whether in a legal research exercise or in trial, consider the following when working on a case with sensitive content:

Tone Matters

As with most things presented to a jury, tone matters. The tone you use in presenting sensitive information is especially important, and can signal to the jury the extent to which you take the material seriously. Even if the goal is specifically not to garner sympathy (e.g., if you are on the side of the defense), jurors still want to hear you are sympathetic to the issues relevant to the case.

For example, one client recently argued there were alternate causes for the plaintiff’s injury. Although this client’s inclination was to use a slightly more attacking or direct tone, it was important they approach the topic carefully and with sensitivity. After all, regardless of the cause, the plaintiff was in pain, so jurors were naturally on her side. They needed to see recognition of her injuries before considering alternate causes.

Explain Relevance

If graphic content must be shown, explain why it is important for jurors to see the outcome in order to make their decision. If jurors perceive of the graphic images or video as irrelevant or only as a tool to elicit an emotional response, the approach can backfire. The relevancy must be clear from the start to avoid miscommunicated intentions with the jury.

Content Warnings

In a recent mock trial, without warning the presenting attorney played a video of a woman being struck by a vehicle and killed. Audible gasps, murmuring, and some tears followed – a clear indication of shock for what they’d just seen.

In both research and in trial, give content warnings prior to showing sensitive material. This can be done in the recruitment phase of a pre-trial research project or in voir dire during the actual trial. It may be important for jurors to see and consider this evidence, but be sure to warn before showing the content.

Invitation to Abstain

Particularly in a mock trial, give participants the option to look at the content or not. Some will choose to, while others will not – but for research purposes, it is likely not necessary that every participant see the sensitive content.

At the end of the day, trials and even pre-trial research projects can expose people to graphic and sensitive content. Having awareness of the potential impact is important to consider as you’re presenting your case.

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