This is a reshare of a 2018 talk with Christina Marinakis about reading and understanding jury behavior. Marinakis works for the firm Litigation Insights; you can see her bio here. There’s a transcript of the talk below.
Zach Elwood: Hello, and welcome to the People Who Read People podcast with me, Zach Elwood. This is a podcast about understanding other people and understanding ourselves. You can learn more about this podcast and sign up for updates at behavior-podcast.com. If you like the podcast, I ask that you leave me a review on iTunes, that’s the best way you can show your appreciation and encourage me to do more. I’ve been pretty busy working on my book aimed at reducing American anger and political polarization. So I’ll continue re-sharing some of my early interviews. This one will be a talk from 2018 with Christina Marinakis, a specialist in jury selection for the organization Litigation Insights. In this talk, I ask Christina about some of the more psychology and behavior-related aspects of jury selection.
When it comes to how people in serious high pressure jobs make use of psychology and behavior, I think it’s one of the more interesting talks I’ve done. It was my original goal with this podcast to talk to people from a wide variety of fields about how they read and make use of people’s behavior. Because I think there’s all sorts of interesting domain-specific knowledge out there that we just don’t hear much about unless we’re in those niche areas. And I think some of that knowledge can be valuable to people who work in other fields or even just in our personal lives by increasing our empathy and understanding of other people. I’ve been a bit distracted from that original goal due to my interest in political polarization, hopefully I’ll get back to that original focus as I have a long backlog of ideas for guests from various fields and pastimes that I’d love to interview. And if you ever have ideas of interesting people to interview or subjects to tackle, feel free to send me your thoughts via the website which is behavior-podcast.com.
One interesting recent thing about Christina Marinakis, she was a consultant for the prosecution in the case against Derek Chauvin in Minnesota. If you search for her name and Derek Chauvin, you can find some pieces about the jury consultancy work she did for that very high profile case. Okay, here’s the talk with Christina Marinakis.
Today is September 24th, 2018, and today we have Dr. Christina Marinakis joining us. Dr. Marinakis’s education includes an undergraduate degree in bioscience psychology, a master’s in clinical psychology, a doctorate in psychology, and a law degree. She’s currently the director of jury research at Litigation Insights, a national trial consulting firm, and she has 17 years of jury research study and applied practice in law and psychology. Her case experience includes but is not limited to product liability, antitrust litigation, class action, legal and medical malpractice, contract disputes, patents, securities, fraud, and criminal work. And she does this work for both prosecutors and defendants. Dr. Marinakis contributed to a new edition of the book Pattern Voir Dire Questions, a compilation of tips for voir dire strategy. And that book includes over 2000 questions for investigating and a listening bias from potential jurors. Besides jury selection work, she also is hired for witness preparation and communication training, and that involves giving feedback to witnesses who are preparing to testify to make sure they’re perceived well by the jury. So today Dr. Marinakis and I will mainly be discussing jury selection, the basics of how the process works, how strategy and game theory can play a role in the process, and how an understanding of psychology and behavior can impact jury selection. So without further ado, welcome to the podcast Dr. Marinakis, thanks for coming on.
Dr. Marinakis: Thanks so much for having me.
Zach Elwood: So we’ve got a lot of interesting things to talk about today, and a lot of questions people will find interesting I think. So let’s jump right into those questions. Could you give a simple explanation of how the voir dire process works for people who don’t know much about that process?
Dr. Marinakis: Sure. So a lot of people refer to what we do as jury selection, but the more accurate term would be jury de-selection. We’re not really picking who we want on our jury, it’s more of an elimination process of picking who we don’t want on the jury. So there’s essentially three ways that you can get a juror off the panel. And the first way is through hardship. And so if a juror says that they have an extreme financial hardship or a personal hardship such as they are caring for a young child at home or caring for an infirm adult, the judge decides whether those people meet the statute for whether they should be excused for hardship. And the attorneys can often comment on that and can make arguments whether a juror meets that statutory hardship language, but that’s really a decision that ultimately rests with the judge. The second way that people can be removed from the jury panel is through what we call peremptory strikes or peremptory challenges. And in every case, both sides are permitted a certain number of what we call strikes, meaning that you can remove people from the panel for no reason at all, any reason, and you don’t even have to tell the other side or the judge what the reason is. Now there is an exception, and you can’t remove someone based on race, gender, or in some state’s sexual orientation. That is against the law. But other than that, you can remove that person from the panel and you don’t have to give a reason why. There’s a balance number of strikes per side, and that varies by jurisdiction. Most of the time in state cases and civil cases, it’s anywhere between three strikes per side to about six strikes per side. In some cases, if you have more than one defendant who has adverse interests, the judge might decide to allow you to have eight strikes per side if that’s what you want. But it’s always balanced. In criminal cases, it tends to be more, you might have up to 20 strikes per side, but that’s what we call peremptory challenges. And they usually alternate. So once you have a panel of jurors, usually the prosecution or the plaintiff will strike first and they’ll say, “We’d like to thank and excuse juror number four.” And then the defense goes and they say, “We’d like to thank and excuse juror number 12.” And it goes back and forth until both sides pass. So you can pass and try to save up your strikes. And so you might say, “We pass, we accept this panel,” the other side then makes a strike. Now you get to go back and make another strike. Now once both sides pass and they accept the panel, that’s your jury. So that’s the second way. And then the third way, which is really where a lot of the psychology comes in, is what we call cause challenges. And there’s an unlimited number of cause challenges. And what that involves is each side is trying to get the jurors that they don’t want on the panel to admit that they can’t be fair. There’s statutory language that differs by state in terms of what you need to get the jurors to say. For example, in California, there’s a number of ways you can get a juror, what we call, kicked off for cause. If they evidence enmity against or a bias in favor of one party or the other, that’s enough reason to get them off the jury panel. In most states, it’s whether they can be fair and impartial, but there’s certainly some differences. Again, in New York, they have to give an unequivocal assurance that they can be fair. If they can’t do that, they get kicked off for cause. So each side gets to question the jurors, and that’s what we call the voir dire process or if you’re in the staff they call it voir dire. And it’s a process where each side gets to ask jurors questions and ask follow up questions. And the ultimate goal is to identify the people that you don’t want on your panel without exposing the people that you do want, because if you expose those good jurors, now the other side is just going to be able to identify them and get them kicked off for cause or they might use one of their peremptory challenges if they can’t get the juror to say they can’t be fair. And so since there’s an unlimited number of those cause challenges, that’s really the end game, is the side that gets the better jury is really the side that is able to get as many of their bad jurors off for cause which gives you a leg up on the other side.
Zach Elwood: So how many people are typically starting out in a jury pool, jury selection pool, before the process starts?
Dr. Marinakis: It varies a lot by jurisdiction, but in general, I’d say you’d need anywhere from fifty to a hundred jurors. And sometimes it just depends on how many jurors sit on the final panel. So although many states have juries of 12, there are certain states like Maryland and Florida where you’re only sitting juries of six. So obviously you don’t need as many jurors. So the way they decide how many jurors we need is you take the number that are finally seated, whether that’s six or 12, and then you add up the number of strikes that each side has. So again, that could be anywhere from three to six. So just for example, if you have a jury of 12 and then each side has six strikes, that means you’re going to need at least 24 jurors, 12 for the box plus the 12 that are stricken. And then you want to have a couple extra jurors because you anticipate that some of those jurors are going to be gone for cause. Now the longer the trial is, the more jurors you need. Many of my clients have trials that run 5 to 12 weeks long, there’s going to be a lot more jurors who will have financial hardships. And so if you know your trial is going to be a longer trial, you might need to start with 200 jurors to get enough jurors for the final panel. If it’s only a three-day trial, you might be able to start out with 40 jurors and be just fine. Now, same thing goes with whether it’s a high profile case or involves some really sensitive issues. Clearly if you’re trying a case for Bill Cosby, there’s going to be a lot more jurors in the audience who have already formed an opinion about his guilt or innocence, and so you’re going to lose more jurors for cause.
Zach Elwood: Right. So when you ask the questions of the potential jurors, can you ask anyone questions or do you pick one person at a time or do you ask it to the group? How do you decide answers to those kind of questions?
Dr. Marinakis: Again, it varies by jurisdiction. Each state has different rules on how they conduct voir dire. The states that are in the northeast like New Jersey, Maryland, Pennsylvania, Massachusetts, New York, they question the jurors individually. So each juror comes back into the room, into the chambers, sometimes the judge is present, sometimes the judge is not present, and the parties ask the questions individually of each juror. Because of that, the jury selection process in those states can take several days up to several weeks in certain trials. Other states like Texas do a panel. So each person in the veneer, people that are sitting in the benches, will have a paddle almost like an auction that has their juror number. And then the attorneys have to ask the question of the entire group. “How many people feel like corporations put profits over safety?” Then people who think, “Yes,” they raise their panel, and you jot down their numbers and then you have to follow up with them. Most of the time the follow up is done in open court. There are some jurisdictions where you ask the questions of the entire group, but then any juror who raises their hand or raises their paddle then comes up to be questioned individually. So it just really depends on the rules and the court system. But usually the jurors are in a certain order. In the field, we call it a random list. Now the jurors may not realize what order they are in. Sometimes they’re seated in order in the courtroom, and sometimes they’re not. But the attorneys always have a list of who’s first and who’s coming up because the jurors they’re seated in an order or they’re in an order in a list. So if we have a list of 50 jurors and I know that we only need to get 24 to sit the jury, I’m only going to focus on those first 30 people on the list. There’s no point in me asking questions to the juror who’s seated in seat 60 because the chances that we’re going to get to that juror are very unlikely. Now once we start losing jurors for cause and losing jurors for hardship, we can calculate how deep into the panel we will get and know who we need to ask questions of.
Zach Elwood: But you know the order, so there’s theoretically some reading ability that you could base on how a person acts or looks theoretically to know something about what some of their stances might be theoretically if you know the order.
Dr. Marinakis: Certainly. I’d say we know the order at least 90% of the time. And so we’re looking at who are those people in the first group of 30. And many times we get a little bit of information about those people. It might just be a card that has their occupation, their marital status, maybe the ZIP code where they live, their age, or sometimes we get a huge questionnaire where they filled out several pages of questions. Now, the other thing and I anticipate we’ll get more into this that we do is we’ll look up these jurors, we get the list of names and immediately start looking up folks LinkedIn profiles, their Facebook, their blogs, their public records. So we have an idea of who is on our panel. And then there is a little bit of stereotyping. So if I’m representing a corporate defendant, most likely people that are wearing business suits are going to be good for my side. I’m not going to start off asking those folks questions. I’d probably start off asking questions of people who might look to be more blue collar or maybe aren’t dressed as sharply, maybe look like they’re of a lower economic status who are more likely to identify with a plaintiff who’s suing that large corporation. I’d target my questions to those people first. Now the other thing we do is we’d ask one of those general questions again, “How many people think corporations put profits over safety?” If 10 people raise their hand to that question, I’m going to go to those 10 people first to do the follow-ups.
Zach Elwood: Got you. So the legal process often seems like a game with its team versus team nature and its sometimes obscure roles that can lead to complex strategies. And this seems especially the case for the voir dire process. Is there a lot of strategy and game theory involved? I guess you’ve already answered a little bit of this, but…
Dr. Marinakis: Absolutely. The best jury consultants and attorneys who participate in voir dire are able to anticipate the next side’s move and what the consequences of that move will be. So when I’m trying to decide who we want on the panel, the only way we can do that is through the striking process. I have to think about if I strike this juror, who’s going to take their place? So if there’s 12 jurors on the panel, I strike juror number four. Now juror number 13 is going to move into that seat. Well, now the panel composition has changed, and I have to think about now who is the other side going to strike. If the other side strikes juror number nine, now juror number 14 is going to move into that seat. And you have to be able to anticipate who is the other side going to strike and who is going to move into those seats and how many strikes do you have left. If you use your strikes on someone who is a juror you might not want but not the worst juror, well, if someone worse takes their seat and you run out of strikes, now you end up with a undesirable jury. The other thing that I mentioned was the passing system. So I might strike a juror, if the other side passes, they could pass because they think that there’s someone on the panel that I must strike, a juror that I cannot have on there. So they would pass in order to start saving up their strikes because ultimately that gives you an advantage. If you’ve got four strikes left, the other side only has two strikes, now you’re able to control the panel easier. However, you can call the other side’s bluff. And if the other side passes and you pass, now you’re stuck with that panel. So there could be someone on the panel that they don’t want and they’re passing because they think that you need to strike somebody and then you pass, now you’re stuck with the panel. So it absolutely is a game of chess. And because it moves so quickly, it’s really a game of speed chess.
Zach Elwood: Right. You said for a lot of them they can be only 30 minutes long.
Dr. Marinakis: Right. And really that’s the process for asking jurors questions, when it comes to doing your strikes, it’s right there in court. The judge usually won’t even give you time to confer with your co-counsel. They’ll just say, “Okay, plaintiff, what do you want to do?” And then you make your strike immediately.
Zach Elwood: So it goes very quick?
Dr. Marinakis: Yes. Immediately the defense says, “Okay, plaintiff, who do you want to strike?” And the actual striking process can occur within a minute.
Zach Elwood: And are the potential jurors in the room at that point too?
Dr. Marinakis: Depends on the state. In California, you say, “We’d like to thank and excuse juror number four.” And the juror number four gets up, they leave the courtroom. The next juror the judge will say, “Okay, juror number 14, now you take their place. Now the other side, you strike,” and it works like that. In other jurisdictions, they say, “Okay, attorneys, you’ve got one minute, write down the six people you want to strike.” Other side does the same. And then you submit the list, the judge cuts those people, and you’re done. And you don’t get to see the other side, it’s not a back and forth process. The funny thing is sometimes when you do that, both sides end up striking the same person which is interesting. Either they’re concerned that they don’t know that person well enough and they’re afraid to leave them on the panel or sometimes one side or the other just gets the juror wrong.
Zach Elwood: Oh, that’s interesting. That sounds like a very stressful process for having to be done so quick. I mean, it sounds like that could easily lead to some frayed nerves.
Dr. Marinakis: Right. The jury selection process isn’t for anyone, there’s a lot of different consultants who work with attorneys, and some of them just do the witness work that you mentioned earlier, where you’re working directly with witnesses, working on their communication strategy. And some consultants just do the jury selection piece, because they really require two different skill sets. And it’s not for everybody, you really have to be able to have calm under pressure, to be able to think quickly, anticipate the other side’s moves, and really just having an excellent memory and being able to remember exactly what each juror said and having great organizational skills, being able to keep track of who’s on the list, who’s coming up next, what did they say.
Zach Elwood: Right, that’s a lot of factors, yeah. So considering all that work and complexity, how much influence do you think voir dire strategy has on a case, in your opinion?
Dr. Marinakis: A lot. It’s almost sad to say, but I think the composition of the jury has a bigger influence on the outcome of the verdict than the facts of the case sometimes. The other piece of my work is performing mock trials. So before a case goes to trial, we will present the case to people in the community, many people, sometimes up to 60 people. And test the case with them to see what the likely outcome is and what the strengths and weaknesses are of the case. I can tell you in the many, many years I’ve been doing this, I have never had a case where all the people agree on the verdict, never. Yet they’re hearing the same exact evidence, hearing the same exact arguments, and yet they view the evidence differently. And that’s because each of us has our own experiences and our attitudes and our history that creates a lens. And we view the facts of the case through that lens. And because of our backgrounds, we either accept and remember the things that are consistent with our preexisting beliefs or we reject, we forget, we misinterpret things that don’t correspond with our preexisting beliefs. And so the same piece of evidence is going to be viewed differently depending on your outlook. And so you can’t necessarily change the facts of the case, but you can change the lens that it’s going to be viewed through. And so ultimately the jury selection piece and deciding who’s on the jury will decide how the facts, the evidence, and the arguments get interpreted.
Zach Elwood: Yeah. That can give you a sort of pessimistic view of how likely a defendant is going to get a fair trial, just makes me think of that. And so I’m wondering, how much do you see jury selection as working on behalf of your client and how much of that process is a collaborative attempt from both sides to make a jury most fair? Or is it, I guess, one could lead to the other?
Dr. Marinakis: Well, really our system in the United States is based on an adversarial system. There’s other countries out there where they have a single judge or a panel of people who are supposed to be neutral and who decide the case and decide the legal issues. And I think the great thing about our system is it is adversarial, but I think that leads to better, more accurate results. If you have one person like a judge or a supposedly neutral panel deciding the case, who’s going to challenge that panel when they make mistakes? Who’s going to challenge that panel’s bias? Because people are still people. And so someone may be a neutral moderator or a neutral panel of observers, but even those people are going to have their own biases. And if there’s not an adversary or someone on the other side pointing out those mistakes or those flaws, that’s going to lead to a flawed system. Now because our system is adversarial, we are pointing out the mistakes in the other side’s case, the holes in the other side’s case, the injustices in the other side’s case. And ultimately that leads to a better truth. If you’ve got two people arguing and really fighting for their position, that helps weed out the truth for a neutral fact finder. And the same thing is true of jury selection. So while I’m doing that for my client and trying to get off the jurors from the panel that are the worst for my case, the other side’s doing the exact same thing and they’re trying to get off their worst jurors. The end result is really to get a fair and impartial jury, but honestly, that’s not my goal, my goal is to get the best jury for my client, the other side’s jury consultant, that’s their goal to get the best jury. And maybe the person who’s more skilled will get the better jury in the end, but most of the time you end up with a fair panel.
Zach Elwood: Got you. Let’s move on to the behavioral psychology part of the interview. And I’ll ask you, what role does physical behavior play in a typical jury selection process?
Dr. Marinakis: Sure. There’s really two things that we’re looking for when we’re observing people’s behavior. And one of them is to identify how they’re answering the questions. Because whether a juror is a good juror or a bad juror or even if it’s just the difference between a bad juror and a very bad juror, sometimes depends on not what they say, but how they say it. So for example, there may be many people in the audience or in the, we call them the veneer, who have had maybe a negative experience with something, maybe this is an employment case. Let’s pretend it’s an employment case, I’m representing a company who’s being sued because they discharged someone and they’re being alleged for wrongful termination. So there may be multiple people there who have been fired from a job, but how they respond to that situation will determine who I get rid of on the panel. I might say, “How was that experience when you lost your job?” If one person says, “That was a tough experience,” another person says, “I was devastated,” there’s a difference. And if I only have one strike and I need to exercise it, choose between those two individuals, I’m going to strike the person who says they were devastated and they say it with a sigh, and you can see the pain in their face as opposed to someone who says, “Yeah, it was tough.” To me the person who says, “Yeah, it was tough,” they say it quickly, they don’t seem upset, they were able to move on versus someone who might still be clinging on to the pain of that experience. So I’m looking at their facial expressions. Do they look pained? Do they have a furrowed brow? Are they hesitant? Is there a quiver in their voice? Their body language, do they look sullen and sulky? Or are they confident and able to move past it? Same thing goes in cases where maybe we’re dealing with a cancer case and the plaintiffs are alleging that my client corporation’s product cause their cancer. A lot of people have had losses due to cancer in their life, but it’s how they dealt with those losses and how it still affects them today that determines whether they’d be a good juror or not. So again, I’ll ask them, “Tell me about that experience.” And if they look like they’re on the verge of tears and they’re having a hard time talking about it and then they say, “But yeah, I can still be fair to your client,” I’m going to have a hard time believing that they can really be fair to my client versus someone who says, “Yeah, it was really tough when we lost our mother, but we enjoyed our time that we had with her.” How that person dealt with that situation will determine how they view the evidence and that filter and that lens that they see the evidence in your case. Go ahead.
Zach Elwood: Yeah. I was going to say, one of the things that I was remembering from the voir dire book is looking for reactions, when someone’s being questioned, someone else might have a reaction like shaking their head slightly. You had one example of someone shaking their head in what they thought was probably a very subtle, minor reaction to a question someone else was asked, but that enabled you to say, “Oh, this guy probably has some anger and some bias on this issue.” So looking for reactions like that.
Dr. Marinakis: Absolutely. It’s interesting because we ask these questions, how many people feel this way? And there’s always people who don’t raise their hand. Usually they just don’t want to speak in front of a hundred strangers and talk about their biases in front of a bunch of people or they’re shy or they just don’t like public speaking, which is most people. So if I’m talking to someone who did raise their hand and I see someone else who’s making faces, who’s nodding along or maybe disagreeing, maybe I’ll follow up on them and I’ll say, “Mr. Smith, I know you didn’t raise your hand to that question, but I saw you nodding along, do you feel the same way?” And then that juror might now open up that, yeah, they probably should have raised their hand. And so each person shows their emotions differently. There are some people who wear their emotions on their sleeve, and they’re nodding along and they’re making facial expressions and they’re wincing or they’re furrowing their brow or they’re scoffing or laughing, and then other people are very stoic. So certainly some people are more difficult to read than others, but those are all cues that I’m watching for when both my client is asking the questions and when the opposing counsel is asking their questions. If they’re asking questions and I see folks in the audience who are either agreeing or disagreeing with them, that gives me some insight into whether that juror would be good or bad for my client.
Zach Elwood: How often would you or how often in general will lawyers face decisions or follow up questions on the physical behavior or behavior in general of potential jurors? I was just wondering how often it played a role, many times or seldom?
Dr. Marinakis: For me, it plays a role every time. Most of the time my clients are focusing on the conversation, and they need to do that. They need to be tuned in to what people are saying. They can’t both watch the audience and question jurors at the same time. That’s why it’s important to have a consultant or someone else there who can do the watching for you. So they might not even realize the different body language and reactions that people are having or they just don’t have the experience to identify what that means. And it’s very easy to misinterpret body language if you haven’t seen it over and over and over again. But for every person, I’m looking at them, seeing how they respond to questions. And then I didn’t get to the second thing that I’m looking for, which I think is even more important, is signs of group dynamics. And ultimately a jury decision is a group decision, whether it needs to be unanimous or whether it’s 9 out of 12 or something similar, it all depends on who you have on the jury and what are their personalities. So I’m not just thinking about who’s going to be a good or bad juror for my case, but who’s going to be a leader in the deliberation room, who’s going to be a follower, who’s going to be what we call a consensus builder, someone who’s going to try to get everybody to agree. Oftentimes you think teachers, they tend to be consensus builders. They try to get people to negotiate. You’re also looking for people who are what we call contrarians. A contrarian is someone who will always challenge the status quo. They like to play devil’s advocate. And then you’re also looking for people who might alienate others. Someone might be a great juror, but if they’re kind of a unique individual or maybe a little weird or maybe they just smell bad, are they going to alienate the rest of the jurors and people aren’t going to want to agree with that person? He might be a great juror, but I’m not going to want him on my jury if I feel like he has a possibility of alienating others. So I’m looking at how jurors interact with one another, who’s having lunch with who, who’s talking with whom in the hallways, who’s opening the door for everybody, passing out pens, that person’s probably going to be someone who’s a consensus builder. Or people who are making jokes who other people are laughing, that person has a possibility of being a leader, who respects whom? So you’re really looking at the jurors and how they interact to determine how they’re likely to interact once they get in the deliberation room. And that plays a huge role in determining how I’m going to exercise my strikes.
Zach Elwood: And there’s different applications for recognizing there’s different types of people. For example, we might talk about this more later, but one example you gave was when there’s a contrarian in the group, you might want them on the panel if you think that they might lead to a hung jury in your favor, right? You might want that kind of person in there.
Dr. Marinakis: Right. So it depends on the facts of your case, your client, your attorneys, what kind of group dynamics you want. And it also depends on the jurisdiction. There’s some jurisdictions and some cases that require unanimous verdict, and other cases you only need 9 out of 12. So I think you’re referring to I had one criminal case, and I don’t do that many criminal cases, but we do a few a year. And in this criminal case, the evidence was really stacked against my client for the most part. It was a murder case that involved a strangulation, and my client’s DNA was found on the murder victim’s neck and cell phone and then also on the knob of a stove, and the gas on the stove had been turned on all the way up, and a candle had been placed next to it, presumably so that they could blow up the crime scene. So we thought this would be a very challenging case given the popularity of DNA evidence in shows. At the time CSI was really big or Criminal Minds. And so we had some serious concerns that we would lose the case for our client, who we believed was innocent. And so we thought that probably the best we could get was to get a hung jury. And so we were looking for a contrarian who would be able to challenge no matter what the group thought, would always play devil’s advocate, would stand his ground and be a strong voice and ultimately hang the jury. So we looked for someone who in the process, the jury selection process, was challenging everything. The judge says, “Sit in this order,” “Well, why do I need to sit in this order?” “Here’s a piece of paper, call this number.” They’re just always challenging the bailiff, the other jurors, the judge even, and really are expressing unique views. So any time an attorney would ask a question, they might say, “Well, yeah, that’s true most of the time, but other people, other times this happens.” And so immediately we were able to identify this juror as a contrarian, and I don’t think the other side really did. This contrarian was dressed well, he was a successful banker, and so I think the prosecution thought he would be a good juror for their case. Usually people that are higher SES, Republican tend to be more likely to decide for prosecution in criminal cases. So they left him on the jury. We left him on the jury because he was contrarian, and ultimately he was the one that fought on behalf of our defense. Just briefly, our defense was DNA transfer, that our client had used a towel in the victim’s apartment, and that the murderer, the true killer, used that towel to then clean the crime scene to wipe the victim’s neck, to wipe the knob, and he transferred the DNA from the towel to the crime scene. And it’s a very unconventional defense, there is scientific basis to it, but it’s not well known. And so this juror who was the contrarian was able to argue that, and ultimately we ended up not with a hung jury, but with a full acquittal for our client.
Zach Elwood: Oh, wow. Okay. Let’s talk a little bit about some specific behaviors from the potential jurors. Does eye contact tells come into play at all? How they look at you and you can read maybe some anger, frustration from the questions you’re asking, does that play a role ever?
Dr. Marinakis: It does play a role, but I really caution against trying to, what we call, reading tea leaves. Because oftentimes the signs of nervousness are often the same signs as someone who might be lying. And so this is what we work with our witnesses a lot with in terms of building their credibility. So someone who’s not making eye contact, it could be that they’re just nervous, especially jurors. I mean, being asked questions in front of a group of people by lawyers and judges is very unnatural for them. And so most of the time there’s a lot of jurors who are nervous to do so. And they might not be making eye contact because of that, not because they’re not telling the truth. So you really have to be cautious. Same thing with people whose arms are crossed. There’s sometimes lawyers or clients or jurors who feel like if someone’s arms are crossed, they’re being standoffish, they don’t like your position. Well, maybe that person is just cold. Or sometimes if someone has a big belly, it’s comfortable to put your arms on top of your belly.
Zach Elwood: Yeah, exactly. You always hear that stereotype about the arms crossed being standoffish. Just because of that, even though I know it’s often untrue, but I find myself uncrossing my arms in groups just because I don’t want people to think I’m standoffish, even though I’m not. So yeah, it’s like everything, it’s often ambiguous and doesn’t give you as much information as some people think.
Dr. Marinakis: Exactly. And so that’s when we work with our witnesses, we work with them on things, uncross your arms, make good eye contact, because we don’t want their nervousness or personal ticks or habits to be misconstrued as untruthfulness. What we do look for though is inconsistencies in how someone is reacting depending on who’s speaking. So for example, if someone has their arms crossed both when the plaintiff is asking the questions and when the defense attorney is asking the questions, it probably doesn’t mean anything. But if their arms are always crossed only when the defense lawyer is speaking and yet they’re sitting forward and they look more attentive and they’re leaning in when the plaintiff attorney is speaking, I might take notice of that and then try to make an interpretation from the differences in their behavior. So it’s not the behavior themselves, but how it differs between who’s speaking and what evidence is being shown.
Zach Elwood: Looking for those imbalances in behavior, as we sayin poker a lot imbalances.
Dr. Marinakis: Exactly.
Zach Elwood: Yeah. So let’s see, what else do I have on this list? Are there certain things that prospective jurors often lie about such as knowing how to read or using drugs in the past, things like that?
Dr. Marinakis: I think more often than not people are honest. I mean, most jurors are told they have to swear to tell the truth, and I think most people do take that very seriously. Certainly you hear stories about people trying to get off of jury duty maybe pretending that they can’t speak English or that they can’t read or write or the big thing is pretending that they’re racist, even though it’s often silly, because race rarely plays a role in these cases. But more often than not, I think people are trying to be honest. The bigger issue is that most people are unaware of their own biases. People want to think of themselves as good people, fair people. And so regardless of their backgrounds, most people will say, “Yes, I can still set that experience aside and be fair and impartial.” But usually they do have biases, in the industry we call them implicit biases, that people are unaware of, but that will influence how they view the evidence in the case. And so my role is not to necessarily detect lying, but to detect these implicit biases and get the juror to ultimately realize that they can’t be fair. And we have a number of techniques that we use to do that to try to get a juror to realize that maybe this isn’t the case for them, and they actually, despite their best efforts, can’t be fair to my client.
Zach Elwood: That was an interesting thing in the book with the voir dire suggested questions. The book was aimed at trying to get strategies for getting potential jurors to admit, verbally admit, their bias and walk them through. Once they started to show bias, get them to verbally admit in a clear way, “Yes, I’m biased. I can’t be unbiased on this.” So that was interesting seeing those strategies in that book.
Dr. Marinakis: Yeah. It’s a difficult thing to do, again, because most people feel like they can be fair. So you really have to get the juror to feel the bias. So here’s just an example, instead of just coming right out of the gate and saying, “Who here is going to have a hard time setting aside sympathy for this person with cancer?” You can’t ask that question right away because not that many people are going to raise their hand. But if you preface it with, “Mrs. Smith has been through dozens of surgeries. She’s spent months in the hospital. She can’t breathe because of this illness, it’s like suffocating.” And you start to describe it that way. “Her family has had to quit their jobs. They’ve had to put their house on the market to pay these medical bills.” Now all of a sudden you start to conjure up these images and these emotions, and now the juror can really start to feel in the gut of their stomach that sympathy and emotion. So I’m going to build that first, and then I’ll say, “Okay, given all that, who’s going to have a hard time at the end of this case looking at Mrs. Smith and her husband and her children in the eye and telling them, ‘You know what, we can’t give you any money because you didn’t prove your case.’ How many of you think you’re going to have a hard time doing that?” So now they felt that emotion, and you’re going to get more people that raise their hand to that question than you would have if I came right out of the gate and asked it.
Zach Elwood: And you would be asking that from the other side, you wouldn’t be asking that from the plaintiff’s side?
Dr. Marinakis: Exactly. And I should have brought this up in the beginning, my firm, we primarily represent defendants in civil cases. So we might work for plaintiffs every now and then, but probably more than 90% of the time we’re representing the company, the corporation or the manufacturer, the employer, we’re usually on the side of trying to identify people who are going to have a hard time setting aside their sympathies.
Zach Elwood: Right. We’ll talk more about that later about some specific strategies. So my next up question is, how many of the decisions you make are based on quick read kind of stereotypes? For example, this person’s an older blue collar woman, she might have certain stances, or this person’s piercings and tattoos would make them more likely to side with the underdog, the plaintiff. How much do those kinds of stereotypes play in general would you say?
Dr. Marinakis: It depends on the jurisdiction and how much you can question the jurors. What we like to say is that a juror’s attitudes are the most predictive way of how they’re going to view the evidence, but there are some states and some judges that won’t let you ask about the juror’s attitudes, you can only ask about their experiences. Now, sometimes experiences correlate with attitudes. So the fact that someone maybe has had a relative with cancer might mean that they’re more empathetic. Now it might not, but it could. There’s some jurisdictions where you don’t even get to ask about that. You might only get to see their demographics. And if a juror doesn’t raise their hand, there’s no opportunity to ask follow up questions and yet you need to make a decision whether to keep or to strike that juror based on someone that you’ve never even spoken to. And unfortunately, you have to rely on stereotypes because the truth is stereotypes are a statistical advantage. I gave an example that I’m a white woman, and if you went to Starbucks and you didn’t have time to call me to ask me what I wanted from Starbucks, and you ordered me a pumpkin spice latte. Now more often than not, you would be right that a white woman would enjoy a pumpkin spice latte. Now, me personally, I hate them, so you would’ve been wrong. But even if it’s just 6 out of 10 white women who like pumpkin spice lattes, you’ve now increased your odds of getting the right answer. And in my field, it’s all about increasing odds. You will never be able to 100% predict anything, but if you can increase your odds of getting the right person, that’s the end game. And unfortunately, it’s awful that sometimes you have to use a stereotype because it’s not going to apply to everybody, but it’s a statistical advantage.
Zach Elwood: You’re kind of forced into it. I mean, you have a very limited amount of time to make decisions on very limited information. So you’re just trying to pull information from wherever you can, even if it’s not the greatest information.
Dr. Marinakis: Exactly. So if 6 out of 10 times a blue collar worker is going to side with the plaintiff and all I know about this person is that they’re a blue collar worker and I have to decide between them and a white collar worker, you’re right, I would probably strike the blue collar worker if that’s all I had to go on, because that’s the best chances that I have. So that’s why we really advocate to judges, “Please let us talk to individuals, let us get to know them,” because otherwise we’re left making unfair and quite frankly, unconstitutional, if we’re basing our decision on race, gender, sexual orientation, or any other what we call cognizable group, that’s unconstitutional. But if a judge doesn’t give us an opportunity to ask questions, then that’s all we have to go on.
Zach Elwood: Right. It does seem strange considering what you’ve said, and it does seem logical that the voir dire jury selection process is very important. I’m surprised that the time limits given are so short.
Dr. Marinakis: Yeah. It just really depends on the judge. And some judges don’t see the value, and they feel like, “Well, people can be fair and impartial, the case should rest on the evidence.” But I don’t think those judges have sat in on all the mock trials that we have to see how much the juror’s background really influences the verdict.
Zach Elwood: Yeah. It’s a very optimistic view of the average jury I feel like. That stance that, “Oh, it’ll all be the same probably.” So are there laws pertaining to researching jurors like looking at their social media accounts? You had mentioned that, and I was just wondering if that was always allowed or not sometimes.
Dr. Marinakis: Presently there are no laws that prohibit researching jurors. There are however ethical rules for attorneys and for people who work for attorneys about contacting jurors. So what constitutes contact can often vary, and there’s an opinion out there that basically says that even if you don’t initiate the contact but you cause a contact, that could be an ethical violation. So here’s an example. If you look at someone’s LinkedIn page and you are not logged in the privacy settings, that person will get a notification that says, “Christina Marinakis viewed your page.” Under certain court rules, that’s a violation because that is a direct contact between the jury, even though I never sent the juror a message, I never tried to request them, to connect with them, because now they know that I looked at their page, that’s a violation. So really if you’re doing research on jurors, you need to understand the applications and the platforms that you’re using and the settings to ensure that there’s no unauthorized contact.
Zach Elwood: So you got to be very sneaky.
Dr. Marinakis: And just ethical. You can’t go around the rules and say, “Okay, well, I can’t friend request you, but I’m going to have my secretary friend request you so I can see your private page,” that is against the ethics rules. And I say ethics, but ethics rules are also actual rules. If you violate those, you could lose your license and you could lose the case. So those are the rules and laws that pertain, but there’s really no limit unless a judge has particularly said, “In this case you cannot search the jurors.” So it’s really more judge-based, but in my career I’ve only had one judge who ever did that. And that’s because the jury consultant for the other side had her laptop up and was looking at jurors pages, and one of the jurors saw it and reported to the judge that it made them uncomfortable when they saw their Facebook page on the…
Zach Elwood: That would not make you feel very safe.
Dr. Marinakis: Right. But everything that we do search, and this is unlike probably what you’ve seen in TV or movies, everything is public records. We do not search anything that is private. So, yes, we might look at property, deeds or vehicle registrations, history of bankruptcies, liens, criminal records, these are all public documents that anybody could find if they had enough time.
Zach Elwood: You’re not hiring a private investigator, it’s open source. Got you. How often is your read of a juror accurate?
Dr. Marinakis: It’s hard to calculate, but it’s something that I do keep track of because I always feel like… People ask me, “How many cases have you won?” And I don’t feel like that’s a good indication of whether you’re a good consultant. Sometimes the facts of the case are bad or you can only control who’s on the jury panel and you only get so many people to strike. But what I feel like is an indication of whether you’re a good jury consultant is what you say, how often do you get a person right? And so I’ve kept track of it, and I feel like overall it’s about 10 out of 12 that I’m able to identify whether they’d be a plaintiff juror or defense juror. And we often try to predict who’s going to be a leader versus a follower, and I think about 10 out of 12 times we’re right. Sometimes it’s 12 out of 12. I think that’s pretty good. I don’t know what other people’s stats are, I’ve never compared it with anyone else, but me personally, I have kept track of that.
Zach Elwood: That’s interesting.
Dr. Marinakis: And some people are more difficult to read than others certainly, so it does vary from case to case. Sometimes I’ll get all 12, sometimes it might only be 9 out of 12, but I usually say there’s always one or two that surprise you.
Zach Elwood: Are you able to say or see after the trial is over what every juror voted or how it worked, what the breakdown was, if that makes sense?
Dr. Marinakis: Yes. So in every case, either the jurors have to sign the form. So say there’s 12 jurors, and we’ll say, “Okay, everyone who agrees with this verdict must sign the form.” So you’ll get to see the names of the people who signed it versus the people who didn’t. There’s also something called polling the jury. So the jury foreperson might say, “Okay, we the jury find the defendant liable, not liable.” And then counsel can request to poll the jury. And they’ll say, “Juror number one, is this your verdict? Yes or no? Juror number two, is this your verdict? Yes or no?” I think you might have seen that if you watched the OJ Simpson or one of those documentaries, that they poll the jury to see. And then oftentimes we interview the jurors afterwards. We talk to them individually, we do interviews, we take them to lunch to really find out what they thought of the case, what were the strengths and weaknesses, and how can we improve for other future cases?
Zach Elwood: Yeah. I would think that would be very interesting just to break down how these people you chose at the beginning of the process went through the whole process and what their thought processes were along the way. It seems like that would be very interesting.
Dr. Marinakis: Oh, absolutely. One of my favorite things to do is if I’ve been involved in the jury selection is then to interview folks afterwards. And it’s funny, because almost always I finish the interview and I say, “What questions do you have for me?” And inevitably they say, “Why did you pick me?” I don’t go into this entire podcast, but we talk about how people’s backgrounds can influence how they view the evidence, and really it’s not that we pick them, it’s just we didn’t pick to get rid of them.
Zach Elwood: Yeah, you didn’t not pick them. You didn’t strike them. Let’s see what else we have here. How often is it that potential jurors act angry or aggressive or act out in order to give the impression that they really don’t want to be there? And does that make them more likely to be rejected by acting that way?
Dr. Marinakis: I don’t think people are acting when they do that, I think they’re legitimately distressed, especially a lot of the cases that I do are multiple week trials, and it is very nerve-wracking for most people to even think about having to miss six weeks of work or having to miss a vacation if that’s what they think or not being able to pick up their child from school every day for the next six weeks. That is very anxiety provoking. Some people handle it better than others, but I have definitely seen people break down, cry, throw a temper tantrum, and I don’t think they’re acting, I think they’re really in distress when that occurs. And ultimately this goes back to the hardship issue, and so it’s the judge’s decision whether to let that person be excused or not. But there are certainly times where someone is so distressed and maybe they don’t meet the statutory requirement to be excused, and the judge will kind of look at the attorney and say, “Well, what do you guys think? Do you want to agree to let this person go or not?” And sometimes we’ll look at the other side and say, “Do we really want this kind of bad karma? Is this good for either of us?” Probably not, because that juror might take it out on one side or the other. They could take it out on the plaintiff for filing a frivolous lawsuit or they could take it out on the defendant for refusing to settle what they see as a legitimate lawsuit or it might not bother them at all once they get seated.
Zach Elwood: Wild card.
Dr. Marinakis: Exactly. And usually neither side is willing to take that chance and will agree to excuse the person. But again, it ultimately rests with the judge. And if the judge says, “Look, they don’t meet the statute.” Say for example, they say they have an extreme financial hardship, but the truth of the matter is they actually get paid for a lot of the days of jury service or they’ve got a savings account, and it’s not as extreme as someone who doesn’t get paid at all. That judge might refuse to let them go. Personally, I wouldn’t waste one of my precious strikes on someone like that.
Zach Elwood: That’s what I was going to ask, is if you have someone who both sides suspect they want to get rid of, because somebody has to strike that person and you don’t want to waste strikes, and so it seems like there’s not a good way to collaboratively strike a person. So it’s kind of wasting a strike if you do it.
Dr. Marinakis: Exactly. And neither side will be willing to do that, usually the judge will. If someone is truly, truly that distressed, most of the times most judges will let the person be excused. Or the other thing is if the juror gives a hint of a cause challenge. Maybe it’s a cancer case and their mother just died of cancer, we could say, “Okay, plaintiffs, you agree that this juror probably couldn’t be fair, right?” [wink, wink] And we agree to excuse the juror on cause basis, but it’s really truly because we just think the juror’s going to be disrupted
Zach Elwood: Not using the strikes, right, yeah. So you can still find a cause that you don’t have to use strikes for. I was wondering about, I don’t think we’ve talked much about those initial questionnaires, and when do you use those written questionnaires versus doing them more in person?
Dr. Marinakis: We almost always suggest to our clients to submit a questionnaire. And that’s just because people tend to be more candid when they’re writing something down versus in open court in front of a bunch of strangers. But especially in cases that involve sensitive issues. So I’m involved in a rape case that’s coming up, and this judge never uses questionnaires, but we feel strongly that it is to the disadvantage of everyone in the courtroom to try to ask questions about people’s abuse history in open court. That puts everyone in a bad position, the judge, the lawyers, the juror. But we need to ask those questions because it’s important to know their background and history. So we’re going to advocate strongly to this judge like, “Look, this case is very unique. We don’t want to embarrass jurors, but we need to get these questions answered. So pleas allow us to use this questionnaire.” And we present the questionnaire to the judge in advance, and hopefully the judge will agree to that.
Zach Elwood: You wrote a piece on the TV show Bull, which I’ve never seen, but that show is based loosely on Dr. Phil McGraw’s jury consultancy business. It seems quite exaggerated from what you wrote of it, which is not surprising considering it’s a TV show. One of the things you wrote about it was in the pilot episode, Dr. Bull shows his client an ultra high-tech jury monitoring system complete with over a dozen flat screens and devices that monitor mock jurors physiological reactions through palm reading devices. It claims to have a system exclusively used by Homeland Security to collect a wealth of information about jurors and their family members that cannot be obtained elsewhere. So can you talk a little bit about how unrealistic and exaggerated that is?
Dr. Marinakis: Yeah. And I think I already touched on that. He talks about using Homeland Security to get private information. That’s not something that we could do. Even if we had the technological capability to do it, ethically, legally, that’s not something that we would do. And the biggest thing I’ve noticed about the show, and I’ve only seen a couple episodes, is they talk about it in terms of a 100% guarantee. “We can 100% predict whether someone will be a plaintiff juror or defense juror based on their physiological responses or their responses to questions,” and it’s never 100%. My whole occupation is based on increasing the odds, increasing the odds that this juror will be favorable. And in the show they use what they call mirror jurors, in our industry we actually call them shadow jurors, where we try to find people who are similar to people who are on the actual jury. And they sit in the audience during the trial and watch, and we talk to them at the end of the day. The value in that is not being able to predict exactly what the jury’s going to do, the value is in learning what are the strengths and weaknesses of our case. What is confusing? What do we need to clear up on? What are some things that might be bothersome? It’s more of that qualitative feedback than a quantitative statistical prediction of what the actual jury’s going to do. And that’s because no two people are alike. You can find a mirror juror or a shadow juror who’s very similar to someone, but surely they haven’t had the exact same life experiences. You never know how someone’s experiences are going to influence how they view the evidence.
Zach Elwood: Right, you’re just trying to get another set of hopefully somewhat similar eyes to give you different points of view and feedback. So in the voir dire questionnaire book that you helped write, you had some strategies for listening bias from potential jurors. And I really like this strategy that you talked about in there of downplaying the strengths of your case during voir dire, in essence drawing jurors out to reveal the strength of their prejudice. And in the book, there’s an example where by giving a very simple synopsis of their side’s case, the jury then let its biases be known, was more willing to let its biases be known by seeing the weaknesses in that case. And the most prejudiced people, most biased people were more easily exposed. And doing that too, the other side of the case was not able to know who to strike because most of the potential jurors were focused on the weakness of one side of the case. So that strategy made a little bit of sense, and I wonder if you’d talk about that a little bit more and I’m wondering, is it a pretty well known and standard strategy?
Dr. Marinakis: So this is what I like to call throwing your mini opening. I should start off by saying in most jurisdictions the lawyers are allowed to give a little synopsis of the case before they start questioning jurors to help orient the jurors to what is the case about and what is each side’s main arguments. And this is a very counterintuitive approach, and I’ve actually never seen it done before. I don’t want to say I invented it because I don’t know what other jury consultants are doing. But I had noticed that when my clients were giving very strong mini openings and coming right out of the box and saying, “You know what, our product was approved by the FDA, the plaintiff who is alleging it caused her cancer has a family history of genetics, and we firmly believe that our client did not cause her cancer.” They open up with that type of what we call mini opening, now all of a sudden you start getting jurors raising their hands who are saying, “Well, wait a minute. If your product is approved by the FDA, then I’m already on your side. If she’s got a family history of cancer, then no way your product caused her cancer. I can’t be fair.” And now we’ve just lost our best jurors in the case are now gone for cause. And so I noticed that was happening, and I thought there’s got to be a better way. So I then recommended to a client who trusted me, I’ve worked with him a lot, we’ve never had a bad verdict ever. And I said, “You know what, I think you need to throw your mini opening. Don’t get up there and tell them this stuff.” And said, “Give the bad parts of your case. Let them know that there’s 50 people out there who used your product and all 50 of them got cancer. Put that types of facts out there. Talk to them about how your CEO doctored a piece of evidence. Put the really bad stuff out there.” And so he thought, “Oh, no, I can’t do that. We’ll lose the case. My client will kill me.” And so we did that, and the other side came out really strong and they put all that strong evidence on their case. And what happened was the jury started saying, “Well, obviously I’m going to side with the plaintiffs. Your CEO already admitted wrongdoing and your product, clearly a lot of people have died from your product or gotten cancer. I can’t be fair to the plaintiffs.” We got rid of 27 jurors in that case for cause, which is unheard of really to get rid of that many people who said they couldn’t be fair to the plaintiff or couldn’t be fair to the defendant, my client. And now my client’s sitting in the courtroom and they’re like sweating bullets thinking about, “Wow, these people really hate us.” Well, you know what, all those people who really hate us are off of the panel now.
Zach Elwood: You’re really drawing people out. It’s like putting a trap in the ground and people are just falling into it exposing their biases.
Dr. Marinakis: Right, and so we got rid of all those people. Now, who are the people that are left? Now, the people that are left on the panel are the people who heard all of those terrible things about my client and about the company and who nevertheless still kept an open mind and were still able to be fair. Now those are the jurors that are truly going to be fair and impartial. And now the other side, they didn’t identify any people who might be for the defense, who might say, “Well, I think corporations are good. Corporations employee people. Plaintiff lawyers are always chasing ambulances.” Nobody said that because they were so focused on the bad conduct.
Zach Elwood: Yeah. And I’m sure the other side, if this isn’t a very common strategy, the other side was like, “Oh, this case is going to be so easy. Everybody hates this company.” And then you are left with weeding out the worst potential jurors and left with a more analytical group of people.
Dr. Marinakis: Yeah, they never saw it coming. I’ll tell you, in that case, we took a lunch break, and they were high fiving each other, they thought, “Wow, wow, all these jurors hate these people. We’re going to win the case.” And then as the judge excused, “You’re excused, you’re excused, you’re excused,” you could see the smile on their face just all of a sudden turn to severe panic. And they got no cause challenges, we had 27, and they had no idea who to use their strikes on. We ended up with an amazing jury that they just settled the case at that point because they knew that there was no chance of winning. So it really is counterintuitive. But I tell my client, “Look, voir dire is the time to identify those people. Do you want those people to say those horrible things about you now in voir dire or would you rather have them say that in the deliberation room when they’re trying to come back with a verdict?” It’s like get rid of them now. And then you know what, now that you’ve got your jury seated, now come out with a really strong opening statement. Now that you’ve got your 12 fair people you say, “We’re approved by the FDA, and this woman had a history of cancer, and all those other 49 women, they too had a history of cancer in their family and they use these other products or whatnot.” Convince the jury of your case during openings not during voir dire.
Zach Elwood: Yeah. It’s also interesting too because that process of getting them all talking and on the same side in the very beginning draws people out too, because other people are talking about it. If the group was talkative like that, it seems like it would lead to more volunteering of bias basically.
Dr. Marinakis: You’re absolutely right about that. Once one or two people start opening up, other people feel more comfortable opening up. And a technique we’ll use too is say Mr. Jones just voiced that he hates corporations, I might say, “Okay, Mr. Jones said that, how many people feel like Mr. Jones?” And then people start raising hand. “Okay, Mr. Jones said he couldn’t be fair, do you kind of feel like that too?” They say yes. Okay, now I just got two jurors off for cause very quickly.
Zach Elwood: Right. And I also like something else you talk about in that book was using your own body language to encourage people. Like that question you just mentioned, how many people, you’d be raising your hand too to kind of show that’s socially acceptable or to encourage them to express their bias.
Dr. Marinakis: Exactly. That’s all part of getting people comfortable opening up, and almost subconsciously, if we see someone doing something, we want to emulate it. You almost say like monkey see, monkey do. And I don’t want to imply the jurors are monkeys, but personality-wise and behavior, if I’m raising my hand when I’m just asking the question, “How many people feel this?” And I raised my hand, that’s almost subliminally sends the message to the jury like, “It’s okay, raise your hand.” And it also goes to the way that I ask the question. So instead of saying, does anyone, if I say, does anyone feel that way? It almost implies that this is an unpopular belief or an unacceptable belief versus when I say how many of you. How many of you implies that this is a common belief, and certainly there’s going to be people in the audience who feel this way. So how many of you feel this way? Using that body language and the wording of the question together gets people more likely to raise their hand to those types of questions. Another example is just nodding my head slightly. Someone is telling me about their experience with cancer, I’m nodding along very, very, so slightly or I have my client do this. You can’t even notice that they’re nodding along, just very slowly nodding, “Yes, I’m following you, I’m feeling you.” Match the juror’s facial expressions. If the juror’s wincing, the attorney should be wincing. If the juror is smiling, the attorney should be smiling. These are all techniques that I’ve learned in my experience as a clinical psychologist doing therapy, it’s about matching a person’s emotions and getting them to tell me more about that and reflecting back. A juror says, “Yeah, it was a tough experience.” “Wow, that sounds like that was a really tough experience for you. Tell me more about that,” and reflecting back to the juror what they said.
Zach Elwood: That reminds me of a popular interviewing technique where you ask someone question and then they answer it, and then you give a little pause. And the person being interviewed or asked questions will sometimes fill in that slightly awkward silence, they’ll volunteer something even more meaningful at the end. Does that ever come into play, giving the little silence?
Dr. Marinakis: Yes, absolutely. People are uncomfortable with silence, and so I recommend attorneys to do that during voir dire to draw out more information. And it’s funny that we give our witnesses the opposite advice, “Don’t fall into that trap.” So something we teach them is these are the tricks that the opposing counsel will do during cross examination to get you to volunteer more. Be comfortable with silence.
Zach Elwood: So when you answer your question you can stop talking then.
Dr. Marinakis: Yeah. The other thing people will do, another kind of trick, is to ask the same question but in a different manner. And people will think, “Well, if you’re asking the question again, you must be looking for something different,” and they’ll give a different response or give more information. So we tell our witnesses, “Look, no matter how the question is asked, even if it’s asked in five different ways, your response is always the same.” I answered that question, this is my answer. Don’t volunteer more.
Zach Elwood: Getting to your witness preparation and communication training. A couple questions about that, are there any rules around how you’re allowed to advise a witness on how they should speak or act when they testify?
Dr. Marinakis: Well, first I should say that when we’re meeting with our witnesses that is protected by client-product confidentiality, attorney-client privilege. So anything a witness says to the attorney that’s on the case is confidential. So when we conduct these sessions, we always have an attorney in the room there to ensure that our session is covered by that lawyer-client confidentiality. Now I’m a lawyer myself, so I don’t have to worry about that as much. But if there’s a jury consultant who does not have a law degree and is not bar-ed, an active member of the bar, you must have an attorney there to keep that conversation privileged. Now that said, there’s still some rules, and these go back to those ethics rules for attorneys which are actually laws. You cannot tell a witness to lie. And in fact, you can’t even ask a question on direct examination if you know that witness will lie, that is against the ethics rules. But we never do that anyway. We don’t want witnesses to lie. Most because they have poker tells, and jurors will call them out on it. So we’re not telling our witnesses what to say, but how to say it. How do you word something both verbal, behavior, and non-verbal behavior to give what you say more credibility so that the jurors believe your version, your truth? How do you effectively communicate that truth so the jurors believe you and they don’t misinterpret signs of nervousness or personal ticks as being signs of dishonesty?
Zach Elwood: Right. That brings an interesting point because the fact that you have to do this is mostly due to the fact that everybody thinks they can read people well, even though they can’t. So you’ll have a lot of people in the general population who are like, “Oh, she looked down when she said this, she’s lying. Or she was blinking a lot, she’s lying.” It’s just like in poker where usually those things are so ambiguous you would have to have such a big data set to even reach a conclusion like that. So you’re basically trying to make your witnesses unreadable basically, because people are going to draw all sorts of weird conclusions from their behavior.
Dr. Marinakis: Exactly. And people watch these TV shows, the Lie to Me, The Bull, those types of things, and they think that they know the signs of untruthfulness when you’re right, more often than not, those are signs of being nervous. Even just having your hand over your mouth is a huge thing that when I talk to jurors and they say, “Oh, I didn’t trust that witness because he had his hand over his mouth. He was afraid that the truth was going to come out because his hand was over his mouth.” And usually that’s just the person’s nervous and it’s a nervous tick. So I have to work with witnesses to get them to, you’re right, be unreadable and to be confident. Even if you’re not confident, even if you’re nervous, speak confidently, keep your hands down, make eye contact, that’s going to make you more credible to the jury.
Zach Elwood: Right, yeah. You just want them to get across the content of their testimony and leave out all the extraneous behavioral stuff.
Dr. Marinakis: Right. And in a way, jurors will remember it. So we talk about themes and having thematic content. Most jurors have very limited attention spans, especially in today’s age of 40-character news stories. And a jury’s not going to listen to a two-minute diatribe about something, but they will listen to a couple seconds. So we work with the witnesses on their non-verbal skills and also their verbal skills and being short, direct, to the point. Otherwise, they’re going to lose the jury and the jury will tune out.
Zach Elwood: Right, makes sense. Any other interesting examples of reading people from your work come to mind? Any great reads you’re proud of or that you’ve witnessed other people in the industry make?
Dr. Marinakis: I think I probably have more stories about bad reads, where I have the lawyers who, yes, they have a lot of experience, but so many times they’ll be like, “Well, I just don’t like juror number seven. There’s something about her. I just don’t want her on my jury. She gives me the hibbie jibbies. She’s given me a bad look.” And I have to say like, “That juror just has resting bitch face. That’s just how they are. Everything on paper, they look like a great juror.” So many times I have clients say, “We got to strike her, I got a bad feeling,” and I really have to talk them off the ledge from that and explain to them how, “Look at her face. She’s making the same face when the other side is talking too.”
Zach Elwood: Right. So just her baseline and they’re overreacting to small data points.
Dr. Marinakis: Right, or they’ll say, “Juror number seven is totally on our side. She’s nodding, she’s taking a lot of notes.” Then all of a sudden that juror comes back with a complete opposite verdict, and the attorneys are just shocked. And I talk to the juror or I’m observing them, and I realize that they’re nodding along not because they agree, because they’re following. People do that. I’m following what you’re saying, I’m nodding along. Or I’ll talk to the juror, and they say, “Yeah, I was doodling. I was drawing or he was talking and I was writing down that’s BS, I don’t agree with that.” So just because someone’s taking a lot of notes doesn’t mean they’re writing down what you’re saying, they could be writing down that they hate what you’re saying.
Zach Elwood: This guy’s an idiot, yeah. The nodding is interesting because I do that a lot when I talk to people. Nodding a lot, small nods, just as an encouraging way to set people at ease. And I think it does lead people to like tell me things they otherwise wouldn’t because they think I’m on their side. So I get random people confessing weird things to me sometimes, and I think it’s just because I nod and look like I’m interested and sympathetic.
Dr. Marinakis: Exactly, and that’s what I was talking about earlier when you’re talking to the jurors, doing that very subtle head nod gets them to open up even more to you.
Zach Elwood: Yeah, I think that’s pretty powerful. We’re near to wrapping up here, I won’t keep you too much longer. Do you think recent popular documentaries that show the inner workings and frequent mistakes of the legal system have lowered people’s trust in how fair jury trials are? Do you think that impacts your work?
Dr. Marinakis: I do worry about this a lot. Before when I told people what I do, they had never heard of it before. But now with the documentaries and with the show Bull, people have a bad impression about what we do. They think we do things unethically because in the show they’re always doing things that are unethical. Talking to the judge, manipulating the jury, talking to jurors, and that’s not really the reality of what we’re doing. So it gives our profession a bad name. The other thing that I see is that you’re seeing more and more stories about misconduct, whether it’s corporate misconduct, government misconduct, and people being bought off, that’s what all these TV shows are about, documentaries about an unfair justice system. And the truth of the matter is that yes, that happens, unfortunately it does, but that’s not the norm. But unfortunately, because people watch these documentaries and these shows, they come in with these expectations, that’s almost their biases about what they think is the truth. And usually being on the defense side, that works against my client’s favor, where people think, “Oh, okay, you’re approved by the FDA, but I’m sure you guys probably bought off the FDA and you manipulated the scientific studies.” It’s like come on, I know that happened…
Zach Elwood: Everything’s a conspiracy.
Dr. Marinakis: Yeah, and so we’re finding we’re having more and more difficulty getting fair jurors for our cases because so many people have been tainted by these… And there are bad companies out there. There are the [end rounds], there are certain companies that have done bad things, and it might only be one or two individuals within that organization that were corrupt, but people feel like now everybody’s corrupt, all corporations are corrupt, and it really works against… The other thing I feel that we see a lot is people feel like, “Well, the corporations must have more resources, so it’s not fair. Corporations can hire people like jury consultants to do that.” And the truth of the matter is it’s actually more balanced than you might think. Corporations are usually insured, and the insurance carrier will limit how much resources can be spent on trial. They might limit it. Whereas plaintiff lawyers, you see a family versus a corporation, but what you don’t see is that the corporation is really defended by the insurance company with a limited budget, and the plaintiff lawyer, they’re coming off of maybe five other trials where they just got multi-million dollar verdicts. So you say, “Oh, the family doesn’t have resources,” but plaintiff lawyers represent people on contingency basis. So if the attorney they don’t win the case, the plaintiffs pay nothing. That family loses the case, they pay nothing, and the law firm is putting up all the costs ahead of time. Now that law firm is going to take 100 million dollars they just got on a previous case, use those resources to hire their own jury consultant to do the mock trials, and they’ve actually got the money to do that stuff that maybe even the big corporation doesn’t. Seems hard to believe, but that’s actually more often the case than not.
Zach Elwood: Interesting. That’s an interesting thing because I would’ve been in that group that thought it was quite unbalanced usually.
Dr. Marinakis: No, I can tell you, in terms of clients, the plaintiff lawyers are the ones with the private jets and the multiple yachts, because they’ve got these 100 million dollar verdicts in the past. And then my clients, I’m not saying they’re not well to do, they’re big corporations, but they’re nowhere near the type of stupid money that some of these plaintiff lawyers have.
Zach Elwood: And they’re also limited by how much they can spend on that too.
Dr. Marinakis: Right, and now in the criminal realm, it might be a little bit different. You certainly have criminal defendants who can’t afford a jury consultant or the best lawyer and that there is definitely probably more imbalance, but neither can the state. The state is not going in there and spending a lot of money trying to argue these cases or to hire people, so it’s almost balanced there too. And in fact, if someone is on trial for capital murder and they have a public defender, they are awarded funds for a jury consultant. I’ve done many cases where we’ve worked for criminal defendants who are indigent or just we offer our time pro bono, for free, representing criminal defendants to give ourselves more experience, to do something and give back to the community. And so you find more evenness and parity there than you might otherwise think.
Zach Elwood: Nice. So my final question would be, as you’ve worked in the profession so long, do you have any opinions on things you would change in the jury trial legal system that would make cases more fair in general? Anything that you would change?
Dr. Marinakis: I touched on this earlier about relying on stereotypes, and I think we really need to advocate somehow for jurisdictions to allow a better opportunity for the jurors to be questioned. There’s some states, again, like in the northeast where the judge is the person who asks the questions, and the attorneys never even get to talk to the jurors. And so you might know nothing about them, all you can see is their race and their gender, how they dress, maybe their education. And as I mentioned before, that really forces us to base decisions on stereotypes, and that’s just really unfortunate. So there’s certain laws and the judges who don’t allow sufficient questionings are really doing society a disservice.
Zach Elwood: Okay. That’s about it. And we will end with some places you can go to learn more about Dr. Marinakis’s work. There’s litigationinsights.com, that’s the company she works for. And there’s a blog series on there with some interesting blogs that people might find interesting with client questions and answers from Litigation Insights.
Dr. Marinakis: Oh, absolutely. We post two blogs a month, and these are all based on questions that our clients have asked us, and they range anywhere from what is the statistical social science research behind something to should I shave my beard for trial and what should I wear? So there’s a variety of different questions that have been asked of us, and we answer them for people, and it’s all available on the website under our blogs.
Zach Elwood: There’s also the book, the voir dire book. And to find that if anyone’s interested in that, that’s at jamespublishing.com, and just search for voir dire questions on that site. The book is called Pattern Voir Dire Questions, and it’s the second edition that Dr. Marinakis helped out with and added contributions to. That was a talk with jury selection specialist Christina Marinakis. This has been the People Who Read People podcast with me, Zach Elwood. You can learn more about it at behavior-podcast.com. You can follow me on Twitter @apokerplayer. If you enjoyed this podcast, please leave me a review on iTunes or another podcast platform. Music by Small Skies.