The Science of Persuasion

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Citation: 29 Law & Psychol. Rev. 301 2005
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THE SCIENCE OF PERSUASION: AN EXPLORATION OF

ADVOCACY AND THE SCIENCE BEHIND THE ART OF
PERSUASION IN THE COURTROOM
I. INTRODUCTION
Persuasion has been defined as the "act of influencing the minds of

others by arguments or reasons, by appeals to both feeling and intellect; it
is the art of leading another man's will to a particular choice, or course of
conduct."' In the context of a trial, persuasion is the organization of legal
arguments and evidence within the framework of court procedures in a
way likely to cause the jury to make a certain decision.2 For decades, trial
attorneys have acted as amateur psychologists; through intuition and experience, trial attorneys have developed techniques of persuasion in an
effort to be more effective in the courtroom.3 These amateur techniques
have led to a more scientific approach to jury persuasion. One expert observed that, "all in all, [trial consultants] help lawyers position their cases
to juries in much the same way you would sell a bar of soap . . . . "4 Former Supreme Court Justice Tom Clark has suggested that attorneys pay
attention to communications research in order to understand the kinds of
techniques that influence a jury.
Since the 1970s, volumes of scientific literature have been published
on trial advocacy and the psychological principles associated with jury
persuasion; 6 continuing legal education seminars are offered in this area as
1.
William C. Costopoulos, Persuasion in the Courtroom, 10 DUQ. L. REV. 384 (1972), re-
printedin PSYCHOLOGY & PERSUASION IN ADVOCACY (Louis N. Massery II, ed., Association of Trial
Lawyers of America, 1978).

2.
Steven Lubet, Persuasionat Trail, 21 AM. J. TRIAL ADVOC. 325, 342 (1997).
3.
Victor Gold, Covert Advocacy. Reflections on the Use of Psychological Persuasion Techniques in the Courtroom, 65 N.C. L. REV. 481, 481 (1987); Thomas Sannito, Psychological Courtroom Strategies,TRIAL DIPL. J., Summer 1981, at 30.
4.
Gold, supra note 3, at 481 (citing Dancoff, H-idden Persuadersofthe Courtroom, BARRISTER,
Winter 1982, at 8, 17).
5.
Daniel G. Linz & Steven Penrod, IncreasingAttorney Persuasiveness in the Courtroom, 8
LAW & PSYCHOL. REV. 1, 2 (1984).
6.
See generally Michael Owen Miller & Thomas A. Mauet, The Psychology of Jury Persuasion, 22 AM. J. TRIAL ADvOC. 549 (1999); ROBERT L. HABUSH, ART OF ADVOCACY: CROSS
EXAMINATION OF NON-MEDICAL EXPERTS (1986); ROBERTO ARON ET AL., TRIAL COMMUNICATION
SKILLS (2004) [hereinafter COMMUNICATION]; DAVID B. BAUM, ART OF ADVOCACY: PREPARATION

OF THE CASE (1986); RICHARD A. GIVENS, ART OF PLEADING A CAUSE (2004); RUSS M. HERMAN,
COURTROOM PERSUASION: WINNING WITH ART, DRAMA AND SCIENCE (1997); THE PSYCHOLOGY OF
THE COURTROOM, Ed. Norbert L. Kerr & Rober M. Bray (1982); THOMAS SANNITO & PETER J.
McGOVERN, COURTROOM PSYCHOLOGY FOR TRIAL LAWYERS (1985); L. TIMOTHY PERRIN ET AL.,
THE ART & SCIENCE OF TRIAL ADVOCACY (2003).
Law & Psychology Review
[Vol. 29
well.7 Although psychologists are employed in cases where the economic

or political issues warrant such an expense, attorneys have increasingly
applied these scientific techniques on their own.8 Just as professionals in
other fields eagerly employ the latest and greatest technologies, attorneys
have also eagerly embraced social-scientific principles of persuasion in an
effort to gain a competitive edge in the courtroom. 9 With these powerful
new tools comes responsibility; some experts have raised concerns over
possible unethical use of scientific techniques of persuasion.10 Experts
warn that persuasive techniques could lead to an erosion of the judicial
system in the United States."
II.
TECHNIQUES OF PERSUASION
It has been said that trial advocacy "requires the lawyer to engage in a
practical application of psychological knowledge, and it is the obligation
of every lawyer to succeed in doing so., 12 Through anecdotal stories presented in trial advocacy literature and personal experiences, this section
discusses various advocacy techniques and explores the scientific basis
behind them.
A.
Jury Selection Techniques
For the trial attorney, persuasion starts with jury selection. 3 Psychologists suggest that jury selection be used as an opportunity to determine which jurors are susceptible to the attorney's influence and which
might be biased in favor of a particular attorney's argument. 14 For decades
attorneys have tried to get into the minds of potential jurors in an effort to
pick the best jury for the case. Social scientists, over the last several decades, have used their expertise in a quest to discover the perfect juror; as a
result, volumes have been written on how to select the best jury for a par-
7.
See generally Mastering the fundamentals of advocacy seminar, ALABAMA BAR INSTITUTE
FOR CONTINUING EDUCATION (2001); Jury selection: who to strike and how to do it presented in a
dynamic format, ALABAMA BAR INSTITUTE FOR CONTINUING EDUCATION (2001).
8.
Gold, supra note 3, at 482.
9.
Gold, supra note 3, at 482-483.
10.
See generallyGold, supra note 3.
11.
Id.
12.
ROBERTO ARON & JONATHAN L. ROSNER, How TO PREPARE WITNESSES FOR TRIAL 2d.
3.17 (1998) [hereinafter WITNESSES].

13.
Lubet, supra note 2, at 337 ("In a very real sense, [a lawyer is] on trial from the first moment
[he] steps in front of the (jury] .... The judge and the jury will constantly evaluate and reevaluate [an
attorney's] credibility [while assessing the attorney's] behavior, appearance, bearing and conduct.").
Generally, voir dire is an attorney's first opportunity to use the persuasive techniques discussed in this
article. Although an attorney is not arguing his case during voire dire and will not likely use techniques such as primacy and recency, clothing recommendations and techniques focused on building
credibility with the jury are applicable during voir dire.
14.
SANNITO & McGOVERN, supranote 6, 2.5.
20051
Science of Persuasion
ticular case.' 5 This section does not purport to be a compendium of knowledge on scientific jury selection; rather, it serves to help the reader understand that persuasion in the courtroom starts with picking the right jury.
Many attorneys begin the voir dire process with stereotypes and general assumptions about groups of people in an effort to distill the mountain
of uncertainties posed by the jury pool. For example, in personal injury
cases, attorneys often assume that more liberally minded people will tend
to favor the plaintiff and more conservative minded people will tend to
favor the defense. 16 From the plaintiff's perspective, attorneys generally
do not consider middle to upper class white men and women, especially
business owners, as "good" jurors for personal injury suits. 7 Clarence
Darrow once weighed in on jury selection saying, "[i]f a Presbyterian
enters the jury box, carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is as cold as the grave; he knows right
from wrong, although he seldom finds anything right .... Get rid of him.
. . before he contaminates the others."18 Another factor commonly thought
to have bearing on jurors' attitudes and predispositions is body shape. It
was generally thought that taller, skinnier people were conservative, and
larger more obese persons were friendlier and more likely to award damages. 19 Prior to scientific jury selection, these are the types of "hit or
miss" generalizations and stereotyping that occurred. 20 The process of jury
selection has been an especially uncertain endeavor; although social scientists have not completely eliminated uncertainty, scientific research has
likely decreased the uncertainty surrounding jury selection.2'
Attorneys have been known to consult U.S. Census Bureau information on the demographics of a particular venue to determine the chances of
15.
See generally JEFFEREY T. FREDERICK, AM. BAR ASS'N, MASTERING VOIR DIRE AND JURY
SELECTION: GAINING AN EDGE IN QUESTIONING AND SELECTING A JURY (1995); ANN FAGAN
GINGER, JURY SELECTION IN CIVIL AND CRIMINAL TRIALS (2004); JAMES J. GOBERT & WALTER E.
JORDAN, JURY SELECTION: THE LAW, ART, AND SCIENCE OF SELECTING A JURY (2005); WARD
WAGNER, JR., ART OF ADVOCACY: JURY SELECTION (1986).
16.
In the author's experience many attorneys make assumptions about jurors based on the jurors'
political preferences. In many cases, lawyers make assumptions about a juror's political preference
merely on the physical appearance of the juror. For example, men with long hair, tattoos or ear rings,
are sometimes assumed to be politically liberal.
17.
WAGNER, supra note 15, 1.04[8].
18.
Janeen Kerper, The Art and Ethics of Jury Selection, 24 AM. J. TRIAL ADVOC. 1, 1 (2000)
(citing Clarence Darrow, Selecting a Jury, ESQUIRE MAG. (1936)).
19.
WAGNER, supra note 15, 1.04[3][g].
20.
See DONALD E. VINSON, JURY PERSUASION: PSYCHOLOGICAL STRATEGIES AND TRIAL
TECHNIQUES 132-34 (1993). Vinson mentions various jury selection myths such as "women with thin
lips will help a plaintiff ... highly educated jurors are better in complex cases . . . [and] widows
award high punitive damages." Id. He suggests that these myths lead to errors in judgment. Id The
author is aware of a lawsuit where a female plaintiff broke her pelvis in nine places as a result of a
collision with a tractor trailer truck. Because of the severity of her injuries she was unable to ever be
intimate with her husband. The plaintiffs attorney in that case thought he needed as many young
married persons on the jury as possible.
21.
See sources cited supra note 15.
[Vol. 29
success.22 Attorneys have also photographed the homes of potential jurors,

taking note of the condition of the lawn, type of vehicles present and
whether there are toys on the lawn, or whether outdoor equipment such as
boats and motorcycles are present. 23 Attorneys have also considered information such as where potential jurors work and attend -religious services. 4 All of these factors are believed to be helpful in picking the right
2
jury.
Social scientists have developed a number of techniques generally referred to as "scientific" or "systematic" jury selection in an effort to create some sense of certainty out of a wildly uncertain endeavor. 25 The most
well known technique associated with scientific jury selection is the demographic survey. 26 Such surveys seek to discover the attitudes among various groups in the community toward certain issues.27 Social scientists use
these surveys to develop a profile of jurors with favorable and unfavorable
biases.2 8 Demographic information about potential jurors can be found on
the jury list itself; often it will contain information such as race, sex, age
and home address. Information may also be obtained through private in29
vestigators, voter registration lists, credit reports and membership lists.
It is noted that an attorney should know the age, sex, occupation, marital
status, spouse's occupation, and number of children of all potential jurors
before any meaningful analysis can be done.3
Trial simulations and focus groups are also employed by social scientists as a method of evaluating issues that will arise at trial. 31 A trial simulation is a kind of dress rehearsal and miniature trial.32 The major issues of
the trial are presented to the mock jury and the jury's reaction to the issues
is measured. Trial simulation can be helpful in measuring the effectiveness
of the attorney, expert witnesses and evidence and in determining desirable and undesirable jurors.3 3
After having done demographic surveys and other research, psychologists suggest that in an effort to illicit further responses from potential
jurors during voir dire, the attorney should reinforce any initial responses
22.
See United States Census Bureau, available at www.census.gov (last visited Mar. 19, 2005).
23.
In his discussions with members of the Bar, the author has learned that some attorneys employ this practice.
24.
According to attorneys with whom the author has spoken, the attorneys who investigate jurors
in this way find such information quite relevant and helpful during the jury selection process.
25.
VALERIE P.
HANS & NEIL VIDMAR,
Jury Selection,
in THE PSYCHOLOGY OF THE
COURTROOM, at 68-72 (N. Kerr & R. Bray eds., 1982).

26.
27.
Id.
28.
HANS & VIDMAR, supra note 25, at 68-72.
29.
30.
31.
32.
33.
V. HALE STARR & MARK MCCORMICK, JURY SELECTION 6.02 (2001).

Id.
FREDERICK, supra note 15, at 152.
STARR, supra note 29, 7.01.
Id.
2005]
he receives. 34 This technique, referred to as deconditioning, can be used to

reinforce the idea that it is acceptable for the potential jurors to voice their
opinions even if the opinions are negative.35 Public speaking is the number
one fear in the United States.36 When prospective jurors speak out during
voir dire the attorney must commend the answer and encourage other potential jurors to speak up as well.3 An abrasive or combative response to a
negative
answer might discourage other potential jurors from speaking
38
up.
One voir dire tactic is designed to increase the credibility of the attorney by sacrificing a favorable juror. 39 This tactic can be used in situations
where a juror plainly states that he or she is biased in favor of a particular
side. This tactic suggests that even though the potential juror is biased in
favor of a particular side and will most likely be struck by the opposing
side, the attorney for whom the prospective juror is in favor, may gain
credibility and increase his perceived fairness if he strikes the juror rather
than allowing the opposing attorney to strike the biased juror. 40 For example, this display of fairness-"Mr. Smith, I appreciate your support of our
side but with your permission I would like to excuse you because you
would be biased in my favor and would not be able to look at both sides of
the argument fairly"--could increase the attorneys trustworthiness in the
eyes of the remaining jurors.4
B. What is Said, How it is Said, and What You Look Like
When You Say it.
Having selected a favorable jury, an attorney presents the evidence
and his arguments in a way that he hopes will persuade the jury that in
light of the evidence, his interpretation of the event or act in question is
correct. Attorneys have long used personal charisma and skillful orations
to persuade juries. Although attorneys have developed their own persuasive techniques as a result of experience, social scientists have been exploring the scientific basis of persuasion.
34.
Lisa A. Blue & Robert B. Hirschhorn, Goals and Practical Tips For Voir Dire, 26 AM. J.
TRIAL ADVOC. 233, 241 (2002).
35.
Id.
36.
Id.
37.
Id.
38.
Id. at 239-240.
39.
Id. at 252. It is important for attorneys to appear credible because people who are perceived
as credible are generally more persuasive than those that are not credible. See infra note 159 and
accompanying text.
40.
Id.
41.
Id.
[Vol. 29
1. Word Choice and Speech Patterns

Social scientists have found that speech patterns, word choice and
one's overall style of speech are powerful tools of persuasion. 42 It is the
difference between $4.99 for a hamburger and $5.00 for a hamburger
(Five "whole" dollars). It is the difference between "who are you?" and
"who are you?" and the difference between "well Iguess so" and "YES. "
Attorneys have long manipulated their speech patterns and word choice in
an effort to persuade juries. Sociolinguists have found that linguistic characteristics of a speaker affect the persuasiveness of the speaker. 43 The majority of the research on verbal characteristics and persuasiveness in the
courtroom has been conducted by anthropologist William M. O'Barr and
his associates.4a
O'Barr found that the "powerfulness" of a person's speech has an affect on that person's persuasiveness. 45 Sociolinguists have found that attorneys can encourage jurors to make judgments about the credibility of a
witness by manipulating the "powerfulness" of the witness's speech.4 6
Researchers found that "powerless" speakers use hedge words (sort of,
kind of, maybe, around, I think, it seems like), intensifiers (very, really,
lots, surely, definitely), filler words (you know, and all, um) and terms of
personal reference (my old pal, my buddy Jim); avoiding these phrases
tends to increases the "powerfulness" of a speaker's message.47 In another
study, constant use of phrases such as "to be honest with you" or "to tell
the truth" was perceived as a marker of untruthfulness. 48 Using an inquisitive intonation at the end of a sentence, suggests that the speaker seeks the
listener's approval for the declaration-also conveying a lack of confidence .49
The O'Barr study found that "powerless" attorneys engage in verbal
clashes with witnesses, that is, where both the attorney and witness speak
at the same time. 50 Research revealed that even when the attorney domi42.
John M. Conley et al., The Power ofLanguage: PresentationalStyles in the Courtroom, 1978
DUKE L.J. 1375, 1399.

43.
Id.at 1392, 1399; JEFFEREY T. FREDERICK, THE PSYCHOLOGY OF THE AMERICAN JURY 169
(1987).
44.
A summary of this research can be found in O'BARR & LIND, Ethnographyand Experimentation: Partnersin Legal Research, in THE TRIAL PROCESS, VOL. 2 OF PERSPECTIVES IN LAW AND
PSYCHOLOGY 181-207 (B. Sales ed., 1981); see also COMMUNICATION, supra note 6, at 15.06; John
M. Conley, Languagein the Courtroom, TRIAL, September 1979, at 32.
45.
SANNITO & McGOVERN, supra note 6, at 5.35; Lubet, supra note 2, 325.
46.
Id.;
see also Celia W. Childress, The Trial Lawyer's Persuasive Speaking Voice, 81 AM.
JUR. TRIALS 317 25.
47.
FREDERICK, supra note 43, at 169; Conley et al., supra note 42, at 1380; JEFFERY L.
KESTLER, QUESTIONING TECHNIQUES AND TACTICS (3rd. ed. 1999) 9:56.
48.
49.
Conley
50.
Lubet, supra note 2, at 354-55.

SANNITO & McGOVERN, supra note 6, at 5.35; Childress, supra note 46, 24, 48-49, 53;
et al., supra note 42, at 1380.
Conley et al., supra note 42, at 1392.
2005]
nated the cross-examination, the attorney was perceived as having lost

control of the witness.5 ' Psychologists suggest that verbal clashes should
be avoided because of the negative effects on the attorney's image.52 The
O'Barr study also suggests that an attorney not interrupt witnesses because
it is perceived by the jury as unfair.53
Social scientists also caution attorneys against using complex language
and hypercorrect speech. Experts suggest that an attorney use vocabulary
on an eighth-grade reading level .54 Hypercorrect speech refers to the excessive use of "bookish" grammar, overly formal or technical language.
Research indicates that hypercorrect speech is detrimental; witnesses that
use hypercorrect language are perceived as significantly less credible than
those that do not use hypercorrect language.56
One study found that witnesses displaying characteristics of "powerful" speech were perceived as "more competent, attractive, trustworthy,
dynamic, and convincing. " 57 Studies have found that jurors perceive
"powerful" speakers as credible and give larger damage awards to plaintiffs with powerful witnesses than plaintiffs with "powerless" witnesses.5 8
The perceived connection between speech style and credibility is strong; in
one study, jurors linked credibility with powerful speech even when the
judge cautioned against making such a connection. 59 Psychologists suggest
that attorneys coach witnesses to remove these negatively perceived characteristics. 6 O'Barr's findings encourage attorneys not only to use "powerful" speech themselves but to coach witnesses to use "powerful" speech
as well.
As a corollary to "powerful" speech, studies have shown that nouns
and verbs are the most evocative words. 61 It is thought that adjectiveslarge, minuscule, tiny, gruesome, bloody, beautiful, pretty-create the
best mental pictures; 62 however, adjectives tend to convey a subjective
analysis of the event or action. 63 Because these words are subjective, studies show that a description using too many adjectives may come across as
51.
FREDERICK, supra note 43, at 171; Conley et al., supa note 42, at 1392; KESTLER, supra
note 47, at 2:31.
52.
FREDERICK, supra note 43, at 172; Conley et al., supra note 42, at 1392.
53.
Conley et al., supra note 42, at 1392.
54.
STARR, supra note 29, at 10.04[A].
55.
FREDERICK, supra note 43, at 169-70.
56.
Id. at 169-70; see also Conley et al., supra note 42, at 1389-90; WrNESSES, supra note 12,
11.09 (West 1998) (using everyday language in the courtroom is preferable to sophisticated or grandious language).
57.
MICHAEL J. SAKS & REID HASTIE, SOCIAL PSYCHOLOGY IN COURT 114 (1978).
58.
Gold, supra note 3, at 485 (citing W. O'BARR, LINGUISTIC EVIDENCE, LANGUAGE, POWER
AND STRATEGY IN THE COURTROOM 71-75 (1982)).
59.
Id. (citing O'BARR, supra note 58, at 94-96).
60.
FREDERICK, supra note 43, at 171; Conley et al., supra note 42, at 1395.
61.
Lubet, supra note 2, at 334.
62.
Id.
63.
Lubet, supranote 2, at 334-35.
[Vol. 29
unreliable to a jury. 64 Nouns and verbs are not generally subjective; they
suggest something about the event or action itself.65 Consider a situation
where an attorney states that an accident was a horrendous, gruesome,
terrible, deadly, awful accident. The use of these, although vivid, descriptors is a subjective judgment.66 In contrast, consider where an attorney
describes the accident in these terms: "the roof of the car was smashed in
on top of the driver; blood dripped down the side of the car door, splattered on the grass and soaked into the dirt; the front wheels and hood of
the car were ripped off during the plunge down the ravine." These noun
and verb combinations-roof, smashed; blood, dripped; splattered, grass;
soaked, dirt; wheels and hood, ripped-provide a more concrete description of the accident. The roof of the car can either be smashed in or not;
however, that the accident was terrible, could mean different things to
different people. The jury is more likely to find the noun/verb description
concrete and dependable.67
Further, defense attorneys will generally refer to an event as an accident, while plaintiff's attorneys will generally refer to the same event as a
tragedy or horrific crash. 68 In a series of studies conducted by psychologists, subjects were shown a film of a vehicle accident and asked to estimate the speed of the vehicle on impact. 69 The study used different verbs
to describe the accident and found that the estimates varied depending on
word choice. 70 Witness estimates were found to be higher when the subjects were asked how fast the vehicle was going when the vehicle
"smashed" into the other vehicle. 7 1 Estimates were lower when the question was phrased such that the vehicle "contacted" the other vehicle.72
A defense attorney, particularly in criminal cases, can gain an advantage by making the meaning of the evidence vague or unclear. One study
suggests that criminal defense attorneys can increase their chances of an
acquittal by using "abstract or vague language. ,73 Further, the study stated
that successful defense attorneys used fewer adverbs. Adverbs tend to increase specificity; thus, a decrease in the use of adverbs increases vague-
64.
65.
66.
67.
Id. at 335.
Id.
Id. at 334-35.
Id.;See also Michael G. Parkinson & L. Marie Parkinson, Speech Tactics for Successful
Trials, TRIAL, Sept. 1979, at 36.
68.
Richard H. Underwood, Logic and the Common Law Trial, 18 AM. J. TRIAL ADVOc. 151
(1994), at 187; Theodore I. Koskoff, Words & Action: Convincing the Jury, in PSYCHOLOGY &
PERSUASION IN ADVOCACY 334, 350-51 (Louis N. Massery II, ed., Ass'n of Trial Lawyers of Am.,
1978).
69.
SAKS & HASTIE, supra note 57, at 115.
70.
Id.
71.
Id.
72.
Id.
73.
Parkinson & Parkinson, supra note 67, at 36.
20051
ness. 74 Because the burden of proof in criminal trials is high, the defendant
should be acquitted if the jury is confused.75
One successful trial attorney stated that one would be a fool if he did
not prepare his witness before trial or depositions.7 6 Social scientists have
uncovered two traits that stand-out as indicators of truthfulness: certainty
and detail .77 Preparing a witness before a deposition or trial, giving particular attention to certainty and detail can have a considerable impact on a
witness's credibility. Even witnesses that are confident and certain about
their conduct or observations may appear surprised or uncertain upon
hearing a question for the first time at trial.78 Some have stated that an
attorney would be well-advised to inform the witness of the topics to be
covered in both direct-examination and cross-examination. 79
A command of detail has been found to increases credibility.8 Studies
suggest that assumptions of witness credibility were made on the basis of
the level of detail the witness reported, even when the details were irrelevant to the case.8I One article states quite emphatically that "supportive
details . . . add credibility and weight, 82 while an apparent lack of knowledge tends to erode the credibility of witnesses and attorneys .83 One psychologist suggests that an attorney ask his witness to recount as many details that they can remember about the incident in question. 84 Effective
cross-examination could take advantage of this tendency; 85 to undermine
an adverse witness' credibility, it is suggested that the attorney ask questions about details the witness is unlikely to know or remember.8 6
Varying the speed of one's speech affects credibility and helps create a
temporal framework for events or actions. Studies show that "rapid speaking (to a point) tends to increase believability," 87 while "unnaturally slow
speech is [perceived] as an indicator of uncertainty .... "88 "Reflective
questioning" is a technique where one varies the pace of his speech to
74.
Id.
75.
76.
This statement was made to the author by a prominent defense attorney. Witness preparation
as it is discussed in this work is not a method to encourage a witness to be untruthful; rather it is a
method by which the attorney can present his case more effectively. Several works have been published on witness preparation. See generally WrrNSSES, supra note 12.
77.
Lubet, supa note 2, at 341.
78.
Id.
79.
Id.
80.
Id. at 332.
81.
HANDBOOK OF PSYCHOLOGY IN LEGAL CONTEXTs 551 (Ray Bull & David Carson eds., 1995)
[hereinafter HANDBOOK].
82.
Lubet, supr note 2, at 332.
83.
Id. at 352.
84.
HANDBOOK, supra note 81.
85.
86.
Id.
87.
Id. at 353.
88.
Id.
[Vol. 29
convey a sense of time, distance or intensity . 9 "Reflective questioning" is

based on the idea that speaking slowly makes the event or action seem as
though it occurred slowly; conversely, speaking faster makes the event or
action seem faster or more intense. 90 Where the attorney believes that an
event occurred so fast that a witness could not have seen what the witness
claims to have seen, the attorney should cross-examine the witness in a
fast paced manner so as to convey a sense of speed. 9 However, where an
attorney's goal is to emphasize a witness's opportunity to act or to observe, the attorney is advised to slow the examination and proceed in a
drawn out manner.9 2
2. IndirectAssertion of Facts
Often, merely asking a question or making a statement loaded with assertions will introduce a fact to the jury, regardless of whether the witness
answers the question. 93 Research suggests that jurors can be strongly influenced in this way.94 Simply asking a question sometimes is sufficient to
induce the jury to draw an inference, even in the absence of confirming
testimony. The form of the question influences the witness and the jury;
the question itself becomes a message.96 This influence is known as "the
biasing effect;" regardless of the answer, jurors tend to misperceive the
evidence due to indirect assertions contained in the question itself.97 Research indicates that when an attorney asks a question loaded with an assertion, jurors tend to believe that the attorney has some basis to make the
assertion. 98 Even iin the absence of corroborating evidence, questions such
as "isn't it true that your work is poorly regarded by your colleagues?"
have been found to reduce the expert's credibility in the eyes of the jury. 99
89.
90.
91.
92.
Id. at 334.
Id.
Id.
Id.
93.
Underwood, supra note 68, at 190.
94.
Id. at 191. The author is aware of an example of indirect assertion of facts in an ethics case.
After three-and-a-half days of presenting evidence, the prosecution rested its case against a public
official for ethics violations. At the close of the prosecution's case, the defense attorney, sitting at his
table, leaned toward the jury, at a volume just loud enough for some of the jurors to hear he ex-
claimed, "They haven't proven a damn thing." The defense attorney then proceeded with his case. He
called two witnesses and rested his case within four hours. The individual was acquitted. Although
there may be ethical issues here, the defense attorney, without any justification asserted that the prosecution had not proven its case.
95.
Miller, supra note 6, at 560.
96.
Id.
97.
Gold, supra note 3, at 488 (citing Goodman & Loftus, Social Science Looks at Witness Examination, TRIAL, Ap. 1984, at 52, 55).
98.
99.
Id. Another example from the author's experiences with indirect assertion of facts follows. A
plaintiff, who testified that she could not lift more than three pounds and could not lift her arm over
her head, was caught on video tape in a grocery store reaching over her head to grab what appeared to
be a one gallon milk container (one gallon of milk weighs over eight pounds). After an in camem
2005]
Other examples of indirect assertion of facts include questions such as:

"Have you stopped beating your wife?" and "What did you do with the
money you stole?"'
C. Emphasis andDe-Emphasis of Evidence
Attorneys can increase or decrease the weight given to a particular
piece of evidence by understanding how to apply some basic psychological
principles. Understanding the psychological effects of the presentation of
information in various sequences can help attorneys maximize the impact
of favorable evidence, while minimizing the impact of unfavorable evidence. Acknowledging negative evidence before the opponent presents it
has the effect of softening the impact of the negative message. Repeating
important pieces of evidence through several witnesses can also be a persuasive tool if used in moderation.
1. Primacy and Recency
Primacy and recency are theories suggesting when to present evidence
in trial to gain the greatest possible effect from that evidence. 1' Although
experts disagree on which is most effective, all agree that an argument or
piece of evidence has more of an impact if presented at the beginning or
end of a witnesses' examination. 10 2 The law of primacy in persuasion,
formulated by F.H. Lund, holds that people are influenced most by the
information received first.10 3 Lund found that in a debate the first argument presented had the greatest impact on the audience.' 4 Similarly, a
viewing of the video with the judge, the plaintiffs attorney sent an assistant out for a scale and a one
quart milk container. After the jury viewed the video, the plaintiffs' attorney put the plaintiff on the
stand. In front of the jury he put the one quart container on the scale and asked the plaintiff if she
could pick up a two pound container, to which she said "yes." He asked the plaintiff if she was in pain
when she reached for the container, she said "yes." The attorney continued to question her about the
fact that even though she was in pain, she had to purchase food and provide a meal for the family. In
these follow-up questions the attorney indirectly asserted that the container was a quart container
rather than a gallon container.
100.
Id.; The author has seen attorneys use the indirect assertion of facts as a method of criticism
toward opposing counsel. For example, it is not uncommon for rural people to have a general mistrust
of lawyers; they also may have a sense of apprehension toward large cities and a mistrust of outsiders.
Home-town attorneys can take advantage of this fear by referring to opposing counsel (most often
defense counsel) as "big city lawyers." For instance, a lawyer could say, "those big-time slick lawyers
from [insert big city name] think they can come down here and tell you what's right and what's
wrong." While indirectly asserting that the "big city" lawyers are untrustworthy, the home-town
lawyer also highlights the fact that the opposing counsel is an outsider.
101.
COMMUNICATION, supm note 6, at 15.04
102.
Id. Interment, a companion principle to the primacy effect, holds that evidence presented
between the first and last bits of evidence will be remembered least. Lubet, supra note 2, at 327-28.
To minimize the impact of information that must be mentioned but is negative or embarrassing, an
attorney should present the evidence in the middle of trial between more positive evidence. Id.
103.
SANNITO & McGOVERN, supra note 6, at 5.4. See also COMMUNICATION, supra note 6, at
15.04; Sannito, supmanote 3, at 31.
104.
See supra note 103.
[Vol. 29
jury uses the first arguments and pieces of evidence to form preliminary
opinions about the case. 10 5 These initial opinions have been found to bias
the interpretation of subsequent evidence. 0 6 Inconsistent evidence, received later, "tends to be disregarded or misinterpreted" by the jury. 10 7
Several articles suggest that the most favorable evidence will have its
greatest impact if presented first.10 8 Experts have found that "jurors tend
to sustain belief in the validity of their initial theories long after logic suggests those theories have been discredited."'0 9 The principle of recency
asserts that people are more likely to remember what they have been exposed to most recently. 1 0 Generally, the prosecution or the plaintiff has
the advantage of primacy, however, the defense is not lacking in methods
to counteract it.' Psychologists offer two strategies to minimize the deeffect: (1) lengthen the trial 1 2 (2) examine many
fense-induced primacy
1 13
character witnesses.
The above research must also be tempered with other findings that the4
more factual the communication, the more quickly it loses its power."1
Also, when emotional evidence is presented first, jurors are likely to
"construct a logic to justify it;" that is, jurors tend to make later presented
evidence "fit" with early encountered emotional evidence. 15 In light of
these findings, Psychologist Sannito has suggested several sequencing
strategies for attorneys." 16 Emotional evidence should be put on first to get
the primacy effect and factual evidence should be put on last to gain the
recency effect.' 1 7 Because factual information fades faster, putting factual
evidence on last will increase the chance that the jury will remember certain factual information.
2. Inoculation and Forewarning
Another technique attorneys often use is to acknowledge negative evidence and forewarn of false evidence. The technique of inoculation works
105.
Gold, supra note 3, at 495 (citing R. NISBETr & L. ROSS, HUMAN INTERFERENCE:
STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 167, 172 (1980)).
106.
Id.
107.
Id. at 496.
108.
Sannito, supra note 3, at 31; Lubet, supra note 2, at 325-26; VINSON, supra note 20, at 16263.
109.
Gold, supra note 3, at 496 (citing NISBETr & Ross, supra note 105, at 167-92); Sannito,
supra note 3, at 31.
110.
COMMUNICATION, supra note 6, at 15.04.
111.
SANNITO & McGOVERN, supra note 6, at 5.4, 5.5; Sannito, supra note 3, at 31.
112.
The longer the defense's case-in-chief, the less effect primacy has. SANNITO & MCGOVERN,
supra note 6, at 5.4, 5.5; Sannito, supra note 3, at 31.
113.
Psychologists suggest that character witnesses, by their sheer number will weaken the primacy effect. SANNITO & McGOVERN, supra note 6, at 5.5; Sannito, supra note 3, at 31.
114.
Sannito, supra note 3, at 32.
115.
Id.
116.
Id.
117.
Id.
2005]
like a vaccination to prevent jurors from being persuaded by an opposing

argument." 8 Psychologists found that by "presenting a weakened form of
[the] opposition's arguments stimulates [the jury] to think about defenses

to these weakened arguments .. .'"19 The opposition's arguments will
lose their impact before the opposition has a chance to present them.120 A
closely related technique, known as the defensive direct examination, also
seeks to blunt the impact of negative evidence 121 For example, during a
defensive direct examination an attorney might prompt his own witness to
reveal weaknesses or shortcomings-that the defendant had consumed a
"few drinks" or that the defendant did get into an argument with his wife
the night of her disappearance. 22 Further, during introductory phases of
direct examination, particularly of expert witnesses, attorneys often attempt to make the fact that the expert is paid a non-issue by bringing that
fact out early-on. 2 3 Along with questions about their education and experience, attorneys often ask their own expert witnesses whether or not
they are being compensated for their services. Having already established
that the expert witness is being paid and cannot work for free, the attorney
has lessened the effect of any attempt by the opposing party to criticize the
expert as a "hired gun" or "yes man."
Finally, a jury is less likely to accept evidence or arguments if they
have been forewarned of a reason to reject it. 124 Known as the forewarning
principle, the principle suggests that once the jury is made aware of flaws
in the evidence, they may devalue or reject the evidence altogether. 25 One
attorney states that he often asks potential jurors, "do you think you can
smell out when a person's telling the truth or lying?" 26 If the potential
118.
Lubet, supra note 2, at 354; VINSON, supra note 20, at 127-29.
119.
Kim Macinnis Munsinger & Harry L. Munsinger, Seven Psychological Principles You Can
Use To Become A More Effective Lawyer, 62 TEX. B.J. 894, 96 (1999). See also Linz & Penrod,
supra note 5, at 23.
120.
Munsinger & Munsinger, supra note 119, at 896.
121.
122.
For example, the author is familiar with a case where a young man burned to death in a one
vehicle accident. The young man lost control of his car and crashed. Because of a known manufacturing flaw, the gas tank ruptured and caused the car to burst into flames. An autopsy confirmed that not
only did the young man burn to death, but that he had a blood alcohol level of 0.9, making him legally
intoxicated at the time of the accident. Although the fact that he was legally drunk did not have anything to do with the manufacturing flaw, this fact would surely be damning, especially because of the
relatively conservative venue. The plaintiffs attorney forcefully and bluntly acknowledged that the
young man was drunk; the attorney stated that "just because someone is drunk and crashes their car
does not make it acceptable that they burn to death as a result of a manufacturing defect. The young
man would most likely have survived the accident if it were not for the defendant's negligence. Young
people make mistakes; had he not been burned to death due to the defendant's manufacturing defect,
he would have walked away from the crash and learned a valuable life lesson." The case settled midway through the plaintiff's case-in-chief for over four million dollars.
123.
In the author's experience, attorneys commonly use this line of questioning during direct
examination.
124.
Lubet, supra note 2, at 353-54.
125.
Id.
126.
Munsinger & Munsinger, supra note 119, at 896.
314
[Vol. 29
juror says "yes" then he continues saying "because in this case there's
gonna be some lying going on coming from that witness stand."4 27 This
statement has the effect of forewarning the jury that someone will be untruthful; having been forewarned of an untruthful witness, the jurors will
tend to devalue or reject testimony.
3. Repetition, Duration, And The Von RestorffEffect
Through repetition and duration principles and the Von Restorff effect, emphasis can be placed on importance pieces of evidence. Repetition
and duration principles seek to emphasize the significance of evidence or
arguments; the more time the attorney spends on an idea or assertion, the
more important it will seem to the jurors. 28 The more something is said
the more likely it will be believed and remembered.12 9 Repetition creates
attitudes that are more readily retrieved from memory.130 As for duration,
the more jurors are exposed to a statement, the more they will become
comfortable with that statement.
The Von Restorff principle holds that unique events are almost unforgettable. 131 For example, one probably does not remember what one was
doing on any given day during the month of September 2001. However,
one probably remembers where one was and what one was doing on the
morning of September 11, 2001. Similarly, many people remember where
they were or what they were doing when John F. Kennedy was assassinated, when Neil Armstrong stepped foot on the moon, and when Elvis
died. Researchers have found that even when a person is merely told that
127.
Id.
128.
An example of repetition and duration with which the author is familiar, occurred during a
case where a man was run over and severely injured by the alleged negligent acts of a cable television
worker. The wife of the victim stated in her deposition that, as a result of the injuries her husband
sustained, one of her husband's testicles swelled to the size of a football and appeared blue. After the
deposition, the plaintiffs attorney had an assistant paint a football blue in preparation for the trial.
During the trial the blue football was placed on a file box in view of the jury. Although the victim's
wife testified only briefly at trial about the extent of her husband's injuries and his home health care
needs, because the defense allowed the blue football to remain in sight of the jury, the blue football
and the wife's testimony had a lasting impact on the jury. That the victim's testicle was the size of a
football had very little evidentiary value as to negligence, but because the football was in view
throughout the trial it made a significant impact on the jury.
Another example of repetition and duration occurred in a trial resulting from a swimming
pool accident. Gold, supra note 3, at 495. A woman drowned in a swimming pool; she was pulled out
of the swimming pool and the rescuers noticed that one of her arms appeared bright blue. Experts for
both parties could not provide an explanation for the phenomenon. Mock jury trials, conducted by
social scientists, suggested that the blue arm evidence would be important to the jury. Psychologists
recommended "that [the] defense . . . 'constantly infer' . . . throughout the trial that the blue arm
meant that the woman had some prior [medical] problem that made her susceptible to drowning." Id
Defense attorneys highlighted evidence with little or no value simply by referring to it throughout the
trial. Id.
129.
See Lubet, supranote 2, at 331.
130.
VINSON, supra note 20, at 54.
131.
2005]
315
what he is about to hear is unique or novel, the person is substantially

more influenced by the message than if he is not told that the message is
unique or novel. 132 One psychologist suggests that, in light of the Von
Restorff Effect, judges should be conservative with the use of an order to
strike from the record and subsequent statement to the jury to disregard
the stricken statement. 133 Halting the attorney's presentation and ruling on
the motion to strike makes the statement stand out134and, in effect, helps the
jury remember the stricken evidence or statement.
These techniques are often used effectively, but can also be overdone. 135 The old saying, "moderation is the key" is applicable here;
136
"[e]mphasizing everything is the equivalent of emphasizing nothing."
An example of the concern here is mirrored in many young college students. Often students highlight or underline too many phrases or ideas in
their textbooks; when test time approaches, the overabundance of highlighted or underlined material gives the student no direction as to the core
concepts of the course. Similarly, if an attorney emphasizes too many facts
or arguments the jury will not pick up on the core arguments or most favorable facts.
4. Developing a Theme and Telling a Story
It is noted in many trial advocacy works that an attorney should have a
theme and tell his version of the facts in story form. 13 7 Humans have
communicated through storytelling since the beginning of time and instinctively use stories as a method of communication. 38 Good stories organize
events, humanize the people involved and dramatize the action. 139 Consequently, storytelling is key tool in a trial attorney's arsenal. 14 Many attonrys agree that "[e]ffective storytelling is the basis for much of what occurs
during a trial." 14 1 Social scientists state that providing the jury with a
theme or story serves three major functions: (1) it serves as a framework
for memory; (2) it helps the juror draw inferences from evidence presented; and, (3) it helps with the decision-making process. 4 2 An attorney
can increase jurors' comprehension and recall through a theme or story
line because it is such a powerful organizing device. 43
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
Id.
Id. at 171.
Id.
Lubet, supm note 2, at 331; VINSON, supra note 20, at 54.
Id.
Linz & Penrod, supra note 5, at 3.
Id. at 569.
Id.
Id.
Id. at 5-6.

D.
[Vol. 29
Non- Verbal Communications
Psychologists have found that non-verbal communication accounts for

65-70% of the total communication between humans.' 44 Recommendations
concerning physical appearance,"' 5 physical positioning of the attorney in
the courtroom, 146 and other aspects of courtroom conduct, 147 attempts to
enhance the credibility of attorneys, clients and witnesses through nonverbal means. 148 One author states quite frankly, "If I had a weak case, I
would certainly want to lend it some help through my personal charisma."1 49 "Lawyers can increase their charisma by demonstrating a positive outlook, by showing enthusiasm, by acting assertively, and by being
emphatic." 150 One practice manual states that "there is no question that
you can enhance your credibility by the way you act, dress [and] conduct
yourself. ... ""'
1. PhysicalAppearance
An old saying warns that, 'you can't judge a book by its cover'.
However, social scientists have found that juries often do just that. Physical appearance has been found to have a strong correlation to believability.152 Many attorneys wear blue suits on the first day of trial because blue
is believed to be a trusting, calming color. 153 One attorney routinely sends
associates out shopping with clients before a trial to purchase what he referred to as "appropriate dress for trial."154 A doctor defendant in a medical malpractice case appeared for the first day of trial wearing cuff
links.155 The defense attorney noticed the cuff links and told the doctor to
go to the men's room, take off the cuff links, and roll up his sleeves. The
attorney asked the doctor to wear a dress shirt without French cuffs for the
remainder of the trial to which the doctor replied "I do not have any dress
144.
STARR, supra note 29, at 12.02.
145.
SANNITO & McGOVERN, supranote 6, at 5.22; see also DAVID BALL, NAT'L INST. TRIAL
AD., THEATER TIPS AND STRATEGIES FOR JURY TRIALS 7 (1994) (outlining what attorneys should do
with their hair, hands, clothing and other accessories).

146.
Stanley L. Brodsky et al., Attorney Invasion of Witness Space, 23 LAW & PSYCHOL. REv. 49
(1999).
147.
SANNITO & McGOVERN, supra note 6, at 5.24-5.36.
148.
Id. at 5.22.
149.
Childress, supra note 46, at 5.
150.
Jennifer Fowler-Hermes, Improving Persuasive Effects in the Courtroom: An application of
Rhetorical Theory, 24 AM. J. TRIAL ADVOC. 313, 339 (2000).
151.
WAGNER, supranote 15, at 1.11[4].
152.
153.
The author is personally aware of attorneys who wear blue suits on the first day of trial; these
attorneys believe blue suits to have a calming effect and believe them to convey trust.
154.
The author is aware of several law firms that make suggestions regarding appropriate clothing
for clients and witnesses.
155.
This story was relayed to the author by a medical malpractice defense attorney in Birmingham, Alabama.
2005]
shirts without French cuffs." Through the remainder of the trial, the doctor came to trial with his sleeves rolled up. The attorney's reasoning was
that the appearance of cuff links further alienated the already assumedly
wealthy doctor from the every-day juror; the cuff links increased the doctor's perceived wealth and gave him an aristocratic air. No better example
can be presented to illustrate the relationship between physical appearance
and persuasion than a defendant in a rape/murder trial who wore a T-shirt
and blue-jeans to trial. 1 6 The short sleeved shirt revealed a tattoo
of an
58
157
octopus engulfing a nude female. The defendant was convicted.
Research shows that people who are perceived as credible and attractive are generally more persuasive than those that do not have these characteristics; 5 9 "[s]tudies have shown that jurors are more likely to credit
the arguments of lawyers who are tall, attractive [and] . . .similar to the
jurors themselves." 160 One psychologist suggests that an attorney "stress
similarities between himself and the jury, 'particularly in beliefs, attitudes,
values, and goals' because people view those similar to themselves as
credible." 161 It is thought that an attractive person is more persuasive because the "listener adopts the position of an attractive speaker . . because
62
he wishes to perceive himself as associated with [the attractive person]."
One psychologist, in his discussion on physical appearance and persuasion, states that "beautiful is good and ugly is bad." 163 Studies have shown
that unattractive defendants are found guilty more often than attractive
defendants.' 64 Research also indicates that the victim's attractiveness also
had a tremendous impact on verdicts. 165 Psychologists suggest that an attorney can minimize the negative correlation between attractiveness and
perceived guilt "by making [the defendant] more pleasing in appearance." 166 For plaintiffs, psychologists suggest they present an understated
image. 16 Plaintiffs should dress down, particularly female plaintiffs; it is
thought that female jurors will resent attractive female plaintiffs. 6 8 Experts suggest that defendants accused of abuse of power or any kind of
156.
157.
KESTLER, supra note 47, at 9:44.

Id.
158.
Id.
159.
160.
Lubet, supra note 2, at 351; See also COMMUNICATION, supra note 6, at 1:15; Sannito,
supra note 3, at 33; Linz & Penrod, supra note 5, at 38-39.
161.
Fowler-Hermes, supra note 146, at 338 (citing JOSEPH A. DEVITO, THE ELEMENTS OF
PUBLIC SPEAKING 397 (6th ed., 1997)). See also Sannito, supra note 3, at 33.
162.
Linz & Penrod, supranote 5, at 39.
163.
164.
Id. (citing M.G. Efran, The Effect of Physical Appearance on the Judgment of Guilt, InterpersonalAttraction and Severity of Recommended Punishment in a SimulatedJury Task. 1974 J. RES.
PERSONALITY 8, 45-54); HANS & VIDMAR, supra note 25, at 103.
165.
166.
167.
Id.
168.
Id.
[Vol. 29
white collar crime, should "wear a pale beige suit, a pale shirt (not light
blue) and a pale tie" to weaken his authoritative appearance.169 One practice manual states that, "in the final analysis . . . the attorney must make
the final intuitive conclusion whether the witness will or will not be attrac-
tive to [the jury].
,,170
"Conservative" is generally the style of dress recommended for attorneys. 171 There is a social stereotype that males with long hair are more
politically liberal and males with short hair are more conservative.172 A
study has found that male attorneys who tend to have problems establishing authority should wear a dark-blue pin-striped suit to increase their perceived authority. 173 It is recommended that men avoid bright yellow, red,
pink, lavender, gold, green or gray shirts and avoid bow ties, large patterned or pictured ties and purple or black ties.174 For female attorneys,
plunging necklines, clingy or flowy fabrics, very short skirts, sweaters,
see-through fabrics, glittery fabric, pants
and tight clothing of any kind are
175
almost always negatively perceived.
2. Non-verbal Cues
Over the last three decades, there has been a growing appreciation of
non-verbal communication. 176 However, there is some confusion over
body language and non-verbal communication. Body movements do com-
municate meaning, but that is not the only source of non-verbal meaning. 77 Scholars are in agreement that an official, uniform "body language" does not exist; if it did, one could look up a body movement in a
dictionary and find that a particular movement means a particular thing. 78

If an observer is knowledgeable about general body movements and meanings, as well as how individuals might adapt these movements and how
stress affects body movement, one could only make general conclusions
about an individual's personality. 7 9 Attorneys should note that non-verbal
characteristics discussed here are not separate and distinct from verbal
characteristics discussed earlier in this article. In order to understand what
169.
170.
171.
172.
STARR, supra note 29, at 13.04[E] (citing J. MOLLEY, DRESS FOR SUCCESS (1988)).
WITNESSES, supra note 12, at 2.13.
STARR, supra note 29, at 13.04[E].
STARR,
supra note 29, at
13.03[A]
(citing KAISER,
THE SOCIAL PSYCHOLOGY OF
CLOTHING (1990)).
173.
Id.at 13.04[F]. See STARR, supra note 29, 13.04[F] table 13-1 to 13-4 for clothing suggestions for men and women attorneys.
174.
Id.
175.
Id. at 13.04[F].
176.
177.
Id.
178.
179.
Id. at 12.03[A].
Id.
2005]
is being communicated, it is important that an attorney take note of both

the non-verbal and verbal messages being sent. 8 '
I. Body Movement and Eye Contact
Studies have found that a jury is more likely to believe someone who
is "likable, [sic] engaging, interested, committed and lively." 181 An attorney is perceived as more credible if he makes frequent eye contact with
jurors and uses gestures. 82 As a sign of cooperation, attorneys should
address other courtroom participants face to face. 8 3 Experts suggest that
attorneys' eliminate physical barriers-legal pads, books, desks, tables,
lecterns, articles of clothing such as vests and buttoned suit coatsbetween themselves and the jury.184 These physical barriers serve as psychological barriers between the attorney and the witness; 185 physical barriers serve as a psychological security blanket for the adverse witness but
serve only to weaken the attorney's physical presence. 86 Experts suggest
that attorneys stand straight up to convey authority, credibility and confidence. 87 An attorney should also smile and maintain eye contact with the
jury. 188 Experts discourage pacing in the courtroom because it conveys
uncertainty. 189 Studies have found that "blinking, grinning, shifting posture, and frequent hand movements" are perceived as non-verbal indications of untruthfulness. 190 Although there are no proven indications of untruthfulness, attorneys must be aware that some behaviors are likely to be
perceived as such.' 9 1
Although unnecessary pacing is discouraged, psychologists encourage
attorneys to make the courtroom their "territory" by moving confidently
throughout the courtroom.192 Similarly, although frequent hand movements
and fidgeting are discouraged, broad gestures were found to project self180.
Id. at 12.03[C].
181.
Lubet, supra note 2, at 351; For an exhaustive discussion of body movement and its implications in the courtroom see COMMUNICATION, supla note 6, at 2-8.
182.
Brodsky, supra note 146, at 64 app. (citing Elizabeth A. Levan, Nonverbal Communication in
the Courtroom: Attorney Beware, 8 LAW & PSYCHOL. REv. 83 (1984)).
183.
Brodsky, supra note 146, at 58 (citing Constance Bernstein, Winning Trials Nonverbally: Six
Ways to Establish Control in the Courtroom, TRIAL, Jan. 1994, at 61).
184.
KESTLER, supra note 47, at 3:37; Brodsky, supra note 146, at 58 (citing Bernstein, supra
note 183, at 61).
185.
186.
Id.
187.
Brodsky, supra note 146, at 68 app. (citing Richard B. Klein, Winning Cases with Body
Language, TRIAL, Oct. 1993, at 56). Vinson states that an attorney should "stand with an erect posture
and a strong stare to convey superiority." Brodsky, supra note 146, at 68 app. (citing Philip K. Anthony & Donald E. Vinson, Nonverbal Communication in the Courtroom: You Don't Say, TRIAL
DIPL. J., Spring 1981, at 14).
188.
189.
190.
191.
192.
Id.
Id. at 68 app. (citing Klein, supra note 187).
Id. at 354-55.
Brodsky, supra note 146, at 64 app. (citing Klein, supra note 187).
[Vol. 29
confidence and control in the courtroom. 19 3 Women, in particular, should

use broad gestures to compensate for their physical size. 94 "The assumption is that the courtroom is a battlefield; [tihe more territory you
can
95
claim, the more importance and power jurors will ascribe to you.,,1
ii. Proxemics, Power And PersonalSpace
Proxemics is the study of personal space and how humans react when
personal space is violated. 196 Personal space has been defined as a "type
of 'body buffer zone' that an individual may increase or decrease in proportion to perceived threat[s]. ", '9 Even in situations where one is not
physically threatened by another's presence, people often back up to maintain a "comfortable distance." Often where one violates an individual's
personal space, one is considered to be "uncomfortably close." This
common phrase reflects some of the psychological effects that manifest
when personal space is manipulated. 198 One trial manual states plainly:
"physical proximity is intimidating." 199
Attorneys exhibit various spatial tendencies and use many spatial techniques in an effort to persuade the jury. Some attorneys stand behind podiums; others move freely around the courtroom, often to the point of
appearing nervous . 2 Although not a wholly accurate representation,
many courtroom scenes in movies and television provide good examples of
proxemics in action. Often movies depict an attorney standing very close
to the witness with eyes locked and in a loud authoritative voice, question:
"You murdered Mr. Smith didn't you?" is almost a staple of cinematic
history.2 1 Other movies depict attorneys flailing their arms and pointing at
the defendant with exaggerated accusatory arm movements.20 2 Where the
attorney stands close to the jury box and in an almost sermon-like manner
implores the jury to convict the accused, is another scene in movies and
television depicting proxemics. However, in real courtroom situations,
some judges may require attorneys to examine witnesses from behind a
193.
Id.
194.
Id. at 68 app. (citing Mary E. Ryan & David Svaldi, Women in the Courtroom: Increasing
Credibility Through Nonverbal Behavior Change, 16 TRIAL DIPL. J. 253 (1993)).
195.
Id. at 58 (citing Bernstein, supra note 183, at 94).
196.
KESTLER, supra note 47, 3:38; Brodsky, supra note 146, at 50.
197.
Brodsky, supra note 146, at 50.
198.
For a further discussion of proxemics, see COMMUNICATION, supra note 6, at 9.
199.
200.
From the author's experiences in state and federal court, attorneys display a wide variety of
styles of spatial manipulation and usage in court.
201.
Any number of television shows depict scenes such as the one described. Shows such as
Matlock, Perry Mason, and Law and Order depict attorneys using proxemics to threaten or intimidate
witnesses. Although these shows are fictional and are in large part written for theatrical effect rather
than for accuracy, the shows are examples of how proxemics could work in the courtroom.
202.
See supra note 201.
2005]
podium or table, thus thwarting the full potential of proxemics.2 3 In those

courtrooms where the attorney has the liberty and latitude of movement to
examine and cross-examine from various locations, proxemics can be
brought to bear as a persuasive tool.
Research suggests that manipulation of a witness's personal space in
the courtroom may induce stress, anxiety or anger. 204 Trial attorneys can
increase the anxiety level of adverse witnesses if the attorney enters the
witness's personal space.2 5 It is also suggested that an attorney invade a
witness's personal space to suggest dominance and increase nervousness
and anxiety. 2 One article suggests that an attorney invade the space of the
opposing counsel to appear in control.20 7 Responding to questions when
the questioner is within one's personal space is thought to make confident
answers difficult.20 8 When an attorney invades a witness's personal space,
anxious and testimony may appear more hesi"the witness often becomes
209
tant and uncertain. ,
Gender seems to affect the efficacy of the use of proxemics for the
purpose of intimidating a witness.2 1 Closeness between men is threatening
while closeness between women is more tolerated.2 11 Studies show that
both men and women allowed women to invade their space more than
men.21 2 Men let invading women approach the closest.21 3 In the courtroom
one must consider the gender of both the attorney and witness. Female
attorneys will likely have less success in inducing stress and anxiety in
witnesses than male attorneys, especially when a female attorney crossexamines a male witness.2 14
ii.
Stimuli
Non-verbal
play or drown
Darrow is said
prevent the ash
distractions or stimuli in the courtroom may help downout evidence presented by the opposing party. Clarence
to have pushed a wire through the center of his cigar to
from falling.2 15 He lit the cigar and as the ash grew impos-
203.
Brodsky, supra note 146,
204.
Brodsky, supranote 146,
205.
Brodsky, supranote 146,
206.
2.50, 3.38.
207.
Sp. 1981, at 14).
208.
Id. at 59.
Id.
209.
210.
Id. at 52.
at 59.
at 50; KESTLER, supra note 47, 3:37.
at 58-59; KESTLER, supra note 47, 2.50, 3:38.
at 64 app. (citing Klein, supranote 187); KESTLER, supra note 47,
at 68 app. (citing David B. Givens, Posture is Power, BARRISTER,
211.
Id. at 64 app. (citing Stephen H. Peskin, Nonverbal Communication in the Courtroom, TRIAL
DIPL. J. (1980)).
212.
213.
214.
215.
Id. at 52.
Id. at 53.
Id.
SANNITO & McGOVERN, supra note 6, 5.1; Sannito, supra note 3.
[Vol. 29
sibly longer, all eyes in the courtroom were focused on the ash rather than
the witness.216 The author observed a trial in which plaintiff's counsel took
full advantage of a distraction in the courtroom. During an especially
damaging video shown by the defense, several loud car horns blew outside
the courtroom and tires were heard screeching and sliding. A paralegal, as
well as another audience member slipped to the back of the courtroom to
peer out a window to find out what happened. The jury's eyes were transfixed on the window and the paralegal in an effort to determine what had
occurred outside. Several minutes passed before the jury regained focus.
One behavioral psychologist notes that attorneys can drown out the
opposing attorney's argument and evidence by presenting a variety of
stimuli in an effort to compete against the opposing attorney for the jury's
attention. 217 Psychologists suggest, as a defensive tactic, that an attorney
"load the courtroom with spectators." 2 18 The loaded courtroom-providing
distracting stimuli-could make a damaging witness blend
in, making it
2 19
difficult for the jury to focus on the witnesses' testimony.
III. ETHICAL CONCERNS
Trial consulting has been a controversial issue for both attorneys and
social scientists.22 One of the main points at issue is whether the use of
trial consultants is "fair" or "ethical. ,221 It has been criticized "as a service for the rich and a disservice for justice. 222 Typical beneficiaries of
scientific trial consulting are wealthy and privileged clients.223 Because of
a lack of empirical data on the effects of trial consulting,2 24 the debate has
consisted largely of opinion and speculation.2 25 The difficulty in quantifying subjective assessments such as 'fairness' has attributed to the lack of
empirical data.22 6
The jury is the most evident symbol of democracy in the courtroom.227
It is one of the most distinguishing characteristics of the American judicial
216.
SANNITO & McGOVERN, supra note 6, 5.1.
217.
Donald E. Vinson, Juries: Perception and the Decision-makingProcess, TRIAL, Mar. 1982,
at 52-54.
218.
Id.
219.
See SANNITO & McGOVERN, supra note 6, 5.1.
220.
Dennis P. Stolle et al., The PerceivedFairnessof the Psychologist Trial Consultant: An EmpiricalInvestigation,20 L. & PSYCHOL. REV. 139 (1996).
221.
Id.
222.
Id. at 147.
223.
Franklin Strier & Donna Shestowsky, Profilingthe Profilers:A Study of the Tial Consulting
Profession, Its Impact on Trial Justice and What, if Anything, To Do About It, 1999 Wis. L. REv 446
(1999).
224.
225.
226.
227.
Stolle, supranote 220, at 147.

Id. at 149.
Id.
20051
system. 228 The jury system is thought of as a protection against arbitrary

action by the government.2 29 Professor Victor Gold expresses a concern
that many social scientific techniques seek to exert influence on juries subconsciously.23 Professor Gold suggests that social scientific techniques
give attorneys tools to affect the jury's ability to make decisions based on
the evidence. 231 He suggests that the use of these techniques compromise
the legitimacy of the judicial system.2 32 Professor Gold states that "the
legitimacy of the jury system is based on the assumption that, when permitted to choose what evidence to accept and what community values to
reflect in its verdict, the jury has the ability to choose consistent with both
logic and fairness. , 233 This legitimacy depends upon a jury's independence
in decision-making. 234 A jury's decision must be made by the jury alone
and not for it by the parties at issue.235 If the jury cannot freely make decisions, it cannot represent the community or contain judicial power.236
Professor Gold suggests that many social scientific techniques bridle
the independence of the jury and affect a jury's decision-making process
through subconscious persuasion; 237 the jury cannot act independently if it
is influenced subconsciously. Only when a jury is conscious of the party's
persuasive techniques is autonomy possible.238 Without this awareness, the
jury cannot distinguish between its values and values asserted by the opposing parties. 239 Although the jury is consciously aware of the input, it is
not aware of the effect of that input on its decision-making process.2 4
Professor Gold further asserts that many social scientific techniques of
persuasion bridle the jury's cognitive independence. 24' When an attorney
conveys information subconsciously, the jury is likely unaware of the conveyance.242 As a result, the jury may be unaware of illogical or biased
information in their decision-making.24 3 The jury's inability to reach a
228.
Id.
229.
Amina Memon & Daniel W. Shuman, Juror Perception of Experts in Civil Disputes: The
Role ofRace and Gender, 22 LAW & PSYCHOL. REV. 179 (1998).
230.
231.
See generallyid.
232.
Id.
233.
Id. at 498.
234.
Id.
235.
Id.
236.
Id.
237.
d.; It is thought that there are two levels of mental activity: the conscious and preconscious.
"The conscious level is characterized by the ability to recall and discuss surrounding events immediately .... The preconscious level [is characterized by] mental activity ...
that is incapable of being
immediately recalled and discussed. Id. at 494 n.95 (citing J. KATZ, J. GOLDSTEIN & A.
DERSHOWITZ, PSYCHOANALYSIS, PSYCHIATRY AND LAW 274 (1967)).
238.
Id. at 502 (citing Note, The Subconscious Taken Captive: A Social, Ethical, and Legal
Analysis of Subininal Communication Technology, 54 S.CAL. L. REv. 1077, 1094 (1981)).
239.
Id.
240.
241.
242.
Id. at n.95.
Id. at 498.
Id. at 503.
Id.
243.
[Vol. 29
isrational decision based on the evidence "may present [constitutional]

2
sues that. . . question the ... legitimacy of the jury system." 44
Another observer suggests that the legitimacy of the jury system could
be eroded even if scientific techniques are merely perceived as unfair.245
The procedural justice theory, a framework used to assess the perceived
fairness of legal procedures, suggests "that the perceived fairness of a
procedure is directly related to the amount of control an individual in the
decision making process." 246 Within the procedural justice framework,
professors John Thibaut and Laurens Walker identified two types of con247
trol over decision-making: "decision control" and "process control."
Decision control is the amount of control a jury member has over the verof control one has "over the oppordict.248 Process control is the amount 249
,
story.
the
of
side
their
voice
to
tunity
Professor Gold cautions that social scientific techniques affect the
jury's independence in three ways: (1) through the inducement of bias (2)
through illogical analysis of the evidence and (3) through extra-legal factors.250 The jury's lack of bias is elemental to the idea of fairness.25 ' In
theory, the jury decides a case using only the evidence presented in court,
not on outside knowledge or beliefs.252 Any indication of bias is cause for
dismissal from the jury.25 3 However, social scientists believe that there is
255
",254
In contrast to case law and legal theory, some
no "unbiased juror.
psychologists suggest that jury selection is not the selection of an impartial
jury; rather, it is the selection of the most favorably biased jury.256 Experts
have asserted that scientific jury selection creates unrepresentative juries
244.
Id.
245.
Stolle, supra note 220, at 149, 167.
246.
Id. at 150.
247.
Id.
248.
Id. at 151.
249.
Id.
250.
See Gold, supra note 3.
See, e.g., Irvin v. Dowd, 366 U.S. 717, 722 (1961); In re Murchison, 349 U.S. 133, 136
251.
(1955) ("[Flair trial in a fair tribunal is a basic requirement of due process. Fairness . . . requires an
absence of actual bias."); United States v Wright, 340 F.3d 724 (8th Cir. 2003); Moran v Clarke, 323
F. Supp. 2d 974 (E.D. Mo. 2004).
See, e.g., Irvin, 366 U.S. at 722 (stating that jurors must be indifferent to the case and base
252.
their verdicts on evidence presented at trial). The need for objectivity, however, has not been construed to require complete ignorance concerning the facts of a case.
253.
Reynolds v. United States, 98 U.S. 145, 155 (1878) (stating that a preconceived opinion is
sufficient cause to discharge a juror); Sims v. United States, 405 F.2d 1381, 1384 n.5 (D.C. Cir.
1968) (stating that jurors can be discharged for cause if they are related to victim or hold the same
occupation as victim).
254.
Gold, supra note 3, at 492 (citing Call, Psychologyin Litigation,TRIAL, Mar., 1985, at 48).
255.
See supranotes 251-253.
Ralph W. Gallagher, The Use of a Consultantin Voir dire, TRIAL DIPL. J., Winter 1984, at
256.
25 ("A consultant ...
must . . . be willing to participate in a process which has as its goal the selec-
tion of the maximum number of jurors favorable to your case. It is of no use to have an 'ivory tower'
consultant assist in selecting a 'fair and impartial jury' because the opponent will be seeking jurors
favorable to his or her position.").
2005]
and, sometimes, produces unbalanced juries.257 One article states that the
mission of an attorney during voir dire is "to seat a jury that will give her
client a fair trial," 25 8 yet the author later suggests that a person could be a
good juror for the defense in a medical malpractice case if that person's
father and brother were both physicians.9 Choosing a juror whose father
and brother are physicians is likely not an attempt to secure a fair and impartial jury. One psychologist recommends explicitly that the attorney tell
potential jurors that the purpose of jury selection is to seat a fair jury to
conceal the attorney's actual goal of seating the most favorably biased
jury. 260 One article states that the goals of empathy-based voir dire strategy are to (1) obtain information (2) generate empathy of the client (3)
identify and minimize bias against the client (4) educate the jury about the
facts of the case and (5) develop a theme.2 6 1 However, only two of these
objectives are permissible under case law and procedure.262 The article
acknowledges this fact but suggests that an attorney may achieve these
objectives through clever advocacy.263
Professor Gold also expresses concerns about the introduction of extra-legal factors into the jury's decision-making process. 264 Gold considers
"irrelevant legal or factual issues" and that which "is considered by the
law to be an otherwise improper basis for decision-making" [sic] as extralegal bases for decision-making.265 In theory, the jury must decide a case
on the evidence presented in court, not on outside knowledge or beliefs.2 6
However, through the exploitation of psychological techniques, attorneys
can introduce facts to the jury that are not in evidence. Where an attorney
willfully uses "powerful" speech to enhance his credibility in the minds of
the jurors, the attorney is focusing the jury's attention on an extra-legal
matter; the credibility of the attorney is irrelevant and it is not evidence.26 7
O'Barr's study of "powerful" speech found that although those that used
"powerful" speech seem credible, "powerful" speech was not found to be
an indicator of truthfulness.2 68 Other observers note that attorneys have
257.
258.
259.
260.
Strier, supm note 223, at 472.

Blue, supra note 34, at 234.
Id. at 235.
Gold, supra note 3, at 493 (citing D. HERBERT & R. BARRET, ATrORNEY'S GUIDE TO
COURTROOM PSYCHOLOGY: HOW TO APPLY BEHAVIORAL SCIENCE TECHNIQUES FOR NEW TRIAL
SUCCESS (1980).
261.
Kerper, supra note 18, at 5.
262.
28 U.S.C.A. 1870; FED. R. Civ. P. 47(b); FED. R. CRIM. P. 24(b); A.R.S. 21-221;
Dixon v. Hardey, 591 So. 2d 3 (Ala. 1991); State v. Richards, 391 S.E. 2d 354 (1990).
263.
Kerper, supra note 18, at 5.
264.
265.
Id. at 484.
266.
See supra note 252.
267.
See C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND PROCEDURE 5163, at 29 (1978).
268.
Gold, supra note 3,at 485.
[Vol. 29
ethical obligations with respect to speech style.269 One article states clearly
that one's vocal characteristics can be used unethically. 270 "[T]he line over
which ethical speakers do not pass is vocal exaggeration, inference and
allusion which clouds the truth of a matter, leading jurors to emotionally
react and affect or subvert truth and justice." 271 The article notes that temporarily using emotions to manipulate jurors is unethical .272 "Attorneys
have a special responsibility to avoid distortion of meaning and manipulaWhen an attorney exploits human psychotion of emotions . ..
linguistic tendencies regarding indirect assertions of fact and innuendo, the
attorney is attempting to induce the jury to employ an extra-legal basis for
decision-making; an attorney's questions are not themselves evidence.274
Social scientific recommendations on physical appearance and nonverbal
communication techniques also focus the jury's attention on extra-legal
matters .275
Professor Gold expresses concerns that some social scientific techniques seek to induce the jury to evaluate the evidence illogically. Professor Gold believes that a jury commits an error of logic if it "incorrectly
decides that evidence is or is not probative" or if it gives greater or lesser
weight to evidence than the probative value of the evidence.276 Primacy,
inoculation, defensive examination and other techniques used to emphasize
or de-emphasize could induce the jury to commit an error of logic.277
Prolonging a trial in an effort to lessen the prosecution's or plaintiff's advantage of the primacy effect may raise procedural and ethical issues for
attorneys.2 78
Currently there is no formal monitoring system of any type for trial
consultants.27 9 Anyone can hold themselves out as a trial consultant.28
Trial consultants have a professional organization, the American Society
of Trial Consultants (ASTC) but the organization has not formulated any
269.
Childress, supra note 46, at 8; Childress, supra note 46, at 8 (citing JAMES C.
MCCROSKEY, AN INTRODUCTION TO RHETORICAL COMMUNICATION (1968)) ("[Lawyers have] the
opportunity to learn to speak well, and to be eloquent [advocates of] truth and justice. [They have]
ethical obligation[s].").
270.
Id.
271.
Id.
Id.
272.
273.
Id.
See WRIGHT & GRAHAM, supra note 259, at 29.
274.
275.
Id. at 494.
276.
277.
See generally id.
FED. R. Civ. P. 1 states in part: "[the rules] shall be construed and administer to secure the
278.
just, speedy and inexpensive determination of every action."; MODEL RULES OF PROF'L CONDUCT R.
3.2 (1983). Comment 1 to Rule 3.2 states in part: "a failure to expedite [will not be deemed] reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or
repose." Id.
279.
Stolle, supra note 220, at 171.
280.
Strier, supra note 223, at 478.
2005]
specific membership requirements. 28' Past presidents of the ASTC have

expressed concerns over the ethical issues of consultants advertising a winlose record.28 2Although the ASTC has a code of ethical standards, the
standards are not as strict as the standards set by the American Psychological Association. 283
IV. CONCLUSION
In past decades, attorneys have relied on tips, tricks and techniques
based on years of experience with "hit and miss" results. These techniques
have been handed down from hardened litigators to newly minted attorneys over the decades. Since the 1970s, social scientists have explored the
efficacy of these techniques. Through empirical evidence and other scientific means, scientists have examined the effects of these techniques and
have helped attorneys become more persuasive in the courtroom. Although
these techniques can be a powerful tool in the courtroom, attorneys should
be aware that scientific persuasion may have adverse effects on the integrity of the judicial process. Professor Gold and others raise compelling
ethical questions concerning the use of social scientific techniques in the
courtroom. The erosion of jury independence and the introduction of bias,
extra-legal factors and illogic could prevent the jury system from functioning properly. 284 Although psychological techniques are not 100% accurate,
they increase the probability that parties will bridle the jury's decisionmaking independence.285 The social scientific and legal communities
should be concerned that some day attorneys may become too good at
what they do-they may become too good at persuasion. Although mastering these persuasive techniques could help trial attorneys be more persuasive, the integrity of the judicial process would suffer greatly as a result of
their misuse. It seems clear that the science of persuasion will remain an
important tool for attorneys, however, the ethical issues raised by Gold
and others are not likely to disappear.
Jansen Voss*
281.
282.
283.
284.
285.
Id.
Stolle, supra note 220, at 171.
Strier, supra note 223, at 478.
Gold, supranote 3, at 498.
Id. at 508.
*
I would like to thank Jereme Logan for his dedication and attention to detail in editing this
work, and Hannah Averitt for never losing faith in me. I also want to thank Katie Finch for her patience and unconditional support.

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THE SCIENCE OF PERSUASION: AN EXPLORATION OF

Persuasion has been defined as the "act of influencing the minds of

Lawyers of America, 1978).

SKILLS (2004) [hereinafter COMMUNICATION]; DAVID B. BAUM, ART OF ADVOCACY: PREPARATION

Law & Psychology Review

well.7 Although psychologists are employed in cases where the economic

Jury Selection Techniques

3.17 (1998) [hereinafter WITNESSES].

Law & Psychology Review

success.22 Attorneys have also photographed the homes of potential jurors,

HANS & NEIL VIDMAR,

in THE PSYCHOLOGY OF THE

COURTROOM, at 68-72 (N. Kerr & R. Bray eds., 1982).

HANS & VIDMAR, supra note 25, at 68-72.

V. HALE STARR & MARK MCCORMICK, JURY SELECTION 6.02 (2001).

he receives. 34 This technique, referred to as deconditioning, can be used to

Law & Psychology Review

1. Word Choice and Speech Patterns

DUKE L.J. 1375, 1399.

Lubet, supra note 2, at 354-55.

nated the cross-examination, the attorney was perceived as having lost

Law & Psychology Review

Law & Psychology Review

convey a sense of time, distance or intensity . 9 "Reflective questioning" is

Underwood, supra note 68, at 190.

Other examples of indirect assertion of facts include questions such as:

Law & Psychology Review

STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 167, 172 (1980)).

like a vaccination to prevent jurors from being persuaded by an opposing

[the] opposition's arguments stimulates [the jury] to think about defenses

Law & Psychology Review

what he is about to hear is unique or novel, the person is substantially

Law & Psychology Review

Non- Verbal Communications

Psychologists have found that non-verbal communication accounts for

STARR, supra note 29, at 12.02.

with their hair, hands, clothing and other accessories).

KESTLER, supra note 47, at 9:44.

Law & Psychology Review

tive to [the jury].

dictionary and find that a particular movement means a particular thing. 78

supra note 29, at

THE SOCIAL PSYCHOLOGY OF

is being communicated, it is important that an attorney take note of both

Law & Psychology Review

confidence and control in the courtroom. 19 3 Women, in particular, should

podium or table, thus thwarting the full potential of proxemics.2 3 In those

Law & Psychology Review

Stolle, supranote 220, at 147.

system. 228 The jury system is thought of as a protection against arbitrary

that is incapable of being

Law & Psychology Review

isrational decision based on the evidence "may present [constitutional]

Strier, supm note 223, at 472.

Gold, supra note 3,at 485.

Law & Psychology Review

MCCROSKEY, AN INTRODUCTION TO RHETORICAL COMMUNICATION (1968)) ("[Lawyers have] the

specific membership requirements. 28' Past presidents of the ASTC have

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