Watch Those Jurors: Body Language Trumps the Spoken Word

The courtroom setting is unfamiliar to most prospective jurors, and sitting with a group of strangers is not necessarily within most people's comfort zone, much less being grilled by counsel during voir dire. In addition to which potential jurors may respond differently depending if they want to be off or on a particular jury. Therefore, their responses may not entirely reflect that person's "truth."

However, an individual's body language will virtually always be consistent with the person's "truth," despite what is spoken. To assess the veracity of any given prospective juror's verbal response, pay close attention to their body language, in particular body language that conflicts with oral responses.

Watch each prospective juror's body language as they respond to questions, whether the

questions come from you, opposing counsel or the judge. For example, if prospective jurors say, "Yes, I can be fair" but their head is going side to side, signaling "No," believe their body language. Similarly, if potential jurors say, "No, I would not be prejudiced against . . . " but their head is bobbing up and down, signaling "Yes," believe their body language which is clearly saying "Yes, I would be prejudiced."

If prospective jurors say they would give damages in a certain type of case, but their arms are crossed in front of their chest, either they won't give damages, or they would award very little.

If prospective jurors say, "Yes, I can keep an open mind" but they squirm in their seat, something about keeping an open mind is making them anxious. Continue to observe the behavior when asking the next questions. See if the squirming continues. If so, this may indicate  a need to visit the restroom or anxiety about being a juror. If, however, the squirming ceases, the person's anxiety was only relevant to that particular question and can be read in that context.

Body language always trumps the spoken word!

Men and Women Are Different: Choose Gender-Friendly Words in Formulating Voir Dire

Men and women are different. No big surprise there. They think differently. Still no big surprise. So it should come as no surprise that men and women respond differently when asked a voir dire question in the same way. But this isn’t a thought that occurs to attorneys most of the time; they ask questions of prospective jurors as if gender didn’t matter.

Gender matters!

Ask a male juror how he feels about something, and he’s likely to say “I dunno” or “Not much one way or the other.” Ask a male juror what his opinion is on the same matter, and he’ll usually expound with gusto. He will tell you more about himself by the opinions he stands firm on, and those he’s middling about or indifferent to, than just about any other indicator (except occupation).

Ask a female juror how she feels about an issue, and she’s likely to be verbose. She knows exactly how she feels about everything and is usually willing to share. Ask a female juror her opinion and you might not get much of anything. For the most part, “opinion” is for female jurors what “feelings” are for male jurors.

Word choice matters! Certainly the above is a generalization, and some women hold strong opinions, formulated as such, and some men are frank about their feelings. When it comes to voir dire, however, start by using the word that generally elicits the most informative response from the gender you are addressing. You can always make a different choice as you observe the response you get.

And oh, by the way, “What has your experience been with XYZ?” tends to be gender-neutral, in that both male and female jurors tend to be equally forthcoming when asked about their experience or lack thereof.