USLAW Magazine+ Summer 2020

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24 U S L A W

“[A]s many as 80% of jurors make up their mind immediately after hearing the opening statements.” 1 “About 80-90 percent of jurors make up their minds about how they are going to vote at the conclusion of opening statements.” 2

Do Jurors Decide After Opening Statements? Nick Polavin, Ph.D.

You may have seen or heard grand claims like these over the years, from a variety of sources. Granted, few would disagree that opening statements are crucial; they are an opportunity to start telling your story, introduce case themes, and provide jurors a framework to make sense of the information they will hear throughout the case. We have certainly seen first-hand the influence they can have on jurors. However, in our decades of studying juror behavior, these 80%-or-so claims always seemed inflated. To examine their validity, we first conducted a literature search, revealing multiple sources citing numbers like these. However, none of these sources conducted research to back the claim, and many could not provide a reliable citation (or any citation at all) for the statistic. As far as we can tell, it is likely that the

Litigation Insights

80% number originated from a 1966 study3 or a 1959 study4 – either way the statistics were taken entirely out of context. Rather than investigating the effects of opening statements, these studies examined the consistency in decisions between judges and jurors as well as changes in decisions during deliberations. In fact, one puzzled author from the 1966 study eventually penned an article to address the resulting myth. As he pointed out, “Nowhere in The American Jury’s 438 pages can one even find the words ‘opening statement.’”5 Although his clarification was made years ago, the general myth has persevered and seemingly entered the legal conscience as a kind of vague “wisdom.” Meanwhile, the question endures as to how open-minded jurors actually remain following opening statements. To examine this issue ourselves, we turned to our data-

base of mock trial statistics to analyze how many of our jurors stuck to their leaning after opening statements and the factors that may have affected their consistency. STUDY 1 In our first study, we used juror data from 12 mock trials, which included 337 participants, to examine the percentage of jurors who do not change their opinion at all after opening statements. Jurors had been asked to indicate their “leaning” in the case – which we coded as either “defense,” “plaintiff,” or “unsure” – at several points throughout the exercise, including after opening statements, after plaintiff and defense case presentations, after the plaintiff rebuttal, and after deliberations. To answer our question, we assessed the variance of jurors’ leanings throughout the mock trial – that is, whether their leanings