Behavioral Mimicry: A New Tool at Trial?

The modern jury trial is much like a battlefield. Each side has a general, the attorney, who relies on accurate intelligence to field her resources and strategize an effective legal argument. The importance of reliable information begins with jury selection. Indeed, so important is this phase of the trial process that over the last few decades jury consultants became a valuable tool to those who can afford their often-prohibitive expense. As a result, clients who can afford consultants are able to provide their attorneys with a competitive advantage, increasing the chances of victory. Recently, however, a study conducted to determine the effect of behavior mimicry suggests that attorneys may be able to gauge juror verdict preference and perceptiveness. The implications of the study are significant for attorneys who must do without the aid of consultants. Attentiveness to jurors’ physical and nonverbal mimicry may enable attorneys to better conduct voir dire and assess the jury’s receptiveness to legal arguments.

The study, conducted with a mock-trial, implemented a set of pre-determined physical and nonverbal acts that would be monitored for mimicry among the jurors. The results suggest that jurors who mimicked an attorney’s behavior were more likely to agree with the legal argument asserted at the time of the mimicked behavior. Furthermore, attorneys who mimicked juror behavior were more likely to make a favorable impression on the jury. Although the introduction of new evidence continually changed jurors’ verdict preferences, the mimicry response was reliable for the purpose of moment-to-moment evaluations. Therefore, attorneys who pay attention to mimicry among jurors may be able to argue their cases more efficiently.

 Determining juror bias is patently difficult.  Jurors are often reluctant or unconsciously resistant to admitting their own prejudices. Mimicry, however, is an entirely subconscious response to external social stimuli. Therefore, while an attorney can never be certain that a juror is answering questions truthfully; mimicry is unlikely to be an act of deception. The ability to look at a group of prospective jurors and determine those whom are likely to render a favorable verdict is immensely valuable. Attorneys whose clients are unable to afford trial consultant fees ought to consider behavior mimicry to even the playing field or, preferably, gain the advantage of a more receptive jury.