David Ball is fired up, here at the American Association for Justice annual convention. The attorneys are fired up. I’m fired up! David Ball says that he and a team of attorneys and trial consultants have figured out why tort reform rhetoric has worked so well — and they are using this new information to create a “nuclear bomb” that wins every time. David is convinced that the defense cannot do anything to effectively fight back.

I know this sounds too good to be true, but David’s uncharacteristic excitement about the future of public justice lawsuits convinced most of the attorneys in the standing-room-only ballroom. Based on what I know about how jurors make decisions, I also think this will work in my cases.

In a nutshell, the plaintiff wins if jurors believe that the kind of thing the defendant has done in this case is an immediate threat to the jurors and their kids. David spoke at length about the “reptilian brain” that has kept our ancestors alive for millions of years – that it has 100s of times more connections to the rest of the brain than any other structure, including the prefrontal cortex that gives rise to our conscious thought. That it is very powerful in our decision-making, yet resides in our unconscious.

I just gave a talk on Friday at HB’s benzene conference and spoke about the power of emotions in juror decision-making, that emotions are the conscious representation of a decision that takes place in the unconscious and that everyone, including more analytical “thinking” types, makes decisions based on which neurons win an emotional tug of war in the unconscious, between the pleasure and pain centers. Scientists who use MRI machines can see this neural activity and can predict how people will decide a research question before those people consciously know. For those attorneys who heard me talk about the neuroscience behind decision-making and the power of fear, the “double-edged sword” that drives jurors to assume causation and blame the plaintiff in toxic tort cases, David’s talk was even more enlightening. I think I “get it” now.

David’s book, Reptile, comes out August 7th. You can order it online at http://www.reptilekeenanball.com/ I also recommend the “Reptile Seminar,” since this technique has a “slow learning curve,” according to David. Obviously, you can’t tell jurors that what happened in the case is a threat to them. But you imply this – without violating the golden rule – by saying to a witness “you would agree, wouldn’t you, that a [manufacturer, physician, etc] is never allowed to NEEDLESSLY ENDANGER a [user of a product, patient, the public].” To do this well, throughout trial and in depositions before… to even know what facts you will need at trial to convince “The Reptile” (as David puts it), you must practice, practice, practice. I hope to put this to work in our mock trial CLE workshops, so I’ll need to work with attorneys who have read the book. Perhaps I’ll demonstrate some of it myself in an opening statement.

This is powerful stuff. It’s simple in theory and makes sense to me. I know fear drives juror decision-making and I’ve seen the reactions of jurors with perception analyzer dials, dialing down against Plaintiff when the attorney is making a strong, rational point that should be helping her case. Even the plaintiff-oriented jurors dial down against the plaintiff in these situations, where their rational prefrontal cortex must know this helps Plaintiff’s case, yet that reptilian brain wins the neural tug of war and the prefrontal cortex is put to work, justifying, verbalizing and defending an irrational decision. This is when jurors selectively attend to evidence, pull in life experiences and even make up facts to justify their decision – to protect themselves from their own fear.

I’ll write more on this later. I need to get back to a very exciting convention, here in San Francisco.

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Memory, mental processing speed and other cognitive functioning generally decline as people age. But this can be avoided. Studies show that, contrary to popular belief, neurons continue to grow throughout life. You can optimize your brain to perform better than ever, at any age. We all know we are supposed to exercise, eat our vegetables and get a good night’s sleep. Doing so not only strengthens your body, it also strengthens your mind.

Exercise Increases Memory

You can slow or even reverse normal (and disease induced) memory loss by exercising. As we age, nodes in the hippocampus are the first to deteriorate, which causes memory loss; however, aerobic exercise causes new hippocampus cells to grow. According to epidemiological and brain imaging research, people who exercise the most experience the biggest growth in brain cells and improved memory performance. So it’s important to walk 30 minutes a day several times a week or implement some other exercise routine. Also, women of reproductive age need an iron supplement or plenty of red meat, eggs, lentils, spinach & broccoli to replenish their blood supply.

Brain Foods – Bananas, Flaxseed Oil (Omega-3 fatty acids), Soybeans, Yogurt, Blueberries, Proteins, and Coffee

Brain cells must be replenished with nutrients. Japanese food, such as tofu, miso, soybeans, fish and seaweed are full of magnesium, B vitamins, tyrosine, L-glutamine, glutamine, tryptophan and potassium, which are essential to maintaining brain cells, the myelin sheath which improves neural firing rates and the neurotransmitters, which affects mood, thoughts and actions. Bananas, flaxseed oil (omega-3 fatty acids), soybeans and yogurt are also outstanding sources of these nutrients, so a breakfast of fruit, yogurt and granola with flaxseed will also do the trick.

Research shows that eating blueberries increases memory capacity by reversing age-related deficits. The flavonoids in blueberries (blue, red and purple berries are all great sources) are thought to cross the blood-brain barrier, regenerate brain cells and enhance neural connections. Flavonoids also reduce heart disease by lowering blood pressure and reducing blood clots.

Eating protein at every meal will help stabilize blood sugar levels and help prevent the brain fog that sometimes happens after high carbohydrate or high sugar meals. I provide my mock trial jurors a steady supply of nuts, cheese and iced tea to keep them alert during our research projects. I do not give our participants soda, which usually contains artificial sweeteners or corn syrup. Not only are these foods unhealthy, they are also “brain drainers,” according to Dr. Sears. Click here for Dr. Sears’ complete list of brain foods and brain drainers. Memory loss is linked to a diet high in saturated fat and cholesterol.

Coffee is my wonder-drug. Besides alertness, it increases happiness and even sociability. When you’re sleep deprived, coffee improves memory, reaction time and the ability to perform complex tasks. (But if you are rested, it is easier to focus deeply with less caffeine, in a comfortable environment with limited external stimuli. Caffeine will improve your attention on simple tasks, as will bright lights, a hard chair and fast music.) Studies show that coffee drinkers are more open-minded to others’ opinions and have reduced rates of type 2 diabetes and Parkinson’s disease. Coffee also contains antioxidants, enhances aerobic endurance and helps the body burn fat instead of carbs. And contrary to popular belief, coffee is not known to cause heart disease (including abnormal heart rhythms), hypertension nor cancer (incl. breast, kidney, liver & pancreatic. Click here for more information.)

Sleep On It

Sleep strengthens memories, improves motor skills and increases people’s ability to see the big picture (i.e., organize disparate details into a comprehensive framework that makes sense.) During sleep, memories are moved to areas of the brain that store long term memories, where they are retained for years, instead of weeks. During this process, memories are edited, with some details removed while others are enhanced. Daytime naps also enhance memory, especially if the material is tested before napping. It appears that straining to recall a memory, versus simple repetition, enhances memory. If you need to rapidly digest a lot of information, a nap will strengthen memories learned earlier in the day so that new information obtained afterwards will not interfere with that learning. Although scientists recommend that people get 7 to 8 hours of sleep a day, this is a generalization; some people require more and some less. If you wake up feeling tired, you need more sleep. It’s that simple.

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When interrogating suspects and witnesses, investigators will interrupt the speaker and ask questions out of chronological order, ask what happened from different viewpoints and change the subject at critical moments. All of these tactics can expose a lie regarding a supposed personal experience.

A pre-rehearsed story will often sound like a data dump, with too many details and in chronological order, with “bridging” words such as “after a while” and “the next thing I knew.” It is more difficult for a liar to answer specific questions out of order than for a person who can simply access their true memory of what happened. In addition to the body language cues discussed on my prior blog on deception, the liar will usually take more time to answer, since there are more mental steps involved in telling a lie. An unrehearsed lie is the easiest to spot because the working memory is limited in how much detail it can keep straight. If the person has not previously thought through an answer to a particular question, they will have to create one that does not contradict other parts of their story. (Watch if their gaze deviates from their baseline, as described in my prior blog.) They will often have to stall for time by asking questions such as “Would you repeat that?” and by filling in uncomfortable silence with noises like “um” and “ah.” They may also speak more slowly than their baseline rate of speech. Even a rehearsed lie takes more time to tell because the memory is not as fully imprinted in the brain as an actual experience.

Similarly, it is difficult to keep facts straight when asked to explain an event from a different viewpoint, as if from another camera angle. The truthful witness will probably first access the memory while looking to the upper left (if that is their baseline) and then switch to the upper right as they mentally rotate the scene. Their eyes may go back and forth as they recall and rotate the memory for the demonstration. A liar will take much more time to construct the scene, then try to rotate it and will probably not look to up to their baseline position for recalling a visual memory. The liar is much more likely to make inconsistent statements and errors in the rotation. They may also become nervous, angry and show incongruent emotions (stating facts with inappropriate emotion, then expressing proper emotion a second or two later) with their story since most of their mental effort is taxed with the task.

People who have something to hide try to avoid telling the truth, whereas innocent people try to clear their name and/or solve a problem. For example, suppose a bank manager tells an employee that “$200 was missing from your drawer yesterday” and then adds “oh, before I forget, what are you bringing to Friday’s potluck?” A guilty person will gladly follow a change in subject, perhaps appearing visibly relieved or even loudly exhaling, whereas an innocent person will quickly return back to the subject of the missing money. Some interrogators will leave a suspect in jail overnight and watch their behavior. Innocent people are more likely to pace into the night while guilty people are more likely to go to sleep. That is because the guilty are often anxious about their crime until they have been caught, after which point they are tired.

It is important to evaluate deception in environmental and personal context. An honest person may also talk more slowly if they are being careful and precise in their language. If an honest person is afraid they will not be believed, especially if the stakes are high, they may show signs of deception which are actually just nervousness. Conversely, people who feel justified in their lie or feel no duty to be honest with a particular person or situation are less likely to feel deception guilt. And, with practice, most people get better at deceiving others. Because of this, the most gifted deception detectors, U.S. Secret Service agents, highly experienced psychotherapists and extraordinarily sensitive people, are only accurate about 85% of the time.

Studies show that people’s ability to detect deception (when the stakes are low and they are only given a couple of minutes) is surprisingly low, no better than chance. But with training and practice, most people can improve their ability to catch a lie. And when the stakes are higher, when the liar is unpracticed or the liar believes that the listener is an expert in detecting deception, their emotions are more likely to reveal the truth. So you can actually improve your ability to detect deception by simply telling people that you’ve read this blog, Paul Ekman’s “Telling Lies” book or taken Ken Osborn’s “Liar, Liar, Pants on Fire!!!” workshop. (His website is http://ciainstitute.com/)

Filed under: Body Language, Communication, Deception by admin
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The biggest mistake I see at trial is that attorneys do not adequately explain the jury instructions. This almost always hurts the plaintiff, partly because plaintiffs’ jurors tend to cave in deliberations more than defense jurors. The more time your jurors spend frustrated, arguing with each other about what the instructions are asking, the more jurors the plaintiffs lose. Also, juror fatigue reduces jurors’ desire to ensure justice. They will want to get on with their lives and a defense verdict gets them out of the deliberation room a lot faster than arguing each and every question on the verdict form.

Words that confuse jurors include: significant, knowingly, substantial, preponderance, malice and “competent to testify.” Jurors will not understand these legal terms after the judge reads the jury charge because the legal definitions defy jurors’ common sense. Jurors are actually more confused as to what words mean after the judge reads the jury instructions. Questions on the verdict form that should be a no-brainer become hotly contested questions. So in addition to explaining the legal definition of words, attorneys should also explain how to apply the facts of the case to each question.

Attorneys will have to spend some time explaining these terms throughout the trial and in closing so that jurors will internalize and be able to apply the proper legal meaning. Even when jurors understand a legal definition, such as preponderance, they may be reluctant to follow the instructions. You overcome this by referring to these terms throughout trial so that jurors become more familiar with the legal meanings. During your direct and cross examinations, use the words that will appear on the verdict form. But make sure you emphasize that your expert is sure to a medical certainty, or scientific certainty, not just a preponderance of the evidence. Otherwise, your jurors will think that you are not as certain as you should be. You are simply pointing out that the expert is much more certain than the law requires (notwithstanding Daubert).

Project (or write out) each question or each critical phrase within a question on the verdict form and explain how to apply the evidence to the law. If the judge permits, give the jurors their own copy of the verdict form so they can more easily listen to your closing while adding their own notes.

Other legalese that confuses jurors includes approximately, subsequent, prior, find and action. Instead, say about, after, before, decide and lawsuit. Instead of saying cardiac or dermal, say heart and skin. Technical terms should also be clear. After a case, a juror actually said Why did you keep telling us you wanted your client to “recover?” He’s dead. Practice speaking clearly, as you would to intelligent 14 year-olds who understand words in their common sense meanings. And — throughout the trial — explain legalese in the jury instructions so that jurors will acquire your “common sense” understanding of those terms.

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Proving causation and liability is difficult in a mesothelioma case. Jurors have a hard time understanding expert testimony in a mesothelioma case because it is so complex and technical. Additionally, jurors have many misconceptions about cancer, believing that it “just happens” to some people.

People do not understand the concept of a latency period, that carcinogens cause the various types of cancers and that these horrible diseases are mostly preventable. Therefore, jurors’ personalities, biases and life experiences are more important than in other lawsuits. Jurors will rely more on whom they trust and like so it is imperative that the attorney establish credibility and that the jurors can see that she believes in her case.

People focus on evidence that supports their current belief system, especially if it is strongly held. They tend to disregard contradictory evidence and may not even remember that there was any evidence opposing their viewpoint, even if they were paying attention at the time. It is crucial that you identify these biased jurors, who will never find liability, no matter how strong a case you present.

Attitude towards lawsuits
Ask jurors about their attitudes towards lawsuits. Ask who supports tort reform and what changes they would like. Encourage the tort reformers to vent about out of control juries. Agree with them that there have been some ridiculous verdicts.

You will not poison the jury pool with this discussion because they have heard plenty on this to form their own opinion. However, do not encourage jurors to describe “facts” of extraordinary examples supporting their views, just their opinions. This new information could influence a juror, especially if the speaker is a “leader” who has already bonded with a “follower,” as described below in the personality section.

Be careful not to assume all people expressing these views are defense-oriented because we have seen jurors say they think people should never file a lawsuit, then turn around with a large verdict in focus groups. Assess how strongly they feel about lawsuits and how well they have thought it through.

Ask, “If you were injured by someone else’s negligence, would you sue?” Pay attention to how extreme the circumstances would have to be. Ask if they have ever been sued or if they ever sued anyone, what was the outcome and how they felt about it. Ask if they have ever been unfairly accused of something. People who are still anchored to such an experience may identify with the defendant.

“Sh*t happens”
Watch out for the “sh*t happens” jurors. These people take personal responsibility to the extreme and believe that everyone must take care of himself or herself, no matter what the circumstances. These people will never return a verdict for the plaintiff, no matter how strong the evidence.

You can spot these people by asking what would be required of you to prove your case. They will say they need specific evidence that goes way beyond what the law requires. Ask them if it’s fair to award a large sum of money, say two million dollars, for very serious injuries if you prove something less than that. Let them keep going until they cannot later admit that they will follow the law, given their strong convictions.

Attitude towards big business
Attitude towards big business is another key predictor of juror verdict. Since the Enron and accounting scandals, anti-corporate views are at an all-time high, with more than 80% of Americans saying large companies lie and cheat often and that the corporate executives cover up the harms their companies cause (85%, 82% and 83%, respectively). However, Americans are not trying to change corporate behavior through jury verdicts. Just the opposite is happening; Americans expect less of corporations and are not as outraged by acts that just a few years ago resulted in huge punitive damages penalties. People who believe that companies hurt individuals and act immorally actually are more defense-oriented. Pro-corporate jurors who believe that corporations are generally good for society are more upset when a company acts badly, so they tend to favor the plaintiff.

Ask jurors open-ended questions such as what, if any, responsibilities corporations have to society? Ask what they think of companies. Ask anyone who has not volunteered an opinion if they think large companies tend to help or hurt people, make their lives better or worse. Pay attention to how strongly they feel about companies.

Someone who responds with an unequivocal “better” response may be an authoritarian personality type, which is discussed below. If you have a strong liability case with evidence of bad behavior and possibly high punitive damages, ask these people about corporate responsibility, i.e., how a corporation should conduct itself in society. Authoritarians may be very good jurors for the plaintiff, but you must do some research with your case specifics to be sure.

Fiscal v. Social Conservatives
Differentiate between fiscal conservatives and social conservatives, who respond very differently to toxic tort cases. Social conservatives often side with the plaintiff when rules are broken, people are hurt or social norms are violated. When a corporation has acted badly, social conservatives often respond with very high punitive damage awards. Fiscal conservatives, on the other hand, are less likely to find a corporation liable. They are more concerned about their investments than the general social welfare. These people are your one-issue voters, who always vote for the candidate who will lower their taxes the most.

Attitude towards government
Authoritarians are also less likely to question government oversight and regulations. Toxic tort cases often involve evidence of corporations concealing their research from the government when they find their products are dangerous. Authoritarians have a hard time believing that their cherished system can be so flawed. They will disregard this evidence if the defense responds with anything marginally credible.

Attitude towards chemicals
People’s attitudes towards chemicals are a good predictor of verdict in a design defect claim.

Jurors who believe that there is inherent risk in necessary products are less likely to find that the product was defective, despite the dangers. These people also want to know if there is a safer, equally effective alternative chemical that could have been substituted for the more toxic one.

People who are uncomfortable with hazardous materials may find that there was a design defect simply because the “nasty” chemical existed and someone was seriously injured. Some jurors want to send a message to the manufacturer to engineer a safer alternative if one does not already exist.

Ask each juror “When you have ants in your kitchen, how do you get rid of them? Do you use Raid? What do you use?” This will indicate their attitude towards chemicals and how aware they are of environmental risks and how careful they are with their own health. Pay attention to the juror’s emotional response. Are they firm in their belief of what’s best? Do they sound sheepish when they answer Raid? This latter juror may be a better plaintiff’s juror.

Stealth jurors
People who want to spend so much time in a trial may have an agenda. Most jurors do not want to spend weeks or months in a trial. They will often be angry and distressed when they learn that they could be taken from their work, family and friends for such an extended time. Most will not want to be on the jury. Despite this, jurors take the proceedings very seriously and tend to answer questions truthfully. However, some people will lie to get on a jury so they can make a point.

Watch out for anyone who suddenly wants to be on the jury. Watch body language for signs of deception and anger, as discussed below.

Life experiences are very important in predicting juror verdict.
When there is contradictory and equally credible testimony or something is simply not covered, jurors will insert their own life experiences to fill in those gaps.

For example, if your client says he always wore a respirator and the defense claims he did not, jurors who have experience working with hazardous materials and wearing respirators will talk about their experiences. Many people have experience working with respirators and most do not wear them as much as they know they should.

You should ask the jurors about their experiences regarding any important contested fact.

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Start strong
Make a favorable impression on the jurors, because first impressions frame later perceptions of facts. You want jurors to put everything they learn about the case and attorneys into the context of your case theme. Attorneys often spend much time and thousands of dollars perfecting a “power statement,” which is a carefully worded 30-second to two-minute spin on their case.

Raise expectations of the opposing side
This is typically done in a criminal trial, where the defense will emphasize the incredible burden of proving anything “beyond a reasonable doubt.”

The expectations game was used in the 2004 elections, when President Bush’s team played up John Kerry’s debating skills and downplayed the President’s. Because people expected Kerry to perform better than Bush, when Bush did a reasonable job the press reported that he did well.

By raising the juror’s expectations of the other side’s strengths, those strengths will not be as impressive to the jury.

Lowering expectations of your case
When you lower the expectations of your own case, you will lower the bar of what you must prove.

The Plaintiff’s attorney must spend some time explaining “preponderance of the evidence” to the jury because people are so accustomed to criminal law dramas and the higher standard of proof. One way to do this is to put two reams of paper on the table and then add one more yellow sheet of paper to one stack. This visual will stay with the jurors and they will remember that they do not have to be very certain that you have proved your case.

You need to anticipate the juror’s expectations and address anything that will not meet those expectations in voir dire. Jurors expect that a client with leukemia will look sick. If you tell the jurors that he is in remission and that he looks healthy on the outside, but still has low blood counts, the jurors will not be surprised. Focus group feedback is helpful in discovering juror expectations.

Inoculate against bad facts
You must face your fears in voir dire. If your leukemia client smokes, you will have to discuss this in voir dire, not only to identify jurors who will hold that against you, but also to inoculate the others to this damaging fact. It is much worse if the defense is the first to bring this up. In addition, you may look honest for sharing this information.

The jurors are less likely to believe any statements you make about why they should not hold it against your client that they smoke, so ask the jurors to comment. Let a juror make your point. Besides being more persuasive, you will draw this juror into your position if you refer to her point later. Make sure you give her credit for the statement.

You can start by asking how many people smoke. The first hands up will probably be outspoken, confident people who will be able to share their viewpoint that just because a person smokes does not mean that others can poison him.

Establish credibility
In a mesothelioma case, jurors are unlikely to be able to understand the expert testimony well enough to know who to believe based on their expert opinions. Jurors will use their people skills to judge who is more credible. This assessment begins with the attorney in voir dire. It is critical that you convey that you believe in your case.

Box in for-cause challenges
Go through your questions with all jurors before focusing on any particular juror to box them into saying the “magic words” in your jurisdiction for a cause challenge. Doing so could stifle further openness. You want to encourage jurors to talk and share their biases with you.

Return to jurors whose earlier answers could get them dismissed for cause. An assistant should have written down any quotes that will serve as the basis of a for cause challenge. Read that quote to the juror and ask if that is what they said. Be careful not to put any words into their mouths, as that will make them angry and distrustful of you. Once the juror acknowledges that the statement is correct, ask is it fair to say that you have strong feelings about [lawsuits]? Most people will say yes and will not want to contradict themselves if you then ask “is it fair to say that you will start off slighting favoring one side over the other?”

Protect favorable jurors
Now that the jurors are comfortable admitting that they will start out the trial favoring one side over the other, you want to steer your favorable jurors into saying just the opposite, that they will keep an open mind because they have not yet seen any evidence.

Anticipate the defense’s questions that may knock off your favorable juror for cause. You need to identify your sympathetic jurors first. Explain that a juror may feel sorry for the plaintiff, yet blame him for his injuries. Ask each person:

Do you consider yourself to be a fair person?
Have you seen any evidence in this case?
Can you follow the law and wait until you’ve heard all of the evidence before you make up your mind in this case?

Bond with your jurors
Make eye contact with everyone. Try to call jurors by name. An assistant should make notes of answers that indicate bonding opportunities, such as hobbies. Later, you can subtly include a reference connecting your client to that juror. For example, if a juror enjoys softball and your client played softball before getting leukemia and now cannot, he should mention that fact when he testifies. The attorney can bond by making a joke referencing pop culture, or some other safe topic.

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Signs of Deception
Most people are not successful at spotting deception unless the liar is extremely uncomfortable. Even trained interrogators have difficulty catching seasoned liars, who control their body language, remain comfortable while lying and have previously thought through their answers. There are, however, some methods which may indicate deception but are unreliable on their own and must be considered in a fuller context.

Sometimes people avert their eyes or cover their mouth when they are lying. Rapidly blinking eyes, a stiff, tense body, motionless hands, rapid facial twitches, distorted enunciations due to a dry mouth, quicker speech and a higher pitched voice are signs of nervousness, but not a clear indication of deception, especially given that jurors are often uncomfortable when asked personal questions in front of a group of strangers in a courtroom.

To accurately identify a lie requires reading the flow of emotions, such as distinguishing varying levels of nervousness when different questions are asked, and knowing if the expressed emotion is natural or forced. This is easiest for intuitive people who are more in touch with their own feelings. When telling the truth, people will express congruent emotions while speaking, whereas emotions are typically delayed a few seconds after telling a lie; there is a disparity between language and emotion.

If a juror shows several signs of deception in a short period of time or if one signal is repeated over time, when a certain issue is discussed, it is more likely that the juror is actually lying about that topic.

Lying Gestures
One of the endearing things about children is that they are so honest with their statements. They have not yet been socialized to tell polite white lies nor have they mastered deception. The subconscious mind does not like to see distasteful events, so children will look away when they are lying to their parents. Children will also block words they do not want to hear by covering their ears. And children may cover their mouth with one or both hands, as the subconscious tries to stop a lie.

This behavior continues into adulthood, just masked a bit. The gestures are more subtle, but face touching is generally indicative of deception and other anxiety-laden emotions. To help you remember the following gestures, think about the ancient phrase “see no evil, hear no evil, speak no evil.”

Rubbing an Eye (See No Evil)
Men will rub just under their eye when lying and women will touch the same area more gently, perhaps as not to smear their make-up. If an a juror actually looks away while answering, check to see if they are focusing on something to clarify their thoughts and then returning to look the person in the eye to answer or if they are nervously looking from object to object, avoiding eye contact with the attorney. The latter indicates a more serious lie.

Eye Movement
People typically look towards the same side when recalling a fact and will often look to the other side when fabricating a lie. Most right-handed people look to the observer’s right (the speaker’s left) or straight ahead when recalling a fact and look to the observer’s left (the speaker’s right) while fabricating a lie. It may be reversed in left-handed and artistic people.

Interrogators will establish a baseline first, by asking neutral questions which require a person to visualize a memory which is not readily accessible, thereby indicating where that person looks when recalling a factual memory. However, this is more difficult for an attorney during voir dire since the remaining jurors will think about their responses when it is first asked. Therefore, attorneys should first ask baseline questions of jurors they already suspect of deception. For example, “what were your typical job duties while working for Sears (past employer x)?” and “what year did you begin your employment there?” Assistants can watch where the other jurors look when they first hear a baseline question asked of another juror.

Touching the Ear (Hear No Evil)
Jurors may tug at their earlobe while they are experiencing anxiety, as the subconscious tries to block an objectionable sound. This is the adult version of children covering their ears when they do not want to hear something. Jurors who disbelieve a witness or attorney may also touch the back of their ear, insert a finger into an ear or fold their ear forward, over the ear hole. These gestures may also indicate that a juror has heard enough or wishes to speak.

Covering the Mouth (Speak No Evil)
People will sometimes clasp a hand over their mouth after saying something they wish they had not said; blurting out a secret, for example. The subconscious will also block the mouth when a person is lying or they think someone is lying to them. Jurors may place a finger to their lips, as if they are shushing the speaker or they may cover their mouth with their hand, several fingers or a closed fist. Self-aware people may try to conceal this gesture with a fake cough, as actors do when portraying deceit.

If a juror places a finger inside his mouth or bites on fingernails, it is a sign of insecurity. It is the adult version of childhood thumb sucking. This person needs more information to be reassured.

Touching the Nose
When Bill Clinton testified about his affair with Monica Lewinsky, he touched his nose every four minutes when lying, but rarely touches his nose when telling the truth. Blood pressure goes up when a person lies and otherwise feels anxious, angry or upset, which causes a tingling in the nose. People will often lightly touch the underside of their nose, by the nostrils, to satisfy this itch. This touching is quicker and gentler than the more deliberate, vigorous, repetitive rub to satisfy a typical itchy nose. It may occur several minutes after the lie, when the attorney is speaking with another juror.

Touching the Neck
When a person feels anxious, blood also rushes to the face and neck, sometimes causing a visible blushing and raising the temperature of the face by several degrees. This is visible on infrared cameras and is thought to be as accurate as polygraph tests at identifying deception. When people are angry or frustrated, i.e., “hot under the collar,” they may pull at their collar to cool off.

Jurors who scratch their neck may feel doubt or uncertainty. They will typically scratch just under their ear about five times. Reassure these jurors by explaining a point in a different way.

Deceit Distinguished from Boredom and Evaluation
People touch their faces when bored and thinking, so it is important to distinguish boredom and evaluation gestures from deceit in the context of voir dire. In general, when people support their head with their hands, they are bored. When the hand or fingers merely touch the cheek, jaw or chin, without supporting the head, jurors are interested in the proceedings.

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