The Neglected Factor: How Anxiety Affects Juror Decision-Making

By Mac Coleman[i]

Lawyers are experts at managing the stresses associated with trial—their own stress and their clients’ stress.?But in their zest to win, lawyers often forget about the stress under which the jury operates.?In one study, 96% of jurors reported that they experienced stress due to long trials, with 27% of jurors reporting that even the shortest trials (those lasting one to three days) caused anxiety.[ii] ?In the same study, respondents reported serious symptoms from jury duty, including “disturbing memories,” “feelings of detachment,” and “nightmares.”[iii] ?While many jurors don’t let this stress show in the courtroom, it has a real impact—both personally and on deliberations.?As such, lawyers should be just as concerned with jurors’ anxiety as the jurors themselves.

This article examines how anxiety might alter jurors’ deliberation patterns.?First, we examine the causes of juror anxiety.?Second, we examine how anxiety can compromise jurors’ normal cognitive behavior, with reference to key legal and psychological studies.?Third, we provide recommendations for neutralizing the effect of juror anxiety.

????I.????????The Causes of Juror Anxiety

Anxiety disorders are the most common mental illness in the United States.?According to the U.S. Census Bureau’s Household Pulse Survey, about a third of adults overall (32.3%) reported anxiety and depression symptoms in 2023.[iv] ?As depicted in the first chart below, nearly half of these adults (49.9%) were between the ages of 18 and 24; 38% were between the ages of 25 and 49; 29.3% were between 50 and 64; and 20.1% were 65+.?As shown in the second chart below, anxiety disorders occur more frequently in females than in males, with an approximate 2:1 ratio.[v]

Current estimates suggest that Generalized Anxiety Disorder—which causes people to feel unrealistic worry about everyday life events—affects 6.8 million adults (or 3.1% of the U.S. population).?Likewise, Social Anxiety Disorder—which causes people to have persistent fear of social situations—affects 15 million adults (or 7.1% of the U.S. population).[vi]

This is the backdrop against which jurors enter trial proceedings.?Unsurprisingly, jury service raises these existing anxieties or causes new ones. A study conducted by the National Center for State Courts described the causes of juror stress as follows:

Jurors confront numerous sources of stress at every stage of jury duty, even in routine trials.?Beginning with the summons to jury service, they experience disruption of their daily routines, lengthy waits with little information and often in unpleasant surroundings, anxiety from the scrutiny of lawyers and the judge during voir dire, tension from sifting through conflicting versions of facts and unfamiliar legal concepts, conflicts during deliberations, and isolation following the verdict and their release from jury service.[vii]

?Three drivers of juror anxiety stand out in the literature:

1.????A Tennesse Journal of Law and Policy journal article concluded that the decision-making process itself—i.e., the stress of deliberations—was the greatest inducer of stress.[viii]

2.????The voir dire process also induces anxiety, with one study reporting that over 75% of jurors experienced stress during jury selection.[ix] ?This makes sense since voir dire is often characterized by intrusion, with attorneys asking personal questions about jurors’ lives and private affairs.[x]

3.????Another study indicated that jurors are particularly likely to experience anxiety in trials that depict violent crimes.[xi] ?These trials are characterized by visually graphic and horrific evidence that is often accompanied by a recording of the crime scene.[xii]

It should be noted, however, that the cause of anxiety for jurors is not limited to these specific examples: jurors will experience some degree of anxiety at nearly every level of jury service.?In other words, stress accumulates over the course of jury duty.[xiii]

????II.????????How Juror Anxiety Impacts Deliberation Patterns

But how does this stress affect the jurors’ decision-making??There is little research specifically addressing how jurors make decisions in the face of anxiety.?To answer this question, we can look to the psychology of anxiety generally, as well as research performed in other disciplines (e.g., how anxiety impacts doctors and business managers).?This research has identified four important effects on juror behavior:

First, anxiety may reduce jurors’ ability to focus and cause them to forget key information, particularly information that is sequenced directly after a triggering event.?This is a type of perceptual bias that impacts memory space, such that high levels of anxiety prevent an individual from focusing on a given task (particularly when interpreting graphic evidence).?Numerous studies indicate that high levels of anxiety prevent an individual from returning to their task because they are so consumed with anxiety.?One such study found that anxiety impairs two types of attentional control driven by the working memory system: (1) negative attention control (the ability to factor out task-irrelevant stimuli); and (2) positive attentional control (the ability to switch attention between tasks to maximize performance).[xiv]

The extent of attentional impairment may be proportional to the amount of information already held in memory.?Naxanin Derakshan, a Professor of Experimental Psychopathology at the Department of Psychological Sciences at Birkbeck University of London, described this phenomenon as follows:

When the amount of information held in memory is low to medium, anxiety impairs working memory capacity significantly because the cognitive processes that are not required for carrying out the task are available for processing these threat distractors.?However, when the load is high, anxiety impairs the capacity of working memory much less since all of the resources are consumed by processing the high load of information, and little to no working memory is available to attend distracting threats.[xv]

?As a result, the effect of anxiety on memory retention may be greatest earlier in a trial, when jurors have not yet been asked to retain a great deal of information.?Conversely, the effects of anxiety may diminish later in trial, after a large amount of testimony and evidence has been presented, i.e., when the “information load” is high.

Second, separate from any memory/perceptual bias, anxiety also injects an “emotional bias” into decision-making.?Jurors experiencing stress are more likely to be driven by an emotional response to the evidence, limiting their ability to engage in logical thinking.?American legal scholar Cass Sunstein noted this tendency in his book, Hazardous Heuristics; he concluded: “When people are anxious and fearful, they are less likely to engage in systematic processing, and (such correction) is especially unreliable.”[xvi] ?Psychologist Robert Zajonc proposed specific reasons for this reduction in cognitive reasoning; he found that emotional processing dominated because: (i) emotions benefit from a cultural universality; (ii) there are a limited number of distinct emotions, as compared to an infinite number of distinct cognitions; (iii) emotional reactions have a physiological primacy; and (iv) emotions can exist without a direct referent (e.g., “free-floating anxiety”), whereas cognitions must have an anchor (i.e., they are always “about something”).[xvii ]?According to Zajonc, these differences drive people to rely upon emotion when faced with anxiety.?Thus, regardless of the level of anxiety a juror faces, their normal thought-processes will be disrupted due to the separation of thoughts and emotions.

Third, studies show that individuals under stress adopt a simpler mode of information processing—one which makes jurors more comfortable with incomplete information.??For instance, a study conducted by the National Institute for Occupational Safety and Health noted that “[d]ecisions can only be made based on the information available, and studies have shown that, on many occasions, decisions are made with incomplete information.”[xviii] ?James Driskell and Eduardo Salas agreed in their 1996 book Stress and Human Performance; they found that “[t]he changes induced by stressors appear fairly adaptive – to trade off accuracy for speed, as when faced with a threat, and to narrow the focus of attention when faced with capacity limitations and attentional disruptions.”[xix]

Fourth, stress may change the risk profile of jurors.?For instance, where anxiety manifests as frustration or anger, jurors could be more likely to ascribe severe appropriations of blame to a defendant.?That is because “angry jurors generally perceive events to be under human control and are more likely to minimize situational factors which would mitigate culpability.”[xx] ?For instance, Georges et al. (2013) found that angry jurors are more likely than emotionally-neutral jurors to rely on intuitive judgments to make capital sentencing decisions in death penalty cases.[xxi]

???III.????????Strategic Recommendations

If you’re a judge, your approach is simple: juror anxiety is detrimental and should be mitigated.?But for trial lawyers, the task is more complex.?Attorneys should not assume that juror stress is per se bad for their case.?As suggested above, many cases will benefit from the perceived negative consequences of stress, such as jurors’ tendency to hyperfocus on critical evidence and overlook incomplete information.?But if you decide that stress is harmful—as criminal defendants often will—attorneys have some options.?We provide a few recommendations below:

• Attorneys can take steps to make voir dire less threatening.?One technique is to utilize a juror questionnaire. In California, there now is a court-approved questionnaire of 33 general questions that can then be supplemented with questions specific to the case.?The questionnaire method allows the attorney to determine whether the juror has anxieties about the issues in a case without the adversarial implications of live questioning.
• Jurors experiencing stress may attempt to expedite their decision-making process, potentially resulting in an overly narrow focus.?Attorneys can mitigate this effect by supplying jurors with structured tools (e.g., charts outlining the elements of the case or summary slides that consolidate key evidence into a single location).?As an analog, researchers in cognitive psychology recommend that emergency responders be provided with a “decision support system,” which serves as a roadmap during high-stress situations.?Attorneys could furnish jurors with an analogous failsafe chart to guide their decision-making and keep it on track.
• Have a clear sense of where you’ll draw the line in terms of graphic evidence.?Not every awful picture may need to be shown, and not every awful scene may need to be described.
• When a jury is feeling stressed, the leadership dynamics can shift, causing members to rely more heavily on the leader’s guidance.[xxii] ?If you know who the leaders are, focus on what might appeal to them, keeping in mind their individual attitudes and life experiences.?Witnesses can also adjust their approach by targeting their testimony and eye contact towards these leaders, as they tend to have more influence on an anxious jury.

There is still plenty of room for research on the effects of emotional stress in the courtroom.?Further research would be extremely significant to understanding of the psychology of jurors.?The legal community must remain cognizant that jurors may be experiencing extreme levels of stress before, during, and after the trial.?

[i] Mac Coleman was a Summer 2024 intern at Dubin Research & Consulting. This article was competitively selected for publication from among several submitted by DRC summer interns. Mac is in his senior year of high school at Malvern Preparatory School. DRC thanks him for his contribution.

[ii] See National Center for State Courts, Through the Eyes of the Juror: A Manual for Addressing Juror Stress (1998) (characterizing long trial as ones lasting longer than 21 days); see also A. Reed, Juror Stress: The Hidden Influence of the Jury Experience, American. Society of Trial Consultants, Jury Expert (May 2009).

[iii] See id.

[iv]See Kaiser Family Foundation, Latest Federal Data Shows That Young People Are More Likely Than Older Adults to be Experiencing Symptoms of Anxiety (May 20, 2023) (citing statistics for February 2023).

[v] Office on Women’s Health, Anxiety Disorders, https://www.womenshealth.gov/mental-health/mental-health-conditions/anxiety-disorders.

[vi] Anxiety & Depression Association of America, Anxiety Disorders – Facts & Statistics, https://adaa.org/understanding-anxiety/facts-statistics.

[vii] See National Center for State Courts, Through the Eyes of the Juror: A Manual for Addressing Juror Stress (1998).

[viii] Clark, J.W., Is It Possible to Predict Juror Behavior?, Tennessee Journal of Law and Policy Tennessee Journal of Law and Policy, 5(2) (Apr. 2014), at 16-17.

[ix] See National Center for State Courts, Through the Eyes of the Juror: A Manual for Addressing Juror Stress (1998).

[x] B.H. Bornstein et al., Juror reactions to jury duty: perceptions of the system and potential stressors, Behav Sci Law. 23(3):321-46 (2005) at 17.

[xi] Hafemeter, T. & Ventis, W.L., Juror Stress: Sources and Implications,30 TRIAL 68 (1994).

[xii] Id.

[xiii] See Hannaford-Agar, P., A New Option for Addressing Juror Stress, The Court Manager 26:2 (2012), available at https://www.ncsc-jurystudies.org/__data/assets/pdf_file/0025/7891/a-new-option-for-addressing-juror-stress.pdf.

[xiv] Derakshan, N., & Eysenck, M. W., Anxiety, processing efficiency, and cognitive performance: New developments from attentional control theory,?European Psychologist, 14(2) (2009) at 168–176.

[xv] Rapgay, L., How Anxiety Impacts the Way We Perceive and Think, Psychology Today (Feb. 6, 2019) (citing Derakshan (2009)).

[xvi] Sunstein, C.,m Hazardous Heuristics, University of Chicago Public Law & Legal Theory, Working Paper. No. 33 (2002).

[xvii] Zajonc, R., Emotions in 1 HANDBOOK OF SOCIAL PSYCHOLOGY 591, 597 (Daniel T. Gilbert et al. eds., 1998).

[xviii] Kowalski-Trakofler, K. & Vaught, C., Judgment and decision making under stress: an overview for emergency managers, National Institute for Occupational Safety and Health 2003,?https://www.cdc.gov/niosh/mining/userfiles/works/pdfs/jadmu.pdf.

[xix] Driskell, J. E., & Salas, E. (Eds.). Stress and human performance.?Lawrence Erlbaum Associates, Inc. (1996); see also see also A. Reed, Juror Stress: The Hidden Influence of the Jury Experience, American. Society of Trial Consultants, Jury Expert (May 2009).

[xx] Holloway, C. & Wiener, R., The Role of Emotion and Motivation in Jury Decision-Making (Sept. 2018).

[xxi] Georges, L. C., Wiener, R. L., & Keller, S. R., The angry juror: Sentencing decisions in first‐degree murder. Applied Cognitive Psychology, 27, 156–166 (2013).

[xxii] See Harms, P.D., et al., Leadership and stress: A meta-analytic review, The Leadership Quarterly, Volume 28, Issue 1, 2017, Pages 178-194.