This guest post was written by Richard G. Stuhan, Melissa M. Gomez, and Daniel Wolfe. Mr. Stuhan is a partner resident in the Cleveland office of Jones Day. Ms. Gomez and Mr. Wolfe are trial consultants with TrialGraphix, Inc. This post is entirely their work:

The opposition’s key witness testifies at trial that the color of the car that ran the red light was “black.” On cross-examination, you establish that the same witness testified during her deposition that the car was “white.” At the end of the day, you return to your office confident that your success in impeaching the other side’s key witness with a prior inconsistent statement has undermined her credibility. Your trial strategy for the remainder of the case is predicated on that assumption. The verdict is not, however, what you had anticipated. To your surprise and dismay, post-verdict debriefings of the jurors reveal that they did not ascribe as much weight to your cross-examination as you believed.

Time and again in our post-verdict juror interviews, we have found that impeachment with prior inconsistent statements was over-valued. Recognizing, however, that our experience was limited, we set out to test our thesis experimentally. We designed and conducted a study of mock jurors’ opinions and attitudes about inconsistencies in witness testimony. Data were collected from over 800 respondents representing over a dozen states. Mock jurors were given a six-item pencil-and-paper questionnaire. Analyses of juror responses were conducted to determine jurors’ overall opinions and whether demographic characteristics (e.g., gender, race, age, education level, marital status, employment status, and income level) were associated with responses to the proposed questionnaires. The results of this study – including the survey instrument and data tables – are published in the April 2007 edition of For the Defense (Vol. 49, No. 4). Set forth below is a brief summary of the study.

A. Principal Findings

Recognizing the complexity of the issue, we took a multi-tiered approach to the problem. Our principal findings were as follows:

1. Juror Expectations of Witness Truthfulness. Our study suggests that jurors go into a trial with a generally positive attitude toward witnesses. The vast majority of them – 72% – believe that witnesses will be as honest as possible while testifying under oath in a civil trial, as opposed to saying whatever it takes to keep themselves out of trouble. There are, however, significant demographic differences in jurors’ expectations of witness truthfulness. For example, younger jurors, single jurors, and people of color are substantially more skeptical of witnesses than older, married white jurors.

2. Reaction to Inconsistencies. While a witness gets the benefit of the doubt when she begins testifying, the situation changes quickly when she is confronted with an inconsistency in her testimony. A majority – 60% – of respondents in our study indicated that, if a witness’s statements on the stand do not match previously made statements, they are more inclined to believe that she is lying than to believe that she is making an honest mistake. Again, there were demographic differences in the data. Specifically, younger jurors, single jurors, and part-time workers are more likely to believe that a witness was purposely lying.

3. How Jurors Process Inconsistencies. Perhaps the most interesting findings were in the responses to the question about how jurors process a showing that a witness has testified inconsistently. Only 20% of the jurors said that an inconsistency would lead them to disregard everything the witness said. Most of the jurors said that, if a witness’s testimony on the stand conflicted with prior statements, they would focus on the witness’s behavior instead of immediately jumping to conclusions about the witness’s credibility. Stated otherwise, jurors will look for behavioral clues in order to decide whether to believe a witness. There were no statistically significant demographic differences in juror processing of a showing that a witness had testified inconsistently with prior statements.

4. Receptivity to Excuses. Although jurors who were shown that a witness had testified inconsistently were initially inclined to believe that she was lying on the stand, they tended to cut the witness a little slack when it was suggested that the inconsistency might be the product of the stressful situation that a courtroom creates. Over half of the jurors agreed that the stress of testifying likely causes witnesses to make honest mistakes. People who were divorced or separated were more likely than people in other categories to have clear opinions on whether stress is an excuse for inconsistent statements; they were above average both in agreeing that stress could be an excuse and in disagreeing with that same proposition. Jurors were less receptive to the suggestion that an inconsistency was the product of forgetfulness. Less than half of the surveyed jurors were willing to accept forgetfulness as an excuse. Relatively few jurors, however, either strongly agreed or strongly disagreed with the proposition that forgetfulness is an excuse for inconsistencies, and there were no significant demographic differences in juror responses to this question.

5. Overall Impact of Inconsistency. There were substantial differences in the extent to which prior inconsistent statements taint other testimony. For about a third of the jurors, the inconsistency caused them to conclude that none of the witness’s testimony could be believed. A larger percentage of the jurors, however, did not believe that an inconsistency completely destroyed the witness’s credibility. There was, moreover, a substantial group of jurors who wanted to reserve judgment until they knew more about the situation. Again, there were some demographic differences in the responses. Jurors who were employed were more lenient in evaluating an inconsistency, while those who were unemployed tended to be less forgiving.

B. Caveats and Qualifications

While we believe that our study provides a valuable window into understanding likely attitudes towards witness testimony in courtroom settings, we also advise caution in applying the results of this study. This is so for several reasons:

1. Abstract versus Real World. Our study was conducted in a sterile environment, without contextual cues that impact juror interpretation of the witness’s testimony. That environment was quite different from a courtroom in which the jurors watch the witness sweating profusely and squirming in her chair as she seeks to reconcile diametrically opposed accounts of what transpired. At the same time, we believe that, on balance, our study understates, rather than overstates, jurors’ tendency to discount impeachment by prior inconsistent statement because real-world impeachment rarely goes as smoothly as the practice manuals suggest it should.

2. Frequency, Importance, and Witness Characteristics. Our study did not ask the participants to make any assumptions about either the frequency or the importance of the inconsistencies. Based on our experiences, we believe that lawyers should assume the jurors will be harsher with witnesses who are inconsistent repeatedly about key points and more forgiving with witnesses who are inconsistent only about collateral facts and only in a limited number of instances.

3. Impact of Videotaping. Our study did not consider – and we know of no other data that address – the relative “potency” of impeachment by videotape deposition versus impeachment by written transcript. Our sense, however, is that impeachment by videotape is likely to pack more of a wallop than impeachment by written transcript.

C. Demographic Profile

While the data do not permit us to make firm recommendations on which jurors are best and worst in processing prior inconsistent statements, there are a few trends in the data worth noting. Generally speaking, a lawyer who believes that she will be able to impeach the other side’s witness with prior inconsistent statements should be looking for young, single or divorced, low-earning people of color. In contrast, lawyers stuck with a witness likely to be impeached should be seeking jurors who are older, married or widowed, and with higher incomes.

D. Conclusion

We expect that our findings will encounter resistance in the legal community, particularly among lawyers who are convinced that impeachment with prior inconsistent statements is the most powerful weapon in their arsenal. We do not contend that our data show that impeachment by prior inconsistent statements does not matter. Clearly, it does. Our post-verdict interviewing experiences suggest, however, that inconsistencies are not as debilitating as lawyers generally assume, and the data in this study are consistent with those observations. Our hope is that our study will begin a dialog on this issue.