By Jaihyun Park, Neal Feigenson, and Ngayin Cheng
Trial lawyers rely heavily upon the spoken word to persuade judges and juries, but many trials also feature visual media, including evidentiary photos and videos. What happens when the two collide? Specifically, can the words that lawyers use in their opening statements to describe crucial video evidence influence how jurors will see and interpret those videos? In the first study of its kind, we set out to explore this question.
Previous studies
Research has shown that encountering words before seeing visual images – what psychologists call verbal framing – can affect what people think they see and what they make of it. This includes subconscious verbal priming: for instance, people who hear verbs conveying upward or downward motion, respectively, can detect motion in a visual array more accurately and faster when the motion is consistent with the direction conveyed by the words (Meteyard, Baharami, and Vigliocco, 2007). In a similar fashion, video or film can also result in verbal priming effects: audiences interpreted ambiguous elements of a video consistently with information with which they had been primed (Durkin, Kirsner, & Dunn, 2008). More explicit verbal framing can also create conscious expectations that bias judgments of video evidence. For instance, reading a brief news story about a police-civilian altercation that frames the situation in a pro-police (“law and order”) or pro-civilian (“police brutality”) fashion, respectively, leads people who then watch the identical video of the incident to express more support for the officer’s or the civilian’s actions, depending on the frame to which they were exposed (Fridkin, Wintersieck, Courey, & Thompson, 2017). Finally, conscious verbal framing effects may be produced by explicit task instructions directing viewers’ attention toward certain persons, events, or other features of the video or other images (e.g., Castelhano, Mack, & Henderson, 2009; Yarbus, 1967). The common thread is that verbal framing creates expectations, subconscious and/or conscious, which shape what viewers make of what they see (e.g., de Lange, Heilbron, & Kok, 2018).
Verbal framing of video and other visual evidence has been found to affect the kinds of judgments that jurors have to reach, such as liability determinations. In one study, Jones, Crozier, and Strange (2017) asked participants to read an arresting officer’s report of his interaction with a disorderly civilian, watch a body-worn camera video of the incident, or both read the report and watch the video. The report contained several statements of fact that were contradicted by the video evidence (e.g., that the civilian had a knife when the video showed he did not). The researchers found that participants who saw the video were still influenced by the misinformation in the report but less so than were those who did not.
No one, however, has studied how partisan verbal framing of an evidentiary video in a very common context – the words attorneys use in their opening statements to describe a video that will be shown later in the trial – affects legal decision-makers’ perceptions and interpretations of the video and, possibly as a consequence, their verdicts. This is what we set out to explore. We wanted to find out, among other things: would partisan verbal framing of the video evidence affect what participants thought they saw in the video – their factual judgments about what happened – as well as the inferences they drew from the video and their ultimate judgments? Would that verbal framing have a stronger effect on perceptions of and judgments about facts that the video itself leaves ambiguous, as one might expect (e.g., Sood, 2013)? Would verbal framing of video affect participants’ emotional responses to the case and, if so, might any of those emotions help explain the effect of verbal framing on ultimate judgments?
Our experiment
We used a simplified version of an actual case (State of Ohio v. Tensing, 2016), in which a white police officer was prosecuted for murder after he shot and killed an unarmed African-American driver during a routine traffic stop. The officer claimed that he was justified in shooting the driver because he believed that he was in imminent danger of serious bodily harm or death when the driver, instead of exiting the vehicle as ordered, put the keys in the ignition and started the engine. The officer’s body-cam video provided crucial evidence in the case.
We created two versions of the opening statements for the prosecution and the defendant, both adapted from the opening statements in the actual case. In the verbal framing of video version, each lawyer, in addition to presenting an overview of his argument, described the video that participants would later see, calling their attention in a partisan fashion to specific features of the video. These included words to the effect of “You will see in the video” that certain facts occurred as the proponent claimed they had occurred. In the no verbal framing of video version, each lawyer presented his same respective account of and argument about the case but did not describe the video itself.
The design was a 2 (prosecution opening statement: verbal framing of video, no verbal framing of video) × 2 (defense opening statement: verbal framing of video, no verbal framing of video) factorial design. We also included a neutral or baseline condition in which participants were not exposed to any partisan verbal framing of the case, instead encountering non-argumentative introductory remarks from the judge roughly equal in length to the combined partisan opening statements.
Participants read a statement of the background facts and then either some combination of the opening statements or the judge’s introductory remarks. They then watched a 40-second excerpt from the actual body-cam video. They read judge’s instructions, derived from standard jury instructions, defining the charge of murder and the justification for the use of deadly force in self-defense.
Participants indicated whether they thought the officer was guilty or not of murder. To provide a more sensitive outcome measure, we also asked participants how responsible they thought the defendant officer was for the victim’s death. They reported their emotional responses to the officer and the victim. Then they indicated the extent to which they agreed or disagreed with eight statements about what they recalled having seen and heard on the video; for instance, “Officer Tensing fell to the ground and away from the car only after he had shot Samuel DuBose.” Participants also indicated whether they agreed or disagreed with various broader, case-relevant inferences, such as “Officer Tensing is to blame for the shooting because he should never have pulled out his gun and pointed it at Samuel DuBose in the first place.”[1]
Main findings
When the prosecution verbally framed the video, mock jurors found the defendant significantly more responsible for the driver’s death than when the prosecution did not. This is the first experimental evidence that the words lawyers use in opening statements to describe critical video evidence that jurors will later see can affect something like ultimate judgments in the case. It is unclear why the defendant’s verbal framing of video did not have a comparable effect; it’s possible that the prosecution’s verbal framing of video language was somehow more powerful than the defendant’s. It is also plausible that a primacy effect was at work; as in an actual trial, participants were exposed to the prosecution’s opening statement first.
In contrast to judgments of responsibility, verbal framing of video did not affect verdicts. This may have been due to a ceiling effect: Participants were so disposed to find the defendant police officer guilty of murder (89.5% in the neutral condition, in which they were not exposed to any partisan opening statements) that there may not have been enough room for verbal framing of video to exert much influence.
Equally noteworthy is our finding that either party, by describing the video in a partisan fashion before it is shown, can lead mock jurors to perceive and interpret the facts shown (or not) on the video more favorably to that party. With regard to six of the eight factual judgments we measured, verbal framing of video significantly influenced what participants thought they saw in the video. Although both the prosecution’s and the defendant’s verbal framing of the video affected factual judgments, the prosecution’s verbal framing had a more pronounced effect.
Surprisingly, the impact of verbal framing of video on participants’ factual judgments was not affected by the ambiguity of the facts in question: verbal framing of video affected what participants reported having seen regardless of whether those facts were unambiguous or ambiguous. For instance, it is clear from the video that the driver had already put the keys in the ignition with his right hand when the officer asked him to take his seat belt off, before the officer took his gun from its holster and pointed it at the driver. Yet, the prosecution’s verbal framing of the video made participants significantly more likely to agree that “Officer Tensing was already pointing his gun directly at Samuel DuBose’s head before DuBose reached his right hand to put the key in the ignition.” What is especially striking here is that this factual statement is not only unambiguous, based on the video, but unambiguously false.
Similarly, it is quite clear from the video that the officer had already pulled his gun out when he was still standing next to the driver’s side window; otherwise, he could not have shot the driver point-blank in the head. Yet, when the defendant verbally framed the video, participants were significantly more likely to agree that “Officer Tensing pulled his gun out only as he was falling down,” even though this statement, too, is unambiguously false. These findings provide strong support for the claim that the words lawyers use in their opening statements to characterize crucial video evidence can bias participants’ perceptions of that evidence, since they show that verbal framing of video can have this effect even when the lawyers’ verbal assertions are plainly inconsistent with the video. Put simply, attorneys can lead jurors to misperceive crucial video evidence.
Partisan verbal framing of video also significantly affected participants’ emotional responses to the persons depicted in the video. For instance, both the prosecution’s and the defendant’s verbal framing of the video significantly affected participants’ anger and disgust toward the officer, in opposite directions: The prosecution’s verbal framing increased their anger and disgust; the defendant’s reduced it.
Limitations
Like any experimental study, ours has limitations. First, to make the study realistic, it was not possible to control for all language in the opening statements other than the words used to verbally frame the video. Any lawyer’s opening statement presents a partisan theory of the case, so the prosecution’s and defendant’s opening statements necessarily differed. Second, despite its realistic features, our study departed from ecological validity in a few ways. Participants were a convenience sample (undergraduates at one of our institutions) rather than a more demographically representative sample of the local jury pool. We have no reason to suspect, however, that any demographic differences would have affected the impact of our independent variables on their judgments about the case (Bornstein et al., 2017). We also used written opening statements and judicial instructions rather than a full-blown trial simulation, and participants watched the video only once, whereas in an actual trial they would likely see it multiple times. Finally, we measured only individual juror responses; participants did not deliberate.
Implications and further research
Despite these limitations, our results should be of interest to psychologists, trial consultants, and trial lawyers. Specifically, using actual case materials, we have found that trial lawyers’ partisan verbal framing of a video that decision-makers have yet to see can affect their ultimate judgments in the case and influence what those decision-makers believe the video shows, even to the extent of making them more likely to accept factual claims that, based on the video, are unequivocally false. We have thus extended previous knowledge about verbal framing effects to a practical and increasingly common context: advocates’ opening statements at trial.
Video is typically powerful evidence of the facts in dispute. Jurors believe it to be an objective view of what happened. But trial advocates, by choosing their words carefully, may influence how jurors take up that evidence. They can do so by explicitly calling jurors’ attention to specific features of the video; using evocative language to emphasize key moments; and integrating their verbal preview of the video with their overall theory of the case. And while we used only a single, criminal case in our study, nothing in our materials or design suggests that the findings wouldn’t apply to opening statements in civil cases as well.
We are currently planning a replication study to test whether our findings indeed generalize to other situations. The next study also involves a fatal shooting, but not by the police. Also, both the shooter and victim in our current study are white, avoiding the possibility that participants’ racial attitudes (which we did not explicitly measure in our first study) may bias results. Finally, we have designed the new scenario so that verdict preferences should be more balanced, which may avoid ceiling effects and thus allow stronger effects of verbal framing of video on verdicts to emerge.
References
Bornstein, B., Golding, J., Neuschatz, J., Kimbrough, C., Ree, K., Magyarics, C., & Luecht, K (2017). Mock juror sampling issues in jury simulation research: A meta-analysis. Law and Human Behavior, 41, 13-28.
Castelhano, M., Mack, M., & Henderson, J. (2009). Viewing task influences eye movement control during active scene perception. Journal of Vision, 9(3), 1-15.
de Lange, F., Heilbron, M., & Kok, P. (2018). How do expectations shape perception? Trends in Cognitive Sciences, 22(9), 764-779.
Durkin, K., Kirsner, K., & Dunn, J., (2008). One night at sea: Effects of verbal priming on perceptions and recollections of wartime events. Applied Cognitive Psychology, 22, 938-952.
Ewanation, L., & Maeder, E. (2023). The influence of race on jurors’ perceptions of lethal use of police force. Law and Human Behavior, 47, 53-67.
Fridkin, K., Wintersieck, A., Courey, J., & Thompson, J., (2017). Race and police brutality: The importance of media framing. International Journal of Communication, 11, 3394-3414.
Jones, K., Crozier, W., & Strange, D. (2017). Believing is seeing: Biased viewing of body-worn camera footage. Journal of Applied Research in Memory and Cognition, 6, 460-474.
Meteyard, L., Baharami, B., & Vigliocco, G. (2007). Motion detection and motion verbs: Language affects low-level visual perception. Psychological Science, 18(11), 1007-1013.
Sood, A. (2013). Motivated judgments in legal cognition: An analytic review. Annual Review of Law and Social Science, 9, 307–325.
State of Ohio v. Tensing (2016), no. B1503961 (Court of Common Pleas, Hamilton County).
Yarbus, A. (1967). Eye movements and vision. New York: Plenum Press.
[1] Because the case concerned an officer-involved shooting and prior research has found, unsurprisingly, that people’s attitudes toward the police can affect their judgments in such cases (e.g., Emanation & Maeder, 2023), we also asked participants to indicate their attitudes toward the police in general. Participants with a negative attitude toward the police unsurprisingly judged the officer to be significantly more responsible for the driver’s death than did those with a positive attitude. Attitudes toward police also significantly affected participants’ emotional responses to the officer and the driver and significantly affected some of the inferences they drew from the video, although not their factual judgments. Please see the full publication for a report of our findings of the effects of ATP on responsibility judgments, emotional responses, and other measures of interest.