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A version of this article first appeared in TRIAL magazine.

Cuing Positive
Memory Recall With Jurors

by Amy Singer, Ph.D.

Hypnotists, behavioral modification counselors, specialists in neurolinguistic programming, and similar professionals are knowledgeable about, and employ, various highly powerful psychological techniques to convince, persuade, and influence others. Some of these techniques are directly applicable for use with jurors. They are remarkably potent because they operate on the jurorsâ subconscious mental processes¹. One of the most effective of these techniques is a process known as ãanchoring.ä

Attorneys can use ãanchoringä to get jurors to react positively on cue to an unspoken message. The procedure involves the use of a specific gesture (a positive behavioral anchor) simultaneously with a verbal ãmessageä for the purposes of classically conditioning the jurors (i.e., establishing the famous Pavlovian response).

In most cases it is best to anchor the pivotal point of the case in order to make the strongest possible impression on jurors. For discussion purposes letâs assume that the caseâs pivotal point hinges on the fact that four different witnesses have placed the murder trial defendant in a different state at the time the killing took place. The attorney should anchor this fact every time he mentions it with a clear and unmistakable gesture÷e.g., grasping the chin thoughtfully or straightening a tie. Doing this repeatedly associates the gesture with the pivotal point ãmessageä until the gesture stimulus alone will retrieve the memory.

After the stimulusöresponse mechanism has been adequately established, the attorney need only perform the gesture stimulus to immediately trigger subconscious positive responses among the individual jurors concerning the pivotal point.

This conditioning technique establishes, in effect, an altered state of consciousness² among the jurors that is very much like hypnosis. The jurorsâ concentration will become focused largely on the caseâs pivotal point, to the exclusion of much else. This altered state of consciousness among the individual jurors allays and to some extent even replaces the anxiety states usually associated with such jurors. Since these anxiety states almost always derive from the customary confusion of the jurors concerning the differing trial arguments, the benefit to the attorney of eliminating such confusion is substantial.

The knowledgeable attorney can anchor the caseâs pivotal point in another effective way. This is done by always mentioning the point from the same physical spot in the courtroom. This spot should be located next to the flag, the judgeâs bench, or to any other wellöestablished symbol of authority that is available. In this manner the attorney can create a powerful and positive association in the minds of the jurors regarding the pivotal point of the case and the symbol of authority.

Attorneys need to understand that classic conditioning is not at all a pseudoöscientific or bogus activity. It is rather a proven and widelyöused behavioral modification technique that is guaranteed to work if done correctly. It will not work, however, if the stimulus is extinguished or overögeneralized. To prevent extinction, the pivotal point ãmessageä must always be paired with the gesture stimulus. If the attorney mentions the pivotal point without making the accompanying gesture stimulus, the association will become extinguished, and the stimulus will no longer have the desired cuing effect with the jurors.

This extinction will also take place if the gesture is overdone. The attorney should employ the gesture stimulus only on a selective basis÷when he or she wants the jurors to get in touch with their subconscious predilections concerning the pivotal point. (It is useful, for example, to employ the gesture stimulus at the most critical point during opposing counselâs closing argument.)

Classically conditioning the caseâs pivotal point in this manner is an excellent way for the attorney to develop a subtle but extremely powerful edge with the jurors throughout the entire trial.

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Footnotes

1 Influencing a personâs subconscious is always far more powerful than influencing his or her conscious level of perception. As the renowned scholar and author Joseph Campbell has pointed out, consciousness is a secondary organ that, on a more basic level, must subordinate and serve the body, and the more basic body functions, including the subconscious.

2 There is no mystery to hypnosis and similar altered states of consciousness. They simply make use of a natural, physical state commonly experienced at various times, such as while listening to music, running, or driving.