Consider Your Audience Before Dishing Dirt

Much of the time, we shy away from tabloid tactics and instead recommend a more straightforward approach to discussing the plaintiff’s background.  As juicy as scandalous Facebook photos, drug use or an extramarital affair may seem, sometimes the risk of alienating jurors with what they view as “irrelevant” information is too great.  Then again, there are times plaintiffs’ personal history can justifiably be used to the defense’s advantage, such as when their personal choices directly led to the negative outcome.

So how do you know when to bring up the past and when to leave the skeletons in the closet?  During a recent nationwide survey of more than 1,200 jury-eligible Americans, we attempted to quantify some of the factors that play into this decision.

Jurors were generally split regarding when and if a plaintiff’s personal history is fair game.  Asked if a plaintiff’s history of drug use or criminal activity is relevant and something the defense should bring up, 44 percent of respondents said the information is relevant and 31 percent said it is not (25 percent had no opinion). 

However, there was a striking racial difference in response to this question.  Nearly half of African Americans – 49 percent – said this information is not relevant, compared to only 28 percent of Caucasians and 33 percent of Hispanics.  Conversely, 46 percent of Caucasians and 43 percent of Hispanics said a plaintiff’s drug and criminal history is relevant, compared to only 34 percent of African Americans.

Is a Plaintiff’s History of Drug Use or Criminal Activity Relevant and Something the Defense Should Bring Up?

Another notable trend affecting how potential jurors viewed this issue was the type of area in which they live.  Respondents living in urban areas were most likely to say this information is not relevant (34 percent), whereas suburbanites were most likely to say it’s fair game (47 percent).

Is a Plaintiff’s History of Drug Use or Criminal Activity Relevant and Something the Defense Should Bring Up?

 The same race- and geography-based trends held true when respondents were asked how it would affect their opinion of a case if they learned the plaintiff had a drug or criminal history.  African-Americans and urban dwellers were most likely to say it would not affect how they viewed the lawsuit, and Caucasians, Hispanics and suburbanites were most likely to say it would make them more likely to find for the defense.

The key here, as always, is to know your audience.  

As the data show, how and when to delve into a plaintiff’s history is a complicated decision based on a number of demographic factors, and before trial it is crucial to understand how differing variables can mean the difference between helping the defense tell its story, and backfiring to the point that jurors shut out the story completely. 

If you’d like our take on your particular case, please contact Senior Vice President Claire Luna at cluna@juryimpact.net.

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We consistently advise clients to humanize defendants as a way to help level the playing field.  In that same vein, we will be doing more to humanize ourselves by sharing notable events for the Jury Impact team.  We look forward to working with you soon!

Senior analyst Erik Holmes will be moving to Charlotte, N.C., at the beginning of July.  His wife will be joining the faculty of the University of North Carolina at Charlotte as an assistant professor of criminal justice and criminology.  Erik will remain an integral part of the JI staff, and this move will be a great benefit to our East Coast clients.