A Prosecutor’s Voir Dire Advantage: The Primacy & Recency Effect
In Ohio, the prosecuting attorney in a DUI/OVI trial gets to make the first presentation in voir dire, has the first opportunity to do opening and closing, and also has a rebuttal that follows the Defendant’s closing argument. Why is this a big advantage?
Psychologists tell us that there is the tendency for the first items presented in a series to be remembered better or more easily, or for them to be more influential than those presented later in the series. If you hear a long list of words, it is more likely that you will remember the words you heard first (at the beginning of the list) than words that occurred in the middle. This is the primacy effect. You should also note that you will be likely to remember words at the end of the list more than words in the middle, and this is called the recency effect. Solomon Asch (1946) asked some people about a person described as envious, stubborn, critical, impulsive, industrious and intelligent. He then asked other people about a person described as intelligent, industrious, impulsive, critical, stubborn and envious. The second group rated the person more highly than the first group. He also found that the second and third items on the list had reduced primacy effects.
Miller and Campbell recorded proceedings from a trial with a combination of sequences of arguments for and against the plaintiff, sometimes with delays of a week between parts and the judgment that they sought from experimental participants. The results in the table below show that when there was no delay between the first and second message, but then a week’s delay before the judgment, a primacy effect occurred. When there was a delay between the first and second message, but no gap between the second message and the judgment, then a recency effect occurred.
|First message||Delay after first message?||Second message||Delay after second message?||Judgment|
|For plaintiff||No||Against plaintiff||No||Balanced|
|Against plaintiff||No||For plaintiff||No||Balanced|
|For plaintiff||No||Against plaintiff||Yes||For|
|Against plaintiff||No||For plaintiff||Yes||Against|
|For plaintiff||Yes||Against plaintiff||No||Against|
|Against plaintiff||Yes||For plaintiff||No||For|
|For plaintiff||Yes||Against plaintiff||Yes||Balanced|
|Against plaintiff||Yes||For plaintiff||Yes||Balanced|
For the defense attorney, you should be aware of the inherent advantages provided to the prosecutor and point them out to your potential jurors. Let them know that they owe you the attention that they give to the prosecutor. Inform them of the importance of not forming an opinion until you have the chance to speak. This also feeds into the importance of always giving an opening statement. The attorney should also be cognizant of the primacy and recency effect when planning a cross-examination around breaks.
Be dynamic and stand out! One way to overcome the primacy and recency effect is with the Von Restorff Effect. The Von Restorff effect was identified by Hedwig von Restorff in 1933. She conducted a set of memory experiments around isolated and distinctive items, concluding that an isolated item, in a list of otherwise similar items, would be better remembered than an item in the same relative position in a list where all items were similar. There can also be a reverse effect here. You remember the unique item, but the attention that it grabs from you is removed from other items — thus you may in fact remember less overall. Hedwig’s work relates to Gestalt, where she related it to the Figure and Ground principles. Taylor & Fiske, (1978) indicated that attention is usually captured by salient, novel, surprising, or distinctive stimuli. These may be used to enhance the von Restorff effect. In the ‘attention age’, when the plethora of media around us is constantly battling for a moment of our time, advertisers make much use of this principle, each vying with the other to stand out from the crowd and hence be remembered by the target audience. The Von Restorff effect is also called the Isolation Effect or the Distinctiveness Principle (Nelson, 1979). The same principle has also been described as prominence effects (Gardner, 1983) environmental salience effects(Taylor & Fiske, 1978), and novel popout effect (Johnson, Hawley, Plewe, Elliott, & De Witt, 1990).
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro,Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio. He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense. Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500. Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube. You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI”