Originally published by Douglas Keene.
How about trying this: Make it interesting. Despite stereotypes that older adults may not have the intellectual or memory capabilities to serve as good jurors in complex cases, reaching the older adult juror appears to rely on the same principle we apply to jurors in general: engage them. In fact, some new research says that when they find it interesting—they remember more than younger people do even a week later. In other words, there is really no reason to assume older jurors won’t keep up. If they are curious and you present your case in an interesting way—you will find them invested and engaged as jurors.
Here’s a brief description of the research:
Researchers used 24 older adults (13 female/11 male with an average age of 72.9 years) and 24 younger adults (16 females/8 males with an average age of 20.3 years). The participants were recruited from the Los Angeles area—both in the community and through UCLA. They all had good self-reported health ratings and the ability to repeat a series of numbers from memory (known to psychologists as the Digit Span test) was not significantly different between the younger and older participants.
They were asked to respond to a series of “60 obscure trivia questions”. First they answered the questions and rated how confident they were in their response. Immediately thereafter, they were shown the correct answer for 6 seconds and then rated how interesting they thought it was now that they knew the correct answer. Finally, they were asked how likely they thought it was that they would remember the answer to the question.
After this, the participants were involved in an unrelated task for an hour and then given an unexpected “quiz” on half of the “obscure trivia questions”. After a week, they were contacted by phone and were tested again on the other half of the questions.
What the researchers found was unexpected (at least unexpected if you think the memory of older adults is faulty).
Whether you are young or old, if you find material interesting, your memory for the material is enhanced. (There was no age-related difference in performance on memory for the trivia questions.)
Younger adults scored a little better on the hour delay than they did on the week delay when it came to recalling the answers to the trivia questions. However, for older adults, the effect was reversed. Older adults remembered more on the week after telephone follow-up than they did in the initial hour delay task. (The researchers think this may say something about the importance of being interested in a topic for older adults to retain the information a week later.)
While these were healthy and non-memory-impaired older adults, there was no sign of memory gap between younger and older participants. And in truth, our experience tells us that most older adults with health issues that might impact their ability to see/hear, their energy, attention, fatigue, pain, et cetera, are not shy about discussing them in voir dire if asked.
What that means for litigation advocacy is that memory and recall is likely not a function of the individual juror but the quality (engaging or not) of the case presentation in court. You can not only rely on older jurors to engage and invest (and thus remember), you can rely on them as much (and perhaps more) than you can rely on younger jurors. We have often seen this in our pretrial research. We look for curiosity and involvement in the world today. We’ve had long-retired bankers who were able to explain banking practices to younger jurors who did not believe attorney presentations of fact. We’ve had long-retired teachers and college professors help to organize how a presentation unfolds for maximum understanding. We’ve had a retired African-American male defuse racial tension during mock deliberations with grace and good humor.
Whether a venire member will be an attentive juror isn’t about age, it’s about whether they find the presentation interesting and engaging.
McGillivray, S., Murayama, K., & Castel, A. (2015). Thirst for Knowledge: The Effects of Curiosity and Interest on Memory in Younger and Older Adults. Psychology and Aging DOI: 10.1037/a0039801
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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