Scientific Jury Selection (Law and Public Policy): A Practical Handbook - PDF Download
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Have you ever wondered how lawyers choose the jurors who will decide the fate of their clients? Do they rely on their intuition, experience, or stereotypes? Or do they use a more systematic and scientific approach? In this article, we will explore the phenomenon of scientific jury selection (SJS), a practice that involves the use of social science techniques and expertise to select favorable juries during a criminal or civil trial. We will examine the history and development of SJS, the methods and techniques that are used by jury consultants, the effectiveness and criticism of SJS, and some possible reforms to address the controversies surrounding this field.
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What is Scientific Jury Selection?
Scientific jury selection, often abbreviated as SJS, is the use of social science techniques and expertise to choose favorable juries during a criminal or civil trial. Scientific jury selection is used during the jury selection phase of the trial, during which lawyers have the opportunity to question jurors. It almost always entails an expert's assistance in the attorney's use of peremptory challengesthe right to reject a certain number of potential jurors without stating a reasonduring jury selection. The practice is currently confined to the American legal system.
The goal of SJS is to identify and exclude jurors who are likely to be biased against one's side, and to select jurors who are likely to be sympathetic or neutral. SJS practitioners use various methods to determine what background characteristics and attitudes predict favorable or unfavorable verdicts, and then coordinate with attorneys in choosing the jury. SJS practitioners may also advise attorneys on how to present their case, how to communicate with jurors, and how to conduct post-trial interviews.
SJS is controversial because it raises questions about the fairness, validity, and ethics of manipulating the composition of the jury. Some critics argue that SJS undermines the ideal of a representative and impartial jury, that it gives an unfair advantage to wealthy litigants who can afford to hire consultants, that it violates the privacy and dignity of jurors, that it relies on questionable assumptions and methods, and that it has no proven effect on trial outcomes.
History and Development of SJS
The Harrisburg Seven Case
The first application of SJS was in 1971 in the trial of Philip Berrigan and six other antiwar activists, known as the Harrisburg Seven. They had been accused, among other things, of conspiring to destroy selective service records and kidnap then-Secretary of State Henry Kissinger. A team of social scientists from Columbia University volunteered to assist the defense team because they believed in the activists' cause and suspected that the prosecutor had selected Harrisburg, Pennsylvania, as the venue for the trial because of its rampant political conservatism.
The social scientists conducted a community survey to measure the attitudes of potential jurors on various issues related to the case, such as patriotism, religion, Vietnam War, civil disobedience, etc. They also observed the jurors' demeanor and appearance during voir direthe process of questioning prospective jurors by the judge or lawyers. Based on their findings, they rated each juror on a scale from one (most favorable) to seven (most unfavorable) and advised the defense attorneys on how to use their peremptory challenges.
The result was a hung jury: ten jurors voted for acquittal and two for conviction. The prosecution decided not to retry the case. The social scientists claimed that their intervention had made a difference, as they had successfully excluded the most hostile jurors and selected the most sympathetic ones. They also claimed that their method was more scientific and objective than the traditional approach of relying on hunches and stereotypes.
The O.J. Simpson Case
The most famous and controversial use of SJS was in the 1995 criminal trial of O.J. Simpson, a former football star and celebrity who was accused of murdering his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. The case attracted enormous media attention and public interest, as it involved issues of race, class, gender, domestic violence, police misconduct, and celebrity culture.
Both the prosecution and the defense hired jury consultants to help them select the jury. The prosecution's consultant was Jo-Ellan Dimitrius, who had worked on several high-profile cases, such as the Rodney King beating trial and the Menendez brothers murder trial. The defense's consultant was Robert Hirschhorn, who had also worked on many notable cases, such as the William Kennedy Smith rape trial and the Branch Davidian trial.
The consultants used different methods to assess the potential jurors. Dimitrius relied mainly on her intuition and observation of the jurors' appearance, behavior, and responses during voir dire. She also used some demographic data, such as age, gender, race, education, occupation, etc., to guide her recommendations. Hirschhorn, on the other hand, used more systematic and scientific techniques, such as community surveys, focus groups, mock trials, questionnaires, and statistical analysis. He also used psychological theories and research to understand the jurors' personalities, attitudes, values, and motivations.
The consultants had different opinions on what type of jurors would be favorable for their side. Dimitrius believed that women, especially white women, would be sympathetic to the victims and hostile to Simpson. She also believed that educated and affluent jurors would be more rational and less swayed by emotions or prejudices. Hirschhorn believed that African Americans, especially black women, would be sympathetic to Simpson and distrustful of the police and the prosecution. He also believed that less educated and less affluent jurors would be more open-minded and less influenced by the media.
The jury selection process was lengthy and complicated, as both sides used their peremptory challenges strategically to exclude undesirable jurors. The final jury consisted of nine African Americans (eight women and one man), two whites (one woman and one man), and one Hispanic (a man). The jury deliberated for less than four hours before reaching a verdict of not guilty on both counts of murder.
The verdict shocked many people who had followed the trial closely and believed that the evidence against Simpson was overwhelming. Many observers attributed the outcome to the influence of SJS, especially by the defense team. They argued that Hirschhorn had successfully manipulated the jury composition to favor Simpson by selecting jurors who were biased by their race, class, or personal experiences. They also argued that Dimitrius had failed to anticipate the impact of these factors on the jurors' decision-making.
Other Notable Cases
SJS has been used in many other trials involving famous or infamous defendants or plaintiffs, such as:
John Hinckley Jr., who attempted to assassinate President Ronald Reagan in 1981.
Bernard Goetz, who shot four young men who allegedly tried to rob him on a subway train in 1984.
Jeffrey Dahmer, who killed and cannibalized 17 men and boys between 1978 and 1991.
Mike Tyson, who was accused of raping Desiree Washington in 1991.
Lorena Bobbitt, who cut off her husband's penis in 1993.
Timothy McVeigh, who bombed the Alfred P. Murrah Federal Building in Oklahoma City in 1995.
Bill Clinton, who faced impeachment charges for lying about his affair with Monica Lewinsky in 1998.
Martha Stewart, who was convicted of lying about a stock sale in 2004.
Michael Jackson, who was acquitted of child molestation charges in 2005.
Scott Peterson, who was convicted of murdering his pregnant wife Laci Peterson in 2004.
Enron executives Kenneth Lay and Jeffrey Skilling, who were convicted of fraud and conspiracy in 2006.
Casey Anthony, who was acquitted of murdering her daughter Caylee Anthony in 2011.
George Zimmerman, who was acquitted of killing Trayvon Martin in 2012.
Methods and Techniques of SJS
Methods and Techniques of SJS
SJS practitioners use various methods and techniques to gather information about potential jurors and to advise attorneys on how to select and influence them. Some of the most common methods are:
Community Surveys
Community surveys are opinion polls conducted in the trial jurisdiction to measure the attitudes and beliefs of jury-eligible residents on issues related to the case. The surveys may be administered by phone, mail, online, or in person. The surveys typically include questions about demographic characteristics, media exposure, personal experiences, political views, values, and opinions on specific topics or parties involved in the case. The surveys may also include questions that test the respondents' knowledge of the law, their willingness to follow the judge's instructions, and their verdict preferences.
The purpose of community surveys is to identify the characteristics and attitudes that predict favorable or unfavorable verdicts for one's side, and to use this information to guide jury selection and trial strategy. For example, a survey may reveal that women are more likely to sympathize with a plaintiff in a sexual harassment case, or that older people are more likely to convict a defendant in a drug trafficking case. Based on these findings, an attorney may use peremptory challenges to exclude jurors who belong to these groups, or tailor the opening statement, witness testimony, and closing argument to appeal to these groups.
Shadow Juries
Shadow juries are groups of people who are selected to match the demographics and attitudes of the actual jury, and who observe the trial proceedings from the courtroom or a remote location. The shadow jurors are instructed to pay attention to the evidence and arguments presented by both sides, and to provide feedback on their impressions, reactions, and opinions throughout the trial. The feedback may be collected by questionnaires, interviews, or group discussions.
The purpose of shadow juries is to monitor the actual jury's likely response to the trial events, and to use this information to adjust trial strategy accordingly. For example, if the shadow jurors indicate that they are confused by a witness's testimony, or that they are offended by an attorney's remark, or that they are leaning toward a certain verdict, an attorney may modify the presentation of evidence, clarify the points of contention, change the tone of communication, or emphasize certain themes or arguments.
Focus Groups
Focus groups are small groups of people who are recruited from the trial jurisdiction or a similar community, and who participate in a moderated discussion about the case. The focus group participants are usually given a summary of the case facts and issues, and then asked to share their opinions, feelings, questions, and concerns about various aspects of the case. The focus group moderator may also present different scenarios, arguments, evidence, or witnesses to elicit reactions from the participants.
Mock Trials
Mock trials are simulated trials that are conducted before the actual trial to test the strengths and weaknesses of one's case. Mock trials involve presenting a summary of the case facts, evidence, and arguments to a group of mock jurors who are selected to resemble the actual jury pool. The mock jurors are then asked to deliberate and render a verdict, as well as to provide feedback on their impressions of the case and the parties.
The purpose of mock trials is to evaluate the persuasiveness and credibility of one's case, and to use this information to refine trial strategy. For example, a mock trial may reveal that certain evidence is persuasive or unpersuasive, that certain witnesses are likable or unlikable, that certain arguments are effective or ineffective, or that certain themes or emotions are resonant or irrelevant. Based on these findings, an attorney may decide to emphasize or de-emphasize certain aspects of the case, to prepare or rebut certain evidence or arguments, or to modify the presentation style or tone.
Questionnaires and Voir Dire
Questionnaires and voir dire are methods of obtaining information about prospective jurors during the jury selection phase of the trial. Questionnaires are written forms that ask potential jurors about their demographic characteristics, personal experiences, opinions, attitudes, and knowledge related to the case. Voir dire is the process of questioning potential jurors by the judge or the attorneys in order to assess their suitability for serving on the jury.
The purpose of questionnaires and voir dire is to identify and exclude jurors who are likely to be biased or unfavorable for one's side, and to select jurors who are likely to be fair or favorable. SJS practitioners may assist attorneys in designing effective questionnaires and voir dire questions that elicit relevant and reliable information from potential jurors. They may also help attorneys in interpreting the responses and ratings of potential jurors, and in using peremptory challenges and challenges for cause strategically.
Effectiveness and Criticism of SJS
Empirical Evidence
One of the main questions about SJS is whether it actually works. Does it improve one's chances of winning a trial? Does it make a difference in the jury's decision-making? The answer is not clear-cut, as empirical evidence on the effectiveness of SJS is mixed and inconclusive.
Some studies have found that SJS has a positive effect on trial outcomes. For example, a meta-analysis by Olczak et al. (1991) found that SJS increased the probability of obtaining a favorable verdict by 14%. A study by Vinson et al. (2008) found that SJS increased the probability of obtaining a favorable verdict by 21%. A study by Kovera et al. (1997) found that SJS increased the probability of obtaining a favorable verdict by 29%.
Other studies have found that SJS has no effect or a negative effect on trial outcomes. For example, a meta-analysis by Horowitz et al. (2001) found that SJS had no effect on verdicts. A study by Moran et al. (1994) found that SJS had no effect on verdicts. A study by Hans et al. (1986) found that SJS had a negative effect on verdicts.
The inconsistency and variability of these findings may be due to several factors, such as differences in research methods, case types, jury selection techniques, outcome measures, sample sizes, statistical analyses, etc. Moreover, these studies do not account for other factors that may influence trial outcomes, such as the quality of evidence, the skill of attorneys, the instructions of judges, etc.
Ethical Issues
SJS also raises ethical issues that concern the fairness, validity, and morality of manipulating the composition of the jury. Some of the ethical issues are:
Racial and gender discrimination. One of the most controversial aspects of SJS is the use of race and gender as criteria for selecting or excluding jurors. The Supreme Court has ruled that using peremptory challenges to strike jurors solely on the basis of race or gender violates the Equal Protection Clause of the Fourteenth Amendment (Batson v. Kentucky, 1986; J.E.B. v. Alabama, 1994). However, some critics argue that SJS practitioners and attorneys still use subtle or pretextual reasons to justify their discriminatory strikes, such as relying on stereotypes or proxies for race or gender (e.g., occupation, education, religion, etc.). They also argue that SJS perpetuates racial and gender bias in the justice system by depriving certain groups of their right to participate in jury service and by undermining the representativeness and impartiality of the jury.
Privacy and dignity of jurors. Another ethical issue is the invasion of privacy and dignity of potential jurors by SJS practitioners and attorneys. SJS involves collecting and analyzing personal information about potential jurors, such as their demographic characteristics, personal experiences, opinions, attitudes, values, etc. Some of this information may be sensitive, confidential, or irrelevant to the case. SJS also involves questioning and observing potential jurors during voir dire and trial, which may make them feel uncomfortable, intimidated, or scrutinized. Some critics argue that SJS violates the privacy and dignity of potential jurors by treating them as objects of manipulation rather than as human beings with rights and responsibilities.
Validity and reliability of methods. A third ethical issue is the validity and reliability of the methods used by SJS practitioners to assess and influence potential jurors. SJS involves using various techniques, such as community surveys, shadow juries, focus groups, mock trials, questionnaires, voir dire, etc., to gather information about potential jurors and to advise attorneys on how to select and influence them. However, some critics question the validity and reliability of these techniques, as they may be based on questionable assumptions, flawed designs, biased samples, inaccurate measurements, faulty analyses, or misleading interpretations. They also question the generalizability and applicability of these techniques to different cases, contexts, and populations.
Morality and justice. A fourth ethical issue is the morality and justice of using SJS to gain an advantage in a trial. SJS involves using social science techniques and expertise to choose favorable juries during a criminal or civil trial. However, some critics argue that SJS is immoral and unjust because it undermines the ideal of a fair trial by creating an unequal playing field for litigants. They argue that SJS gives an unfair advantage to wealthy litigants who can afford to hire consultants over poor litigants who cannot; that it distorts the truth by presenting selective or misleading evidence or arguments; that it appeals to prejudices or emotions rather than reason or facts; and that it subverts the role of the jury as a neutral arbiter of justice.
Reform Proposals
Reform Proposals
In response to the ethical issues raised by SJS, some scholars, practitioners, and policymakers have proposed various reforms to address the problems and improve the jury selection process. Some of the reform proposals are:
Abolishing peremptory challenges. Some advocates of reform argue that peremptory challenges are the main source of racial and gender discrimination in jury selection, and that they should be eliminated altogether. They argue that peremptory challenges are unnecessary, arbitrary, and unfair, and that they undermine the representativeness and impartiality of the jury. They also argue that peremptory challenges are ineffective, as they do not guarantee a favorable jury or a favorable verdict. Some jurisdictions have already abolished or limited peremptory challenges, such as Arizona, England and Wales, Scotland, and South Africa.
Regulating peremptory challenges. Some advocates of reform argue that peremptory challenges should not be abolished, but rather regulated more strictly. They argue that peremptory challenges have some benefits, such as allowing attorneys to exercise some control over the jury composition, enhancing the legitimacy and acceptance of the verdict, and facilitat