Scientific jury selection
Scientific jury selection, often abbreviated 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 challenges—the right to reject a certain number of potential jurors without stating a reason—during jury selection. The practice is currently unique to the American legal system.
Scientific jury selection is based on the work of Fred Strodtbeck, the research director on the American Juries Project headed by Harry Kalvin, Jr and Hans Zeisel.[1] He considered juries to be small groups and taped mock juries in Chicago and St. Louis and actual juries in Wichita, Kansas with the permission of the attorneys and judge but not the jurors. The study revealed that the characteristics of individual jurors influenced jury deliberations.[2]
SJS has roots in criminal trials during the Vietnam War era, but in modern times is usually employed in high-stakes civil litigation (where only money is usually at issue, in contrast to criminal trials, where the defendant can go to prison). SJS practitioners determine what background characteristics and attitudes predict favorable results, and then coordinate with attorneys in choosing the jury. Studies are mixed as to the effectiveness of the practice, though it is clear that the evidence presented at trial is the most important determiner of verdicts (the trial result) and that SJS is more likely to have an impact where that evidence is ambiguous. SJS's potential to unfairly skew the jury has led to some reform proposals, but none have yet been implemented.
Efficacy[edit]
Although advocates and practitioners of scientific jury selection claim the practice is overwhelmingly effective at choosing juries that will render the desired verdict, its true effect is often more difficult to discern. Part of this difficulty is in duplicating the conditions of a real trial. In one experiment, two kinds of shadow juries watched a trial and rendered a verdict. The results indicated that the juries were substantially different, but that this difference was likely due to the two experimental juries' knowledge that they were not deciding an actual verdict, prompting a lower burden of proof.[21]
Another simplified experiment indicated that lawyers trained in a systematic selection method made better predictions of juror verdicts in two of four cases – the sale of illegal drugs and a military court-martial (the other two cases were murder and drunk driving). The systematic method was more effective in those two cases where the predictive relationships between demographic variables and attitudes/verdicts were strongest, and least effective where such predictive relationships were weak or nonexistent.[22]
Some academic researchers argue that the actual efficacy of SJS is obscured by poor research methodology. Specifically, demographic characteristics used to predict juror attitudes and juror verdicts may not hold true across all types of cases. For example, men convict more frequently than women in some types of criminal trials but less frequently in others.[23] Besides this, demographic characteristics are often less predictive than the attitudes jurors hold; for example, attitudes towards rape are better verdict-predictors than gender in rape trials.[24]
The actual efficacy of jury consultants may not be very important because the demographic composition of the jury has little effect on the verdict it renders, usually causing only a 5%–15% variance in verdicts.[25][26] The evidence presented at trial has far more impact on what the verdict will be.[27] As Kressel and Kressel indicate, "when the evidence is strong, nothing else matters much" and even when the evidence is ambiguous, demographic characteristics of jurors are a relatively minor influence.[28] Some researchers argue that a significant improvement in jury selection, however small, may be worthwhile when the stakes are high, as with a defendant accused of a capital crime or a corporation that stands to lose millions of dollars in a civil suit.[25]
A popular "proof is in the pudding" argument is often made, especially by consultants themselves; the argument goes that since attorneys and clients pay such high fees (sometimes as much as $500,000) for consultants, their services must be effective.[29][30] Others argue that most attorneys are unaware of the social science research on the topic.[31]
The effectiveness of scientific jury selection has also been comparison tested against other methods, such as attorney folklore and intuition. For trial attorneys, justifying the expense of SJS is contingent upon an improvement over their own jury selection abilities. Several empirical studies of traditional jury selection (by attorneys acting alone) have indicated that it and SJS are about equally effective.[32][33]
In light of the criticisms leveled against scientific jury selection—that it lets lawyers stack juries and increases the influence of money—several reforms have been proposed. One common reform proposal is the elimination of peremptory challenges. Supreme Court precedent already forbids use of peremptories (peremptory challenges) to exclude jurors based solely on their race or sex.[a] Proponents argue that doing away with peremptories altogether will eliminate the perceived and real injustice of permitting lawyers to eliminate jurors dispositionally unfavorable to them without a challenge for cause argument in open court. Opponents counter that attorneys cannot always ferret out actionable evidence of juror bias, particularly in the context of a limited voir dire.[34]
Other proposals include:[35]
Despite serious discussion among lawyers, scholars, legislators, and others about various reform proposals, none have been implemented and no consensus exists about which remedy, if any, would be the most appropriate and effective.[36]
In fiction[edit]
The major fictional representations to date have largely portrayed jury consultants as villains that are highly effective at influencing the jury, often using illegal tactics that mainstream practitioners do not use. Consultants are major characters in John Grisham's novel The Runaway Jury and the similar film adaptation. In the film, Rankin Fitch, "jury consultant for the defense", leads a team that uses high technology and sometimes-illegal tactics to prevent a judgment against their corporate client in what Salon calls "our worst nightmare of corporate arm-twisting".[37] Writing about the book, Kressel and Kressel say Grisham "plays on fears that the American justice system has been hijacked by crafty attorneys and immensely effective hired-gun social scientists".[38] Jean Hanff Korelitz's A Jury of Her Peers stretches the known reality of consulting much further. Korelitz's fictional consultants are part of an unscrupulous firm that charges prosecutors to kidnap homeless people, program them with drugs into conviction-only jurors, and substitute them for those hoping to avoid jury duty. Jonakait says the novel is "hardly realistic" but "reveals the distrust engendered by jury consultants".[39]
In a fifth-season episode of the CBS television series Numb3rs, entitled "Guilt Trip", an illegal arms dealer (James Marsters) is tried for racketeering and the murder of the key witness against him. After he is unexpectedly acquitted, the investigation reveals that he had hired a sleazy jury consultant to not only identify those jurors who would most likely sway the rest of the jury's deliberations, so as to bribe and extort them into pushing for acquittal, but also train one of his henchmen to pose as the perfect "prosecutor's juror" and get placed on the jury. In season one, episode eleven, of the television series Leverage, a pharmaceutical company is under fire for a wrongful death case involving a stimulative all-natural herbal supplement. In an attempt to prevent major losses for the pharmaceutical company in question, and to protect the investment of a soon-to-be-parent company's subsidiary, scientific jury selection is used. However, the Leverage team thwarts their efforts every step of the way, similar to a giant chess match.
In the CBS television show Bull, the lead character operates a trial analysis company, which specializes in utilizing psychological profiles built by observing jurors during voir dire and online profiles to both select the jury and try arguments against mirror jurors. The show is based on the early career of Dr. Phil McGraw.[40]