Audrey Cleary
Psychology
Villanova University
“Never forget,
almost every case has been won or lost when the jury is sworn.”
–
Clarence Darrow
(defense attorney), 1936.
Juries decide thousands of cases every year. Even
though the majority of court cases are not settled by juries, predictions about
juries influence decisions to pursue or avoid jury trials (Greene, Chopra,
Kovera, Penrod, Rose, Schuller et al., 2002); therefore, the jury system
maintains a central importance in American law. Given this importance, it is
not surprising that the selection of jurors has, for many, become a scientifically-rooted
service for which attorneys and litigants will often pay handsome fees. Scientific
jury selection – the application of behavioral and social scientific principles
to the selection of jurors most sympathetic to a particular side in a court
case – has experienced a growth spurt since its inception in the early 1970s.
It has also received substantial publicity in the news media, e.g., for its use
by the defense in the O.J. Simpson criminal trial in 1995. This relatively new
field is controversial: questions exist about its effectiveness, its fairness
and the fact that it is virtually unregulated. Evidence from academia largely
indicates that scientific jury selection does no good, yet the market for such
services continues to flourish. What
methods do jury selection experts employ? What are the bases for the
controversy surrounding this “hot” field? What, if any, solutions have been
suggested to alleviate these concerns?
History of Jury Selection: The “
Scientific jury selection (SJS) was
first applied in 1971 in the trial of Philip Berrigan and six other antiwar
activists. Jay Schulman, a sociologist from
Throughout the 1970s, social scientists participated
in jury selection in several politically charged trials. In the Joan Little
criminal trial, a team of social scientists led by John McConahay, a Duke
University psychology professor, assisted the defense in first granting a
change of venue (Little was an African-American woman and surveys revealed that
the North Carolina county where the trial was to be held was atypically racist)
and then in jury selection by constructing a profile of the ideal juror for the
defense. The jury acquitted Little of all charges after barely an hour of
deliberations (Kressel & Kressel, 2002). Subsequent trials in which
scientific jury selection was used include the Angela Davis trial, the Wounded
Knee trials, trials stemming from the Attica prison riots, the trial of Mark
David Chapman (John Lennon’s assassin), Vietnam Veterans Against the War,
Vietnam veterans against the manufacturers of Agent Orange, the trials of
Attorney General John Mitchell and defendant Maurice Stans (Watergate), and Colombian
drug lord Carlos Lehder, among others (Boudouris, 1993). Many of these trials
ended with verdicts favorable to the side employing jury selection experts (
Growth of an Industry
During the 1980s, the jury selection market expanded
into the industry today known as trial
consulting. Firms that provide jury selection have greatly expanded their
services and consulting firms have grown in size and in volume of business (Cutler,
1990). The growth of the industry appeared to benefit both academicians and
consultants: academic theories found a practical application, while consultants
were able to derive legitimacy from their affiliation with research
institutions. Trial consultants drew on academic principles as well as market
research and advertising strategies, such as focus groups and consumer
profiling. Despite this initial fusion of theory and practice, consulting today
takes place largely outside of academia, and has lost the political charge it
had in the 1970s. Consulting firms today offer a wide range of services,
including in-court assessments, focus groups, change of venue surveys, mock trials,
shadow juries, witness preparation, attorney communication evaluation, and
evidence preparation. Scientific jury selection remains one of the more
well-known and controversial of services offered by trial consultants.
Jury Selection Today
The use of social scientists as jury
selection consultants remains controversial in both the legal and social
scientific communities (Stolle, Robbenolt & Wiener, 1996). Trial
consultants have relied on a variety of methods in jury selection, including
“scientific statistical methodology, folklore, pop psychology [and] astrology”
(Boudouris, 1993, p. 4). The unscientific aspects of what is ostensibly a
scientifically informed practice are illustrated in the self-reported methods
of jury selection reported by trial consultants. For example, Jo-Ellan
Dimitrius, who successfully “stacked” the jury in several well-known criminal
cases, including the O.J. Simpson, Reginald Denny, John DuPont and McMartin
preschool criminal trials, has remarked that, for her, “reading people is
neither a science nor an innate gift. It is a matter of knowing what to look
and listen for, having the curiosity and patience to gather the necessary
information, and understanding how to recognize the patterns in a person’s
appearance, body language, voice, and conduct” (Dimitrius & Mazzarella,
1998, p. xiii). Dimitrius’s claimed methods and the methods mentioned earlier are
assumed to have varied degrees of legitimacy, thus lending further controversy
to the profession. Despite this controversy, SJS remains prominent. Today,
trial consultants are extremely common in high-stakes civil suits and are
usually retained by both sides – in fact, many attorneys say that hiring a
trial consultant is standard procedure when substantial amounts of money are involved.
Trial consultants also help both sides in many criminal cases that have
garnered substantial media attention (Kressel & Kressel, 2002). The 1995
criminal trial of the famous football player O.J. Simpson, the suspect in the
murders of his ex-wife, Nicole Brown, and her friend, Ron Goldman, in June
1994, is one such example. Although jury selection has been an expensive
undertaking for attorneys in the post-Vietnam War era, low-cost consulting
services have recently been introduced, making it possible for trial
consultants to assist in smaller, lower budget cases than they had in the past
(Kressel & Kressel, 2002).
Traditional jury selection in most
jurisdictions consists of three stages. The first stage involves the creation
of a list of citizens eligible for jury duty, followed by selection of a sample
of those persons to be summoned to court. The third stage occurs in court. In a
process called voir dire, potential
jurors are questioned either individually or in a group, sometimes by attorneys
but often by the presiding judge. When jury selection experts are called in to
help, they use a variety of techniques to assist in the selection of the jury
that will be most favorable to, or, usually, least biased against, their side
(these techniques will be detailed in the next section). Diversity of
techniques is not surprising, given that trial consultants themselves are
professionally diverse. Trial consultants include in their ranks (but are not
limited to) behavioral psychologists, sociologists, attorneys, and those with
varying degrees of expertise in communications and marketing. Trial consulting
is estimated to be a $400 million industry, with over 400 firms and over 700
practitioners (Strier, 1999).
Methods of Scientific Jury Selection
The tools at a trial consultant’s
disposal include community surveys, focus groups, mock trials, pretrial
investigations of prospective jurors, and voir dire assistance. The widespread
use of these methods indicates that SJS experts rely to a greater extent on
attitudes and values than on demographic predictors, such as race, ethnicity,
age, gender, religion, socio-economic status and occupation, as predictors in
jury decision-making (Kressel & Kressel, 2002). The community survey is one
of the most common practices that trial consultants employ. The researcher randomly chooses between 200
and 300 names from the telephone book, phones these individuals, reads them a
case summary, and asks a series of questions. To ensure representativeness, the
sample should be limited to people who are eligible for jury duty. Survey
questions are generally of three types: 1) questions about participants’
attitudes about the particular case and issues to be raised therein, 2)
questions about participants’ familiarity with the case and the named
defendants, and 3) questions concerning respondents’ demographic
characteristics and personality traits (Penrod, 1990). Sophisticated
statistical techniques, including factor analysis and multiple regression, are
often used to make predictions about jury decision-making from survey data.
The use of a focus group is a practice borrowed from
marketing, the occupational origin of many jury selection experts. A focus
group is intended to represent a cross-section of the community, and the
demographic characteristics of participants in the focus group should be
similar to those of people in the jury pool or on the actual jury. This group
is assembled to test specific parts of an attorney’s case, much as a focus
group would test a product about to be introduced on the market. When
individuals with certain personality types can be identified by the focus group
as amenable to an attorney’s case, this information is often used in SJS and in
approaches to other parts of the case. The
mock trial, another service frequently offered by trial consultants, is an
extension of the focus group and can be a “full dress rehearsal” (Strier, 1999,
p. 96).
Trial consultants also frequently employ pretrial
investigations of prospective jurors. This type of pretrial investigation, as
depicted in fiction (e.g., the 2003 hit movie Runaway Jury and the novel by John Grisham (1996) on which it was
based), may contribute to the popular perception of jury selection techniques.
As in Runaway Jury, such
investigations mainly take two forms: community network modeling and
surveillance. Community network modeling consists of contacting prospective
jurors’ coworkers or neighbors, or people in the community who are affiliated
with the same school, church, or club as a prospective juror. Surveillance
includes drive-by observations and photograph-taking of a prospective juror,
and checking public records of each prospective juror, such as those of voter
registration, court proceedings, and property holdings. Not surprisingly, both
techniques have met with accusations of privacy invasion (Strier, 1999). Trial consultants can assist attorneys with
voir dire by using questionnaires to gather information about prospective
jurors prior to in-court questioning and by observing prospective jurors’
courtroom demeanor and nonverbal communication (Strier, 1999). Once a trial is
underway, a trial consultant can use knowledge of the selected jury to assist
the attorney with opening and closing arguments, witness preparation, case
presentation, and evidence.
Issues with Jury Selection:
Effectiveness, Fairness, and Lack of Regulation
Franklin Strier (1999) has pointed out
three issues which keep the practices of scientific jury selection steeped in
controversy. The first issue concerns the effectiveness of such practices. It
is difficult to answer questions about the effectiveness of SJS by analyzing
court cases. It is not possible to claim with any certainty that a favorable
verdict is completely due to scientific jury selection (Strier, 1999). Some have
remarked (Hans & Vidmar, 1986) that jury verdicts are determined by many
factors and that one cannot know the extent to which SJS contributed to the
verdicts. Experimental research may be weak at detecting the interplay between
various factors, such as the evidence presented, the persuasiveness of
eyewitnesses, and attorney characteristics, affecting the outcome of a jury
trial. It is thus difficult to isolate the effectiveness (or lack thereof) of
any one of these factors (Kressel & Kressel, 2002). In addition, factors affecting
the use of SJS may also affect case outcomes. For example, a client who could
afford a jury selection expert could probably also afford to retain superior
attorneys; lawyers who are conscientious enough to hire a social scientist to
help with their case are often thorough in other aspects of their case
preparation. The absence of a non-SJS comparison group in past evaluations of
SJS also presents a problem vis-à-vis evaluations of SJS effectiveness (Kressel
& Kressel, 2002). Such a group might not even be feasible, however, given
that, for a true test of the effectiveness of SJS, identical conditions would
need to apply between the two experimental groups, and the probability that
researchers could recreate such identical conditions between the two groups
(the SJS treatment group and the control/non-SJS comparison group) is minimal
to nonexistent. There is also a noticeable lack of scientific research
evaluating newer trial consulting techniques that, in combination with SJS,
could influence the outcome of a case (Stolle, Robbenolt & Wiener, 1996;
Strier, 1999).
The second issue concerns the fairness
of scientific jury selection. This question is particularly salient if, indeed,
the effectiveness question is settled in favor of SJS. If SJS is effective
enough to alter the composition of juries to affect the verdict, then its use
could violate citizens’ Constitutional right to an impartial jury. However, if
SJS is not effective, it contributes unnecessarily to the time and cost of trials.
Even if the effectiveness of SJS remains unclear or if SJS is determined not to
be effective, the fairness question persists. It is important to maintain a perception of fairness, and even if SJS
is not effective, it can still give the impression of interference with the
jury process (Strier, 1999). The third issue on which Strier remarks is that
the field of trial consulting is largely unregulated and lacks clear
professional standards. These issues will be addressed in the following
section.
Problems with Jury Selection
A. It Does Not Work
As previously mentioned, scientific jury
selection has generated controversy in both the legal and social scientific
communities. Some legal experts have argued against it by claiming that jury
selection is an art rather than a science, and that the intuition of an
experienced trial attorney is superior to any social scientific approach. Many
social scientist critics have argued that, while approaches from their fields
are likely no worse than reliance on lawyers’ instincts, whatever discoverable benefit
of social scientific approaches may still not outweigh their cost (Stolle,
Robbenolt & Wiener, 1996).
In any event, opponents have advanced
various positions converging on the purported ineffectiveness of SJS. It is
possible that practitioners or academic advocates of SJS have not produced sufficient
evidence that SJS works (Cutler, 1990). Results from academic research
laboratories have not supported SJS practices. Trial attorneys have not
outperformed undergraduates in studies of jury selection, lending doubt to the credibility
of lawyers’ instincts in deciding the suitability of jurors (Olczak, Kaplan,
& Penrod, 1991). Dawn Lord, a critic of SJS, points out the instability of
knowledge employed by jury selection experts. She writes that many jury
selection experts ignore established psychological principles in their work. In
selecting jurors, they rely on prospective jurors’ explicit, verbally
articulated knowledge, which is less durable and predictable than is implicit,
automatic, if even conscious, knowledge. Lord also argues that SJS
practitioners also do not take into account differences between the reactions
of emotionally aroused jurors and those of jurors who are not upset. These
differences could also affect what jurors take away from courtroom proceedings.
As a result of these practices, she argues, attorneys and their clients do not
reap the benefits of the behavioral and cognitive research on which the
practice purports to be based (Lord, 2001).
A second point against the
effectiveness of SJS is that quantitative studies of jury trials have estimated
that jury selection accounts for between 5% and 15% of verdict variability; the
extra-jury aspects of the trial therefore account for the vast majority of
verdict variance (85%-95%) (Fulero & Penrod, 1990). These numbers suggest
that, even if SJS practices were found to be influential, there is little room
for SJS practices to have an effect if they only “count” for 15% of the final
trial “grade.”
Limits to SJS: Lack of Predictors
One reason why SJS is often deemed ineffective is
because certain limits to its exercise have been identified. As stated before,
there is evidence that the ability of trial consultants to predict verdicts
from jurors’ demographic and personality variables accounts for at most 15% of
the variance in verdicts. There do not appear to be any reliable predictive
demographic variables – juror occupation, gender, income, religion and age have
not been found to have consistent effects across cases (Greene et al., 2002) –
and it has not been possible to identify a personality type or combination of
types that can predict juror decisions across criminal or civil cases (Kressel
& Kressel, 2002). General tendencies toward conviction among jurors have
not been satisfactorily identified; only weak relationships have been found between
convictions across case types between hypothetical robbery, murder, rape and
negligence trials (Penrod, 1990). In general, personality traits are not valid
predictors of jurors’ voting predispositions. However, even those aspects of
personality which have been revealed as modest predictors of juror
predispositions often have inconsistent effects. For example, the personality
attribute “belief in a just world” can lead jurors to harshly punish either
crime victims or defendants (Stolle et al., 1996). Another example of the
inability of established behavioral principles to predict the voting of jurors
concerns the voting of jurors in criminal cases toward defendants similar to
themselves. The similarity-leniency hypothesis advanced in social psychology
suggests that a juror would not punish harshly a defendant similar to
him/herself, and this is frequently the case. However, other times, a “black
sheep effect” occurs when a juror reacts negatively to a similar defendant
behaving badly, holding those more similar to themselves to a higher standard. It
is difficult to predict with any certainty which of these two competing
principles will operate in a given case. Preconceived attitudes and biases may
generate more accurate predictions than will personality types, but people are
often able to conceal such biases, especially when they may reflect negatively
on the bias-holder (Kressel & Kressel, 2002).
Limits to SJS: The Operation of Other
Factors
Other factors can also affect trial
outcomes, making jury selection less relevant as a verdict determinant. Certain
areas are beyond the control of the trial consultant. These areas include the
nature of the evidence, the acumen of the attorneys, the style of the presiding
judge, and the complex group dynamic principles at work during jury
deliberations (Boudouris, 1993). Perhaps
the quality of the evidence, rather than the individual personality attributes
of jurors, ultimately determines a trial outcome. The effect of presented
evidence on jury decisions should not be too easily discounted. If evidence is
the determining factor in jury decision-making, then SJS becomes much less
relevant. Strier (1999) suggests that trial consultants may offer their most
valuable assistance to attorneys with evidence presentation rather than jury
selection. When a trial consultant is retained, other factors can limit the
consultant’s effectiveness. For example, attorney communication is critically
important: if an attorney does not inform the trial consultant of all the facts
of the case, including evidence potentially harmful to their side, this
omission can steer jury selection in a direction unfavorable to the attorney
(Boudouris, 1993).
B. It is Fundamentally Unfair
“The jury system is distorted by
demographics. It is compromised by consultants … There doesn’t even seem to be
a consensus anymore about what a ‘jury of one’s peers’ means. In fact, that’s
the last thing many attorneys want and they’ll pay a lot of money to make sure
they don’t get it.” – George Cantor (critic of jury consulting), 1995
(following the O.J. Simpson criminal trial).
Today, concerns exist about the
fairness of jury selection as a practice. The Jury Selection Service Act of
1968 explicitly states that criminal defendants have a right to trial by a jury
selected “at random from a fair cross-section of the community.” Some critics
have argued that SJS corrupts the objective of a trial by jury to represent
such a cross-section of values. Although some Americans, namely, persons who do
not register to vote or hold driver’s licenses, are regularly excluded from
jury selection, SJS introduces exclusions with a scientific rationale in place
of the aforementioned systematic exclusions (Strier, 1999). Another criticism
of the fairness of SJS is that it is only affordable for wealthy corporations
and individuals. Although some low-cost services have recently been offered,
some as low as $2,000, in other cases, a jury selection expert could cost an
attorney between $50,000 and $100,000. Strier (1999) points out the irony in
this issue of affordability: the first people to benefit from the principles of
SJS were poor criminal defendants of the 1970s antiwar persuasion. Despite the highly
publicized cases flooding Court TV and other popular media, depicting
charismatic celebrity criminal defendants, a more typical SJS client today is a
wealthy litigant, often a corporation, involved in a civil suit (Levine, 1992).
As such, SJS can appear to be mainly a “service for the rich and a disservice
for justice” (Stolle et al., 1996, p. 147). According to this argument, if
trial consulting gives a litigant an advantage, then only large corporations
and wealthy individuals would have this advantage, leaving the average litigant
with a “second class justice” (Stolle et al., 1996, p. 147).
Another criticism of SJS indirectly concerns the Constitutionality
of its implementation. SJS critic Stephen Adler has questioned the
trustworthiness of decisions made by a group selected for their biases. He
argued that jury consulting is not protected by anything in the Constitution
and that its use can and should be prohibited (Kressel & Kressel, 2002).
Yet another criticism of SJS on grounds of fairness is that trial consultants
often advertise a misleading win-loss record that cannot be confirmed or
disconfirmed (Strier, 2001).
A final problem concerning the fairness of SJS
actually has little to do with the actual fairness, but deals with the perceived fairness of the practice.
Trial consulting can create the perception of “high-tech jury tampering,”
through which psychologists and other so-called jury experts manipulate the
eventual composition and/or decision-making bias of the jury (Strier, 1999, p.
104). If jury selection techniques are seen as unfair, the legal system as a
whole may be viewed as similarly unfair (Stolle et al., 1996). Data about the
perceived fairness of a trial can be difficult to obtain due to problems
assigning quantities to subjective qualities like fairness (Stolle et al.,
1996). Stolle and colleagues (1996) found that the use of a psychologist trial
consultant tended to be viewed as unfair when one side employed a consultant
and the other did not. When both sides hired a consultant, judgments of
fairness were not affected.
C. The Industry is Unregulated
The third major issue identified by
Strier (1999) concerns the relative lack of standards unifying professionals in
this field. He points out that many professions applying principles from
academics, including law and psychology, are closely regulated to protect
public interests. In addition, professional associations frequently mandate a
code of behavior and ethics that all practitioners are bound to follow.
However, there are no such checks on the field of trial consulting. Because
there are no state licensing requirements, anyone can advertise and practice as
a “trial consultant.” The professional association in the field, the American
Society of Trial Consultants (ASTC), has a Code of Professional Standards,
which Strier calls “anemic” and much les strenuous than the standards set forth
by the American Psychological Association (APA) (Strier, 2001, p. 71). It has
even been suggested that some trial consultant practices violate APA standards
(Herbsleb, Sales & Berman, 1979).
Why Scientific Jury Selection Works:
It Is Effective and Not Wholly Unfair
“It’s gotten to the point where if the case
is large enough, it’s almost malpractice not to use [a jury consultant].” – Donald Zoeller (
Despite the problems previously mentioned, scientific
jury selection has many fervent advocates. Many argue that, contrary to
empirical evidence, SJS is an effective practice, or, at the very least, should
not be dismissed prematurely. Others point out flaws in the evidence against
SJS to this point. As Brian L. Cutler put it, “Academic researchers have, based
on early reviews of a small but methodologically unsophisticated body of
literature, thrown out the baby with the bathwater” (Cutler, 1990, p. 230).
Attacks have been advanced against the earlier cited discounting studies and
others based on the limited applicability of research findings from small,
atypical samples, to the public as a whole (Moran & Comfort, 1982). In particular,
much research on SJS has relied on college student samples, when more
representative community samples would be more appropriate if the findings are
to be generalized across types of people and situations (Sears, 1986).
The Existence of Predictors of Jury Decision-Making
Some advocates of SJS argue that, despite the
arguments of opponents, there are juror
aspects that can predict subsequent verdicts. For one, juror attitudes can
predict verdicts better than can personality traits. Results from various
studies are thus summarized: attitudes toward women predicted verdicts in rape
cases (Weir & Wrightsman, 1990); attitudes toward psychiatrists and the
insanity defense predicted verdicts in criminal cases where the insanity
defense was invoked (Cutler, Moran & Narby, 1992); a relationship was found
between attitudes toward the death penalty and verdict in capital punishment
cases (Nietzel, McCarthy & Kern, 1999), and attitudes toward torts and
lawsuits affect the amount of damages awarded in civil suits (Kressel &
Kressel, 2002). Some personality traits can predict juror decision-making
fairly consistently. For example, the presence of an authoritarian personality,
defined as a strong preference for order, for clearly articulated rules, and
for powerful leadership, is modestly related to individuals’ likelihood to vote
for conviction in criminal cases (Narby, Cutler & Moran, 1993). In general,
juror disposition appears to have a mixed effect on verdicts, and effects of
attitudes generally vary from case to case (Penrod, 1990).
Trial Consultants Are Generally Better
than Attorneys at Jury Selection
“I knew we had
the case won when we seated the last bigot on the jury.” – Richard
“Racehorse” Haynes (defense attorney), quoted 1979.
“Never accept a
juror whose occupation begins with a P. This includes pimps, prostitutes,
preachers, plumbers, procurers, psychologists, physicians, psychiatrists,
printers, painters, philosophers, professors, phoneys, parachutists,
pipe-smokers, or part-time anythings.” – William Jennings Bryan (U.S.
Congressman, Democratic presidential nominee, and former Secretary of State),
1973.
Many in favor of SJS argue that however its techniques
may fare in the academic laboratory, SJS is successful because its methods are
superior to those of trial attorneys. Perhaps attorneys typically rely on
stereotypes of group attitudes, whereas trial consultants are able to draw on
established psychological and behavioral principles (Strier, 1999) – though, as
previously mentioned, how much they do so has been called into question.
Another advantage that the SJS approach has over traditional lawyer methods is
that trial consultants are able to use information that is case- and
location-specific. They conduct focus groups and mock trials using representative
samples from the community in which the trial is to be held. Jury consultants
often work as a team, which allows them to exchange ideas and consult with each
other, thereby improving the quality of their work product. A trial attorney,
on the other hand, often works alone, without the benefit of collaboration with
others (Strier, 1999). One simple, but undeniable, benefit that trial
consulting firms offer attorneys is the ability of the trial consultant to
focus on jury selection when the lawyer, due to his or her involvement in the
many aspects of a case, is not able to do so (Kressel & Kressel, 2002).
The Free Market is Proof of the Effectiveness of SJS
Other scholars of the jury system have
argued that the fact that trial consulting has flourished in today’s
marketplace is in itself proof of its effectiveness (Stolle et al, 1996). If
attorneys and their clients are willing to spend what can amount to between $75
and $300 per hour for consultants – and larger cases can even run into the high
six or even seven figures total – the service that these consultants provide
must have some merit (Strier, 1999). Stolle et al. (1996) pointed out that some
trial consultants and some SJS techniques are probably superior to others, and,
over time, the market should select the more effective individuals and firms to
continue practicing, thus ensuring a higher-quality product. Proponents of this
view might argue that theoretical arguments about effectiveness should be put
aside and the free market should be given the last word on whether SJS remains
viable.
The Effectiveness of SJS is Situational
It appears that the influence of SJS
is situational: it has a stronger effect at some times than at others. Kressel
and Kressel (2002) have identified several instances in which SJS is more
likely to have an effect on the outcome of a trial. Such instances include:
when cases are publicized; when the evidence is ambiguous and does not favor
one side more than the other; when juror views are related to demographic characteristics
and personality attributes that can be directly observed; when the predictors
of juror voting are not immediately obvious to either attorney, even when they
oppose lawyerly intuition; when attorneys are permitted to conduct a thorough
voir dire; when the court is liberal in its allowance of peremptory challenges
(attorneys are allowed to strike a limited number of jurors from the panel
without having to give a reason. These allowances are referred to as peremptory challenges. Beyond that, attorneys
are also allowed an unlimited number of challenges
for cause – they may strike a juror, but must demonstrate that the
prospective juror in question is biased or, based on some relationship to the
case, is likely to be biased for or against one side); and when the budget for
the trial allows for extensive pretrial research.
Trial Consultants as “Enablers of Justice”
Advocates of SJS have also defended
the practice on grounds of fairness, although such defenses are more difficult
to corroborate than defenses of effectiveness. Trial consultants claim that
their goal is to seat less biased juries, juries that are more likely to
deliver a fair verdict (Kressel & Kressel, 2002). Adherents (e.g., Vinson,
1986; as cited in Penrod, 1990) claim that their methods help ensure that the
ultimate goals of the jury system, including the right to trial by a fair and
impartial jury, are realized. Jury consultants often present “themselves as
enablers rather than disablers of the jury system” (Kressel & Kressel, 2002,
p. 82).
Proposed Reforms
Scholars have proposed solutions to
address the issue of fairness of SJS. [Solutions to enhance the effectiveness of jury selection or to
improve techniques are often closely guarded by trial consulting firms – even
at ASTC conferences, trial consultants offer each other little in the way of
trade sharing (Kressel & Kressel, 2002)].
Here are a few suggested solutions that Strier (1999) has outlined:
·
Outlaw trial consulting by non-lawyers. (This
suggestion would be difficult to implement, as it leads directly to a slippery
slope argument. One could question, then, why not outlaw expert witnesses,
investigators and all non-lawyer professions in litigation support?)
·
Limit voir dire questioning by attorneys (who trial
consultants could coach). Instead, judges should be the sole performers of this
function.
·
Reduce or eliminate peremptory challenges by
attorneys. These challenges are not protected under the Constitution, nor are
they essential to a fair trial. If peremptory challenges were outlawed, judges
would be likely to expand the permitted challenges for cause, but at least
those challenges are more easily justified.
·
Make consultant surveys by one side available to the
opponent side.
·
Require disclosure of the use of a trial consultant.
If this were a requirement, such disclosure would permit the other side to hire
its own jury consultant or a criminal defendant could request a court-appointed
consultant. (This proposed reform also gives way to a slippery slope, i.e., why
not require disclosure of use of other types of litigation support?)
·
Prohibit investigation of prospective and actual
jurors.
·
Require state licensing of trial consultants. Such a
requirement would create minimum standards of competence and ethics for
practitioners and would protect the public against incompetent or dishonest
consultants (Strier, 2001).
·
Appoint trial consultants for poor defendants. The Los
Angeles Superior Court in the Reginald Denny trial did exactly this, but such
appointments remain extremely rare. Perhaps this reform would bridge the gap
between wealthy litigants who can afford trial consultants and typical
litigants who cannot.
·
Require consultants to perform a set percentage of pro
bono work, ensuring greater accessibility of an often prohibitively expensive
service.
·
Develop a binding ethical code, superior to that set
forth by the ASTC, for consultants (Stolle et al., 1996).
Conclusion
Because it is a relatively young field,
trial consulting and, more specifically, scientific jury selection, are still
growing. SJS has come a long way in the past 30 years, and does not appear
likely to stay the same for long. In particular, the discrepancy between the
limited effectiveness of scientific jury selection in the academic laboratory,
and the market demand for SJS that causes litigants to pay substantial amounts
of money for such services, may come to be reconciled. It is not known what
will happen to the profession in the future: whether it will come under
stricter regulation and continue to gain legitimacy and stimulate scholarship, or
whether, due to questionable effectiveness, practitioners will face reduced
demand for their services. If the demand for SJS services is due not to the
effectiveness of such services, but rather to a the tendency of attorneys and
clients to simply feel more comfortable having “expert” input into the
selection of a jury panel, then whether the market for SJS will stay strong or
die out is unknown. Another very strong possibility is that SJS truly is
effective, and that experimental research suggests otherwise because the
elements that cause SJS to operate effectively in a courtroom cannot be
adequately reproduced in the academic laboratory; therefore, research from
academia argues against the effectiveness of SJS. Isolated examples of
effective scientific jury selection, such as the consultant-assisted selection
of jurors favorable to the defense in the O.J. Simpson criminal trial, can be
found. The fairness issue surrounding the practice of SJS is not likely to
clear up on its own. Some critics have suggested an overhaul of the practice,
if not a complete ban, due to the fundamental injustice that some believe
underlies its application. If the market for SJS stays strong and the outlawing
of SJS remains unlikely, it is quite possible that it will come under stricter
practice and ethics regulations to protect public interests. In any event, because
scientific and practical interest in its principles and applications has been
high, scientific jury selection will probably be a topic of study for decades
to come.
References
Boudouris, J. (1993). A case study in trial
consulting. American Journal of Forensic
Psychology, 11(1), 3-15.
Cutler, B.L. (1990). Introduction: The status of
scientific jury selection in psychology and law. Forensic Reports, 3, 227-232.
Cutler, B.L., Moran, G., & Narby, D.J. (1992).
Jury selection in insanity defense cases. Journal
of Research in Personality, 26, 165-182.
Dimitrius, J. & Mazzarella, M.C. (1998). Reading people: How to understand people and
predict their behavior – anytime, anyplace.
Fulero,
Greene, E., Chopra, S.R., Kovera, M.B.,
Hans, V.P. & Vidmar,
N. (1986). Judging the jury.
Herbsleb, J.D., Sales, B.D., & Berman, J.J.
(1979). When psychologists aid in the voir dire: Legal and ethical
considerations. In Abt, L.E. & Stuart, I.R. (Eds.), Social psychology and discretionary law (pp. 197-217).
Kressel, N.J. and
Kressel, D.F. (2002). Stack and Sway: The new science of jury consulting.
Levine,
J.P. (1992). Juries and politics.
Publishing Company.
Lord, D.D. (2001). Jury selection: Part one. Forensic Examiner (March/April), 27-30.
Moran. G. & Comfort, J.C. (1982). Scientific juror
selection: Sex as a moderator of demographic and personality predictors of
impaneled felony juror behavior. Journal
of Personality and Social Psychology, 43, 1052-1063.
Narby, D.J., Cutler, B.L., & Moran, G. (1993). A
meta-analysis of the association between authoritarianism and jurors’
perceptions of defendant culpability. Journal of Applied Psychology, 78, 34-42.
Nietzel, M.T., McCarthy, D.M., & Kern, M.J.
(1999). Juries: The current state of the empirical literature. In Roesch, R.,
Hart, S.D., & Ogloff, J.R.P. (Eds.), Psychology
and law: The state of the discipline.
Olczak, P.V., Kaplan, M.F., & Penrod, S. (1991).
Attorneys’ lay psychology and its effectiveness in selecting jurors: Three
empirical studies. Journal of Social
Behavior and Personality, 6, 431-452.
Sears, D.O. (1986). College sophomores in the
laboratory: Influences of a narrow data base on social psychology’s view of
human nature. Journal of Personality and
Social Psychology, 51, 515-530.
Stolle, D.P., Robbenolt, J.K., and Wiener, R.L.
(1996). The perceived fairness of the psychologist trial consultant: An
empirical investigation. Law and
Psychology Review, 20, 139-177.
Strier, F. (1999). Whither trial consulting? Issues
and projections. Law and Human Behavior,
23, 93-115.
Strier, F. (2001). Why trial consultants should be
licensed. Journal of Forensic Psychology
Practice, 1(4), 69-76.
Weir, J.A. & Wrightsman, L.S. (1990). The
determinants of mock jurors’ verdicts in a rape case. Journal of Applied Social Psychology, 20, 901-919.