Virtual jury research

For many decades, attorneys have employed jury consultants to conduct jury research to help prepare for trial. The goals of such research vary: to assess the case and to discover its primary juror-defined issues; to help plan the case presentation; to develop the trial theme that will resonate most strongly with jurors; and, of course, to determine with the maximum degree of probability the most likely trial outcome. Jury research is similar to the test marketing of products that companies conduct before they introduce them commercially. Jury consultants utilize numerous tools and techniques to assist attorneys with this research. These include jury focus groups and jury simulations (mock trials) involving surrogate (mock) jurors; venue studies, including phone and other surveys to determine community attitudes regarding an upcoming trial; witness preparations; and more. Jury research is useful not only for trials but also for litigation disputes of all types, including those with outcomes that will be determined through ADR (alternative dispute resolution methodologies such as arbitration, mediation, or negotiations).











Online Jury Research

In addition to conventional jury research, attorneys in recent years have been able to conduct online jury focus group testing over the Internet. Online jury research, known as "virtual jury research", features the same type of empirically valid research data concerning juror decision-making that conventional jury research provides. This new methodology was developed by Robert Gordon, an attorney, psychologist, and the founding director of Wilmington Institute Network, a jury-consulting firm in Dallas. An innovator and visionary, Gordon is one of America’s earliest practitioners of jury consulting, a booming professional field that he helped pioneer.

Virtual Jury Research Methodology

Virtual jury research is based on the concept of synchronous conferencing, also known as computer-mediated communication. Like Internet Relay Chat (IRC), all communication between participants during a virtual jury research study take place in real time. Attorneys access the Internet from their own PCs to participate in the virtual jury research sessions. They are joined by virtual research jurors (mock jurors) who have been selected so that their individual profiles match key criteria that support the case study’s particular design objectives.

Online Focus Group "Room"

For virtual jury research, the focus group "room" (or chatroom) where the virtual jurors, attorneys, and jury consultants interact is a special computer screen window that all can access. There, the research jurors are presented with specific questions designed to gauge their attitudes and concerns regarding the case being studied. They type in their responses to these questions, which are immediately viewable by all participants.




Results

Through this carefully planned and conducted online jury research process, attorneys and jury consultants are able to spotlight the key trial issues the online research jurors consider most important; and to then determine with the maximum degree of available certainty how these issues should be presented during the upcoming trial to achieve courtroom success. Findings can be used to forecast jury verdicts; detect possible juror bias; evaluate demonstrative aids; plan trial strategy, and so on.







Comparison to Standardized Jury Research

Virtual jury research provides identical benefits to standardized jury research, while featuring numerous additional advantages, including more economical costs. The primary benefit, by far, is quick case study results. A customary jury research session often takes weeks to organize and administer. But with virtual jury research which benefits from the availability online of literally millions of potential case study participants—research jurors can quickly be located and solicited to participate, which they can do so effortlessly via their home computers. As a result, online studies can be organized, conducted, concluded, and evaluated within a few hours. This quick turnaround can be invaluable for attorneys who must quickly strategize regarding sudden new cases that must quickly go to trial.




"Stratified" Sampling

Like any other scientific study, the validity of jury research results is based on the quality of the scientific sample, in this case the actual research jurors who are being studied. For online jury research, this means that the individual characteristics of the virtual jurors who participate in the jury study should match as closely as possible with those of a hypothetical "ideal" juror for a particular case. In most jury research, these characteristics segment according to the following criteria: demographics, personality, attitudes, beliefs and life experience. Choosing research jurors on the basis of these individual characteristics is known as "stratified" sampling.

"Random" Sampling and "Representative" Sampling

In standardized jury research, which draws on a pool of research jurors who are limited to a single venue, quickly locating and securing the services of jurors with such ideal characteristics can be a daunting if not impossible task. This is why standardized jury research often is conducted instead on the basis of "random" sampling (based on lists derived through voter registration, driver license applications, and so on); or through "representative" sampling (based only on demographic characteristics - age, ethnicity, sex, and so on). However, these much less refined methodologies do not present the same type of scientifically valid and meaningful research results that can be achieved through stratified sampling. But with the Internet, and its hundreds of millions of users worldwide, stratified sampling is not a problem; hence the value of virtual jury research in comparison to more standardized formats.

Efficacy

Efficacy

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.[15]










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.[16]




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 kinds of cases. For example, men convict more frequently than women in some types of criminal trials but less frequently in others.[17] 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.[18]

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.[19][20] The evidence presented at trial has far more impact on what the verdict will be.[12] As Kressel and Kressel indicate, "when the evidence is strong, nothing else matters much." Even when the evidence is ambiguous, demographic characteristics of jurors are a relatively minor influence.[18] Some researchers argue that a significant improvement in jury selection, however small, may be worthwhile when the stakes are high, like for a defendant accused of a capital crime or a corporation that stands to lose millions of dollars in a civil suit.[19]








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.[21][22] This argument is undercut by the fact that most attorneys are unaware of the social science research on the topic.[21]




The effectiveness of scientific jury selection is not always analyzed exclusive of other methods, such as attorney folklore and intuition. For trial attorneys, justifying the expense of SJS is contingent upon an improvement of 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.[23][24]

Criticism and suggested reforms

Two big criticisms are leveled against scientific jury selection. The most frequent criticism of SJS is that consultants stack juries with inexorably biased or dumb jurors, but practitioners insist this is impossible and that bias can only be removed from a jury pool. The other major criticism is that SJS magnifies the distorting effect money has on trials, since only the wealthy can afford it.[25] Jury consultants argue that they operate in an adversarial process the same way lawyers do; by pursing their clients' interests in a rule-bound framework. Even if SJS is ethical or has zero effect, Abramson argues that the mere myth of powerful, effective jury manipulators shakes public confidence in the jury system.[26]

One popular reform proposal is the elimination of peremptory challenges. Supreme Court precedent already forbids use of peremptories to exclude jurors based solely on their race or sex.1 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.[27]

Other proposals include[28]:

* lower the number of peremptories to force attorneys to use them only on the most clearly biased jurors and severely curtail their ability to "shape" the jury with peremptory challenges.
* ban jury consulting through legislative action, though it may be impossible to fairly draw a line that excludes SJS but doesn't exclude advice from other attorneys in the same firm, for example.
* limit useful information by severely curtailing voir dire questioning and written questionaires to prospective jurors. This may have the perverse effect of encouraging many erroneous Batson challenges based solely on race or gender instead of more sophisticated metrics of bias.
* prohibit investigation of the venire or release the venire list on the eve of jury selection to make investigation of prospective jurors impossible.
* force disclosure of consultant use by making surveys of prospective jurors or the community discoverable by the opposing party. If consultants' research is discoverable, each party could use and benefit from their research.

Despite serious discussion among lawyers, scholars, legislators, and others, no reform proposal has been implemented and no consensus exists about which remedy, if any, would be the most appropriate and effective.

In fiction
Fictional jury consultant Rankin Fitch and his team spying on prospective jurors in their secret workroom.
Fictional jury consultant Rankin Fitch and his team spying on prospective jurors in their secret workroom.

Jury consultants are usually portrayed in fiction as villains that are highly effective at influencing the jury. 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."[29] 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."[30] Jean Hanff Korelitz's A Jury of Her Peers is even more outlandish. Korelitz's 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."[31]

Methods

The theory behind SJS is that juror demographics predict juror attitudes, which in turn predict verdicts. By discovering what relationships exist between certain demographic categories and certain attitudes, attorneys can exclude those from the jury whose attitudes would predispose them to a bad verdict.










Researcher Shari Diamond indicates that jury consultants primarily rely on two methods: telephone surveys and mock trials (trial simulations).[9] Telephone surveys are the practitioners' "primary research method". During a survey of the community where the trial is taking place, jury consultants ask about:

1. background characteristics such as race, sex, marital status, age, income, and job and perhaps more specific questions that depend upon the case itself;
2. beliefs and attitudes likely associated with a favorable or unfavorable verdict; and
3. (after reading a summary of the facts of the case) which verdict the survey respondent would favor.

Jury consultants then compare the three data sets to determine which background characteristics correlate to favorable attitudes and verdicts, and which attitudes correlate to favorable verdicts. Attorneys can then use that information to select favorable jurors, based either on prospective jurors' characteristics or whatever an attorney can learn about jurors' attitudes.




An alternative is to test respondents at the researcher's facility with opening statements or a full-blown mock trial instead of reading a case summary over the telephone. The higher cost of a mock trial buys a more realistic portrayal of the real trial and (researchers hope) more accurate data. It also provides a better opportunity to question the subjects, before and after the trial simulation. On the other hand, telephone surveys provide a larger and more representative sample of the jury pool. Diamond indicates that since both methods have advantages, SJS practitioners commonly rely on each in the same case.[9]








Besides the occasional astrologer or psychic, a few practitioners use maverick methods, such as in-courtroom assessment of posture, pupil dilation, or breathing to judge jurors both during selection and during trial. Though such methods have the veneer of science, psychologists reject them as nonsense and "science fiction".[10] Notwithstanding this, Jo-Ellan Dimitrius (from the Simpson trial) indicates that she also relies on appearance, body language, conduct, and even smells such as perfume or medication. She sometimes even decides based upon her "gut feeling" about a juror.[11]




Kassin and Wrightsman indicate that the model employed (demographic factors predict attitudes that predict verdicts) has empirical weaknesses. That attitudes predict verdicts is taken for granted and rarely studied. For example, veterans might favor current troops, but that doesn't necessarily translate into a likelihood to acquit their brethren of crimes. However, the relationship between demographics and verdicts can be more reliably predicted by mock trials.[12] Indeed, successful prediction of jury verdicts often requires data specific to the case and jurisdiction. The sheer number of ways that one case can be unique outstrips the published research on the subject, so original research is often required. That necessity is exacerbated by the fact that many modern consultants are reluctant to share knowledge, even with other firms, because of paranoia, client confidentiality, and their regard for their work as "trade secrets".[13]

One important variation is "group dynamics analysis". Much jury selection is concerned with the attitudes and bias of individuals. Some trial consultants also try to predict how individuals will form themselves into groups in the jury and which jurors will become leaders and followers in those groups. Consultants also use this tool after jury selection is over.[14]

Scientific jury selection

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. 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 confined to the American legal system.





SJS has roots in the Vietnam War era, but in modern times is usually employed in high-stakes civil litigation. SJS practitioners determine which background characteristics and attitudes predict favorable verdicts, and then coordinate with attorneys in choosing the jury. Studies are mixed as to the effectiveness of the practice, though it is clear that evidence is the most important determiner of verdicts and that SJS is more likely to have an impact where the evidence is ambiguous. SJS's potential to unfairly skew the jury has led to some reform proposals, but none have yet been implemented. The limited fictional portrayals of SJS paint a dark picture.









History and use

Attorneys in the United States have two options for excluding potential jurors. The first option is a challenge for cause, in which attorneys must state the reason for a challenge (such as clear bias or a conflict of interest), the opposing party is allowed to respond, and the judge decides whether to exclude the juror. The second option is a peremptory challenge, where an attorney can automatically exclude a juror without stating a reason. While challenges for cause are unlimited, attorneys have a limited number of peremptory challenges, sometimes as few as four, although 10 is more common in non-capital felony cases.[1]







Attorneys have long used peremptory challenges to exclude undesirable prospective jurors, but not always to good effect. Much of the early efforts were based on lawyers' folklore about who makes a good juror for their case.[2] Early examples of scientific jury selection were similar. For example, in the 1975 Joan Little trial, defense attorneys used an astrologer to help choose the jury. More rigorous methodology was on display during the first major use of SJS, the 1972 Harrisburg Seven trial. Social scientists used demographic characteristics to identify biases in favor of conviction. Although surveys indicated that 80% of citizens in conservative Harrisburg, Pennsylvania would convict the defendants, they were only convicted of a minor charge of smuggling letters. The consultants in the case had conducted surveys that indicated women and Democrats would make defense-friendly jurors, and the religious, those with college degrees, and Reader's Digest subscribers would not.[3]




More recently, a jury consultant was used in the O. J. Simpson murder trial. Criminologist Jo-Ellan Dimitrius used surveys to determine the ideal defense juror demographic (black women) and analyzed and judged the prospective jurors' answers to a questionnaire and response and body language during voir dire.[4] Incidentally, the prosecutor fired her court-appointed jury consultant early in the process.[3]

Contemporarily, SJS's use is more frequent in torts,[5] particularly where wealthy corporate defendants fear an enormous judgment for the plaintiff, or where plaintiffs’ attorneys have invested large sums of money in an important lawsuit. Since the 1980s, large jury consulting and trial consulting firms have sprouted up with multi-million dollar incomes, mostly from such high-stakes civil litigation.[6] Jury consultants can be sociologists, people with experience in communications and marketing, or attorneys themselves, but they are usually psychologists.[7]

The terms "jury consulting" (see jury research) and "trial consulting" are sometimes used interchangeably with "scientific jury selection", though there are distinctions. One firm says jury consulting is a broader field than SJS that includes locally-tailored advice about trial presentation based on surveys and mock performances.[8] Trial consulting is a broader field still.