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]