Wednesday, February 6, 2008

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.


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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]

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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.

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