Scientific Jury Selection - History and Use

History and Use

During jury selection in the United States, attorneys 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 exclude a juror without stating any 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.

Attorneys have long used peremptory challenges to exclude undesirable prospective jurors, but have not always been successful. Much of the early efforts were based on lawyers' folklore about who makes a good juror for their case. 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. During that trial, social scientists used demographic characteristics to identify biases in favor of conviction. 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 be better for the prosecution. Although surveys had indicated that 80% of citizens in conservative Harrisburg, Pennsylvania would convict the defendants, they were acquitted of all serious charges.

A jury consultant helped pick the jury 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 (the stage of jury selection where lawyers are permitted to directly question the jury). Prosecutor Vincent Bugliosi gives more credit to the traditional change of venue. He argues that transferring the case to a section of Los Angeles with more blacks in the jury pool was most detrimental to the selection of a prosecution-friendly jury. Incidentally, the prosecutor fired her court-appointed jury consultant early in the process.

Contemporary jury consultants are often sociologists, people with experience in communications and marketing, or attorneys themselves, but they are most frequently psychologists. Although most of the practice's roots are in criminal trials, modern jury consultants are more often involved in torts (civil litigation), particularly where wealthy corporate defendants fear an enormous monetary 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. The simultaneous shift from ad-hoc groups of academics to a business model has sparked the criticism that SJS magnifies the distorting effect money has on trials, since only the wealthy can afford it. Jury consultants argue that they operate in an adversarial process the same way lawyers do; by pursuing their clients' interests in a rule-bound framework. Jeffrey Abramson, who has written extensively about juries, argues that even if SJS is ethical or has zero effect, the mere myth of powerful, effective jury manipulators shakes public confidence in the jury system.