Scientific Jury Selection - Methods

Methods

The theory behind SJS is that juror attitudes predict voting preferences most effectively. By discovering what relationships exist between 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). 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 of the jury pool 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.

Diamond writes that 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. This has prompted the most frequent criticism of SJS: that consultants stack juries with inexorably biased or dumb jurors; in turn, practitioners insist this is impossible and that bias can only be removed from a jury pool.

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 allows for 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 both in the same case.

Besides the occasional astrologer or psychic, a few practitioners use unorthodox 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". 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 decides based upon her "gut feeling" about a juror.

Research psychologists 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 does not 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. 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".

One important variation is "group dynamics analysis". Some 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.