Jury Selection Process - Essay Example

Scientific Jury Selection: An Analysis Submitted by: Submitted] "Never forget, almost every case has been won or lost when the jury is sworn." - Clarence Darrow (prominent attorney), 1936. Introduction Juries decide thousands of cases every year. Even though the majority of court cases are not settled by juries, predictions about juries influence decisions to pursue or avoid jury trials (Greene, Chopra, Kovera, Penrod, Rose, Schuller et al., 2002); therefore, the jury system maintains a central importance in American law. Given this importance, it is not surprising that the selection of jurors has, for many, become a scientifically-rooted service for which attorneys and litigants will often pay handsome fees. Scientific jury selection is defined as the application of behavioral and social scientific principles to the selection of jurors most sympathetic to a particular side in a court case and was first applied in 1971 in the trial of Philip Berrigan and six other antiwar activists. (Kressel & Kressel, 2002) Since then it has experienced a growth spurt since its inception in the early 1970s. It has also received substantial publicity in the news media, e.g., for its use by the defense in the O.J. Simpson criminal trial in 1995. This relatively new field is controversial: questions exist about its effectiveness, its fairness and the fact that it is virtually unregulated. Evidence from academia largely indicates that scientific jury selection does no good, yet the market for such services continues to flourish. What methods do jury selection experts employ What are the bases for the controversy surrounding this "hot" field What, if any, solutions have been suggested to alleviate these concerns Methods of Jury Selection In jury selection, social scientists gain prominence but jury consultancy remains controversial in both the legal and social scientific communities (Stolle, Robbenolt & Wiener, 1996). Trial consultants have relied on a variety of methods in jury selection, including "scientific statistical methodology, folklore, pops psychology [and] astrology" (Boudouris, 1993, p. 4). However, there is also the gut feel as remarked by O.J. Simpson's attorney Jo-Ellan Dimitrius. (Dimitrius & Mazzarella, 1998, p. xiii). Traditional jury selection in most jurisdictions consists of three stages. The first stage involves the creation of a list of citizens eligible for jury duty, followed by selection of a sample of those persons to be summoned to court. The third stage occurs in court. In a process called voir dire, potential jurors are questioned either individually or in a group, sometimes by attorneys but often by the presiding judge. When jury selection experts are called in to help, they use a variety of techniques to assist in the selection of the jury that will be most favorable to, or, usually, least biased against, their side The tools at a trial consultant's disposal include community surveys, focus groups, mock trials, pretrial investigations of prospective jurors, and voir dire assistance. The widespread use of these methods indicates that SJS experts rely to a greater extent on attitudes and values than on demographic predictors, such as race, ethnicity, age, gender, religion, socio-economic status and occupation, as predictors in jury decision-making (Penrod, 1990). Sophisticated statistical techniques, including factor analysis and multiple regressions, are often used to make predictions about jury decision-making from survey data. (Strier, 1999, p. 96). Trial consultants also frequently employ pretrial investigations of prospective jurors. This type of pretrial investigation takes two forms: community network modeling and surveillance. Community network modeling consists of contacting prospective jurors' coworkers or neighbors, or people in the community who are affiliated with the same school, church, or club as a prospective juror. Surveillance includes drive-by observations and photograph- taking of a prospective juror, and checking public records of each prospective juror, such as those of voter registration, court proceedings, and property holdings. Not surprisingly, both techniques have met with accusations of privacy invasion (Strier, 1999). Issues with Jury Selection: Effectiveness, Fairness, and Lack of Regulation Franklin Strier (1999) has pointed out three issues which keep the practices of scientific jury selection steeped in controversy. The first issue concerns the effectiveness of such practices. It is difficult to answer questions about the effectiveness of SJS by analyzing court cases. It is not possible to claim with any certainty that a favorable verdict is completely due to SJS (Strier, 1999). Hans and Vida (1986) remarked that jury verdicts are determined by many factors and that one cannot know the extent to which SJS contributed to the verdicts. There is a noticeable lack of scientific research evaluating newer trial consulting techniques that, in combination with SJS, could influence the outcome of a case (Stolle, Robbenolt & Wiener, 1996; Strier, 1999). The second issue concerns the fairness of SJS. It is important to maintain a perception of fairness, and even if SJS is not effective, it can still give the impression of interference with the jury process (Strier, 1999). The third issue on which Strier remarks is that the field of trial consulting is largely unregulated and lacks clear professional standards. Problems with Jury Selection Stolle, Robbenolt and Wiener (1996) relate that SJS has generated controversy in both the legal and social scientific communities where each side also has tow opposing views. Results from academic research laboratories have not supported SJS practices. Trial attorneys have not outperformed undergraduates in studies of jury selection, lending doubt to the credibility of lawyers' instincts in deciding the suitability of jurors (Oilcake, Kaplan, & Penrod, 1991). Another reason why SJS is often deemed ineffective is because certain limits to its exercise have been identified. As stated before, there is evidence that the ability of trial consultants to predict verdicts from jurors' demographic and personality variables accounts for at most 15% of the variance in verdicts. There do not appear to be any reliable predictive demographic variables - juror occupation, gender, income, religion and age have not been found to have consistent effects across cases (Greene et al., 2002) - and it has not been possible to identify a personality type or combination of types that can predict juror decisions across criminal or civil cases (Kressel & Kressel, 2002). Other factors can also affect trial outcomes, making jury selection less relevant as a verdict determinant. Certain areas are beyond the control of the trial consultant. These areas include the nature of the evidence, the acumen of the attorneys, the style of the presiding judge, and the complex group dynamic principles at work during jury deliberations (Boudouris, 1993). Today, concerns exist about the fairness of jury selection as a practice. The Jury Selection Service Act of 1968 explicitly states that criminal defendants have a right to trial by a jury selected "at random from a fair cross-section of the community." Some critics have argued that SJS corrupts the objective of a trial by jury to represent such a cross-section of values. Although some Americans, namely, persons who do not register to vote or hold driver's licenses, are regularly excluded from jury selection, SJS introduces exclusions with a scientific rationale in place of the aforementioned systematic exclusions (Strier, 1999). Another criticism of the fairness of SJS is that it is only affordable for wealthy corporations and individuals. Although some low-cost services have recently been offered, some as low as $2,000, in other cases, a jury selection expert could cost an attorney between $50,000 and $100,000. (Strier, 1999) A final problem concerning the fairness of SJS actually has little to do with the actual fairness, but deals with the perceived fairness of the practice. Trial consulting can create the perception of "high-tech jury tampering," through which psychologists and other so-called jury experts manipulate the eventual composition and/or decision-making bias of the jury (Strier, 1999, p. 104). If jury selection techniques are seen as unfair, the legal system as a whole may be viewed as similarly unfair (Stolle et al., 1996). Data about the perceived fairness of a trial can be difficult to obtain due to problems assigning quantities to subjective qualities like fairness (Stolle et al., 1996). Stolle and colleagues (1996) found that the use of a psychologist trial consultant tended to be viewed as unfair when one side employed a consultant and the other did not. When both sides hired a consultant, judgments of fairness were not affected. Advocates of SJS have also defended the practice on grounds of fairness, although such defenses are more difficult to corroborate than defenses of effectiveness. Trial consultants claim that their goal is to seat less biased juries, juries that are more likely to deliver a fair verdict (Kressel & Kressel, 2002). Adherents (e.g., Vinson, 1986; as cited in Penrod, 1990) claim that their methods help ensure that the ultimate goals of the jury system, including the right to trial by a fair and impartial jury, are realized. Jury consultants often present "themselves as enablers rather than disablers of the jury system" (Kressel & Kressel, 2002, p. 82). Conclusion The issues clouding the practice of jury consultancy has indeed precipitated much debate on its effectiveness and fairness. What I offered in this paper is to provide some of the major key points of the issue. 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