When Strawberry Shortcake strolled into the courtroom, the attorneys thought they had her pegged. Richelle Nice, called for jury duty in Scott Peterson's 2004 murder trial, earned her nickname by coming to court with her hair dyed a different shade of red almost every day. Attorneys on both sides poked and prodded the pool of potential jurors for three weeks, deciding whom to boot from the case for bias. Surprisingly, both sides wanted to keep the multitattooed redhead.
"The prosecutors didn't want her, because she looked more outlaw than the nice straight homeowners with three kids and a picket fence," recalls Howard Varinsky, the jury consultant hired by the (successful) prosecution team. "When they asked her about the tattoos, it was really code for 'How can I trust you, looking the way you look?' " But Varinsky saw "a microexpression of rage" shoot out before she covered it. He decided that was her issue: "You can't tell a book by its cover, and I'm surely not gonna let my father and mother and the whole world think I'm a nutcase." She gave some innocuous answer to the question but Varinsky knew she would never walk Scott Peterson. Ever. And he convinced his guys to keep her on.
Jury consulting has become a big business over the past three decades. Hundreds of firms now rake in several hundred million dollars a year. Many offer "scientific jury selection" services, deploying demographics, statistics, and social psychology to cull potential jurors and engineer the perfect panel of people. But as these gurus aim to extract sure verdicts from parties of unknowns, their grasp on the chemistry of human nature appears to require a working knowledge of alchemy—as in Varinsky's gut-level decision to impanel Strawberry Shortcake. Despite all the money and research poured into predicting and shaping jury decisions, to a large degree the state of the art remains just that: art.
Selection—or the Opposite?
"Almost every case has been won or lost when the jury is sworn," legendary attorney Clarence Darrow once claimed. It may be hyperbole, but people believe it. Turbulence followed the verdicts in the trials involving Rodney King, O.J. Simpson, the nanny Louise Woodward, the hot coffee at McDonald's, and the $253 million Vioxx award. In each of those cases, an outraged public decried the jury's decision.
And all those juries were selected by trial consultants.
O.J.'s lawyers offered no small share of credit to jury consultant Jo-Ellan Dimitrius for the dream team of jurors she assembled. "It was unfortunate that I was personally blamed for letting O.J. walk the streets," Dimitrius told me. "Both sides had the same ability to excuse jurors." (Marcia Clark fired her appointed consultant after two days and ignored his advice.)
"We get thanked [for verdicts] all the time," says Arthur Patterson, a social psychologist and jury consultant at Torrance, California-based DecisonQuest. Of course, it often "happens privately, as the lawyers want to keep their secret weapons hidden."
Can juries really be stacked? Potential jurors fill out questionnaires and are interrogated by the judge or attorneys, a process called "voir dire." If the attorneys feel a potential juror is biased against their side, they "challenge" by asking the judge to excuse him. They can challenge "for cause" by demonstrating bias to the judge; they are also allowed a limited number of peremptory challenges, usually three to ten per side. The juror is removed, no questions asked. (Voir dire and selection can take under an hour, or up to several weeks in high-profile cases.) At this stage, the work of a jury consultant lies in advising attorneys on the strategic use of peremptory strikes—identifying jurors who might cause their client trouble in the deliberation room and eliminating them. "Jury selection" conjures the hand-picking of a perfect panel, but in reality it's a matter of deselection.
Sort of Scientific
Jury selection took its first halting steps toward science in 1972, when seven Vietnam War protesters were charged with conspiracy and put on trial in conservative Harrisburg, Pennsylvania. Pretrial polls indicated that 80 percent of potential jurors would vote to convict. Social scientists armed with community surveys explored which backgrounds and attitudes suggested sympathetic jurors (good: women and Democrats; bad: the religious, college graduates, subscribers to Reader's Digest). In the end, the Harrisburg Seven received only one minor conviction, and a field was born.
Until then, attorneys deployed hunches and folklore in striking jurors. A 1990 scholarly survey of all the advice doled out over the decades yielded contradictory recommendations (a smiling juror is good—or bad), wacky info (jurors who crack their knuckles cause trouble), and often offensive declarations (Scots are bad for civil plaintiffs, as "no McTavish ever was lavish"). Few such conclusions have withstood scientific scrutiny.
Today, trial consulting is a whole industry that just begins with jury selection; experts also offer witness preparation, rhetorical coaching, refinement of arguments. In the 2004 ruling requiring insurance companies to treat the 9/11 World Trade Center attacks as two separate occurrences (doubling the payout), DOAR Litigation Consulting guided jury selection, clarified the insurance jargon, crafted an analogy to two hurricanes hitting Florida, created persuasive graphical presentations, and tested every element at their Long Island headquarters, which includes a high-tech mock-up of a full courtroom.
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