Jury consultants hail from a variety of fields—business, law, marketing, communications, theater, statistics, but especially psychology. About half of all trial consultants are psychologists. Work can begin months before a trial with community surveys. Consultants may cold-call random people from the local phone book and ask them questions about their age, race, gender, religion, profession, and political views. Then they ask about their views on issues pertaining to the case and maybe their reactions to a brief case description. They're looking for correlations between the two sets of answers.
Next they'll pay a small number of people to participate in focus groups, where they actually test parts of their case—particular arguments, pieces of evidence, or witnesses. That furnishes detail on how different types of jurors react. On occasion consultants stage full mock trials with the lawyers and actors and then scrutinize the "jurors" as they deliberate.
Armed with a sense of which issues and which juror characteristics matter most to the trial, consultants draw up juror questionnaires and devise strategies for voir dire. Some question topics are straightforward: family, education, experiences with the justice system. Some are highly detailed: The questionnaire for the 2004 Kobe Bryant rape case asked, "How do you feel about interracial relationships?", "Which of the following best describes your opinion of professional basketball players?", and "Describe your exposure [to this case from each of the following media outlets]." Forms usually run a few pages, but can be much longer in big cases; the questionnaire in the O.J. trial ran 75 pages, with more than 300 questions.
Such (mostly) research-driven techniques lend a certain rigor to the methods of attorneys, who still often rely on antique rules of thumb like the no-knuckle-cracker admonition. A 1991 study in the Journal of Social Behavior and Personality showed that John Q. trial lawyer uses the same "pop" psychology—applying stereotypes based on marital status, occupation, and appearance to predict, say, decisions in rape and murder trials—as your average college sophomore, with about the same success.
Debate Over Demographics
How effectively do demographics predict jurors' responses? They're "barely important," Dimitrius says. "[But] that's what lawyers still learn in law school: You can't have any males on a rape case, for instance. Ridiculous stuff. Very rarely will we find a demographic that's a factor." The O.J. case was an exception. Of the final 12 jurors, eight were black women, and only two had college degrees. Dimitrius wasn't surprised when the panel sympathized with O.J., considered prosecuting attorney Marcia Clark a "bitch," and ignored the DNA evidence.
Much more predictive are juror personalities (during voir dire do they appear stern? compassionate?), experiences (have they been the victim of a violent crime?), and attitudes (how do they feel about large corporations?). "I'm matching our case with the juror's life experience or value system," says Texas consultant Robert Hirschhorn, who's worked on the trials of Ken Lay, Terry Nichols, and William Kennedy Smith. In a breach of contract case, he wants people with "a real strong sense of right and wrong, black and white—the kind of people who say, 'a deal's a deal.' "
But even such beefed-up juror profiles can lead attorneys astray. When psychologist Robert Bothwell asked 10 mock juries to look at the Kobe Bryant case, he found that people with a healthy respect for authority, who might be expected to punish the defendant, actually blamed the victim. "Some may want to blame Kobe and say it must be rape because a normal person wouldn't do this," one jury consultant told the press. "Others might say, 'Look at her, she asked for it.' This trial has layers upon layers of issues."
Yet one more factor wins attention in the selection process: Consultants have to consider how each juror will behave in a room with the others. On a first vote before deliberation begins, jurors rarely agree. That's why juror qualities such as leadership potential (check posture and managerial experience), need for cohesion (is he a suck-up during voir dire?), and resistance to social pressure (count the piercings) matter. Consultant Hirschhorn takes interpersonal dynamics seriously. "If there's somebody I'm on the fence about and I think a couple of the other jurors will bond with and bring that person along, I'll keep him on," he says. "I look for whether it's an intellectual relationship, whether they have common interests, common goals, common life experiences."
Dimitrius recalls a 2006 case where personality, life experiences, and jury dynamics all counted. When the city of Anaheim sued its baseball team for changing its name to the Los Angeles Angels, Dimitrius liked one particular juror: "I characterized her as a follower in everyday life except in regard to this one simple issue," she says. The juror's husband and sons, all huge fans, basically disowned the team after the name change. "No way would this woman who was otherwise very low key and nonconfrontational have been able to go home and say, 'Honey, boys, guess what, I voted in favor of the team.' " Post-trial comments of jurors validated Dimitrius: The woman held out against the Angels.
But good luck building a picture of the jury as an organism when you can't even X-ray the individual organs. It can be tough just to get good data on jurors. In many jurisdictions, jury questionnaires and voir dire are severely restricted. According to Richard Seltzer, a political scientist at Howard University, voir dire in many cases in D.C. is under an hour. "What can you learn in under an hour from 45 people in the panel? Less than half say more than a sentence."
Tags:
art selection,
business,
father and mother,
gut level,
howard varinsky,
hundred million,
jury,
jury consultant,
jury duty,
jury selection services,
law,
level decision,
nutcase,
picket fence,
prosecution team,
Science,
scientific jury selection,
shade of red,
strawberry shortcake,
three decades,
three kids
