There's a thriving industry built on the scientific selection of jurors, but the jury is out on just how accurate it is, or whether it gives legal adversaries an edge.
By March 1, 2007 - last reviewed on June 9, 2016published
"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.
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."
And when they do talk, they're frequently unrevealing. Seltzer conducted a study in which nearly 30 percent of jurors who denied before trial that they had witnessed a crime or that they knew any police officers revealed afterward that in fact they had. And that's relatively innocuous information. No one wants to sit among dozens of strangers and answer personal questions about sexual or criminal experience, financial history, health, and drug use.
Then there are the dreaded "stealth" jurors—the ones looking to get on Oprah or nab a book deal. There aren't many, says Patterson, but "it can be disastrous if there is even one on a jury." The classic is the juror looking for money and publicity, but others will lie their way onto a jury to advance an agenda or influence public policy. It's difficult even for the pros to smoke them out. Patterson recalls a case against a Japanese company. Only after extended questioning did one potential juror, who'd been swearing impartiality up and down, reveal that his father had been killed in a Japanese POW camp during WWII and that he really had it out for the Japanese.
The Limits of Science, or Sometimes It's Just Hemorrhoids
"Basically, jury consulting is applied psychology," says Thomas Diamante, a jury consultant at DOAR. "We'll read studies from The Journal of Applied Psychology or Law and Human Behavior. We are practitioners but pretty much everyone here could flip and become an academic."
Hirschhorn has no such aspirations. The consultant, who charges $8,500 per day, disdains academic papers. "I don't have time to read articles about the theory of war—I'm in the war," he says. "There's a lot of jury consultants out there who try to pitch this as a science, and I am adamantly opposed to that. I've got to get into the heart and soul of that juror to figure out if they're going to buy what we're selling."
Consultants can build an image of their perfect juror (or the juror from hell), but then real people show up. When no one fits the prototype, "that's when you have to rely on your instinct and your ability to evaluate how people respond, what you hear in their voice, who they're interacting with during breaks," Dimitrius explains. "To me that is the art."
In the school of reading nonverbal behavior, Dimitrius is an acknowledged master, along with Varinsky and Hirschhorn. They say their skills come partially from natural talent but mostly from extensive real-world experience, especially in courtrooms. Dimitrius has a Ph.D. in criminology, Varinsky was a psychotherapist, Hirschhorn a seasoned trial lawyer. Still, there are consultants who regard body language "a waste of time," on par with handwriting analysis.
Consultants must pay some attention to jurors' nonverbal signals during voir dire, says Kenneth Broda Bahm, president of the American Society of Trial Consultants, because occasionally there is clear feedback—a juror frowns, nods in agreement, or almost raises a hand. But he counsels against "a reliance on such old saws as 'folks who fold their arms in front of them are defensive' or 'those who sit up straight are authoritarian.' "
Patterson recalls a case in which a man sat in the jury box wearing greasy overalls. As soon as Patterson remarked to the lawyer next to him that the man had no respect for the court, the man raised his hand and apologized to the judge for his appearance—he'd worked a night shift at the plant and skipped changing to avoid being late. In another case, a potential juror squirmed in his seat during voir dire. Patterson told the lawyer that the man was anxious and offended by the questions. A minute later the man asked the judge for a break to attend to his hemorrhoids.
A Balance of Biases?
What ever happened to a jury of one's peers, randomly selected—a cross-section of the culture? Ironic that a practice pioneered for social justice—to protect the Harrisburg Seven from a biased jury—is often a tool for wealthy clients and large corporations to stack the panel. Consultants deny their practices tamper with justice. "Jurors come in with opinions," Hirschhorn says. "And my client's not starting out as the favorite. What I try to do is get us back to even."
But the opacity of the peremptory strikes—attorneys can boot jurors seemingly on a whim—raises suspicion. How can consultants claim to be composing a fairer jury when they don't reveal their reasons for culling jurors? The Supreme Court has banned deselecting jurors based on race or gender, but the laws are rarely enforced, partly because violations are hard to prove.
Attorneys maintain that peremptory strikes are necessary because judges don't excuse jurors easily, even when attorneys cite specific conflicts. And when a particular bias comes up—say, a doctor is on trial and you've personally experienced medical malpractice—judges usually just remind you of the law and ask if you can keep an open mind. Jurors rarely say no.
"Judges are not psychologists," Patterson notes. "They do not understand the depth to which biases or pre-existing attitudes influence jurors' ability to be fair and impartial." Consistent research over the years has shown that biases persist despite efforts to ignore them. Less evidence is needed to support a conclusion you're already leaning toward. And opposing evidence can even be spun in your head to go the other direction. Studies have also shown that jurors are terrible at discounting pretrial publicity and inadmissible evidence, despite admonition from judges. (Go ahead and try not to think of an elephant.)
"Most people really think they can set a bias aside," Patterson adds. "A certain percentage hope they can and say it to please the court—no one wants to stand up in court and say 'I'm a biased idiot.' And a small percentage are lying flat out." Knowing that they have to work with jurors loaded with preconceptions, and believing that judges aren't thorough in their expulsion of biased individuals, attorneys feel comfortable using every method available to swing the system in their direction.
Saved from Extremes?
Does scientific jury selection even work? Real-world success rates are impossible to measure. A true controlled study would require two parallel juries, one selected at random, one professionally culled. Demographics and personality indicators improve the ability to predict a juror's decision only by 10 to 15 percent on average. So conclude psychologists Joel Lieberman and Bruce Sales from a literature review in their 2006 book Scientific Jury Selection, the only academic volume dedicated to the subject. In another review of studies, Howard University's Seltzer found that information gleaned from juror surveys could account for only 10 to 26 percent of their behavior. "In some situations attorneys can improve their jury by maybe one juror," Seltzer says. "Maybe sometimes more if they're lucky."
Scientific jury selection may be best at identifying the most extreme jurors, those most likely to drive the deliberation in a particular direction. One adamant juror in a group of 12 could create a runaway jury that pumps up the award in a civil case. In criminal cases, just one reluctant panelist can hang the whole jury.
But jurors do not make decisions alone. "There's a kind of organized buzz," says Shari Diamond, a psychologist and law professor at Northwestern University, "with looping back and repeats and corrections. It's a complicated process." DOAR's Diamante respects the unpredictability of juries despite jury selection. "How can you possibly make sure there's a certain type of outcome given the complexity of the information on one side, the complexity of the information on the other side, and then the human dynamics involved in the jury? If you can do that, when you're done let's go to Atlantic City."
If scientific jury selection is just a crapshoot, why is the industry thriving? Even when attorneys do know the social-science research showing the relative ineffectiveness of scientific jury selection—and the power of evidence—they are still willing to hire consultants for big-money civil cases. Purchasing even a small edge can prevent the aggravating post-trial "if only" game. And attorneys might have faith that their consultant bucks the trend; there's always the hope that a particular consultant is a jury-selection wizard.
"Nobody really has a crystal ball," Varinsky confides. "Would I have bet my life on Strawberry Shortcake? I would have come close to it. I was that certain of what I saw. But would I really have put my life on the line? No. There's always that unknown of human unpredictability." Fortunately, he didn't have to wager his life. He bet Scott Peterson's instead.