This research paper reviews the present system of jury selection as widely practiced in the U.S., whereby trial attorneys engage the services of Trial Consultants who employ so-called Scientific Jury Selection (SJS) methodology, in order to identify individuals from a pool of prospective jurors who may be more (or less) kindly disposed towards their side (prosecution or defense) of the upcoming case. Beginning with a brief history of the system, the paper then summarizes the three-stage process of jury selection as it exists today. Controversial issues surrounding SJS and trial consultants are also discussed. For example, is SJS effective (both in its primary purpose and in value for money terms? Also, is it a fair way to select juries? Do all defendants get the same equality of justice by allowing SJS to be used, bearing in mind the high costs of engaging Trial Consultants who provide those services? Finally, should there be proper, nationally-based mandatory licensing and regulation of the industry, which at present is largely unregulated, other than by a limited and voluntary code of ethics? Some have suggested a number of reforms to the system that would go some way to addressing these and other issues. Those proposed reforms are outlined in this paper. The concluding remarks at the end of the paper suggest that the system may or not be effective, but that it is certainly not fair and needs radical reform, including much better and mandatory licensing and regulation.
This paper examines and discusses the way jurors are selected in the U.S. justice system. The research begins by summarizing the history of trial consulting or Scientific Jury Selection (SJS) as it is generally known today, then explains the process of selecting a jury, looking into the effectiveness, the fairness (or otherwise) and the seeming lack of regulatory control of what has become the thriving and affluent industry of Trial Consultation, living off the backs of the cases in our courts that are decided by jury.
History of Jury Selection in the U.S. Although every year many court cases are decided by juries, many more are settled by other means, though the views of how juries might determine a case can influence whether attorneys decide to opt for a jury trial or not (Cleary, 2005). On that basis alone, the jury system has great importance in the American system of law, hence jury selection has become a function based on scientific methods – a service for which the attorneys and their clients are apparently prepared to pay to obtain the jury they believe will help them obtain the “right” verdict. According to Cleary, since this scientific approach to jury selection first began in the 1970’s, the method of applying behavioral and other principles in determining which potential jurors might best favor one side or the other in a case has not only become widely used, but has received considerable publicity through high profile cases such as the 1995 O.J. Simpson trial. But many people question different aspects of the method. Is it effective? Should it be more regulated, and most of all, is it fair? Cleary suggested that the evidence seems to indicate that the selection methods used are not particularly effective, yet the demand for those services remains high. She asked the rhetorical questions: what precisely are the methods those experts employ, why is the process so controversial and what if anything has been proposed to deal with the voiced concerns (especially the perceived lack of fairness?).
The first recorded occasion when this jury selection method was used was in the well-documented trial of the so-called “Harrisburg Seven” in 1971. Jay Schulman and other like-minded individuals offered to assist the defense team because they believed the government had selected Harrisburg for the trial venue as it was ultra-conservative, and therefore that jury members selected from that community would likely favor the government’s case against the anti-war activists on trial. Schulman himself believed that the individuals on the jury had at least as much influence on the trial outcome as the arguments by attorneys and the evidence itself. For that reason, their target in this instance was to find a jury that would be fair – not an easy task in Harrisburg at the time. (Polls before the trial had suggested that eighty percent of Harrisburg residents held views against the defendants). By conducting surveys and many interviews, Schulman’s team formulated a demographic profile to use when selecting jurors, so that those most likely to be “anti” the defendants could be avoided. (A general example could be where potential jurors in a murder case expressed a view that all murderers should be put to death, clearly disqualifying themselves from a jury that should carefully weigh all the specific evidence before reaching a conclusion). The tactics appear to have worked in the “Harrisburg Seven” case; at the end of the trial the defendants were convicted on only the minor charge of “smuggling letters out of prison.” Cleary reported that following that success, social scientists provided similar services in other trials, again with a number of successes.
Then in the next decade, according to Cleary, that system of jury selection not only continued but developed into the industry we know today as “trial consulting.” The scope of services offered has expanded, too. Those available now include: “in-court assessments, focus groups, change of venue surveys, mock trials, shadow juries, witness preparation, attorney communication evaluation, and evidence preparation.” Those additional services are explained briefly below:
- In-court assessments: where the suitability of prospective jurors is assessed actually in court (during the voir dire process);
- Focus groups: Somewhat akin to brainstorming; used by attorneys to determine jurors’ feelings and views and what things they consider are most important to them (Jury Solutions, 2010);
- Change of venue survey: Checking out whether the current trial venue would be unduly prejudicial to the defendant, to justify requesting a change of venue for the trial;
- Mock trials: Used by attorneys as a means of determining what evidence is most significant to jurors (and the reasons why), plus other factors that may assist the attorneys to anticipate different scenarios when the actual trial is underway. (Jury Solutions, 2010);
- Shadow juries: According to Juris.Com, (n.d.) a shadow jury is a small group of people (maybe between three and six individuals) who every evening of a trial relate their opinions of the day’s events in court to a trial consultant who will then report back to the trial attorney;
- Witness preparation: The process of helping a witness state their evidence in the best manner. Note that it is important to remember the process must not include telling the witness what to say (Wilcox, n.d.).
- Attorney communication evaluation: A relatively recent process that attempts to assess how well an attorney communicates with his client (Cunningham, 1999);
- Evidence preparation: This is where evidence may need preparation to be better seen and/or understood by those in the courtroom, especially the judge and jury. For example displaying large photographs or visual aids to clarify technical evidence.
The Jury Selection Process Today. Regarding the jury selection process as it exists today, Cleary continued on to report that it essentially comprises three stages. The first one involves creating a list of those citizens who are eligible to serve on a jury. There are strict rules to determine eligibility based on factors such as minimum age, lack of a criminal record, being a U.S. citizen, etc. From that list a sample selection (considerably more than the numbers of jurors actually needed) are summoned to the court. The third stage, which takes place in the court, is known as the voir dire (meaning tell the truth), when the prospective jurors are questioned by attorneys and/or by the judge. In the case of the attorneys, they seek to find among the prospective jurors those that are least likely to be against their side of the case. The jury selection experts (or “Trial Consultants”) use a variety of methods including surveys and questionnaires to determine personality types they would most like to see on the jury; they may even investigate prospective jurors – a practice that has led to accusations of invasions of privacy. The knowledge gained from their investigations and other methods may be used during the trial in various ways.
An interesting view of the jury selection process was offered by the American Judicature Society in an article entitled “Jury Selection” (2012). The article described how prospective jurors can be challenged at the voir dire stage (in court) to try to remove them from sitting on the jury, in two ways. The first is known as the “challenge for cause” on the basis that the person concerned could not be impartial. The second type of challenge is the “peremptory challenge”, which means that the challenging attorney does not have to give a reason for the challenge. That type of challenge is often used when an attorney believes that individual would more than likely be batting for the other side if elected to the jury. Taking into account both challenge types, the article suggested that rather than “jury selection” the process is really one of “jury de-selection.” The same article also noted that there is a degree of public disquiet about the use of trial consultants, on the basis that it appears to offer distinct advantages to more affluent clients, who can better afford the fees charged for their services. In other words, the system as it stands is not fair.
Controversial Issues. Cleary quoted Strier (1999) who had drawn attention to three pertinent controversial issues regarding jury selection. The first was the question of effectiveness. The outcomes of trials do not necessarily indicate the effectiveness of Scientific Jury Selection (SJS). For instance, a defendant who can afford to pay for SJS services may also be in a position to engage a better attorney, thus clouding any true comparisons based on SJS alone. The second and very important issue is that of fairness. If SJS were shown to be genuinely effective, so that the actual jurors selected are chosen to favor one side, then it could be said that the defendant may not be getting the benefit of an impartial jury, as is his/her right under our Constitution. As the article also pointed out, even if SJS is not particularly effective, the jury selection may be perceived to be unfair and that perception of “fairness” is important. The third and final issue that Strier raised, (as reported by Cleary), was that of regulation. At present there is very little regulation of the field of trial consulting and there are no mandatory, clearly defined and nationally-observed professional standards.
Jury Selection Problems. Cleary raised the problems concerning the whole process of jury selection as practiced today, beginning with a fundamental statement that “It does not work.” Her view was based on a number of studies, including one that determined that professional trial consultants were no more successful in analyzing and finding “the right people” than (say) a group of undergraduates. Another study suggested that selecting the “right” jury has only a minor effect on the trial outcome (somewhere between 5 and 15 percent), meaning that aspects of the trial outside of jury influence account for between 85 and 95 percent of the verdict variation. Those figures suggest that at the very least SJS does not provide value for the great deal of money that it costs. Another perceived problem with SJS is that having selected the jurors they prefer, the team cannot with any degree of certainty predict how each individual will react to a given situation arising during a trial. Other factors such as the persuasive power of attorneys, the demeanor of the judge, and the weight of presented evidence may all come into play, in ways that may influence the opinions and/or decisions of individual jurors in unanticipated ways.
Going back to the fairness issue, Cleary reiterated that the system is patently not fair. She quoted the 1968 Jury Selection Service Act that quite explicitly declares that the jury selected for the trial of a criminal defendant must be chosen “at random from a fair cross-section of the community.” One reason why that does not happen when SJS is used is the cost, leading to accusations that it provides justice for the rich, leaving poorer defendants with “second class justice.” Another objection to the use of SJS in terms of fairness is that it can be viewed as “high-tech jury tampering.”
As mentioned earlier, the lack of regulation of the industry is also a major concern. Anyone who wishes to can set up in business as a Trial Consultant. There is a professional association called the American Society of Trial Consultants (ASTC) but their code of standards was referred to by Strier as “anemic.” (Strier, 2001, p. 71).
Notwithstanding the perceived problems with SJS as above, some still believe it to be a good system, although others dispute that. Cutler expressed his view thus: “Academic researchers have, based on early reviews of a small but methodologically unsophisticated body of literature, thrown out the baby with the bathwater” (Cutler, 1990, p. 230).
Suggested Reforms. Cleary outlined in her paper some reforms to the system, as suggested by Strier (1999), which would in his view deal with the issue of its (un)fairness:
- Prohibit the practice of trial consulting by anyone other than lawyers (could be tricky as it could affect other case support such as expert witnesses?);
- Restrict the questioning during voir dire to the judge only – thus avoiding the biased influence of the trial attorneys;
- Reduce or wholly prohibit “peremptory challenges” by the trial attorneys;
- Enforce the sharing of any consultant surveys between the two sides;
- Make disclosure of hiring trial consultants a mandatory feature;
- Prohibit all juror investigations (prospective and actual jurors);
- Trial consultants to be state licensed, leading to establishment of minimum standards and ethics (Strier, 2001);
- Offer poor defendants court-appointed trial consultants;
- Make trial consultants do a certain percentage of their work on a pro bono basis, making the service more generally available;
- Develop a code of ethics that is a) binding and b) more rigorous than that outlined by the ASTC (Stolle et al., 1996).
In her concluding remarks, Cleary suggested that although SJS has been around for about three decades and has progressed considerably in that time, it is still relatively speaking a recent phenomenon and is even now still subject to change. For example, the general consensus that it is not significantly effective yet charges a great deal for the services it provides may in the future mean that demand falls away. On the other hand, more stringent regulation may come as a consequence of public demand for greater fairness of the entire jury selection process. Only time will tell which way trial consultancy and SJS will head.
The research undertaken and the information found revealed that Scientific Jury Selection (SJS) that began in 1971 has grown into a multi-million dollar industry in the intervening three decades, so that the attorneys in many cases nowadays employ Trial Consultants to provide information that will – they believe – help them influence the selection of jurors to give their side (prosecution or defense as applicable) a better chance of winning the case by using jurors who may be more disposed to the views and opinions they seek. Also, as time has gone on, those Trial Consultants have acquired the opportunities to benefit from other revenue streams by adding additional services to their portfolio, such as helping stage mock trials, investigating prospective jurors, helping prepare witnesses and evidence, and more.
The research also found that there are crucial questions about the jury selection system as it exists today, specifically whether it is actually effective (i.e. whether selecting specific jurors really does affect the verdicts to a sufficient extent to justify the costs), whether it is as fair as it should be or whether instead it actually subverts the principle of everyone’s entitlement to a fair trial by a randomly-selected jury as enshrined in our Constitution, and thirdly – whether the whole system of SJS needs much better regulation, including state licensing of Trial Consultants and a mandatory nationally-implemented code of ethics.
This researcher suggests that the system of SJS does affect trial outcomes, even though possibly to a lesser degree than attorneys might wish and that if it is allowed to continue, it should be subject to a comprehensive and nationally-applied system of licensing and regulation and a mandatory code of ethics. In terms of fairness, it seems distinctly unfair that a wealthy defendant can afford to pay to influence the selection of jurors likely to be more kindly disposed to him/her, whilst poorer defendants cannot, and therefore have to take “pot luck” in the matter of jurors chosen for their trial. The system needs to be radically reformed – as has been suggested by others, including Strier (1999 & 2001) and Stolle et al. (1996) – if it is to have any semblance of equality of justice for all.
Cleary, A. (2005). Scientific Jury Selection: History, Practice, and Controversy. Villanova University. Retrieved from http://concept.journals.villanova.edu/article/view/255
Cunningham, C., D. (1999). Evaluating Effective Lawyer-Client Communication. firchina.com. Retrieved from http://www.flrchina.com/en/research/001/001.htm
Cutler, B.L. (1990). Introduction: The status of scientific jury selection in psychology and law. Forensic Reports, 3, p. 227-232.
Focus Groups. (2010). Jury Solutions. Retrieved from http://www.jurysolutions.com/DrawOnePage.aspx?PageID=3
Jury Selection. (2012). American Judicature Society. Retrieved from http://www.ajs.org/jc/juries/jc_whoserves_selection.asp
Mock trials. (2010). Jury Solutions. Retrieved from http://www.jurysolutions.com/DrawOnePage.aspx?PageID=3
Shadow Juries. (n.d.). Juris.com. Retrieved from http://www.juriscomm.com/juryselection.php
Stolle, D.P., Robbenolt, J.K., and Wiener, R.L. (1996). The perceived fairness of the psychologist trial consultant: An empirical investigation. Law and Psychology Review, 20, p. 139-177.
Strier, F. (1999). Whither trial consulting? Issues and projections. Law and Human Behavior, 23, p. 93-115.
Strier, F. (2001). Why trial consultants should be licensed. Journal of Forensic Psychology Practice, 1(4), p. 69-76.
Wilcox, E. (n.d.). Preparing Your Witness for Trial. Trialtheater. Retrieved from http://www.trialtheater.com/wordpress/trial-skills/direct-examination/preparing-your-witness-for-trial/