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Jury Selection
It is often called “scientific” jury selection,” as if the addition of that first word somehow guarantees an desirable trial outcome. Truth is, there’s little that’s scientific about jury selection, and the term “art” applies more than that of “science”. Indeed, quick perusal of the various handbooks in this area suggests that the so-called wisdom in this area is little more than a collection of rank prejudices that are shared by attorneys. Here for example, are the comments of the outstanding attorney, Clarence Darrow:
“I try to get a jury with little education but with much human emotion. The Irish are always the best jurymen for the defense. I don’t want a Scotchman, for he has too little human feelings; I don’t want a Scandinavian, for he has too strong a respect for law as law. In general, I don’t want a religious person, for he believes in sin and punishment. The defense should avoid rich men who have a high regard for the law, as they make and use it. The smug and ultra-respectable think they are the guardians of society, and they believe the law if for them”.
Fortunately for his clients, Darrow’s rhetorical skills and insight into the human heart and mind compensated for whatever such stereotypes he brought to the jury selection task.
If there is very little that is scientific about jury selection, and much that reeks of banal stereotyping at best and dangerous prejudice at worst, how then does one select a jury? Carefully, with clear goals in mind, a willingness to think carefully about questions to be posed in voir dire and to listen equally carefully to answers. It is also important to recognize that the members of a jury constitute a group in which group dynamics as well as individual inputs will be determinative. One selects a jury differently if one hopes the jury will understand arguments rather than sink into confusion, and if one counts on them to assess proffered facts and arguments critically rather than accept them at face value. Moreover, one selects differently if one is hoping to find a juror or two who will not succumb to group pressures and if necessary produce a hung jury than if one is hoping to find a congenial group in which those in the minority will readily yield to those in the majority. Finally, there are tradeoffs to consider; the very qualities that may make a potential juror scornful of anything that smacks of being a “frivolous lawsuit” may make that juror favor a high plaintiff award if he or she is convinced that a suit is far from frivolous.
In short, one cannot select a jury without reference to the structure of the case presentation that is decided upon. If, for example, one intends, , to strike a high moral tone in the course of one’s presentation, one hopes for a jury that has that has moral “ears.” If one is defending against questionable allegations by a governmental agency, or if one is claiming mistreatment at the hands of government or big business, one looks for a jurors whose life experiences have given them reason to mistrust government and, more generally, those with power and influence. There is a great deal of scientific knowledge about processes of individual inference, judgment, and decision making, and about group dynamics and jury processes in particular, that can be brought to bear in jury selection—but application of that knowledge in the task at hand requires clinical skills, social skills, and intuition tempered by experience.
Increasingly, and in order to conserve time, courts are encouraging the use of jury questionnaires as part of voir dire. While the demographic portions of such questionnaires (name, address, age, health status, etc.) can be taken “off shelf,” the case-relevant questions must be tailored to the specifics of the litigation. Preparation of such questions poses all of the challenges that arise generally in questionnaire construction, particularly the challenges of being certain that the questions are clear, and in some circumstances, that the intent behind those questions is not obvious to either the potential jurors or the opposing attorneys. Skills and insights honed in survey and laboratory research are invaluable here.
It is worth remembering that one never “selects” a jury. Instead one rejects members of a venire. This distinction is important. One has absolutely no control over the composition of venire; it is not an uncommon occurrence for membership of the venire to provide no jurors that match one’s a priori specifications. For example, when one is hoping for a jury that includes members who combine a level of education that make them likely to understand complex arguments with life experiences that make them aware of discrimination and abuses of power, the venire frequently offers only individuals who lack one or both of these qualities. This is one of the reasons for which, while Trial Analysis Group does its utmost to seat a suitable jury to the case to be presented, we stress proper trial preparation – making the relevant presentation understandable and appealing to jurors in general, arming them to question, and where possible rebut, the arguments they will hear presented by the other side.