From the issue dated November 23, 2001
The Cronical of Higher Education: Information Technology
JURY CONSULTING ON TRIAL
Scholars Doubt Claims That Jurors' Votes Can Be Predicted
By D.W. MILLER
"Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict,"
Clarence Darrow advised fellow defense lawyers in a 1936 Esquire article called "How to Pick a Jury." By contrast, the "religious emotions" of Methodists "can be transmuted into love and charity." Irishmen, he added, are "emotional, kindly, and sympathetic." But the Presbyterian juror "believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others."
Judges instruct jurors to render verdicts based on evidence and law, not prejudice and sympathy. But few lawyers believe that fallible humans simply leave their backgrounds, opinions, and attitudes outside the courtroom. So they still aspire to predict how jurors' biases will affect their deliberations.
Of course, in assembling a jury or shaping an argument, lawyers no longer credit the quaint stereotypes expressed -- perhaps tongue in cheek -- by Darrow. Many lawyers are content to rely on experience and intuition to identify people unfriendly to their side and strike them from a jury. Those who can afford it, however, are turning to trial consultants to conduct mock trials, design community surveys, and probe the attitudes and experiences of potential jurors.
Many of the nearly 400 members of the American Society of Trial Consultants are trained social scientists. But scholars question how much trial consultants have really improved upon Darrow.
"The plausibility of being able to predict is very low," says Shari Seidman Diamond, a professor of law at Northwestern University and a leading researcher of jury behavior. "Who makes the decision is less important than how the evidence is presented," says Saul Kassin, a professor of psychology at Williams College.
"The best conclusion is that there are cases where jury-selection consultants can make a difference but that such cases are few and far between," write Neil J. Kressel and Dorit F. Kressel in Stack and Sway: The New Science of Jury Consulting (just out from Westview Press). "Like the fanciful stereotypes about jurors that lawyers trusted in the past, scientific jury selection can help attorneys manage their stress far more often than it helps them capture a verdict."
No Crystal Ball
The notion of "scientific jury selection" took hold in the early 1970s, when the late Jay Schulman, a sociologist at Columbia University, and a team of colleagues helped defend antiwar activists accused of plotting to kidnap Henry Kissinger. After conducting surveys and interviewing a cross section of the community, the defense used its peremptory challenges to eliminate members of the jury pool considered likely to vote for conviction. The jury ultimately hung, on a 10-2 vote for acquittal.
Since then, however, scholars have found little evidence that social science makes a big difference in jury selection. "For most cases, most of the time, people decide on the basis of evidence," says Mr. Kressel, a psychologist at William Paterson University. "We know from mock-jury research that personality variables don't matter that much."
In a study of 461 mock jurors in Ohio, Michael Saks, a professor of law and psychology at Arizona State University, measured 27 attitudes and background characteristics and then asked the jurors to render a verdict in a fictitious burglary case. The best predictor of their decisions was their answer to the question "Do you believe crime is mainly the product of 'bad people' or 'bad social conditions'?" But that explained only 9 percent of the variation among verdicts. Together, those personal attributes accounted for very little.
It's an Art
Steven D. Penrod, a psychologist at the University of Nebraska at Lincoln, got similar results in a study of Massachusetts jurors. He tested the salience of 21 personal characteristics in four kinds of cases. He found that the single best predictor of an inclination to vote guilty in a rape case was whether jurors agreed that evidence of physical resistance was necessary to convict. But that predictor alone explained only 7 percent of the variation in outcomes, and the best predictors in each case were not helpful in any others.
Mr. Kressel and his wife, a lawyer, concluded that scientific jury selection matters mainly when a case is very public, the facts are inflammatory, and the evidence favors neither side.
That scholars' insight into juries is hazy should not be surprising. Courts hardly ever allow researchers to watch deliberations firsthand, so they have to rely on cruder methods to divine how personality affects jury deliberations: post-trial interviews, case studies, and mock juries among them. Furthermore, scholars have found that observations rarely apply in all situations.
"It's not really a science -- it's more of an art," says Neil Vidmar, a professor of psychology and law at Duke University who has himself been a consultant on pre-trial publicity. "Almost every case is unique. It's got different facts, it's got a different context." Even so, the data that the nation's trial consultants collect in hundreds of cases each year might still be valuable to scholars -- except that the information is all proprietary and closely held.
In their book, the Kressels argue that the value of scientific jury selection rests on a chain of unproven assumptions: that potential jurors give honest answers to personal questions, that jurors' pretrial verdict preferences will determine their final votes, and that jurors stricken from a jury pool will be replaced by ones that lawyers find more favorable. But that hasn't deterred scholars like Linda Foley.
A trial consultant and professor of psychology at the University of North Florida, Ms. Foley also conducts academic research on decision making by jurors that may prove useful in court. She has studied, for instance, why some jurors are less sympathetic than others to rape victims who sue their assailants. She found that college-age men are much less likely to sympathize with victims the same age than with those who are older. She speculates that young men can imagine themselves being falsely accused of rape by a peer, and so defensively attribute a plaintiff's fate to her own behavior.
In theory, lawyers armed with such insights could refine their efforts to choose favorable jurors and craft effective arguments. Since the 1970s, for example, researchers have believed that people who score high on a scale of "authoritarian" attitudes seem to be more likely to convict. Even that trait, however, has counterintuitive implications. Authoritarian types, says Ms. Foley, tend to make snap judgments, but they also tend to conform to the majority. In general, researchers have failed to connect attitudes with verdicts in predictable ways.
Ms. Foley's experiments this semester exemplify both the promise and perils of efforts to put jurors' motivations under a microscope. Several times a week, she assembles a new group of North Florida students in Jacksonville to play jury in a fictitious medical-malpractice lawsuit.
On a recent Wednesday morning, seven women and three men filed into a conference room near Ms. Foley's office, in the psychology department. First they filled out a lengthy questionnaire exploring their personality traits. Then they watched a videotape of dueling experts.
"Martin Madison," a 53-year-old accountant, had died of a brain aneurysm after complaining of headaches and dizziness. Were the hospital and its emergency-room doctor negligent? In that day's version of the experiment, the expert hired by Mr. Madison's widow boasted of his years of clinical experience, while the defense expert brandished his tenured professorship at the Johns Hopkins University and a long list of publications on aneurysms.
As usual, a handful of jurors dominated the discussion that followed. The forewoman, a ponytailed student in a sweatshirt and baseball cap who said she had worked in a hospital, criticized "Dr. Hector" for failing to order timely tests once he had diagnosed the aneurysm. "People die, that's all I gotta say," said Juror 105, a young man with a brush cut, but he went along with the majority, which laid most of the blame for the patient's death on the doctor.
Only Juror 98, a woman in khaki pants and a jean jacket, remained dubious. "How do we know it would have made a difference?" she said. "The aneurysm was so big, he might have died on the MRI table."
Later, Juror 98 stood alone in her reluctance to compensate the Madison family beyond lost income. Despite her misgivings, the group awarded hefty damages and apportioned fault between the doctor and the hospital in a ratio of 70:30. Before leaving, the jurors filled out another survey, to assess how influential they had found each of their peers.
After observing 32 of those mock juries, Ms. Foley will investigate whether jurors in such cases are more easily persuaded by expert witnesses with impressive credentials or by those with more clinical experience. But she also hopes to learn more about the effects of personality on juries' decisions: Do jurors' views of guilt and liability in particular cases correspond predictably to measurable attitudes and personality traits, such as a belief in a just world, a predilection for manipulating others, or a tendency to see issues in absolute terms? And does a juror's influence during deliberations correspond predictably to measurable leadership traits and an ease with public speaking?
Muddy Waters
That kind of experiment has limits. For one thing, the psychology students she relies on are hardly representative of eligible jurors in Jacksonville, much less the nation. Furthermore, with such a small pool to draw from, some of the subjects are bound to be acquainted, a fact that may muddy her analysis of how members of the group influence one another. Jurors 100 and 101 had walked in holding hands, while Jurors 103 and 104 appeared to be identical twin sisters.
As a check on those flaws, Ms. Foley is collaborating with a trial consultant in Pompano Beach who will eventually conduct similar experiments with a cross section of "real people." But that research is at least a year away.
Even if research offered lawyers a wealth of predictive information, they would often have trouble using it. For instance, they don't have utter discretion over the number and kind of questions asked during jury selection. Researchers have established, for instance, that people who support capital punishment are generally more likely to vote to convict. But lawyers aren't allowed to probe jurors' attitudes toward the death penalty unless they are trying a capital case. "Depending on the judge, the lawyers don't have a lot of leeway about what kinds of questions they can ask," says Ms. Foley. "So they try to get at the essence in one or two questions."
Those caveats hardly mean that trial consultants have no influence. Even the Kressels agree that consultants appear to be effective at post-selection tasks, such as helping lawyers hone their arguments and understand how ordinary people will see the issues. "In most instances, it's the techniques and practices of social science that are helpful, rather than any particular body of knowledge," says Duke's Mr. Vidmar.
"This is an opportunity to test the clarity and plausibility of an argument in a more systematic way," says Northwestern's Ms. Diamond. "That's a valuable thing, because there's nothing sadder than seeing an unnecessarily unintelligible presentation of evidence. That makes it harder to make a decision based on the evidence."
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