Scientific jury selection

Scientific jury selection, often abbreviated SJS, is the use of social science techniques and expertise to choose favorable juries during a criminal or civil trial. Scientific jury selection is used during the jury selection phase of the trial, during which lawyers have the opportunity to question jurors. It almost always entails an expert's assistance in the attorney's use of peremptory challenges—the right to reject a certain number of potential jurors without stating a reason—during jury selection. The practice is currently unique to the American legal system.

Scientific jury selection is based on the work of Fred Strodtbeck, the research director on the American Juries Project headed by Harry Kalvin, Jr and Hans Zeisel. He considered juries to be small groups and taped mock juries in Chicago and St. Louis and actual juries in Wichita, Kansas with the permission of the attorneys and judge but not the jurors. The study revealed that the characteristics of individual jurors influenced jury deliberations.

SJS has roots in criminal trials during the Vietnam War era, but in modern times is usually employed in high-stakes civil litigation (where only money is usually at issue, in contrast to criminal trials, where the defendant can go to prison). SJS practitioners determine what background characteristics and attitudes predict favorable results, and then coordinate with attorneys in choosing the jury. Studies are mixed as to the effectiveness of the practice, though it is clear that the evidence presented at trial is the most important determiner of verdicts (the trial result) and that SJS is more likely to have an impact where that evidence is ambiguous. SJS's potential to unfairly skew the jury has led to some reform proposals, but none have yet been implemented.

During jury selection in the United States, attorneys have two options for excluding potential jurors. The first option is a challenge for cause, in which attorneys must state the reason for a challenge (such as clear bias or a conflict of interest), the opposing party is allowed to respond, and the judge decides whether to exclude the juror. The second option is a peremptory challenge, where an attorney can exclude a juror without stating any reason. While challenges for cause are unlimited, attorneys have a limited number of peremptory challenges, sometimes as few as four, although 10 is more common in non-capital felony cases.

Attorneys have long used peremptory challenges to exclude undesirable prospective jurors, but have not always been successful at identifying these. Much of the early efforts were based on lawyers' folklore about who makes a good juror for their case. Early examples of scientific jury selection were similar. For example, in the 1975 Joan Little trial, defense attorneys used an astrologer to help choose the jury. More rigorous methodology was on display during the first major use of SJS, the 1972 Harrisburg Seven trial. During that trial, social scientists used demographic characteristics to identify biases in favor of conviction. The consultants in the case had conducted surveys that indicated women and Democrats would make defense-friendly jurors, and the religious, those with college degrees, and Reader's Digest subscribers would be better for the prosecution. Although surveys had indicated that 80% of citizens in conservative Harrisburg, Pennsylvania would convict the defendants, they were acquitted of all serious charges.

A jury consultant helped pick the jury in the O. J. Simpson murder trial. Criminologist Jo-Ellan Dimitrius used surveys to determine the ideal defense juror demographic (black women) and analyzed and judged the prospective jurors' answers to a questionnaire and response and body language during voir dire (the stage of jury selection where lawyers are permitted to directly question the jury). Prosecutor Vincent Bugliosi gives more credit to the traditional change of venue. He argues that transferring the case to a section of Los Angeles with more blacks in the jury pool was most detrimental to the selection of a prosecution-friendly jury. The prosecutor dismissed her court-appointed jury consultant early in the process.

Contemporary jury consultants are often sociologists, people with experience in communications and marketing, or attorneys themselves, but they are most frequently psychologists who specialize in legal psychology. Although most of the practice's roots are in criminal trials, modern jury consultants are more often involved in torts (civil litigation), particularly where wealthy corporate defendants fear an enormous monetary judgment for the plaintiff, or where plaintiffs' attorneys have invested large sums of money in an important lawsuit. Since the 1980s, large jury and trial consulting firms have emerged, earning multi-million dollar revenues, mostly from such high-stakes civil litigation. The simultaneous shift from ad-hoc groups of academics to a business model has sparked the criticism that SJS magnifies the distorting effect money has on trials, since only the wealthy can afford it. Jury consultants argue that they operate in an adversarial process the same way lawyers do; by pursuing their clients' interests in a rule-bound framework. Jeffrey Abramson, who has written extensively about juries, argues that even if SJS is ethical or has zero effect, the mere myth of powerful, effective jury manipulators shakes public confidence in the jury system.

The theory behind SJS is that juror attitudes predict voting preferences most effectively. By discovering what relationships exist between certain attitudes, attorneys can exclude those from the jury whose attitudes would predispose them to an unfavorable verdict. Researcher Shari Diamond indicates that jury consultants primarily rely on two methods: telephone surveys and mock trials (trial simulations). Telephone surveys are the practitioners' "primary research method". During a survey of the community where the trial is taking place, jury consultants ask about: