Scientific Jury Selection
In essence, scientific jury selection consists of three steps. First, a random sample is drawn from the population, and the demographic profile of this sample is compared with that of the prospective jurors (Pope, 1989). If the potential jurors were randomly selected, the profile should match. If there is substantial over- or underrepresentation of particular characteristics (ethnic groups, age, occupation, and so forth), the jury pool can be challenged. Second, after it is established that the prospective jurors represent the population at large, the demographic, personal, and attitudinal characteristics considered to be favorable to one’s own side are then assessed to determine the ideal juror for one’s side. Third, after establishing the psychological and demographic profile of this ideal juror, the social scientist can make recommendations for selection of individual jurors (Loh, 1984).
An expansion of the technique is the use of a shadow jury. The pioneering work with shadow juries took place during the antitrust case brought by California Computer Products of Anaheim against IBM. The IBM attorneys hired Litigation Sciences, a consulting firm, to help in IBM’s defense. The researchers recruited six people with backgrounds and attitudes similar to the real jury. The six shadow jurors sat in the courtroom each day during the course of the trial, and each evening, they telephoned the researchers to report on their impressions of the day’s proceedings. Because the plaintiffs presented their case first, the researchers learned how shadow jurors reacted to the arguments and what issues they considered important. Although the judge ruled in favor of IBM after the plaintiff presented its side, IBM attorneys would have used the knowledge gained from the shadow jury in presenting their side of the case (Hans and Vidmar, 1986).
In addition to using shadow juries, some attorneys practice their arguments in front of simulated juries, with social scientists making suggestions about their persuasiveness (Decaro and Matheo, 2004). In an often-cited case, the law firm representing MCI Communications in an antitrust suit against AT&T hired consultants to develop a profile of potentially favorable jurors. The consultants arranged mock juries made up of such people, in front of whom the MCI attorneys practiced their arguments. The researchers also videotaped MCI’s witnesses and then advised them on how their testimony could be presented more succinctly and persuasively. MCI won the case and was awarded $600 million (Hunt, 1982).
Scientific jury selection is not without controversy. Lawyers, when they are being candid, admit that their goal is not fairness but the selection of biases that benefit them. In the words of an attorney, “I don’t want an impartial jury. I want one that’s going to find in my client’s favor” (Hunt, 1982:85). But, critics of the method contend that it tends to undermine the American adversarial system ofjustice, because the techniques for surveying the community and assessing juror values during the voir dire are clearly designed to achieve juror partiality (Lieberman and Krauss, 2010). Moreover, because scientific jury selection is very expensive, it is an advantage only to rich defendants in criminal cases and the richer side in civil suits. The ability of the adversary system to guarantee a fair and impartial jury and trial is obviously tested when the adversaries possess unequal resources (Vidmar and Hans 2007).