Jury Selection Marissa Eisenberg Seeds of Social Science

Jury Selection Marissa Eisenberg

Seeds of Social Science? n 1936: Attorney For the Defense, Clarence Darrow 5 Esquire Magazine 36 (May 1936) n Prosecutor should look for: n n Prosecutors should avoid: n n n Irishmen because he is emotional, kindly, sympathetic Englishman because he is for individual rights Germans… maybe not because he “has not been among us long, his ways are fixed by his race” etc Presbyterians because “he is cold as the grave” Wealthy men, because prisons stand for capitalism 1982: Modern Trials (2 D ED. 1982) Melvin Balli Sr n n Racial Considerations: you want people on the jury as the same race as your client Statisticians: plaintiffs don’t want them; they’ll think you’re asking for too much Artists: sympathetic, good for plaintiffs and criminal defendants Farmers: reject, live outside the law

What is a Voir Dire? Literally: French: "to speak the truth" n A preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury n

3 Phases of Voir Dire n Phase One n The judge informs the entire jury panel of the nature of the case and introduced the attorneys. The judge then asked the prospective jurors several questions designed to elicit their reactions to the alleged offense in the case. 30 STNLR 491 at 496

3 Phases of Voir Dire n Phase Two n 12 individuals from the venire were placed in the jury box, and the judge asked them in turn to state their names, addresses, occupations, and the occupations of persons living with them. In most of the cases, the judge also asked the prospective jurors to state their length of residence at their present address, their employment for the previous 5 years, the ages of their children, and all instances of prior jury service. In addition, several judges inquired whether the prospective jurors had a close friend or relative who either was involved in law enforcement or had been the victim of a crime. The judge also posed several questions designed to disclose any close associations between the potential jurors and key elements of the case. n If a juror had some association with the case, the judge asked whether that association would preclude the juror from making a fair and impartial evaluation of the evidence and merits of the case. Any juror who responded in the affirmative was excused, sent back to the jury room and replaced by a new juror, who was then subjected to the second-phase questioning. All jurors who responded that they had no association with the case, or an association that would not preclude them from fairly and impartially evaluating the case, proceeded to the third phase of voir dire. 30 STNLR 491 at 496

3 Phases of Voir Dire Phase Three n n The prosecutor and defense counsel exercised peremptory challenges. First, the prosecution exercised as many of its allocated number of peremptory challenges as it desired; the defense was then given the same opportunity. The judge replaced the excused jurors, and the process was repeated with respect to the newly impaneled venire members. Any prospective juror accepted without challenge by both attorneys became a member of the jury and was no longer subject to challenge. The jury finally was filled when the 12 th member of the venire successfully completed phase three without being excused. 30 STNLR 491 at 496

“The Effects of Peremptory Challenges on Jury and Verdict: an Experiment in a Federal District Court” n n Hans Zeisel and Shari Seidman Diamond, 30 Stanford Law Review 491 (1978) Designed an experiment to probe the effects of voir dire on the outcome of cases and the accuracy of attorneys in judging the potential jurors Experiment “attempted to secure [this] missing information by asking the peremptorily excused jurors to remain as shadow jurors in the court room and to reveal at the end of the trial how they would have voted” Experiment contained: 12 criminal trials before 3 judges n Only included trials expected to last < 2 weeks n (had anticipated civil cases as well, only conducted the study on 3, excluded from data) Authors acknowledge up front that “ the 12 cases that formed the basis of our study are not a probability sample of anything”; hoped the research would lead to future research n n

“The Effects of Peremptory Challenges on Jury and Verdict: an Experiment in a Federal District Court” Cont. n Metric: They designed a “rough performance” index to evaluate the rates of Prosecutor dismissals of hostile or friendly jurors n For Instance: there are 28 Potential Jurors, where: n n n 22. 2 would have voted guilty 5. 8 would have voted not guilty The Prosecutor has 6 peremptory challenges. She wins: n n n Best Performance: use all 6 on the 5. 8 “voting not guilty” jurors (22/22)=100% of jurors voting “guilty” Score of +100 Worst Performance: uses all 6 on only “voting guilty” jurors (16. 2 /22) = 73. 6% of jurors voting “guilty” Score of -100 Null**: doesn’t change the composition (17. 48/ 22) = 79% of jurors voting “guilty” Score of 0 ** Means its my term, not theirs

“The Effects of Peremptory Challenges on Jury and Verdict: an Experiment in a Federal District Court” Cont. CALCULATING THE INDEX For Instance: Cont. n n n Prosecutor selection produced: 91. 1% “voting guilty jurors” Score is determined by: 1) Selecting Positive/negative value – did the prosecutor increase the percentage of favorable or “voting guilty”? • 2) Absolute value – Difference between the % of guilty votes in the original venire (79) and the % after (x) • 3) │79 -91. 1 │ = 12. 1 Normalized – Divide by the maximum possible improvement (100 -79=21) • n 91. 1 – 79= A Positive Number ( + ) 12. 1 / 21 = 58 Calculation was mirrored for Defense Counsel

“The Effects of Peremptory Challenges on Jury and Verdict: an Experiment in a Federal District Court” Cont Attorney Performance Index ---------------------------------------- Case No. Prosecutor Defense --------------------------------------- 1 +23 +46 2 -59 +6 3 +44 +30 4 -20 +44 5 +31 +48 6 -61 -11 7 +9 -10 8 -32 -62 9 0 [FNa 1] +12 10 +58 +46 11 +62 +36 12 -61 +19 ---------------------------------Average (Mean) 0. 5 +17. 0 ---------------------------------Average Fluctuation Around the Mean +-38 +-25 ---------------------------------FNa 1. The prosecutor exercised only one challenge, and the challenged juror

The Effects of Peremptory Challenges on Jury and Verdict: an Experiment in a Federal District Court Cont. n n Must be noted that they are aware of many of the design flaws and are not asserting that it is generalizable Methodological Critiques? n n Sample Size, though readily admitted by the Authors Basic Assumptions formed the basis for the numbers used to make the calculationsn Authors were unable to pretest the “real” jurors, so they made assumptions about these jurors first impressions, which may have had a bias n n To calculate how “real jurors” voted, Authors used the first vote of the real jury. If the jury originally split 8 -4 guilty/nonguilty, , they would assume that each member had a 2/3 rd chance of voting guilty. So if 6 people had been dismissed by the voire dire, Authors assumed that 4 of 6 that were actually on the jury voted guilty, and 2 voted not-guilty. All jury selection experiments will have problems that arise from using specific cases: n n The defendant was either guilty or was not guilty could have picked the best jury possible and they still would have found him guilty… assumes an error where there was not necessarily one (or assumes no difference where there was a real difference in the juries) The weight of the evidence is different in every case n To say that lawyer A is “better” at jury selection than lawyer B, because A had a higher score, ignores the specific circumstances of the case. This type of experiment cannot tell us if if in the same situation, how B would have performed

The Effects of Peremptory Challenges on Jury and Verdict: an Experiment in a Federal District Court Cont. n Methodological Critiques? n n Sample Size, though readily admitted by the Authors Basic Assumptions formed the basis for the numbers used to make the calculationsn Authors were unable to pretest the “real” jurors, so they made assumptions about these jurors first impressions, which may have had a bias n n To calculate how “real jurors” voted, Authors used the first vote of the real jury. If the jury originally split 8 -4 guilty/nonguilty, they would assume that each member had a 2/3 rd chance of voting guilty. So if 6 people had been dismissed by the voire dire, Authors assumed that 4 of 6 that were actually on the jury voted guilty, and 2 voted not-guilty. All jury selection experiments will have problems that arise from using specific cases: n n The defendant was either guilty or was not guilty could have picked the best jury possible and they still would have found him guilty… assumes an error where there was not necessarily one (or assumes no difference where there was a real difference in the juries) The weight of the evidence is different in every case n To say that lawyer A is “better” at jury selection than lawyer B, because A had a higher score, ignores the specific circumstances of the case. This type of experiment cannot tell us if if in the same situation, how B would have performed

The Effects of Peremptory Challenges on Jury and Verdict: an Experiment in a Federal District Court Cont. n Methodological Critiques? Cont. n All jury selection experiments will have problems that arise from using specific cases: n n The defendant was either guilty or was not guilty could have picked the best jury possible and they still would have found him guilty… assumes an error where there was not necessarily one (or assumes no difference where there was a real difference in the juries) The weight of the evidence is different in every case n To say that lawyer A is “better” at jury selection than lawyer B, because A had a higher score, ignores the specific circumstances of the case. This type of experiment cannot tell us how B would have performed in the same situation

The Joan Little Case n John B. Mc. Conahay, Courtney J. Mullin, and Jeffrey Frederick n n County Jailer Alligood found dead, inside a cell which had been occupied by Joan Little. n n 41 Law and Contemporary Problems 205 (Winter 1977) Alliwood: 64 year-old, white male, found with ice pick puncture wounds through his body and semen on his leg (pants and shoes were outside the cell) Little: 20 year-old black female Little turned herself in later, with an attorney present 5 week trial, jury took 78 minutes to acquit her of all charges

Joan Little Cont n n Mounted a massive defense team of social scientists, attorneys, etc 5 “streams of data” used to determine fitness of jurors: n n n Survey conducted of Wake County mathematical model of the ideal juror Behavior of potential juror, as measured by authoritarianism scale Body Language (kinesics and paralinguistic behavior) Voir Dire experience/ Common Sense Ms. Little’s opinion- how she felt about the juror

Joan Little Cont. n Survey and Model: $35, 000 enterprise n n n Survey of local attitudes, demographic information, “appropriate measures of the attitudes or opnions we wish to predict ie belief in the innocence or guilt of the accused Lots of complicated stats, put it into AID computer program presto chango predictive equation for jurors’ opinions based onto categories they fall into, which uses other criteria, such as religion, type of magazines they read, sex, etc. to calculate Pros: n n Jurors can’t (don’t) lie to the equation… it makes predictions based on facts The questionnaires used to gain the information to put into the equation give a general idea of the jury pool. n Analogy: Blackjack counting cards. If they know they have “better” people left in the pool, they’ll pass on people they might have taken

Joan Little Cont n Authoritarianism Scale: n n “Authoritarians are rigid, racist, anti-semetic, sexually repressed, politically conservative, highly punitive individuals” who “takes out all of his or her pent-up hostility and frustration upon those perceived to be in violation of the conventional norms of society. ” 3 Social Psychologists observed potential jurors in the court room behavior on their: Rigidity n Sexual prudery n Introspectiveness And gave them a rating of 1 -30 of Authoritarian-ness n n Sounds ridiculous right? (massive reliability problems, validity problems, objectiveness problems, un-blind, arbitrary, etc) n n n Average person’s score: 20 Average of all those interviewed for this jury: 21. 02 (not ss) Average of the 16 /12 jurors: 14. 03 /12. 95 they were doing something right

Joan Little, Cont. n Body Language. Gauging if they were pro-defense or proprosecution, based on their levels of anxiety n 5 variables: n n Body movement n Body orientation n Body posture n Eye contact n Hand movement n n Looked for patterns of behavior Each observer wrote down their assessment on a scale of 1 -5, independent of other observers

Joan Little Cont n Put it all together: Correlated the authoritarian scale with pro-defense scale and found they were highly correlated (. 79), with highly authoritative measures correlated with pro-prosecution dispositions n They would literally huddle and talk about the calculations, and if Ms. Little had an opinion about their final decision, she would state it n

Problems? n Seems pretty unscientific for social “science”, yet it worked (and usually does) n n It isn’t an experiment, or really a study, in any other way than a case study. n n However: As Michael Saks points out, without a control, one is hard pressed to call it scientific Cannot be replicated Can you ever make an experiment?

Future Implications n n n Only defense use models, tests, “scientific means” of determining who to exclude. Prosecutors are left using only gut feel, (which may be ineffective over the aggregate). Are there moral problems with this? Should prosecutors be allowed to use the same sort of techniques to exclude jurors who are likely to acquit? Are there constitutional issues? Does it matter if it isn’t as “scientific” if it works? Remember that it doesn’t need to pass a Daubert standard because it isn’t being submitted to the court. Is there a chance that the voir dire does as much to influence the jurors as it does assessing their pre-held ideas? Is there a “Heisenberg Uncertainty” principle at work?