Chapter 8: Jury Selection and Research

-jury system is founded in English traditions and practises from the United States.
However, in Canada that kind of litigation consulting and jury “manipulation” that is
witnessed to our south does not occur.

Jury Selection in Canada: The “Random” Ideal:

-Charter of Rights and Freedoms provides the overriding principles by which juries are to
be selected. The Supreme Court interprets these principles and directs lower courts in
their application.
-Section 11(d) of the Charter requires that an accused person receive a fair trial by an
independent and impartial judge or jury. The selection of a jury is based on the idea that
an accused person should have his/her charge judged by a random, unbiased sample of
his/her peers.
-When it is established that a jury was not impartial, the Charter of rights of the accused
have been violated.
-Supreme court takes a conservative approach in deciding whether a person’s Charter
rights have been violated. So, interestingly in order for an infringement of the Charter to
occur, a jury does not actually have to be biased. The test for whether a jury is biased is
whether it may be “reasonably perceived” as such by the courts.
-information about potential jurors during the selection process generally is limited to
name, gender, age, and occupation. But selection is not purely random; a proper jury also
must be competent to make a decision of guilt or innocence. The Crown in particular
must work toward the “random” ideal, while sometimes tampering to ensure that jurors
are unbiased, representative, and competent.
-The Supreme Court recognizes that randomness is not a “panacea” and the Criminal
Code offers both sides a means of challenging prospective jurors. Specifically, section
634 of the Criminal Code states that the Crown prosecutor and the accused each are
entitled to 20 challenges if the charge is high treason or first-degree murder, 12
challenges if the charge is another offence for which the accused may be sentences to a
term of over five years, or four challenges if the charge involves any other offence. The
challenges can be based on any of the following:
1. The identity of the potential juror is not the name stated on the list.
2. The juror has already formed an opinion about guilt.
3. The juror has been convicted of an offence for which he or she was sentenced
to term of imprisonment exceeding 12 months.
4. The juror is an alien
5. The juror, even with the aid of technical, personal, interpretative, or other
support services is physically unable to perform properly the duties of a juror.
6. The juror does not speak an official language of Canada or the language in
which the accused can best give testimony.
-jurors can be dismissed; but as long as 10 remains the trial shall proceed.
-one reason a juror might be dismissed during a trial or that a trial verdict might be
challenged is a revelation of a conflict of interest or outright unethical behaviour. A good
example was Peter Gill case. Gillian Guess was convicted of wilfully attempting to
obstruct the course of justice; it was revealed she was having sex with the accused during
the time of his trial.
-in the U.S. lawyers have been given the power of generating a group of jurors with
particular characteristics. Potential jurors typically undergo extensive questioning before
trial to allow the two sides to gain sufficient information for their challenges.

Jury Research in Canada: Not So Ideal:

-Regina Schuller and colleagues have conducted many important studies of various
influences on juror decisions, including knowledge of a complaintant’s sexual history and
the victim’s self-defence behaviour in battered spouse cases. For example, she has found
that jurors view battered women who have fought back or behaved aggressively toward
their abusers’ violence more negatively than more passive victims.
-They generally use a mock jury approach in which people (usually undergraduates) are
asked to pretend they are jurors and are presented with fictitious or real case materials to
come up with an appropriate verdict or sentence. At present, it is not possible for
researchers to observe jury decision making in real cases or interview jurors after trial.
*section 649 of the Criminal Code states that if a juror discloses any information
relating to the proceedings of the jury during its deliberations (that was not
subsequently disclosed in open court), he or she is guilty of a criminal offence*
-the generalizability of mock juries can always be questioned. James Olgoff has outlined
his concerns with the current legislation that does not permit researchers to discuss jury
decicions. The current law doe not permit jurors to discucc their deliberations with
anyone which can lead to long-term psychological difficulties such as post traumatic
stress disorder (PTSD). Olgoff felt that the state of affairs was so problematic that he and
a CPA Board known as the Committee on Legal Affairs in 2000 (unsuccessfully)
attempted to intervene in two Supreme Court cases.
**Currently we must rely on mock jury research or research from other countries
to understand how juries make their decisions**

Psychological Consultants In Jury Selection Outside Canada:

-in some jurisdictions the role of psychological consultants is a major one.
-sometimes there will be a disagreement between the lawyer and the consultant
concerning the best jury compensation for the case. In one famous case the OJ Simpson
trial Donald Vinson founder of the large trial-consulting firm Litigation Sciences, offered
his services pro bono to the prosecution for the Simpson Trial, and for awhile Marcia
Clark (Los Angeles County Deputy District Attorney). Litigation consultants on both
sides, on the basis of their surveys and focus groups, concluded that black women as a
group were sympathetic to the defence, so Vinson strongly urged the prosecution lawyers
to use some of their peremptory challenges to dismiss them from the jury pool. But
Marcia disagreed and firmly believed she could convince these women, and she
dismissed Vinson. The 12-person jury that found Simpson not guilt included eight black
women and one black man.
-in many ways the above example is not typical of the relationship between litigation
consultants and lawyers. Few lawyers turn down an offer of free professional help. But
conflict can occur in the most congenial of relationships, between a psychologist-
consultant and a lawyer, and nowhere can the conflict between law and psychology
become more intense than in the task of jury selection- actually deselection would be a
better term, as lawyers cannot select jurors; they can only prevent some from being
chosen.
-most psychologists are committed to procedures that reflect an empirical approach,
whether they use community surveys, focus groups, or mock juries they are exemplifying
a belief that is not enough to rely on gut feelings. Trial lawyers are not so concerned with
which individuals are on jury; some lawyers are so self assured that they believe they can
persuade anybody, while others may be convinced that their side will prevail regardless
of the obstacles. Some lawyers are so confident they fail to exercise all their opportunities
to dismiss prospective jurors.
-The goals of trial consultants, despite their negative reputation in the eyes of the public,
aren’t any different from those of trial lawyers- they both seek a jury composed of person
who will be open-minded about (or, better, sympathetic to) their side’s set of facts and
arguments. The difference is that litigation consultants use what is called systematic jury
selection, or scientific procedures, rather than rely on intuition, as many lawyers do.

Examples of Lawyer’s Stereotypes:

-Examples of trial lawyer’s stereotyped beliefs about jurors are the stuff of legend.
Jeffrey Toobin said early in his career someone warned him about men with beards
saying they are independent and iconoclastic; they resist authority and to get rid of them.
-The master lawyer Clarence Darrow believed as a defence lawyer he was better off with
jurors of an Irish background; he avoided Scandinavians, which he presumed has too
much respect for the law.
-The celebrated contemporary lawyer Gerry Spence said women are more punitive than
men by a score of about five to one.
-Keith Mossman reported that one a nationally known trial lawyer told him he would not
accept any left-handed jurors.
-the second author of this text was once told at a judge’s conference that the lawyer
distrusted any juror of Guyanese descent because he felt that the culture encouraged
manipulation and lying.
-general stereotypes are taught in law school trial advocacy courses, as well as passed
down to neophyte lawyers on the job. Toobin said they sought jurors smart enough to
understand the evidence but not so clever that they would over analyze it; educated but
not to excess.
-Stereotyped also abound for the defence bar, for whom the ideal juror was a member of
the helping professions- a teacher, a social worker, a psychologist- because such people
had sympathy for the underdog.
-racial minorities were also seen as pro-defence jurors in criminal trials because of their
more frequent conflicts with police and other authorities in the legal system.
-early in the psychological study of racial stereotypes, a position was advanced, which
came to be called the kernel-of-truth hypothesis, that group stereotypes may be
unwisely generalized, but that some basic distinctions exist between groups.
-a review by Brigham concluded that ethnic and racial stereotypes could have such a
“kernel of truth” in the sense that different groups of respondents agreed on which traits
were associated with a particular object group. Even if the kernel-of-truth proposal is
accepted as a general proposition, these stereotypes usually do not have enough
predictability to be used in selecting or rejecting individual jurors.
What do Psychologists Do:
-psychologists have sought to determine whether group differences are predictive of
verdicts. The verdict of an individual juror is the product of a wealth of factors, not only
that juror’s gender and race, attitudes and personality, but also the weight of the evidence
in the case, the responses to the pressures on the juror to vote one way or another, and
other specific factors to the situation. At the broadcast level, we can say that juror’s
verdicts can be affected by their biases’, but how their biases are manifested may depend
on specific aspects of the trial.
-For example, jurors who are relatively authoritarian tend to go along with the
prosecution, but what if the defendant is an authority figure such as a police
officer of a physician? Then the relationship may shift and the authoritarian juror
may side with the defence.

Two Approaches To Jury Selection:

Broad Attitudes and Traits:

-a fundamental principle of social psychology is that each of use perceives the world in
an idiosyncratic way. Two different jurors will interpret the same stimulus differently,
based on their past experiences and training. The phenomenon of juror bias refers to the
assumption that each of use makes interpretations based on past experience and that these
interpretations can colour our verdicts.
-pro-prosecution bias reflects, in some jurors, that aforementioned trust of authority
figures; in others, a belief in a just world; in others perhaps an acquiescent response set
(i.e., a tendency to agree with what has been said), regardless of its content.
-a pro-defence bias often stems from a sympathy with the underprivileged or an
opposition to or suspicion of those in power.
-In general, civil cases are hardly ever decided by juries in Caned. In fact, some provinces
never allow juries to decide such cases. Nova Scotia has liberal rules regarding the
participation of juries in civil trials; in this province they are allowed in any civil case.
When juries make decisions in civil cases, biases can also occur. Here, the biases are
more varied, and it may not be possible to identify a single dimension of bias that applies
to every civil suit. Some complainants who sue resemble defendants in criminal trials, in
that they are (sometimes powerless) individuals in opposition to a powerful organization.
-pro-defence in civil trials is called a pro-plaintiff bias; where other jurors may manifest
a pro-defendant bias (or at least anti-plaintiff biases); for example, some jurors feel
strongly that society is too litigious and that many lawsuits are without merit. By
identifying with powerful corporations’, some pro-defendant jurors in civil cases may
possess some of the authoritarian orientations that prosecution jurors show in civil cases.

Case-Specific Approaches:
-if the broad-attitude/trait approach may be said to approach jury selection with a
preconceived theory about how certain traits of jurors relate to their verdicts, the case-
specific approach works in the opposite way. In this approach the litigation consultant
looks at the particular facts and issues of the case and then develops a list of measurable
jurors who will decide one way or the other. In its purest form, the case specific approach
is coldly empirical; it uses the reactions of mock jurors and focus groups to identify the
variables likely to be important in the actual juror’s decisions. In the end the trial
consultant develop a list of characteristics that they hypothesize to be important.

Measurement of Juror Bias:

Criminal Trials:
-two concepts have provided the structure for the measure of criminal juror bias-
authoritarianism and the distinction between a pro-prosecution and a pro-defence
orientation. Attitude scales have been developed to measure each.
The Legal Attitudes Questionnaire:
-LAQ was the first systematic measure developed to assess juror’s biases; it was
published by Virgainia R.Boehm in 1968.
-It contained 30 statements, arranged in 10 sets of three items. In each of these triads one
statement reflected authoritarianism, one reflected equalitarianism, and one reflected
antiauthoritarianism.
-this was the first instrument to attempt systematic measurements of jurors’ general
predispositions. However, it was cumbersome to complete and score.
-According to Boehm, the authoritarian items reflected one of three topics; they either
“expressed right-wing philosophy, endorsed indiscriminately the acts of constituted
authority, or were essentially punitive in nature.” In contrast, anti-authoritarian items
“expressed left-wing sentiments, implied that the blame for all antisocial acts rested with
the structure of society, or indiscriminately rejected the acts of constituted authority.” The
more moderate third type, equalitarian items, “endorsed traditional, liberal, nonextreme
positions on legal questions or were couched in a form that indicated the questions
reasonably could have two answers.”
-Every respondent could have a score ranging from 30(high) to 10(low) on each of the
three dimensions. Boehm theorized that jurors with high scores on authoritarianism had a
tendency to convict, that high score on anti-authoritarianism were associated with a
verdict of acquittal, and that scores on equalitarianism were not related to verdicts.
-more recently researchers have systematically examined the validity of the LAQ and
have proposed revisions. As part of a meta-analysis of the effects of authoritarian
attitudes on mock jurors’ verdicts, Narby, Culter, and Moran reviewed studies using the
original LAQ; results are as follows:
-Boehm gave the LAQ to 151 undergraduate students and then presented each
with one of two written versions of a murder trial. In a case in which the weight of
the evidence leaned toward innocence, the respondents who voted guilt had
significantly higher authoritarian subscale scores than did respondents who voted
not guilty. In a case in which the evidence was in the direction of guilt, the anti-
authoritarian subscale score for individual’s subjects predicted the verdict for the
group of adult respondents (age 21 and older). Among younger respondents the
difference was in the same direction but was not statistically significant.
-Jurrow asked 211 employed adults to complete the original LAQ and then listen
to tapes of two simulated murder cases. Those who voted to convict the defendant
scored higher on the authoritarian subscale. Scores on the anti-authoritarian
subscale distinguished between mock jurors who voted guilty and not guilty for
one case, but not the other.
 -Cowan, Thompson, and Ellsworth had 288 jury-eligible adults complete the LAQ
and then watch a videotaped re-enactment of a murder trial. The choice of verdict
options by individual mock jurors was related to their scores on the authoritarian
subscale; the authors did not report whether the other two subscales had any
predictive validity.
**These studies indicated that subscale responses (at least for authoritarian subscale)
had predictive validity; that is, were related to eventual verdicts. But this conclusions
reflected group differences, not results that were so precise that you could, with
assurance, predict an individual’s verdict on the basis of his of her authoritarian score.
Furthermore, the original version has several problems, one of which was the
cumbersome scoring structure, in which the three forced choice response format
prevented an independent assessment of the dimensions. The format and instructions
were also difficult for some respondents to understand and follow, leading to frequent
invalid responses. So, a revised version of the LAQ was developed**

The Revised Legal Attitudes Questionnaire:

-this was constructed by Kravitz, Cutler, and Brock, who created 30 items with
statements from the original LAQ. Further item analyses reduced the number of scored
items to 23. This version can be administered with the usual Likert-scale response options
(that is, strongly agree, agree, somewhat, etc.).
-several types of evidence for the general validity of this revised scale are available:
-Several studies converted the format of the original LAQ to that of the RLAQ,
dropped some items, and related scale responses to verdicts. Using 24 of the
items, Moran and Comfort administered the scale to 319 persons who had served
as jurors in felony trials; they found that legal authorianism scores were
significantly related to jurors’ verdicts in female jurors but not males. Moran and
Cutler dropped three more items and compared responses to mock-juror verdicts
in another sample of persons with jury experiences; again, those with higher
scores on the attitude scale were more likely to convict.
-Cutler, Moran, and Narby in their second study, used all 30 items in a Likert-type
response format with 61 undergraduates, who also watched a videotaped
simulations of a murder trial in which the defendant claimed he was not guilty by
reason of insanity. Again, high scores (i.e., relatively authoritarian subjects) on
this revised LAQ were significantly more likely to vote guilt than were low
scorers. This version of the LAW had greater predictive validity than the Juror
Bias Scale.
-Construct validity of the RLAQ was assessed by comparing respondents of
different ethnic groups and political parties. As expected, lower legal
authoritarianism scored were found among blacks and among Democrats (those
supporting more left-wing of the two major U.S. political parties).

The Juror Bias Scale:

-In seeking to uncover attitudes that would predict jurors’ verdicts, Kassin and
Wrightsman chose another dimension, the bias to favour the prosecution of the defence.
They noted that virtually all models of juror decision making assume that jurors make
decisions in criminal cases that reflect the implicit operation of two judgements. The first
of these is an estimate of the probability of commission; specifically, how likely is that
the defendant was the person who committed the crime? Though jurors will base their
estimates of this probability mainly on the strength of evidence, their previous
experiences will influence their interpretation of this evidence.
-A second judgment by the juror concerns his or her use of the concept of reasonable
doubt, or the threshold of certainty deemed necessary for conviction. Judges always
instruct jurors in criminal trials that they should bring back a verdict of not guilty if they
have a reasonable doubt about the defendant’s guilt. But the legal system has great
reluctance to operationalize reasonable doubt, and when juries, during their deliberations,
ask the judge for a definition, the judge usually falls back on the prior instruction, of tells
them that it is a doubt for which a person can give a reason. Left to their own devices,
different jurors apply their own standards for how close they must be to certainty in order
to vote guilty.
-Kassin and Wrightsman proposed that judgements of guilt arise when a juror’s
probability-of-commission estimate exceeds his or her reasonable-doubt criterion; they
thus used these two factors to classify jurors as having a pro-prosecution or pro-defence
bias. To determine whether bias affected one’s verdict, they constructed a 17-statement
Juror Bias Scale (JBS). The JBS gives scores on each of the two factors of probability of
commission and reasonable doubt.
-Two methods of validation of the JBS have been used:
-Kassin and Wrightsman had university students and jury-eligible respondents
complete the JBS scale and later watch videotapes of re-enacted actual trials or
read transcripts of simulated trials. Four types of criminal trials were used, dealing
with offences ranging from auto theft to conspiracy to assault and rape. Their
verdicts were related to the respondent’s score on the JBS. On 3 of the 4 cases,
mock jurors with a pro-prosecution bias significantly ore often voted to convict
the defendant than dick mock jurors with a pro-defence bias. The differences were
large; the average rate of conviction for prosecution-biased jurors was 81%
compared to 52% for defence-biased ones. But with regard to the trial for rape,
mock jurors generally predisposed to favour the defence were just as likely to find
the defendant guilty as were jurors who favoured the prosecution. It is possibly
that pro-defence jurors, who are relatively liberal in their political views, are
especially sympathetic with the victim when the crime involves sexual assault;
that is, their usual bias is balances by a concern for the victim.
-Lecci and Myers sought, through the use of factor analysis, to determine whether
the two theoretical dimensions, reasonable doubt and probability of commission,
were verified empirically. Two samples, each consisting of 301 university
students, completed the JBS and several factor analyses were done. (A factor
analysis is a statistical procedure that examines relationships between responses
to different items and thus identifies which items are related to each other; factors
are theoretical labels for what is common to the item statements that cluster
together.) The reasonable doubt concept survived the empirical analysis fairly
intact; results produced a 6-item empirically driven reasonable doubt factor, but
the original eight items also achieved a reasonable fit with data in a cross-
validation. Lecci and Myers recommended the 6-item empirically based scale; the
 items from Box 8.3 on this scale are items 3,5,10,17,20 (reversed), and 21
(reversed).
-The dimension of probability of commission was not supported empirically as one
factors. Three items- numbers 2, 12, and 16- formed one factor, which could keep the
“probability of commission” label. Three other items from this scale- items 6, 11, and 14-
emerged on another factors, which seems to reflect cynicism about the legal system.
-To determine the predictive validity of the empirically derived scales, Lecci and Myers
administered the JBS scale to 406 university students and had them watch a videotape of
a simulated rape and murder trial. Participants were classified as either prosecution-
biased or defence-biased, on the basis of their responses to the original 17 items on the
JBS. Consistent with previous results, prosecution-biased respondents were more likely
to find the defendant guilty than were defence-biased ones. Although the difference was
statistically significant it was not as large as in the previous validation: 54% of the
prosecution-biased respondents voted guilty, compared to 46% of the defence-biased
respondents. A similar analysis was done with the empirically based scales- essentially
12 of the original 17 items- and similar results were found: 52% of the prosecution-biased
respondents convicted the defendant, compared to 47% of the defence-biased
respondents, a difference that was also statistically significant. The reasonable-doubt
items accounted for the bulk of the predictive validity, as was the case in the original
validation.
**Individual items can serve as the basis for questions to individual prospective
jurors during the voir dire (or jury selection phase), or if there is an opportunity to
administer a supplemental juror questionnaire, prospective jurors can be asked to
respond to all the statements. But the trial consultant should always remember that
general traits, as measured here have a very limited relationship to verdicts in
specific cases. They are better than nothing, and probably better than most people’s
intuitions, but their predictive accuracy is low when it comes to verdicts by
individual jurors**

Civil Trials:
-Unlike criminal cases, in civil cases it is necessary for both the plaintiff and the
defendant to be reasonably assured of a favourable decision. A litigant who is not so
assured will, most likely, settle the issue out of court. Given this aspect of civil jury trials
in many cases the amount of evidence favouring each side will be nearly equal.
-Though, such trials can differ in the nature of the claim, the types of parties involved,
and other specifics, it may be useful to examine some general attitudes.
General Attitudes:
-Attitudes about the “Litigation Explosion:” Some prospective jurors- believing media
claims of a litigation explosion- may have adopted beliefs that too many lawsuits are
frivolous and that people are too quick to sue, this reflecting an anti-plaintiff bias.
-Attitudes about Risk Taking: In law risk means a danger of harm of loss from a
plaintiff’s action or behaviour. Traditionally, the law has said that “a plaintiff who
voluntarily encounters a known risk cannot recover.” But in real life things are not that
simple, as demonstrated by the attempts to classify the allocation of blame implicit in
contributory negligence. Jurors can differ in their attitudes toward the assumption of
risk. Assumption of risk can be thought of as a continuum ranging from no risk to 100
percent risk. Particular actions by plaintiffs can be assigned values along this continuum.
-Attitudes about Standard of Care:
-Attitudes about Personal Responsibility: The public has stereotyped civil juries as
pro-plaintiff- that is, sympathetic to claims of misfortune and willing to tap into the deep
pockets of rich defendants. The empirical evidence challenges this view and even leads
to a conclusion that an anti-plaintiff bias often emerges in jury decisions. Several causes
for this doubtless exist. When talking to jurors after civil trials, this text’s first author for
the impression that they had a strong belief in personal responsibility; these jurors lack
sympathy for people with unhappy outcomes and (sometimes justified) grievances
against a manufacturer, physician, or governmental organization. Feigenson, Park, and
Salovery noted “evidence of a specifically antiplaintiff bias in responsibility judgments
and refer to interviews with actual jurors and experimental research supporting a
conclusion that jurors often attribute the behaviour of plaintiffs to undersirable motives,
such as greed, rather than to legitimate grievances.

Corporate Responsibility:
-Some potential jurors are anti-business, standing up for the powerless individual against
the monolithic corporation. But others believe businesses are hampered too much by
government regulations.
-Hans and Lofquist constructed an attitude scale to measure potential juror’s attitudes
toward business regulation. The 16 items on this scale tap attitudes about civil litigation,
the benefits of costs of government regulation of business, and standards for worker
safety and product safety. After reviewing this work, Wrightsman and Heili formulated
additional items that might reflect jurors’ biases in civil trials. These items, called the
Civil Trial Bias Scale, were administered along with Hans and Lofquist’s items, to 204
undergraduates and the responses were factor analyzed to determine what constructs
underlay the responses. The first factor that emerged in this analysis was to favour
business and the easing of stringent requirements for safety. For example, the higher
loading item (the one that correlated the highest with the factor), #16 from the Hans and
Lofquist set, states: “Requiring that products be 100 percents sage before they’re sold to
the public is just too expensive.” The other factors emerging from this analysis also
covered a variety of attitudes.
-A separate analysis of the Hans and Lofquist items produced clearer results than the
factor analysis of the two scales together. What emerges is one set of attitudes opposed to
government regulation and dealing with what are the proper safety standards. But other
dimensions may also be present; the separate factor analysis of the Civil Trial Bias Scale,
not detailed here, found that jurors differed on assigning responsibility for bad outcomes,
the inexplicability of bad events and the value of risk taking.
-A recent instrument that shows promise here is the Attitude Toward Corporations (ATC)
scale. It contains five subscales that measure product safety, government regulation,
treatment of employees by corporation, and anti-plaintiff and anti-corporation attitudes.
The original pool of items from which the ATC emerged capitalized on the items
developed by Hans and Lofquist, described above, but other items were constructed, and
then the early versions of the scale were subjected to item analyses so that a 150item
scale resulted.
Case-Specific Approaches:
-some litigation consultants seek to determine the criteria for jury selection by “working
from the inside out” rather than beginning with hypothetical determinants. The goal is to
determine characteristics of the ideal jurors or, if that is not possible, the ideal juror to
avoid.
-Recall, that the procedure does not permit one to compose an “ideal jury” without
restrictions;
1. The procedure is to remove the supposedly undesirable jurors rather than to
select the desirable ones.
2. There is no way to prevent the other side from dismissing those whom your
side considers more desirable.

The Harrisburg Seven Trial:

-this trial in 1972 was the first highly publicized application of social-science techniques,
or scientific jury selection. Despite its age, it remains an illustrative standard for several
reasons, including the comprehensiveness of the procedures and the availability of a
detailed account of what the trial consultants did.
-Catholic priests and nuns who had protested against the Vietnam War by pouring blood
over draft-board records were charged by the U.S. government with a conspiratorial plan
to carry out a number of other antiwar activities, including blowing up the hearing
tunnels under Washington D.C., and the kidnapping of Henry Kissinger, then U.S.
Secretary of State.
-Capitalizing on a number of volunteers who were opposed to the war, Jay Schulman and
the other social scientists carried out a number of studies prior to the trial:
1. Suspecting that the original jury pool was not representative of the population,
they compared the demographic characteristics of those drawn in the jury pool
with a random sample of voters and found that the average age of the jury pool
members was somewhat older. This caused the judge to order the drawing of a
second, more representative jury pool.
2. They sought to discover what background and demographic characteristics
were related to potential jurors’ biases in favour or against the defendants. They
surveyed 250 people from the Harrisburg area to assess their degrees of tolerance
toward dissidents and war protestors. These attitudes were related to a number of
demographic characteristics, including age, education, religion, and gender, and
some surprises emerged. For example, contrary to their expectation, the more
educated members of the community were less sympathetic to the defendants.
These results permitted the social scientists to develop a profile of the ideal juror-
a female Democrat with no religious preferences who held a skilled-labour or
white-collar job.
3. Armed with this information, the social scientists and defence lawyers rated
each of the 46 prospective jurors who survived the earlier winnowing process. On
the basis of their demographic characteristics, the way they responded to
questions during voir dire, and their nonverbal behaviours, these jurors were
classified on a 5-point scale. Of the 46 only 8 were rated very good, and the
prosecution used its six peremptory challenged to remove 6 of these 8. So the
defence team was left with 2 “very good” jurors, and 5 “good ones”, and 5 whom
 they had rated as neither desirable nor undesirable. (The defence had been given
28 peremptory strikes, compared to the prosecutions 6).
**The jury ended up deadlocked, with 10 jurors voting to acquit and only 2 to
convict. The judge declared a mistrial, and the U.S. government decided no to retry
the defendants’. In that sense, the jury selection was successful. But the social
scientists missed completely on the two jurors who voted to convict; each of these
two had been rated rather positively by the trial consultants**

The de la Beckwith Retrial:

-Medgar Evers was shot and killed; he had been leading the drive to register black
Americans to vote in Mississippi. A gun was abandoned at the crime scene, and later
traced to Byron de la Beckwith. De la Beckwith denies committing the crime and claimed
the rifle had been stolen from him two days before.
-He was put on trial in January 1964 and the jurors were all white and all male. The
prosecution presented strong circumstantial evidence pointing to de la Beckwith; in his
defence, his lawyers produced several white police who testified that he had been seen in
his hometown 230 km away at the time of murder. The jury could not reach a unanimous
verdict; after deliberating for 11 hours the jury was deadlocked six to six.
-a second trial was held three months later, with a similar outcome. De la Beckwith was
released and allowed to return to his home.
-Reports persisted he has committed the crime; people even came forth describing how
he bragged about it. In 1973, he was suspected of planning the bombing of an office of
the Anti-Defamation League, a Jewish organization. He served 5 years in prison for
illegal possession of dynamite.
-in 1990’s the district attorney decided to reactivate the case. (There is no statute of
limitations for murder). At this point several psychologists at the University of Kansas
offered their services pro bono to the prosecution, to aid that side in its jury selection.
Professor C.K. Rowland spearheaded the effort. Wrightsman in the preparation of a jury
questionnaire that included questions about due process, racial attitudes, and items from
the Juror Bias Scale.
-In considering who would be the “ideal juror” for the prosecution, the obvious choice
would seem to be a black person, but preliminary surveys indicated that not all blacks
thought alike. Members of some black fundamental churches believed “judge not, that ye
are not judged”- that it was God’s job to determine guilt and punishment; they were
reluctant to play the role of jurors deciding the fate of another.
-the trial judge permitted a change of venue; jurors for the third trial were from Panola
Country, a rural count about 240 km from Jackson. The social scientists assisting the
prosecution learned several things about residents of this county that were helpful in
identifying potential jurors who might be racist and hence likely to sympathize with de la
Beckwith; these included:
-In Batesville, there were 2 softball teams one was racially integrated, one was
not.
-In public school desegregation, a number of private schools (all white) had been
established.
 -Political party identification was potentially diagnostic; if a person was
Republican and financially well-ff, that was of little use as an indicator, but poor
Republicans were likely to be racist.
-The judge did not permit the administration of the 80-item questionnaire developed by
social scientists; the court clerk had said it would be too much trouble to copy and collate
them. But the judge did institute a sequested voir dire, in which each of the potential
jurors was questioned individually in the judge’s chambers. This facilitated a sometimes-
frank revelation of racial attitudes, and prosecutors found the younger whites to be
candid. The second issue of concern by the prosecutors was potential sympathy for the
defendant. Many prospective jurors were open about their feelings that it was hard to
accept the idea of retrial. Some were even challenged for cause because their answers
reflected that they had already formed an opinion, or because they knew trial participants,
and they were dismissed by the judge.
-The social scientists were not permitted in the judge’s chambers while individual’s
jurors were questioned, but they were permitted to provide questions to the lawyers. One
of the contributions was to urge the prosecution lawyers to move away from their usual
style (similar to cross-examination) of asking closed-ended questions. The answers to
these were much more informative.
-The successful challenges for cause shifted racial composition, from an original pool
that was composed about equally of the two races to a jury of 8 blacks and 4 whites. The
jury deliberated for 6 hours before unanimously finding the defendant guilty.

Does Scientific Jury Selection Work?:

-the effectiveness of trial consultants in jury selection is difficult to assess. Lawyers
differ in how they select juries. A further difficulty is that real-life trials are not
susceptible to an experimental manipulation, in which they are repeated with an alteration
of the method for selecting the jury. One study did follow that procedure, but it was a
laboratory study using mock jurors recruited from the community and using law students
who role-played as lawyers. The study compared scientific jury selection with a
traditional method; lawyers used their past experience, conventional wisdom, and beliefs
about jurors to make their choices. Four different criminal trials were simulated. The
results indicated that scientific jury selection was sometimes more effective, but not in all
trials. In fact, its effectiveness seemed to be limited to trials in which a strong correlation
existed between jurors’ personality or demographic variables and their votes.
-Gary Moran noted that studies that fail to find a relationship often have not used real
jurors; these researchers also concluded that case-specific attitudes are better predictors
of verdicts than are broad demographic variables.
-In summary, as Strier has concluded, “empirical studies testing the predictive value of
scientific jury selection have produced inconclusive findings.”
-the quality of evidence remains the clearest determinant or jury verdicts; the side with
the stronger evidence usually wins. However, as noted, especially in civil trials the
evidence for the two sides may be close to equal. In such “close cases” scientific jury
selection might be able to predict 10% or 15% of the variance in jurors’ verdicts. Trial
lawyers seek every edge they can obtain; this might be enough for them to justify the use
of a trial consultant.
Is It Ethical for Psychologists to Aid in Jury Selection?:
-psychologists in Canada do not have to be concerned about whether aiding in jury
selection is ethical, since the courts do not allow such a practice anyway.

Juror Investigation:
-citizens clearly have their privacy invaded when they become prospective jurors. The
courts have accepted certain procedures because they subscribe to the goal that voir dire
can identify prospective jurors whose biases prevent them from being open-minded.
-trial consultants do, on occasion, use out-of-court investigations to determine the
attitudes and values of prospective jurors. Public records, such as house appraisals, may
be consulted; the trial consultants’ team may drive by the prospective juror’s house, note
its condition and the quality of its neighbourhood, and search for any “diagnostic”
bumper stickers n the juror’s car. Friends and neighbours may be interviewed.
-in the U.S. there are limits to such activities. Prospective jurors cannot be contacted
outside the courtroom; jury tampering is illegal, and the courts have held persons to be
in contempt of court for communicating with jurors even though it was no clear that they
had sought to influence the jurors.
-Out-of-court investigations by psychologists may violate ethical guidelines about
participant’s rights to decline or withdraw from research participation.

Use of Supplemental Juror Questionnaires:

-the validity of information rests on the honesty of the prospective jurors; some invasion
of their privacy remains, but this problem seems inevitable, given the defendant’s right to
a fair trial by impartial jurors.
-Prospective jurors have a real dilemma if the trial judge is unconcerned about the
psychologist’s ethical responsibility to obtain consent from participants. If the judge has
approved the administration of the questionnaire to prospective jurors, they may be
punished if they refuse to answer.
-The rules in most jurisdictions do not specifically address the use of questionnaires prior
to voir dire, and so the judge has discretion to permit them. However, the U.S. courts
have recommended the use of pre-screening questionnaires in highly publicized cases,
and they were used in the trials of William Kennedy Smith, General Manuel Noriega, and
Susan Smith, as well as O.J. Simpson’s criminal trial. When such questionnaires have
been approved, they are in some jurisdictions, distributed by the clerk of the court at the
beginning of jury selection, and jurors fill them out in the jury assembly room. These are
then available to lawyers on both sides for review; the amount of time allowed for review
depends on the judge and may be as brief as a couple hours, although often the lawyers
are given overnight to review them. Responses not only help the lawyers and trial
consultants to make preliminary decisions about peremptory challenges, but also to
identify prospective jurors who might be challenges for cause.
-The use of supplemental juror questionnaires may save time during the voir dire, in that
many of the questions would have been asked orally and individually during that process.
They also add to the goal of fairness by giving both sides equal access to information.
-Several commonsense suggestions can be made for the preparation and administration of
questionnaires:
 1. Keep questionnaires as short as possible. It is suggested that four to six pages
will suffice. Follow-up questions may be allowed during voir dire.
2. The introduction to the questionnaire should explain its purpose.
3. Questions should be clustered by topic and arranged in a logical sequence.
4. Topics to be covered should include the prospective jurors experience with
legal matters and the courts, his of her experiences related to the case at hand, and
the juror’s exposure to media coverage about the case. On all these topics, the
experiences of the juror’s immediate family and close personal friends are also
relevant. Questions on these topics work better as open-ended.
5. At the end of the questionnaire, statements reflecting general attitudes and
opinions, such as those from the instruments may be included.
-The trial consultants working with the lawyer needs to be proactive in the preparation of
such questionnaires. Such instruments require some time to prepare, and sometimes
obstacles to scheduling may delay preparation of a final draft, especially if both sides
contribute questions to the questionnaire.

Fairness in Jury Selection:

-The position of the courts is that no legal violation has occurred when one side and only
one side uses a trial consultant. A generally recognized principle of law is that the
counsels on the two sides are “never perfectly equal in abilities of resources.”
-Even if the use of scientific jury selection and trial consultants does not violate
American laws, trial consultants does not violate American laws, psychologists always
have- as one of their clients-society in general.
-Advocates of scientific jury selection will say that the process is only a more systematic
version of what most trial lawyers do in a more subjective, less precise and thorough
manner. But it is true that the inclusion of these procedures may move actual juries
further away fro the goal of a representative sample of the populace.
-it remains that in criminal trials, the defence is much more likely to use a trail consultant
than the prosecution (the Simpson and de la Beckwith cases were unusual, and recall that
in both of these the services of the trial consultant were offered pro bono). Although no
law prevents the prosecution from doing so, there is some merit to Marcia Clark’s view,
that the government has no business doing market surveys to test the strength of its
arguments. In a criminal trial, the prosecution is constrained in ways that the defence is
not; it must base its argument on the evidentiary facts at its disposal. Thus, it is likely that
defence lawyers will continue to use assistance in jury selection more than prosecutors
will.

Summary:
-In Canada, the way in which juries are selected is governed by the Charter of Rights and
Freedoms, which says that everyone accused of a crime is entitled to a fair trial by an
impartial jury.
-Canadian courts attempt to ensure a jury that is “as random as possible,” while requiring
jurors to be unbiased and competent to do their job.
-We do not see the type of jury manipulation witnessed in other countries, particularly the
U.S.
-Psychologists in Canada have conducted important work on jury decision making, while
working with the constraints of laws preventing jurors from speaking about their
deliberations after trials. As such, most of the research on juries has used a mock jury
approach in which people are asked to act as if they are jurors in an actual case.
-Some American lawyers believe that trials can be won or lost on the basis of the specific
jury “selected” for the trial. In actuality, jury “selection” is a misnomer, because lawyers
on each side can dismiss prospective jurors but cannot ensure that any one juror is
chosen, as the other side also has the opportunity to “strike” or dismiss jurors through the
use of peremptory challenges.
-Trial lawyers are increasingly relying on psychologists as trial consultants. In such
jurisdictions, in advising the lawyer about jury selection, the psychologist uses
information based on mock trials, focus groups, community attitude surveys, and
sometimes out-of-court investigations.
-Two approaches have been used. The use of broad traits or general attitudes reflects an
assumption that certain predispositions of jurors may predict their verdicts in a wide
variety of trials.
-With regard to criminal trials, two attitude scales have some limited general utility in
predicting juror verdicts: the Revised Legal Attitudes Questionnaire Scale, which
measure authoritarianism, and the Juror Bias Scale, which measures biases regarding
probability of commission and reasonable doubt.
-With regard to general characteristics that may predict verdicts in civil suits, measure of
risk taking responsibility, and attitudes toward the “litigation explosion” are promising.
-Psychologists are in disagreement about whether scientific jury selection is appropriate
or useful. One laboratory study found that it was more effective than the traditional
method in some trials, but not all trials. A conservative conclusion is that the use of such
procedures may account for a small degree of variance in the juror’s verdicts- perhaps
10%, thus not enough to conclude that trial consultants can “rig” juries, but enough of an
edge to make them useful to some trial lawyers.
-The second approach works from the inside out, identifying specific aspects of a
particular case and then assessing prospective jurors on those characteristics (such as
racial attitudes or attitudes towards protestors). Two examples, the Harrisburg Seven trial
and Byron de la Beckwith’s retrial, illustrated the procedures used in this approach.
-A number of ethical issues surface when forensic psychologists assist in jury selection.
Investigations of prospective jurors may violate their right to give consent and to privacy.
Another concern is the inequality between prosecution and defence of the utilization of
the trial consultants. Use of supplemental juror questionnaires may lessen this concern.
-In Canada, we have a unique and diverse society. Research examining actual jury
decision making in this context is essential. It remains to be seen whether Canadian laws
will advance to become more flexible in allowing jurors to discuss their experiences with
mental health professionals and researchers.