Annotated Bibliography/Jury Dynamics and Jury Selection Techniques and Factors

Annotated Bibliography/Jury Dynamics and Jury Selection Techniques and Factors

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Jury selection is primarily driven by predicting trial outcomes - Annotated Bibliography/Jury Dynamics and Jury Selection Techniques and Factors introduction. (Taylor and Hosch, 2004, 587-598) In general it is widely accepted that juror and defendant characteristics combine to influence how jurors arrive at a verdict. (Taylor and Hosch, 2004, 587-598)  There are a number of variables including juror’s trial and personal experiences, ethnicity, demographics, religion, personal bias, gender and strength of evidence that function to determine how a particular composition of jurors will determine a particular case. (Werner, Strube, Cole and Kagehiro, 1985, 409-427)

Likewise the defendant’s particular characteristics can also function to influence how a jury reaches its verdict. (Phares, and Wilson, 1972, 221-229)This paper is an annotated bibliography which takes a comprehensive look at how academics have broached the subject of jury selection dynamics and the variables that ultimately influence jury verdicts and how this information is key to successful jury selection techniques.

Composition and Role of Juries

Shah, Prakash (ed)(2007) Law and Ethnic Plurality: Socio-Legal Perspectives. Boston: Martinus  Jijhoff Publishers.

            Shah Prakash’s Law and Ethnic Plurality: Socio-Legal Perspectives is a collection of contributory essays and papers by a number of experts in the study of law and its place within a much broader spectrum of socio-political concerns.  For the purpose of this topic attention is primarily focused on those sections that deal specifically with juries and the basic notion and development of jury service.

In order to fully appreciate the dynamics that influence jury verdicts and by extension jury selection it is first necessary to examine the role and basic composition of jurors.  This is how Prakash’s work is helpful.  Prakash’s work represents the concept that ideally a jury represents the defendant’s peers and comes to the trial with no specific qualifications aside from qualifying as a reasonable or ideal member of the community. (Prakash, 2007, 69)

A trial by a jury of one’s peers has as its goal the provision of a barrier between the common man and the government. (Prakash, 2007, 70)  Embedded in this goal are elements of fairness and impartiality which are perceived as prerequisites for a fair trial.  In a typical case, a reasonable member of the community is thought to have the wherewithal to determine the issues objectively.   It therefore follows that a jury of one’s peers is selected to ensure that the  facts are determined by fair-minded and responsible individuals from the community rather than by government officials.

Using Prakash’s approach to jury duty it is in this parameter that the role of the jury is defined.  The jury’s job is to determine the facts and issues fairly and objectively.  In this vein the jury selection process functions to ensure that the jury composition is such that jurors are capable of deliberating responsibly and objectively.

Nockleby, John, T. (2007) “What’s a Jury Good For?” Loyola-LA Legal Studies Paper, No. 2007-15 Available at: http://ssrn.com/abstract=965065 Retrieved June 13, 2008.

Professor John T. Nockleby of Layola Law School in Los Angeles examines the role of the civil jury and the manner in which the selection process has compromised the essence of an impartial jurors in his paper What’s a Jury Good For? Nockleby argues however that upon a wider construction of jury duty, the jury’s role is one of representative democracy, a bastion between public and private powers as well as “a legitimating institution.” (Nockleby, 2007)  Recognizing and accepting the role of the jury in a democratic society the US Constitution guarantees the right to a fair trial by an impartial jury.

Even with the developments over the years in which both sides of a case manipulate jury selection so as to end up with a jury that is more likely to render a favourable verdict, Nockleby submits that the democratic values of a jury system offset this setback to impartiality.  Moreover, Nockleby argues that the mere fact that both sides employ these tactics offset the propensity for bias one way or another. (Nockleby, 2007)

Basic Jury Selection

Hans, Valerie, P. and Vidmar, Neil.(2001) Judging the Jury. US: Basic Books.

Valerie Hans and Neil Vidmar conducted an in depth research study of several dimensions of jury trials and selection in their work Judging the Jury. Hans and Vidmar takes the reader from the very basic concept of jury selection to the more intimate dynamics of individual juror comprehension skills and demeanour together with how these tools are integrated for the purpose of determining which perspective juror should be eliminated from the jury pool.  Jury selection by its very practice renders the term ‘selection’ no more than a misnomer.

Jury pools from which prospective jurors are selected originate from the voter registration list.  A process referred to as the voir dire is utilized for the purpose of vetting or screening prospective jurors to ensure whether or not they are capable of determining the facts and the evidence impartially. (Hans and Vidmar, 2001, 63-78)  Contrary to its term, jurors are not selected but are eliminated via the voir dire by attorneys for both sides using peremptory challenges or challenges for cause. (Hans and Vidmar, 2001, 63-78)

Hans and Vidmar make some interesting observations about the general make up of jury panels. They observe from the onset that even without the benefit of empirical and research studies it is generally expected that a jury consisting of virtually random members of the community invariably bring with them individual perceptions and baggage.  This bias was influenced by elements of gender, speech, appearance and race. (Hans and Vidmar, 2001, 130)  Hans and Vidmar also note that the famous American trial attorney Clarence Darrow approached his jury selection with the view that a juror would not likely convict a defendant that they liked neither would they acquit a defendant they did not like. (Hans and Vidmar, 2001, 131)  The key to Darrow’s jury selection process was therefore to end up with a jury that he could manipulate into liking his client.

Roberts, Margaret. (1987) Trial Psychology: Communication and Persuasion in the Courtroom. Austin, Texas: Butterworths.

            Margaret Roberts’ book Trial Psychology: Communication and Persuasion in the Courtroom  largely supplements Valerie Hans and Neil Vidmar’s Judging The Jury with respect to the dynamics of the voir dire. Roberts explains that the over all purpose of the voir dire questioning or vetting of prospective jurors is to root out unpredictable jurors by determining specific background information and their reasoning qualities. (Roberts, 1987, 141-143)

In a typical voir dire pre-trial scenario attorneys for both sides will question the potential jurors about their background, ask questions which will generally unveil a specific bias, ask questions about the prospective juror’s knowledge of the facts of the case and their opinions or feelings with respect to issues that might or will arise in the course of the trial. (Roberts, 1987, 141-143)

Rosales-Lopez v. United States, 451 U.S. 182 (1981)

Roberts’ book is read together with the US Supreme Court Case Rosales-Lopez v. United States, 451 U.S. 182 (1981) which ultimately holds that the voir dire jury selection or rather, elimination process is pivotal to the fairness element of the trial.  In the case of Rosales-Lopez v US the US Supreme Court observed that:

“Without an adequate voir dire the trial judge’s responsibility to remove prospective juror’s who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” (Rosales-Lopez v. United States, 451 U.S. 182 (1981))

Observations:            Despite the elements of fair trial and democracy with respect to jury trials and ultimately jury selection the jury selection process has developed into a science in which attorneys with the help of a jury consultant in most cases will endeavour to eliminate from the jury pools those potential jurors whom they conclude are predisposed to render an unfavourable verdict.  (Strier and Shestowsky, 1999, 441-451)  Jury consultants engage in an exercise that has come to be defined as jury selection science.

Jury Selection Science

Strier, Franklin and Shestowsky, Donna. (1999) “Profiling the Profilers: A Study of the Trial Consulting Profession, Its Impact on Trial Justice, and What, If Anything, to do About it.” Wisconsin Law Review, 441-451.

Franklin Strier and Donna Shestowsky’s article in the Wisconsin Law Review takes an informed look at the nature and development of jury selection science by explaining the intricacies of jury consultancy as a profession.  The reader comes away with the knowledge that today’s jury consultants are typically sociologists, attorneys, communications experts or psychologists. (Strier and Shestowsky, 1999, 441-451)  Although jury consultants are primarily used in criminal trials they are quite often used in civil trials particularly where the claim for damages is quite big. (Strier and Shestowsky, 1999, 441-451)

Jury consultants operate on the theory that specific juror characteristics/demographics can be helpful in predicting trial outcomes.  It is therefore necessary for jury consultants to determine the relationship between the demographics and specific attitudes with a view to excluding from the jury pool those jurors that do not fit the desired profile. (Strier and Shestowsky, 1999, 441-451)

Diamond, S.S. (1990) “Scientific Jury Selection: What Social Scientists Know and Do Not Know.” Judicature Vol. 73, 178-183

S.S. Diamond goes into a bit more detail than Franklin Strier and Donna Shestowsky with respect to the jury consultant profession and explains it so that the reader gains an understanding of the factors and elements that influence jury selection and are deemed to be a precursor to influencing or manipulating trial outcomes.  In assisting with jury selection jury consultants use two methods to help them determine what jurors should be eliminated from the jury pool.  These methods are telephone surveys and the conduct of mock trials. (Diamond, 1990, 178-183)

Telephone surveys usually involve conducting a telephone survey of the community in which a specific trial is taking place and ask participants for information about the jury pool members.  These questions are aimed at determining age, sex, race, marital status, professions and questions that relate to the facts of the case.  Participants are generally asked about their attitudes and beliefs that are relevant to facts of the case.  Another query is relevant to what participants would likely determine is a fair verdict having been apprised of the facts of the case. (Diamond, 1990, 178-183)

            At the conclusion of the telephone surveys jury consultants then use the information obtained to ascertain which jurors possess the characteristics that correspond with attitudes likely to bring about the desired verdict. (Diamond, 1990, 178-183) This information is passed on to attorneys with a view to using that information to their advantage at the voir dire. (Diamond, 1990, 178-183)

            While the telephone survey can be more effective since it provides a broader range of views with the result that it can more adequately reflect the attitudes of the jury pool, mock trials are sometimes used by jury consultants. (Diamond, 1990, 178-183) The mock trial invariably involves a recitation of the facts of the case or a simulated trial in which participants are asked to render their verdict. (Diamond, 1990, 178-183)  At the conclusion of the trial the participants are asked questions as they are before the mock trial. Quite often jury consultants use both methods of mock trials and telephone surveys to aid the attorney during the voir dire. (Diamond, 1990, 178-183)

Other methods are used by jury consultants during the voir dire.  Some of these methods include body language, posture and dress codes.(Kassin and Wrightsman, 1988, 58)  In each case, whatever the methods used, the jury consultant together with the trial attorney are looking for factors relevant to the jury selection process that can manipulate the trial outcome in their favour.

Factors Relevant to Predicting Jury Verdicts

a)      Jury Mentality

Reed, J.P. (1965) “Deliberations, Voting and Verdict Trends.” Social Science Quarterly, Vol. 45, 361-370

Aside from individual juror characteristics there are certain aspects of jury trials that can impact the manner in which a jury as a whole and individually responds to the trial and the evidence. (Reed, 1965, 361-370)  Reed came to the conclusion that the greatest mental element for any juror or the jury itself was the weight of the evidence.  Difficulties however may arise in instances where a jury is not fully capable of understanding the evidence or may be distracted.

These barriers to comprehension are all related entirely to a particular juror’s mentality.  Similarly there are other mental factors that can impact upon a juror’s verdict such as his or her social status and intuition. For instance Reed determined that a juror with a relatively high income was more likely to judge the defendant more harshly than the evidence allowed. (Reed, 1965, 361-370)  In this sense, jurors are not always tied to the evidence.  There are mental aspects that operate to intervene and the evidence can be either ignored or interpreted based on individual or collective intuition.  At the end of the day, the greatest influencing aspect is the individual juror’s capacity to interpret or process the evidence.  Therefore while it is so that a majority of jurors will determine the facts and reach a verdict based on the evidence there are mental aspects that intervene to determine how that evidence is processed and interpreted.

Hastie, Reid, Penrod, Steven and Pennington, Nancy. (2002) Inside the Jury. Union. New Jersey: The Lawbook Exchange, Ltd.

The jury’s mental capacity to interpret the evidence is therefore a pivotal point for the jury selection process and was considered by Reid Hastie, Steven Penrod and Nancy Pennington in their book Inside the Jury. This aspect of jury dynamics is described by Reid Hastie, Steven D. Penrod and Nancy Pennington as the “information processing approach.” (2002, 15)  According to Hastie, Penron and Pennington:

“The idealized information-processing task analysis is closely related to a model of the juror’s actual cognitive processing called the Story Model.” (2002, 22)

            The Story Model is comprised of three stages of information processing.  They are the “story construction stage”, the “verdict-category establishment stage” and the “story classification stage.” (Hastie, Penrod and Pennington, 2002, 22)  In the story construction stage the jurors process the evidence based on the testimony and organize it so that it reasonably accounts for “what happened” at the relevant time. (Hastie, Penrod and Pennington, 2002, 22)  Hastie, Penrod and Pennington go onto explain that:

“The model postulates that general knowledge about the structure of human purposive action sequences, characterised as an abstract episode scheme, serves to organize events according to the casual and intentional relations between them as constructed by the juror.” (2002, 22)

            The second stage, the verdict-category establishment stage, encapsulates a reflection of each alternative verdict “with defining features” together with “a decision rule” which specifies “the appropriate combination.” (Hastie, Penrod and Pennington, 2002, 22)  The story classification stage recognizes that a juror’s findings involves reconciling the story with the verdict category. (Hastie, Penrod and Pennington, 2002, 22)  From a purely psychological perspective the manner in which jurors process information by virtue of the story model greatly depends upon group communication and individual comprehension skills. (Hastie, Penrod and Pennington, 2002, 22-23)

            In a study conducted by Hastie, Penrod and Pennington it was found that jurors with a lower level of education could only recall less than 50 percent of the testimony while those with higher educational levels recalled up to 70 percent of the testimony. (2002, 129)  It therefore follows that a juror’s level of education is important since it impacts upon his mental capacity to render a fair or favourable verdict.   If a juror’s educational level is low with the result that his ability to recollect the evidence is low he might be inclined to rely on other juror’s recollection of the facts and will decide upon his verdict based on another’s juror’s recall.  Information about a juror’s educational level is therefore an important factor from a psychological perspective in the jury selection process.

            Moreover, low educational levels can impact upon a juror’s ability to focus on a trial and could have unsatisfactory results in the event the trial is long and the evidence is tedious.  Boredom and frustration can be a factor in such circumstances where the trial involves technical and complex evidence. The juror’s mental ability to process that kind of evidence can be further complicated by boredom and frustration. Although there are several theoretical models that explain the jury’s mental and psychological dynamics with respect to determining a verdict, Hastie, Penrod and Pennington maintain that the story model is the most popular and has been supported by empirical research. (2002, 23)

Hastie, Reid. (1994) Inside the Juror: The Psychology of Juror Decision Making. Cambridge: Cambridge University Press.

            Reid Hastie’s book Inside the Juror: The Psychology of Juror Decision Making examines the dynamics of jury decision making from several perspectives using social psychology, behavorioral decision theory, cognitive and behavioural modelling as measuring stick.  The primary question answered throughout the book is why if jurors hear the same testimony and view the same evidence do they ultimately come to vastly different conclusions.  Broadly speaking Hasite’s book considers all the research and empirical evidence on the subject of jury dynamics completed up to the time of publication. While the book examines all aspects of behaviorial science with respect to jury decision making and its importance to jury selection, the book was used for its information and insight into the mental and psychological aspect of jury deliberation.

            Hastie Reid concludes that when evidence is non-technical and easy to understand, jurors are typically “rough-and-ready logicians.” (Reid, 1994, 4)  However, when the evidence is complicated and technical in nature or even if the evidence:

 “…involves emotion-provoking” elements “the juror’s sentiments are ‘liberated’ and extralegal considerations (e.g., the race of the defendant or victim, the juror’s attitude toward the law etc) influence the judgment.” (Reid, 1994, 4)

            Another crucial finding by Hastie Reid is that juror’s typically reason by analysing culpability and connecting it to the likely penalty. (Reid, 1994, 4)  In the final analysis, there are a number of psychological factors that bind a jury in the sense that it influences the manner in which they determine a verdict.  However there are other elements that greatly influence the individual jurors and their vote which are specific to the individual juror.  These elements are significant to the jury selection or elimination process. (Reid, 1994, 242-253)

Kaplan, M.F. and Miller, L. E. (1987) “Reducing the Effects of Juror Bias” cited in Wrightsman, L and Kassin, S.(Eds) In the Jury Box: Controversies in the Courtroom. Beverly Hills, CA: Sage Publications, 114.

            While there have been studies and reports documenting that jurors are particularly sympathetic toward a particular kind of defendant, Kaplin and Miller maintain that jurors tend to put their sympathies aside as the evidence goes against the sympathetic defendant. (Kaplan and Miller, 1987, 114)  This essay is important for its illustration that evidence may override any potential for jurors to allow extra-legal matters to impact upon their duty to determine a verdict.  In other words psychological factors are invariably defeated by the evidence.  In the long run taking psychological factors such as sympathetically disposed jurors may vote to acquit will not avail a lawyer in the selection process if the evidence is piled up against the defendant.

Spaeth, Jan, Mills, Ph.D. (Spaeth, 1992) “How Important is Jury Selection to Your Case?” American Society of Trial Consultants, American Psychological Association and American College of Forensic Examiners.

            Dr. Spaeth reconciles the varying attitudes toward what factors drive and predict jury verdicts in his report by concluding that all the factors adhered to by opposing factions contribute to the jury verdict.  Spaeth prefaces his conclusion by acknowledging that some litigation experts believe that the evidence determines the trial outcomes while others believe that the panel and its special characteristics determine how a case will ultimately decided. (Spaeth, 1992)  Spaeth explains that his reason for coming to this conclusion can be explained as follows:

“The evidence lies largely in hung or non-unanimous juries, and disagreement during deliberation.  In these scenarios, all jurors see the same evidence, hear the same testimony and arguments, and are given the same instructions. Yet all don’t agree.” (Spaeth, 1992)

            Spaeth explains that this fact excludes the conclusion that the evidence and testimony alone determines jury dynamics.  It leads to the inescapable conclusion that:

“…because of ‘framing’, the psychological phenomena of individuals having different cognitive and physical reactions when faced with the same set of data, based on their experiences and attitudes.  Emotions such as fear, anger, curiosity, sadness, disgust, and suspicion are common to all humans, but will manifest to different degrees under varying conditions affecting objectivity and reason.” (Spaeth, 1992)

In other words, conditions that might arouse fear in one individual or sympathy might arouse anger and bitterness in another. (Spaeth, 1992)

            The fact remains, when evidence is more obvious and strong there is less of a risk that jurors will wander outside of the evidence. (Spaeth, 1992)  However, when the evidence is tenuous, jurors have a propensity to resort to personal feelings for aid in interpreting the evidence.  The result is ascertaining “a jurors’ frame of mind” is crucial to the jury selection process. (Spaeth, 1992)

            In this regard, Dr. Spaeth is of the opinion that psychological factors are important components of the jury selection process.  He goes on to explain that:

“It is estimated that 60% or more of all communication is nonverbal, conveyed by facial and body expression, and voice inflection.  In many cases, 40% or less is actually accomplished through words.  If you listen only to the words your jurors are speaking, you may be missing a large share of what they are telling you, including their frame of mind.” (Spaeth, 1992)

            Dr. Spaeth explains that during jury selection attorneys are looking to exclude or include dominant type personalities who may force their will on the panel. (Spaeth, 1992)   Outcome strategy is the overriding factor.  Having two dominant personality types on the panel can end with a hung jury.  Dominant personalities can impact deliberations by preventing or ignoring interruptions, circumvent other’s input and can dominant deliberation.  In order to identify dominant personality types Spaeth recommends looking for the following in a voire dire:

“A brisk definite walk, taking a chair with decisiveness, hands on hip, and a wide stance are some of the first clues.” (Spaeth, 1992)

Spaeth also claims that dominant personality types will use “formal or full names” use eye contact and are typically “direct.” (Spaeth, 1992)  Their dress code is either business like or uniform and are usually rather neat. (Spaeth, 1992)  They may also be seen carrying newspapers, briefcases or magazines. (Spaeth, 1992)

            Flexibility are other attributes that attorneys may desire of juror panellists. Dr. Spaeth suggests a number of ways to isolate a juror with these attributes at a vior dire. They may appear defencive, guarded or closed. (Spaeth, 1992)  Body language will indicate tension, rigidity and “hands held tightly in laps or behind the back.” (Spaeth, 1992)  Dr. Spaeth even reports on how to identify a potential juror’s comprehension skills.  A juror panellist who has difficulty recalling dates can be summarily dismissed as one who has weak comprehension skills. (Spaeth, 1992)

Dr. Spaeth concludes that a lot can be discerned from a juror’s mental and psychological propensity by examining body language and community together with mode of communicating at the voir dire.  The fact remains that what these observations say generally about a juror’s mental and psychological make-up are important elements for predicting jury verdicts.

Spaeth, Jan, Mills, Ph.D. (July 1995) “Bias in a Death-Qualified Panel: A Look at Troubling Statistics.” American Society of Trial Consultants, American Psychological Association and American College of Forensic Examiners.

            Dr. John Spaeth sums up the results of research conducted by a group of experts on the subject of death-qualified jury panellists. (Spaeth, 1995)  A death qualified-panel seeks to leave out of the jury pool jurors who are predisposed to oppose the death penalty.  The result is these jurors are more concerned with penalty than the question of guilt. (Spaeth, 1995)  The general finding of the experts however is that:

“Simply put, in a well-balanced panel, it will take more evidence and a higher level of juror certainty to convict defendants when charges and sentences are severe.” (Spaeth, 1995)

Dr. John Spaeth goes on to document some interesting findings by the research teamw which include a finding that in jurors who are deemed death qualified:

 “rate police, prosecutors, and prosecution witnesses as significantly more credible than do jurors who oppose the death penalty.” (Spaeth, 1995)

For those who support the death penalty their primary focus is the high volume of violence in the community.  Moreover they are predisposed to be suspicious of the defendant and coming into the trial with this sort of attitude jurors in favour of the death penalty will regard defense witnesses as less than honest or “less persuasive.” (Spaeth, 1995)

            Dr. Spaeth also documents that the researchers came to the conclusion that when there are gaps in the testimony or the evidence as a whole, jurors are more inclined to fill those gaps by referencing their own personal experiences and attitudes. (Spaeth, 1995)   Moreover:

“Statistics have found that jurors who support the death penalty are more likely to accept the prosecution’s version of events rather that the defense version when ambiguities exist or when there is incomplete evidence.  Those jurors who oppose the death penalty are significantly more likely to accept the defense version than are death-qualified jurors under these conditions.” (Spaeth, 1995)

Additionally, jurors who are in favour of the death penalty are apt to draw negative conclusions with respect to the defendant.  This is so whether or not there is evidence to support those conclusions. (Spaeth, 1995) These conclusions range from unsubstantiated “inferences” that the accused person has antecedents  or some level of police trouble. (Spaeth, 1995)  On the other hand, jurors who are against the death penalty draw their own conclusions often times believing that the police are over zealous and target defendants on their own initiative. (Spaeth, 1995)

b)     Sociology and Its Impact on Jury Decisions and Jury Selection

            Researchers by and large are divided on whether or not specific juror characteristics and demographics impact upon jury verdicts.  The general consensus is however , there is no other logical explanation for the disparity in opinions and votes when the evidence heard and viewed is exactly the same.  This paper proceeds on the basis that demographics and specific personal characteristics of the jury explains the method used in jury selection to obtain a favourable verdict.  The research chosen focuses on this aspect of jury dynamics and the selection process used to predict trial outcomes.

Mills, C.J. and Bohannon, W.E. (1984) “Juror Characteristics: To What Extent are they Related to Jury Verdict?” Judicature, Vol. 64 No. 1, 23.

            C.J. Mills and W.E. Bohannon surveyed information gleaned from questionnaires that were completed by 117 women and approximately 80 men who were selected from a Baltimore jury panel.  The selections were random.  The questionnaire included questions calculated to identify four variables which included sex, age, race and education.  The result was that 78 percent of the women were predisposed to render a guilty verdict on a rape charge and 71 percent were more inclined to convict on a murder charge.

 Conversely, male participants had only found a verdict of guilt in 53 percent of rape charges and 50 percent had convicted on  murder charges. (Mills and Bohannon, 1984, 23)  The disparity between the male and female voting habits however were confined to black jurors while there was no significant disparity between the voting habits of white men and women. (Mills and Bohannon, 1984, 23)

            Mills and Bohannon also found that while the jurors’ personal conclusion was consistent with the group conclusion, gender differences accounted for the degree and level of agreement between personal conclusions and group conclusions. (Mills and Bohannon, 1984, 23)  With the men that participated in the survey, 67.5 percent compared to 81 percent of women concurred that their personal conclusions was consistent with the group’s final conclusion. (Mills and Bohannon, 1984, 23)  Interestingly, only 5 percent of the women changed their not guilty verdicts to guilty whereas twice as many men did. (Mills and Bohannon, 1984, 23) Moreover, the number of women whose initial finding of guilt was consistent with the groups final guilty verdict vastly outnumbered the men surveyed by Mills and Bohannon. (Mills and Bohannon, 1984, 23)  Additionally, only 26 percent of the females participating in the questionnaire agreed that they had influenced other jurors to change their verdict compared to 43 percent of the men who participated in the questionnaire. (Mills and Bohannon, 1984, 23)

            Mills and Bohannon also found as result of the date amassed by virtue of the survey that for the men who participated it was by and large determined that they likened the guilty verdict to “high socialization” as well as “low empathy.”  (Mills and Bohannon, 1984, 23)  Women on the other hand associated guilty verdicts with “low socialization.” (Mills and Bohannon, 1984, 23)

            Mills and Bohannon also concluded that age played a significant factor in the propensity to convict.  In fact the final analysis was that the older a juror the more likely he or she was to convict. (Mills and Bohannon, 1984, 23) In rape cases the relationship between age and conviction was the strongest.   However there was no disparity among female jurors who propensity to convict on a rape charge remained the same irrespective of age. (Mills and Bohannon, 1984, 23) Males however, irrespective of the charge were less likely to convict than any gender or age group in ages ranging from 18 to 25. (Mills and Bohannon, 1984, 23)  Mills and Bohannon came away with the impression that the younger male was less likely to convict in cases where the defendant was young because they could invariably identify with the defendant.  Another finding by Mills and Bohannon is that the educated a juror the more likely he or she is to acquit a defendant. (Mills and Bohannon, 1984, 23)

Notes:  There is no general consensus among researchers that age and sex have an impact on jurors.  This is because jury research mechanisms are conducted in specific jurisdictions and cannot represent across the board characteristics of either race, age or gender specific jurors.  The result is that some researchers will find evidence supporting the findings of one researcher while other researchers will find evidence to the contrary.  When jury consultants look to determine what characteristics are conducive to jury selection and predicting trial outcomes they focus on the information that has some support and do not rule it out simply because it has not received unanimous support.  Jury consultancy is a science and as such it is not an exact science. (Taylor and Hosch, 2004, 587-598)

Sealy, A.P. and Cornish, W.R. (1973) “Jurors and Their Verdicts.” The Modern Law Review Vol. 36 No. 5, 495-508

A.P. Sealy and W.R. Cornish conducted studies among jurors in the London area and came away with the conclusion that age does in fact make a difference among jurors with respect to their verdicts.  The findings were that the younger the juror the greater the likelihood that the juror would acquit the defendant. (Sealy and Cornish, 1973, 495-508)  (This is consistent with the research conducted by Mills and Bohannon who found that the older the juror the more likely he or she was to convict)

            Other aspects of the research carried out by Sealy and Cornish are related to the impact of socio-economic status on a juror’s verdict deliberations and voting.  (Sealy and Cornish, 1973, 495-508)  According to Sealy and Cornish, manual laborers were more likely to convict provided the evidence supported the verdict. (Sealy and Cornish, 1973, 495-508) (Interestingly, J.P. Reed found that the higher the economic and social status of the juror the more likely he or she was to convict. (Reed, 1965, 361-370)  (Likewise, Hastie, Penrod and Pennington conclude that 11 percent of the differences in jury verdicts could be accounted for by wealth and attitude toward persons who have caused the death or harm of another, marital status and media.) (Hastie, Penrod and Pennington, 2002)

Johnson, S.L. (1985) “Black Innocence and the White Jury.” Michigan Law Review. Vol. 83, 1611.

            S.L. Johnson looked at two earlier studies conducted using 256 white and 196 black college undergraduates.  (Johnson, 1985, 1611) The results unveiled that white participants viewed the black defendant as more culpable than the white defendant.  (Johnson, 1985, 1611) Another finding indicates that when the evidence was tenuous the white participants were more apt to give the white defendant the benefit of the doubt than they were to give the same concession to black defendant. (Johnson, 1985, 1611)

            The study involving black participants revealed that in similar circumstances the black participants by and large viewed the black defendant as less culpable than the white defendant. (Johnson, 1985, 1611)  However, whether the evidence was tenuous or not the black participant had no difficulty giving the black defendant the benefit of the doubt. (Johnson, 1985, 1611)  This was so even if the evidence strongly supported a verdict of guilty. (Johnson, 1985, 1611)

King, N.J. (1993) “Postconviction Review of Jury Discrimination: Meaning the Effects of Juror Race on Jury Decisions.” Michigan Law Review, Vol. 92, 63-90

            N.J. King conducted a review of the literature reflecting findings with respect to jury verdicts and the consequences for specific racial characteristics on predicting jury verdicts. (King, 1993, 63-90) King maintains that the attention given to this area of research and the observations made by persons who are directly involved in litigation only supports the theory that white jurors are less lenient on black defendants than they are on white defendants. (King, 1993, 63-90)  King also observes in his article that there is sufficient evidence in research carried out via actual and mock trials to support the contention that white jurors are more lenient with black defendants accused of crimes against a black defendant than black jurors are apt to be. (King, 1993, 63-90)  King notes that there was a study conducted in 1979 in which 896 Alabamians were questioned and the result was that black defendants were more harshly judged than white defendants generally. (King, 1993, 63-90)

Levine, J.P.  (2000) “The Impact of Racial Demography on Jury Verdicts.” Cited in Markowitx, Michael and Jone-Brown, Delores (eds) The System in Black and White: Exploring The Connections Between Race, Crime and Justice. CT: Praeger Publishers, 162.

            Levine examines a protracted study that commence in 1986 and concluded in 1996.  (Levine, 2000, 162)  The study was conducted in the state of New York and involved approximately 35, 595 verdicts from criminal trials in over 27 different counties. (Levine, 2000, 162)  The study emphasised the connection between racial aspects of jurors and acquittals. (Levine, 2000, 162)

            The findings were that it was unrealistic to distinguish between racial demography and jury voting and deliberating conduct. (Levine, 2000, 162)  In Bronx County it was discovered that jurors had the highest acquittal rate but also contained the state’s highest Hispanic and African-American population. (Levine, 2000, 162)  On the other hand, Ontario County, New York had the lowest acquittal rate and the second lowest population of Hispanics and African-Americans. (Levine, 2000, 162)   In the final analysis, Levine concludes that the participation of African-American and Hispanic jurors accounted for the disparity in conviction and acquittal rates from one county to another. (Levine, 2000, 162)

Cornish, W.R. (1970) The Jury. London: Penguin.

            W.R. Cornish in his book The Jury takes a cumulative and comprehensive view of jury conduct from research studies conducted using both mock trials and actual trials.   While acknowledging that there are a number of variables that account for jury conduct with respect to voting, Cornish submits that at the end of the day the Judge has more influence over the jury’s voting habits than people tend to acknowledge.  He notes in his work:

“Judges realize their power to influence a verdict.  Lord Birkett, in contrasting his work on the bench with that at the bar, confided in his diary: ‘I still have the power of dominating juries, they do whatever I wish’…It is scarcely surprising in a system under which judges are selected exclusively from practising advocates that some judges will continue to practice the art of persuasion from the bench.” (Cornish, 1970, 113-114)

Cornish reveals that empirical research into jury characteristics have been conducted since the 1950’s lending weight to the belief that particular characteristics are vital steps in the jury selection process.  Cornish cites the research conducted by H. Kalven and H. Zeisel in a publication titled The American Jury published in 1966. (Cornish, 1970)

This research involved the creation of questionnaires which were given to judges who were then asked to reveal whether or not they were content with the jury’s verdict at the conclusion of a trial. (Cornish, 1970            )  Cornish maintains that the breadth of the early research studies were outcome oriented and came about as a result of a general public feeling that the number of acquittals were far too high.

In any event, Cornish’s work The Jury is significant for its contribution to the history and development of jury research and its impact on the current trends in evaluating jury verdict propensity and jury selection processes.  His most promising remarks however are contained in the excerpt cited.  It is obvious that despite the particular demographics that arise to influence and predict jury verdicts, there is a measure of comfort in knowing that a judge can exercise his inherent influence over a jury to overcome the difficulties associated with biased or overtly perverse verdicts.

Fukurai, Hiroshi and Krooth (2003) Race in the Jury Box: Affirmative Action in Jury Selection. Albany: State University of New York Press.

            Hiroshi Fukurai and Richard Krooth’s book Race in the Jury Box: Affirmative Actionin Jury Section takes a unique approach to the question of factors relevant to the jury selection process.  Having taken into account the fact that many years of research has been committed to jury dynamics for the express purpose of facilitating jury selections based on predictable trends, Fukurai and Krooth draw upon the research taking into account legal history, statistics, public opinion the role that race plays in general in America and its societies. Fukurai and Krooth maintain that the manner in which jurors are selected from the voter’s registry, juror’s eligibility to be disqualified or excused takes away from the notion of random selection and basically has the potential to exclude the African-American from the jury box.   In all the Fukurai and Krooth maintain that the African-American is under-represented in the jury box.  They write that:

“…traditional reforms proposed to create racially representative and diverse juries are fundamentally inadequate to secure racial minorities in the final jury or to prevent racially biased jury verdicts.” (Fukurai and Krooth, 2003, 7)

            Furukai and Krooth rely on a survey conducted in 1995 in Santa Cruz and come to the conclusion that African-American jurors are susceptible to jury nullification if there appears to them that the case is being prosecuted with a measure of racial bias.  In such cases the jurors will lean more toward the presumption of innocence and insist that defendant is innocent until such time as the prosecution proves his or her guilt beyond a reasonable doubt.   The African-American jury takes the position that an erroneous acquittal is far more beneficial to the community than an erroneous conviction. (Furukai and Krooth, 2003) This kind of theory is obviously helpful to the defendant in the jury selection process.

Greenhouse, Linda. (Nov. 3, 1993) “Court Weighs Jury Selection by Sex.” The New York Times.

This article by Linda Greenhouse is particularly important for its insight into the current legal position with respect to jury selection and how in practice adherence to the concept that juror characteristics impact upon jury selection.  Greenhouse reveals that the US Supreme Court has summarily excluded from jury selection a juror based solely upon race. (Greenhouse, 1993)  In considering whether or not a juror can be challenged solely on the basis of gender, the US Supreme Court found that it could not interfere with the rights of the defendant to exercise his or her peremptory challenges in which they were not required to provide a reason for the challenge.

            Greenhouse’s article touches on the prominence that race and gender have taken on the debate over whether or not race and sex are significant factors in the jury selection process and dynamics.  For instance, John F. Porter, a lawyer argued on behalf of his client who had lost a paternity suit heard before a jury panel consisting of all women in Alabama, that equal protection under the Constitution should extend to gender the same weight that is extended to race.  (Greenhouse 1993)  In that particular case the State of Alabama had utilized its jury challenges in such a way as to end up with a predominantly female jury. (Greenhouse, 1993)

The case referred to the Greenhouse article demonstrates that both race and gender are important elements for attorneys during the jury selection process.  Attorneys obviously anticipate that by selecting jurors based on gender or race will go a long way to obtaining from the panel a favourable verdict.  Arguments put forward by Porter represent the consequences for the integrity of the jury system.  He argued that just as in race mandates by the US Supreme Court, jury challenges that exclude a person from the jury panel on the basis of his or her gender should be given the same consideration.  Porter maintained that allowing challenges on the basis of gender has the same impact as allowing challenges on the basis of race with the result that it causes “group bias and unwarranted stereotypes.” (Greenhouse, 1993)

            Justice Antonin Scalia dismissed Porter’s assertion by asking:

“Is there not nothing to the notion that a rape defendant or the defendant in a paternity case is worse of with an all-female jury? Is that really an ‘unwarranted’ stereotype.” (Greenhouse, 1993)

In the end the US Supreme Court was not prepared to add gender to the prohibited jury challenge tactic acknowledging that race provided a far more sensitive and controversial criteria for consideration.  Be that as it may, the case discussed in Greenhouse’s article reflects the prominent role of race and gender in the jury selection process.  Both sides of the trial obviously function on the belief that race and gender play a pivotal role in the workings and deliberations of jurors.

Sullivan, Andy. (2007) “Politics Poses Hurdle to Libby Jury Selection”. The Washington Post.

            Politics as a factor in jury selection impacted upon the jury selection process in the Lewis “Scooter” Libby trial on January 18 last year. (Sullivan, 2007)  This article published by the Washington Post provides valuable insight into the political factor and jurors’ voting habits as well as political calling. For instance attorneys were alleged to have been unable to complete jury selection by the due date in the Libby trial because a number of potential jurors at the voire dire admitted that they were unable to remain impartial since they disapproved of the Bush administration. (Sullivan, 2007)  Libby, a former White House official was charged with perjury during the course of his official duties. (Sullivan, 2007)

            The voir dire was conducted in a city heavily populated with Democratic residents. (Sullivan, 2007)  Many of the potential jurors admitted that they would have a difficult time with the credibility of Vice President Dick Cheney who was slated to be called as witness. (Sullivan, 2007)  One potential juror said:

“I think he’s been instrumental in enacting some policies that have really damaged our country.” (Sullivan, 2007)

It therefore follows that Jurors will not typically set aside political beliefs and persuasions when called upon to judge the facts of a case that contains some level of politics.

            The facts recounted by Sullivan reveal that during the voir dire, the jury selection process anticipated that at the end of the process 36 members would be approved for the purpose of selecting 12 jurors together with 4 alternatives.  During Libby’s voir dire only 30 members had been approved by the due date. (Sullivan, 2007)

            The judge had excused 14 potential jurors based on their strong opinions of the Bush administration and the war in Iraq.  One female potential juror reportedly said:

“I certainly have an opinion that you can’t believe any statement by the Bush administration.” (Sullivan, 2007)

            Art Patterson, senior vice president of a jury consulting company, DecisionQuest said that politics played a vital role in the jury selection process when a trial of the issues had some political basis.  He said that:

“Almost every citizen will have an opinion on the administration and the war.”(Sullivan, 2007)

The same would hold true for any high-profile case, according to jury consultant Art Patterson. (Sullivan, 2007)

Conclusion

            The research and material collected in the above listed annotated bibliography lead to the inescapable conclusion that jury service is more than a civic duty.  It has become a science where determining jury verdicts are not merely left to notions of impartiality and fairness.  Studies find that many factors such as those discussed above contribute toward the juror’s ultimate decision.  Jury selection allows for rooting out bias as much as it allows for accommodating it.  In the end however, the fact that both sides have equal leverage in the jury selection process rules against the tipping of the scales of justice in favour of one party over the other.

Bibliography

Cornish, W.R. (1970) The Jury. London: Penguin.

Diamond, S.S. (1990) “Scientific Jury Selection: What Social Scientists Know and Do Not Know.” Judicature Vol. 73, 178-183.

Fukurai, Hiroshi and Krooth, Richard. (2003) Race in the Jury Box: Affirmative Action in Jury Selection. Albany: State University of New York Press.

Greenhouse, Linda. (Nov. 3, 1993) “Court Weighs Jury Selection by Sex.” The New York Times.

Hans, Valerie, P. and Vidmar, Neil.(2001) Judging the Jury. US: Basic Books.

Hastie, Reid, Penron, Steven and Pennington, Nancy. (2002) Inside the Jury. Union. New Jersey: The Lawbook Exchange, Ltd.

Johnson, S.L. (1985) “Black Innocence and the White Jury.” Michigan Law Review. Vol. 83, 1611.

Kaplan, M.F. and Miller, L. E. “Reducing the Effects of Juror Bias” cited in Wrightsman, L and Kassin, S.(Eds) In the Jury Box: Controversies in the Courtroom. Beverly Hills, CA: Sage Publications.

Kassin, Saul and Wrightsman, Lawrence. (1988) The American Jury on Trial: Psychological Perspectives. Bristol, PA: Taylor and Francis.

King, N.J. (1993) “Postconviction Review of Jury Discrimination: Meaning the Effects of Juror Race on Jury Decisions.” Michigan Law Review, Vol. 92, 63-90

Levine, J.P.  (2000) “The Impact of Racial Demography on Jury Verdicts.” Cited in Markowitx, Michael and Jone-Brown, Delores (eds) The System in Black and White: Exploring The Connections Between Race, Crime and Justice. CT: Praeger Publishers, 162.

Mills, C.J. and Bohannon, W.E. (1984) “Juror Characteristics: To What Extent are they Related to Jury Verdict?” Judicature, Vol. 64 No. 1, 23.

Nockleby, John, T. (2007) “What’s a Jury Good For?” Loyola-LA Legal Studies Paper, No. 2007-15 Available at: http://ssrn.com/abstract=965065 Retrieved June 13, 2008.

Phares, E. and Wilson, K. (1972) “A Simulated Jury Study: Characteristics of Defendant and the Jurors.” Journal of Social Psychology, Vol. 90, 221-229.

Reed, J.P. (1965) “Deliberations, Voting and Verdict Trends.” Social Science Quarterly, Vol. 45, 361-370.

Roberts, Margaret. (1987) Trial Psychology: Communication and Persuasion in the Courtroom. Austin, Texas: Butterworths.

Rosales-Lopez v. United States, 451 U.S. 182 (1981)

Sealy, A.P. and Cornish, W.R. (1973) “Jurors and Their Verdicts.” The Modern Law Review Vol. 36 No. 5, 495-508

Shah, Prakash (ed)(2007) Law and Ethnic Plurality: Socio-Legal Perspectives. Boston: Martinus  Jijhoff Publishers.

Spaeth, Jan, Mills, Ph.D. (July 1995) “Bias in a Death-Qualified Panel: A Look at Troubling Statistics.” American Society of Trial Consultants, American Psychological Association and American College of Forensic Examiners.

Spaeth, Jan, Mills, Ph.D. (Spaeth, 1992) “How Important is Jury Selection to Your Case?” American Society of Trial Consultants, American Psychological Association and American College of Forensic Examiners.

Strier, Franklin and Shestowsky, Donna. (1999) “Profiling the Profilers: A Study of the Trial Consulting Profession, Its Impact on Trial Justice, and What, If Anything, to do About it.” Wisconsin Law Review, 441-451.

Sullivan, Andy. (2007) “Politics Poses Hurdle to Libby Jury Selection”. The Washington Post.

Taylor, Tanya and Hosch, Harmon. (2004) “An Examination of Jury Verdicts for Evidence of a Similarity-Leniency Effect, an Out-Group Punitiveness Effect or a Black Sheep Effect.” Law and Human Behaviour. Vol. 28, No. 5, 587-598.

Werner, Carol, M., Strube, Michael, J., Cole, Allen, M. and Kagehiro, Dorothy, K. (1985) “The Impact of Case Characteristics and Prior Jury Experience on Jury Verdicts.” Journal of Applied Psychology. Vol. 15 No. 7, 409-427

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