Finding really useful writing about juries is hard. There is so much material out there that it can take forever to get a confident sense of the area. That's true with many legal issues as well, but with law, we lawyers are used to piecing unique cases together to deduce a rule. When we're looking at empirical studies instead of judicial decisions, those of us who took the wrong classes in college can feel lost.
Choice 1: One person's opinion
There are two basic kinds of jury writing. First, there are "how-to" essays by jury consultants, similar to the ones I'm writing here. Some are extremely helpful (the papers at the DecisionQuest web site, for example, seem to get more interesting all the time), while others stick to familiar maxims. Many of them, good and bad, share one drawback: they're often one writer's opinion. That's great if you're looking for ideas, but not helpful if you need to know what the evidence is on jury decisionmaking.
Choice 2: Science and statistics
Second , there are papers documenting empirical studies. There are hundreds of these, and they have more citation and data than you'll ever likely want. The drawbacks, for a nonspecialist, are two:
- They're tough going. You have to work your way through sentences like "A 2 x 3 ANOVA (Training x PTP) with the manipulation-check questions as the dependent variable did not yield any significant results, indicating that participants did not differentially remember PTP among the experimental conditions." (Shaw and Skolnick, Effects of Prejudicial Pretrial Publicity From Physical and Witness Evidence on Mock Jurors' Decision Making, 34 Journal of Applied Social Psychology 2132 (2004) (available here).
- They're often very narrow in scope. Run "jurors" and "publicity" through the IngentaConnect search engine, for example, and you'll find one study of 50 mock jurors using a real-life fraud fact pattern; another (Shaw and Skolnick above) comparing 55 "trained" and 33 "untrained" college students (mostly women) who watched a videotaped rape trial; and a third by Prof. Vidmar compiling 849 prospective jurors' responses, in real sexual-assault trials, to the judge's question whether they could be unbiased. Realistically, most lawyers preparing a case, especially the English majors, are not going to try to gather and assess all the studies that bear even on the biggest factors in the trial.
Choice 3: Literature reviews to the rescue
Where then to go? Social-science newcomer, I give you a new vocabulary word: the literature review. A literature review "is a body of text that aims to review the critical points of knowledge on a particular topic," Wikipedia tells us. (If Judge Posner likes to cite Wikipedia, then I'm more than willing to cite it too.) It means that a scholar has read the relevant studies for you, and summarized their results.
So on the topic of pretrial publicity, you'd look at this literature review by Prof. Vidmar, Case Studies of Pre- and Midtrial Publicity in Criminal and Civil Litigation, 26 Law & Human Behavior 73 (2002). More broadly, his article The Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849, which I've linked to before, is a valuable ongoing resource. I also refer often to a paper by Dennis Devine and others, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000), which is incredibly comprehensive and can be found on line attached to law-school course syllabi if you run the right search.
Where to find it
One more point on this, if you haven't stopped reading by now. It used to be hard to take even the first steps to find these studies, because they were scattered all over the Web and all over scholarly journals. Now there are services that gather them. The one I use most is IngentaConnect, "the home of scholarly research on the Web." They claim to have over 30,000 sources and 21 million articles, chapters, and so on -- all of it searchable, all of it (I think) abstracted, and much of it available in full text for free. They should stamp "English majors welcome" across their logo; they're great.
