You have to wonder sometimes why jury consultants get out of bed in the morning. Between the expectations we invite and the expectations we submit to, the day is guaranteed to be a failure if we don't walk on water before sunset.
This came to mind most recently reading Matthew Hutson's article "Unnatural Selection" in the current issue of Psychology Today. Leading into his text, Hutson sets out the paradigm:
Many [jury consultants] offer "scientific jury selection" services, deploying demographics, statistics, and social psychology to cull potential jurors and engineer the perfect panel of people. But as these gurus aim to extract sure verdicts from parties of unknowns, their grasp on the chemistry of human nature appears to require a working knowledge of alchemy[.]
Great. Gurus extracting sure verdicts from perfect panels using statistics and alchemy. Anything else?
That's not the real world, as Hutson reports. He interviewed the jury consultants in some of the most prominent trials of the last few years. These people are celebrities in a field that until recently had no celebrities: Jo-Ellan Dimitrius of the O.J. Simpson defense team; Robert Hirschhorn of the William Kennedy Smith trial; Thomas Diamante of DOAR, the firm that worked on the Twin Towers insurance litigation; Howard Varinsky, who assisted the prosecution in the Scott Peterson murder trial; Arthur Patterson of DecisionQuest, which is everywhere; and Kenneth Broda Bahm, president of the American Society of Trial Consultants.
Sometimes a demographic is just a demographic
They all told Hutson, in different ways, that a trial is too unique and too complicated to control with statistics or anything else. Juror demographics, for example, are "barely important," Dimitrius told Hutson. The idea that "[y]ou can't have any males on a rape case, for instance," is "[r]idiculous stuff. Very rarely will we find a demographic that's a factor." Indeed, "beefed-up juror profiles can lead attorneys astray," Hutson explains, citing a mock trial study of the Kobe Bryant rape case in which jurors who fit an "authoritarian" profile, and thus might be expected to punish the defendant, in fact wanted to punish the victim for her carelessness. "This trial has layers upon layers of issues," jury consultant Joseph Rice told CourtTV at the time.
Jurors work as a group, not by themselves
What's more, Hutson explains, even a perfect individual juror profile won't predict how that juror would act in a group of eleven unique other people. We've all seen how a dynamic leader in a meeting can turn into a wallflower at a party. Jury rooms aren't different; each combination shapes the individuals in it. "There's a kind of organized buzz," Northwestern law professor, psychologist, and Arizona Project researcher Shari Diamond told Hutson, "with looping back and repeats and corrections. It's a complicated process."
What they're not saying
Then there is all the information you can't learn from a juror (at least not without a brain scan). Hutson reports:
And when they do talk, they're frequently unrevealing. [Howard University political scientist Richard] Seltzer conducted a study in which nearly 30 percent of jurors who denied before trial that they had witnessed a crime or that they knew any police officers revealed afterward that in fact they had. And that's relatively innocuous information. No one wants to sit among dozens of strangers and answer personal questions about sexual or criminal experience, financial history, health, and drug use.
Body language can fool you as well. A few years ago in a trial I worked on, we worried when one juror resolutely shook his head as though saying "no" through our entire opening statement, then were confused when he shook his head through the defense opening as well. When he was still shaking his head on the third witness, we decided to ignore it. Hutson tells a similar story:
In another case, a potential juror squirmed in his seat during voir dire. Patterson told the lawyer that the man was anxious and offended by the questions. A minute later the man asked the judge for a break to attend to his hemorrhoids.
The snake-oil question
Hutson draws a comprehensive picture, much fuller than I've sketched here, and he draws it well. By the end, we understand the basic limits of jury selection. As Thomas Diamante told Hutson, "How can you possibly make sure there's a certain type of outcome given the complexity of the information on one side, the complexity of the information on the other side, and then the human dynamics involved in the jury? If you can do that, when you're done let's go to Atlantic City."
Which brings Hutson to the snake-oil question. "If scientific jury selection is just a crapshoot, why is the industry thriving?" He offers a few possible answers: the hope for any edge in a big-money case, or the hope that a particularly magical consultant can beat the odds. But his article itself really answers the question better. The task of communicating to a set of six or twelve particular people, unique as a fingerprint in the way they will interact with you and with each other, is complicated enough to make a life's work. A trial team's to-do list is long and often distracting; if one knowledgeable team member can keep the team focused on the jurors' experience, that contribution has value.
The toughest message
To me, the interesting thing about the snake-oil question is not that it's difficult to answer; it isn't. It's as familiar and simple as "How can you represent those people?" is to a public defender. The interesting thing is why people keep asking it. Jury consultants help communicate the most arcane scientific and business information to juries -- but the most difficult message to communicate may be our own. Somehow people still think we're selling magic. Which can make it hard to get out of bed.
(Image by Jan Bakker at http://www.flickr.com/photo_zoom.gne?id=182772855&size=m; license details there. )
