Role of Jury Consultants Controversial and Extensive : Courts: Their ability to mold a panel is limited. They tend to be effective in advising on seated jurors.
Are women good or bad for O.J. Simpson’s defense? Would victims of domestic violence be more likely to convict him? Would it help or hurt to have jurors knowledgeable about science?
Jury consultants say that those are among the critical questions facing Simpson’s defense team as members today begin screening hundreds of prospective jurors for the most infamous murder trial in recent history.
Each armed with consultants, both prosecution and defense will spend much of the next several weeks trying to pick jurors who will be most sympathetic to their side. Many lawyers swear by the insights the jury gurus bring to the courtroom.
But so-called scientific jury selection is not all it is hyped up to be.
Who sits on the jury can make a small difference because each member may bring his or her own perceptions to the evidence, or rely on instinct when faced with ambiguity. Careful screening is no guarantee of success.
Despite their reputations, jury consultants are not clairvoyants; they can’t be certain that any one juror will react as predicted. Once 12 strangers are thrown together in deliberations, their interactions and personalities can combine to upset the efforts to create the optimal mix. Consultants’ best hunches also may be for naught because the opposing side can remove their favorite picks.
“People who accuse us of stacking the deck give us too much credit,” admitted San Francisco jury consultant Ronald Beaton, director of jury consultation for Forensic Technologies Inc. “You can’t stack a jury. You can only unstack one.”
Their efforts are controversial. During jury selection, lawyers and consultants may attempt to exclude smart people, particularly those with leadership ability or special knowledge that might help them understand the evidence.
“When you see a lawyer trying to pick a smart jury,” defense attorney F. Lee Bailey once said, “you know he’s got a strong case. (Defense attorney) Percy Foreman and I once had an argument as to which of us had picked the most stupid jury.”
The drive to pick a favorable panel may also threaten juror privacy. Prosecutors have been known to check tax records of potential jurors, and defense consultants sometimes comb through voter registration and property rolls searching for clues. Some even drive by potential jurors’ homes to look for lawn signs or bumper stickers, or interview friends and neighbors of the jury prospects.
But because the ability to mold a jury is limited, consultants tend to be most effective in advising lawyers how to influence jurors after they have been seated. Researchers have found that evidence and opening and closing statements usually are more important than jury composition, and consultants advise lawyers how to make the most of them.
Trained in psychology or sociology, these courtroom versions of market researchers test various arguments and evidence before mock juries or focus groups. They then help lawyers package a case, telling them what evidence to stress, how to make a point most effectively, even how big an award to ask for in a civil case.
Some of them worry about the little things jurors might notice, including the kind of car the defendant drives to court. After much deliberation the defense team for John DeLorean decided he should drive a Mercedes station wagon to the trial, said jury researcher Elizabeth Loftus.
“It showed a little touch of elegance,” said the University of Washington psychology professor, “but it was also solid,” not the kind of car a cocaine dealer would drive.
Their advice and trial rehearsals don’t come cheaply: Consultants charge about $1,000 to $4,000 a day, or $10,000 to $50,000 for a three-month trial. Even if the difference they make in jury selection is small, the side that can afford the research to shape strategy has an edge.
“It does raise questions about whether or not it has become necessary to do it (hire a consultant) to win an important case,” said Saul Kassin, a Massachusetts jury researcher and occasional trial consultant.
Many trace the use of consultants to the 1972 conspiracy trial of the Berrigan brothers and five others in Pennsylvania for anti-war activities. Social scientists sympathetic to the defendants volunteered to do surveys and interviews to help the lawyers pick the jury.
The ideal juror, the surveys and interviews determined, would be a female Democrat with no religious preference and a white-collar or skilled blue-collar job.
After 10 days of deliberations, the first jury picked by scientific selection found two of the defendants guilty of smuggling letters but deadlocked 10 to 2 for acquittal on the key conspiracy charges.
Although the case was considered a victory for scientific jury selection, the process had been imperfect.
Two of the jurors the social scientists had predicted would favor the defense hung the jury by voting for conviction. One of those jurors was the mother of four conscientious-objector sons.
Predicting how any one juror will vote is risky. If a consultant’s poll found that 70% of women tended to view a case from a defense perspective, the consultant could still err by picking a female juror who was among the 30% who favored the prosecution.
Knowing the prospective jurors’ views would be more helpful, but some may lie about them or may not even be aware of them.
Jury selection can take anywhere from a few hours to a month or more. Men and women summoned for duty are sent in groups to be queried by a judge or the lawyers about whether they can serve for the duration of the trial or if they have any conflicts that could preclude them from being fair. They might be asked to fill out a questionnaire designed to expose their attitudes about issues that will arise at trial. Both sides can remove a certain number of jurors they deem unfit.
This adversarial process usually limits the power of either side to stack a jury. Those limitations were evident in a child molestation case that Beaton worked on.
A boy had accused a middle-aged teacher of molesting him. But there was no physical evidence to implicate the defendant, and a forensic test had failed to detect incriminating fibers on the teacher’s clothing even though the alleged molestation had occurred on a rug likely to have shed fibers.
Beaton, hired by the defense, wanted jurors who believed in science but had no scientific training or knowledge. These sorts of jurors, he concluded after doing a public opinion survey, would be more inclined to accept the test’s failure to find any fibers. A more sophisticated jury, Beaton feared, would “know the limits of science” and realize the test was fallible.
He identified three or four prospects who would be good for the defense, but the prosecution struck all but one of them.
After “fast and furious” strikes, “the jury was made up mostly of people who were in the grand middle ground,” Beaton said. “We got one person we were happy with, and an engineer we did not want. I have done close to 200 jury picks and seldom, if ever, do I come out happy. Most of your good people get struck.”
The jury hung 11 to 1 for acquittal. But even Beaton admitted that the evidence and arguments-- shaped in part during a dry run before a mock jury--had been more important than who was on the jury.
“Given the same set of facts,” he said, “seven out of 10 juries would have been hung. It’s an edge, but it is not a sure thing.”
Jury researcher Saul Kassin became interested in juries because of his curiosity about the effects of attitude and personality differences. But he discovered in experiments with simulated juries that the differences only mattered when neither side had stronger evidence.
“I had to get the evidence so evenly matched for those individual differences to matter, that in most cases I couldn’t do it,” said Kassin, a psychology professor at Williams College in Massachusetts.
Kassin consulted in a product liability case a few years ago. The defendant, a corporation, had hired a jury consultant to help with selection, and the plaintiff’s lawyer, afraid of being outmatched, hired Kassin.
But Kassin concentrated on testing the evidence rather than the makeup of the jury. He tried various arguments and kinds of evidence on 20 simulated juries, giving each different information and weighing their responses.
When the suing party asked for a huge amount of money, Kassin discovered, the mock jurors tended to be suspicious and doubt the whole case against the corporation. So he recommended a ceiling.
In the battle of dueling consultants, Kassin’s side won.
“When clients retain us,” said Philip K. Anthony, chief executive officer of DecisionQuest Inc., a Torrance trial consulting firm hired by the prosecution in the Simpson case, “we tell them that jury selection is 5% of the balance we bring to the equation.”
When a group of residents in a southeastern state sued a factory in their neighborhood for allegedly polluting ground water, the company came to Anthony for help. The residents blamed the contamination for a variety of ailments in their families, but the epidemiological evidence was murky and the company denied any responsibility for the plaintiffs’ health problems.
Anthony found in trial rehearsals that mock jurors were confused by the evidence. They were not convinced the company was at fault, but to be on the safe side, awarded the plaintiffs a small amount of money.
After more research, the consultant discovered one key piece of evidence that could sway them: The fact that the residents had not abandoned their homes or taken extra precautions after discovering the pollution.
“So the trial strategy was to emphasize this through the evidence,” Anthony said. The real jury decided for the company.
Manipulating witnesses’ testimony also could be pivotal.
A consultant might advise a prosecutor, for instance, to draw out “in slow motion” a witness’ description of a killing “because you don’t want that moment to pass by the jury too quickly,” said Michael Saks, professor of law and psychology at the University of Iowa College of Law. “You want it to sink in, to have more dramatic impact.”
Jurors are especially influenced by the lawyer’s ability to create and tell a compelling story. If a lawyer can present a good narrative, Beaton said, jurors will ignore or give less weight to inconsistent facts.
Although evidence and arguments usually play a larger role, the lawyers in the Simpson murder case are not leaving jury makeup to chance.
Even some experts who are skeptical of polls used in scientific jury selection agree that the Simpson trial could prove them wrong.
“In the typical case these surveys are a waste of time and money,” said Richard Lempert, a University of Michigan professor of law and sociology. “The exception is a case that is so well-known that you can ask people, ‘Do you believe O.J. is guilty?’ . . . If I were O.J., I would do it, but in the typical case I would not.”
Most experts believe women will be more pro-prosecution because the history of violence in Simpson’s marriage has been so widely publicized. “The 911 tapes sink him with women,” said one jury consultant, referring to Nicole Brown Simpson’s taped calls to police reporting an apparent altercation with her husband.
Women may be “a little bit more inclined” to convict in violent crimes because they “are less prepared to accept or romanticize violence,” said Gary Moran, a professor of psychology at Florida International University. He believes feminists would be particularly bad for the defense.
“I cannot believe that (Robert) Shapiro is going to let any feminist sit on this jury of Simpson’s,” Moran said. From a defense perspective, “The one good thing about feminists is they are dying to tell you their point of view” and thus are easily identified.
Female jurors, a Canadian jury researcher also has found, are more likely than males to understand and sympathize with victims of domestic violence.
Even though consultants outside the case think gender and experience with domestic violence could make a difference on the Simpson jury, today’s Times Poll found no strong correlations between those variables and belief of his guilt or innocence. Women, in fact, were more sympathetic to the former football great.
Jo-Ellan Dimitrius, the trial consultant for Simpson, suggested that women may be more empathetic because of tabloid reports critical of Nicole Simpson’s lifestyle.
But the Times poll did find a relationship between confidence in DNA testing and belief in Simpson’s guilt or innocence--an issue that consultants believe could be important in jury selection.
Respondents who had faith in such tests were more likely to believe Simpson was guilty and were less sympathetic than those who discounted their value. African Americans were more suspicious of the genetic tests than other racial groups.
If the DNA evidence is strongly incriminating and the laboratories withstand defense scrutiny, Simpson’s lawyers probably will want people “who were terrified or traumatized by high school algebra” and will ignore scientific evidence they do not understand, Moran said.
But if the evidence is questionable, “then the defense wants people who are sophisticated and critical in their thinking about science,” said William C. Thompson, a DNA expert hired by Simpson who teaches criminology, law and society at UC Irvine.
Surveys show that African Americans are more likely than whites to believe Simpson is innocent. Both jury experts and the Times Poll linked the difference to a greater distrust by blacks of the criminal justice system.
But regardless of their race or attitudes, the jurors may ultimately be most swayed by the force of the evidence.
“Let’s say that the evidence at trial starts to point to guilt,” Saks said. “Black jurors would start to shift their views and wind up saying, ‘I think he did it.’ If the evidence turned out to be quite dubious . . . then the white folks would shift over.”
Attitudes also might change because of the dynamics of deliberating, the back-and-forth among jurors as they examine the evidence.
“I think jurors in general will feel the burden of holding the prosecution to its proof,” said Lois Heaney, a trial consultant for the National Jury Project/West in Oakland. “If during deliberations someone says, ‘I think he did it,’ someone else will push them to say, ‘Are you sure?’ and they will be mindful that this is a person who has had a stellar reputation and who is a father of young children.”
Next: The Times Poll on the Los Angeles County jury system.
About This Series
In this four-part series, The Times examines the strengths and flaws of the American jury system and the need for reform.
* Sunday: Deadlocks in recent high-profile cases have thrown the spotlight on the U.S. jury system, raising questions about whether it deserves to survive.
* Today: High-priced consultants are helping defendants pick favorable juries, but how much of a difference can they really make?
* Tuesday: The Times Poll examines attitudes toward jury service and the jury system in Los Angeles County.
* Wednesday: Warning that the jury trial system could self-destruct without change, a small but growing number of legal experts are calling for sweeping reforms.
A Brief History
Some key dates in the history of jury trials in this country:
1606: The right to a jury trial is given to American colonists in Virginia by King James I of England.
1776: The Constitution establishes the right to “speedy and public” trial by a jury in criminal prosecutions and civil cases. Framers of the Constitution make it clear that the jury can decide law as well as fact. The framers also support the right of defendants to challenge jurors during jury selection.
1850-60: Restrictions are placed on some jury powers. The Massachusetts Supreme Court in 1860 establishes the directed verdict, whereby a judge can tell a jury to reach a not guilty verdict if he determines there is insufficient evidence. Many states adopt the special verdict, which allows a judge to order a new trial if he believes the jury’s verdict was inconsistent with the facts.
1870: The territory of Wyoming gives women the right to sit on juries, but revokes the right a year later.
1879: The U.S. Supreme Court holds that a state can constitutionally bar women from juries.
1880: The Supreme Court rules that states can no longer bar blacks from juries because the 14th Amendment guarantees “equal protection of the laws” to all people.
1895: The Supreme Court holds that jurors in federal court do not have the right to decide questions of law and must follow instructions from the judge instead. Most states eventually follow the ruling.
1896: Utah becomes the first state to allow women to sit on juries.
1920: Federal courts begin to limit the rights of defendants to question prospective jurors.
1928: A federal rule is adopted requiring the presiding judge to conduct voir dire, the questioning of prospective jurors during jury selection. This prevents the defense from directly questioning and influencing potential jurors, leaving the screening to the judge.
1967: Alabama becomes the last state in the nation to allow women on juries.
1970: The Supreme Court rules that juries need not be made up of 12 members, the traditional number since the early English legal system, and upholds the use of six-person juries in non-capital cases.
1972: The Supreme Court holds that a jury of 12 does not have to be unanimous in reaching a verdict. Oregon later allows 10-2 verdicts in all criminal trials except capital cases.
1975: The Supreme Court rules that it is unconstitutional to deny women the right to be put on lists for jury service.
1994: The Supreme Court rules that attorneys cannot remove prospective jurors from a case simply because of their sex.
Compiled by researcher Norma Kaufman