Jury selection involves creating a list of eligible citizens, selecting jurors for a case, and examining them under oath. Scientific jury selection (SJS) is used by consultants to help attorneys choose a favorable jury. SJS uses community surveys, focus groups, and mock trials to gather evidence. Attorneys can use peremptory or justification appeals to remove prospective jurors. SJS is practiced by psychologists and has been criticized for interfering with the right to an impartial jury.
Jury selection is typically a three-step process that includes the creation of a list of eligible citizens, the selection of citizens to be called in a particular case, and a process called voir dire – from the Anglo-Norman phrase meaning “to say the truth” — in which prospective jurors are examined under oath. Sometimes the interrogators are the judges, other times the lawyers. In any case, attorneys for both sides are permitted appeals that can eliminate prospective jurors from consideration. In this context, a process that some argue has a science-based methodology and therefore worthy of the scientific name is sometimes employed by consultants hired by attorneys to assist in choosing a favorable jury. This process is called scientific jury selection (SJS).
During voir dire, attorneys have two types of appeals they can use to remove prospective jurors from the pool: peremptory appeals, the number of which is decided by the court and for which no reasoning is required, and justification appeals. cause, which depend on demonstrating that the prospective juror is or is likely to be biased. One of the areas where the jury selection consultant can be most helpful is in advising the attorney on the use of peremptory appeals, both in who to excuse and who to keep.
The evidence upon which the scientific jury selection is based is gathered in several typical ways. Community surveys are used to gain insight into the attitudes towards the case and the personalities of people in the community from which the community will be drawn. Focus groups and mock trials with community members are one-part promulgations or a full case is presented to gauge reaction in advance of the real case. When prospective jurors have been identified, the search becomes more focused. Community network modeling is conducted by contacting people with whom prospective jurors are associated, and surveillance can also be conducted – both of documents and of prospective jurors’ movements and activities, although both techniques have met with objections that violate privacy.
The selection of the scientific jury is practiced by sociologists, lawyers and people with experience in business, marketing, communication and theatre, but the main professionals are psychologists. Scientific judging is an unregulated field, and the standards of its American professional association – the American Society of Trial Consultants (ATSC) – have been criticized as inadequate. Furthermore, not only the effectiveness of the practice, but also its correctness has been questioned and some believe that it interferes with the constitutionally guaranteed right to an impartial jury. Professionals defend it, and a scientific study is difficult because finding cases to compare and evaluating their impact are both difficult, if not impossible tasks.
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