Scientific Jury Selection

Traditional Attorney-Conducted Jury Selection

How do attorneys evaluate venirepersons and decide whom to favor or oppose? Lawyers are sometimes influenced by the published preferences of famous colleagues—the idols of the tribe. These famous trial lawyers have published preferences mainly based on ethnic, religious, gender, and occupational stereotypes that may often conflict with each other. These stereotypes were formed long ago and have no application to modern jurors or cases. Many attorneys hold other stereotypes that may have some limited value, for example, that nurses are unsympathetic to pain and suffering or that people who use newspaper coupons give stingy monetary awards. In addition, a trial attorney's experience with a particular type of juror may result in prejudice for or against such jurors in future trials. Attorneys also evaluate venirepersons on the basis of “vibes”—their impression of the venireperson's nonverbal behavior and deportment. Generally, the attorney has a limited profile of good and bad jurors derived from advice from other attorneys, prejudices, speculation, and experience.

Origin of Scientific Jury Selection

In the 1972 Harrisburg Seven trial of Vietnam War resisters, Jay Schulman and colleagues decided to evaluate venirepersons on the basis of a survey. Schulman surveyed 840 respondents in the trial venue, recording diverse attitudes possibly related to juror view of war resisters. Respondents indicated what they thought of various antiwar activities, which historical figures they [Page 706]admired, their level of trust in government and the establishment, and many demographic features such as age, sex, education, occupation, media preference, and residence. Demographic variables were then statistically correlated with attitudes suggesting support for the government and the Vietnam War. Schulman reported that respondent sex, education, religion, and media preference distinguished “good” from “bad” jurors. In principle, jurors at the trial who had features that were bad (male, better educated, Protestant, attended to local media) would be excused peremptorily. Despite the apparently scientific approach, it is clear from Schulman's article that the Harrisburg Seven jury was chosen by a mishmash of survey findings and old-fashioned practice (including informant information on certain venirepersons; speculation about how a given juror was likely to relate to other jurors; speculation on racism; and deliberation among the multiple lawyers, social scientists, and defendants about the desirability of prospective jurors).

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