Scientific jury selection
It almost always entails an expert's assistance in the attorney's use of peremptory challenges—the right to reject a certain number of potential jurors without stating a reason—during jury selection.
SJS practitioners determine what background characteristics and attitudes predict favorable results, and then coordinate with attorneys in choosing the jury.
The consultants in the case had conducted surveys that indicated women and Democrats would make defense-friendly jurors, and the religious, those with college degrees, and Reader's Digest subscribers would be better for the prosecution.
Criminologist Jo-Ellan Dimitrius used surveys to determine the ideal defense juror demographic (black women) and analyzed and judged the prospective jurors' answers to a questionnaire and response and body language during voir dire (the stage of jury selection where lawyers are permitted to directly question the jury).
[6] Contemporary jury consultants are often sociologists, people with experience in communications and marketing, or attorneys themselves, but they are most frequently psychologists who specialize in legal psychology.
[9] Although most of the practice's roots are in criminal trials, modern jury consultants are more often involved in torts (civil litigation),[10] particularly where wealthy corporate defendants fear an enormous monetary judgment for the plaintiff, or where plaintiffs' attorneys have invested large sums of money in an important lawsuit.
Since the 1980s, large jury and trial consulting firms have emerged, earning multi-million dollar revenues, mostly from such high-stakes civil litigation.
[11] The simultaneous shift from ad-hoc groups of academics to a business model has sparked the criticism that SJS magnifies the distorting effect money has on trials, since only the wealthy can afford it.
[12] Jury consultants argue that they operate in an adversarial process the same way lawyers do; by pursuing their clients' interests in a rule-bound framework.
During a survey of the community where the trial is taking place, jury consultants ask about: Diamond writes that jury consultants then compare the three data sets to determine which background characteristics correlate to favorable attitudes and verdicts, and which attitudes correlate to favorable verdicts.
[15] An alternative is to test respondents at the researcher's facility with opening statements or a full-blown mock trial instead of reading a case summary over the telephone.
[15] Besides the occasional astrologer or psychic, a few practitioners use unorthodox methods, such as in-courtroom assessment of posture, pupil dilation, or breathing to judge jurors both during selection and during trial.
[16] Notwithstanding this, Jo-Ellan Dimitrius (from the Simpson trial) indicates that she also relies on appearance, body language, conduct, and even smells such as perfume or medication.
For example, veterans might favor current troops, but that does not necessarily translate into a likelihood to acquit their brethren of crimes.
That necessity is exacerbated by the fact that many modern consultants are reluctant to share knowledge, even with other firms, because of paranoia, client confidentiality, and their regard for their work as "trade secrets".
[28] Some researchers argue that a significant improvement in jury selection, however small, may be worthwhile when the stakes are high, as with a defendant accused of a capital crime or a corporation that stands to lose millions of dollars in a civil suit.
Opponents counter that attorneys cannot always ferret out actionable evidence of juror bias, particularly in the context of a limited voir dire.
Korelitz's fictional consultants are part of an unscrupulous firm that charges prosecutors to kidnap homeless people, program them with drugs into conviction-only jurors, and substitute them for those hoping to avoid jury duty.
[39] In a fifth-season episode of the CBS television series Numb3rs, entitled "Guilt Trip", an illegal arms dealer (James Marsters) is tried for racketeering and the murder of the key witness against him.
In season one, episode eleven, of the television series Leverage, a pharmaceutical company is under fire for a wrongful death case involving a stimulative all-natural herbal supplement.
