Practical Jury Selection Tools:
Arm Yourself for Jury Selection

The public's attitude toward crime is becoming more harsh. Arrests, convictions, and long sentences are more likely today for acts that would not have had such devastating results several decades ago. To avoid the permanent stigmatization of conviction and the very-increasing possibility of capital punishment, new jury selection approaches need to be implemented for a wider range of cases and by a larger number of criminal defense attorneys. Criminal defense attorneys and their clients can benefit from implementation of some of the following methods. The costs of these methods vary. Defense teams should always seek the resources necessary to implement the method or methods which will most enhance jury selection, and should preserve the issue of a court's refusal to provide those resources. After having done so, the team might consider a less expensive, and possibly less effective, method.

Mock Juries. Mock juries can be conducted at reasonable prices in many regions of the country. Using several sets of mock jurors selected by a scientific method is preferable, but a single mock jury may be better than none if the jurors are asked the proper questions and the elite mock jury design is used. With this technique, powerful and perceptive jurors hear a summary or parts of the trial. The mock jurors are not a cross-section of the population but are selected based on the issues of the case and the characteristics of the lawyer(s). For example, young and educated women with a perception of empowerment are used to evaluate crimes against women and children. Don't use friends or employees to act as mock jurors because of their biases and lack of ability to be objective in most situations. Articulate strangers with backbone make for good mock jurors. Some lawyers report that they find this method humbling. It is always surprising and enlightening to hear what the mock jurors have to say about you and your client and what questions they have about the case.

Surveys. The survey method has been used extensively by lawyers in death penalty cases. It involves measuring the attitudes of a cross section of the population about the issues in a specific case. Most surveys are conducted by telephone. If funding is too limited for a broad, complete survey of the geographic area, a pilot study, which surveys a more limited sample, may be done. The approach is very useful, although the results are exploratory rather than definitive. In a pilot study of the death penalty, one woman was asked at what age the death penalty should be imposed. She answered, "eight!" Another person was asked why he believed in the death penalty. He said that it was because he believed in God. According to his way of thinking, if he imposed the death penalty on someone who was "guilty" then "the criminal would get what he deserved." If the defendant was not guilty, he would just die and God would take him to heaven. Better insight of the thought process can sometimes be gained by this method than in individual sequestered voir dire. This method is useful for lawyers and trial consultants doing cases in geographic areas they are not familiar with. It helps accustom the attorney to the manners and tone of voice of jurors in unfamiliar jurisdictions to better understand the meaning of their statements. The pilot study method is often used by researchers to develop intuitiveness and gain new insights which can be useful for the trial. Telephone surveys are less expensive than face-to-face interviews. I urge lawyers to conduct several of the interviews themselves to see how valuable this method is.

The Questionnaire. Another effective approach to jury selection is the use of the questionnaire. Model your questionnaires after high-quality questionnaires developed by lawyers and jury consultants who have had the resources to develop those instruments. These existing questionnaires are borne out of compromises made between the defense attorneys and prosecutors, so don't just start with a questionnaire borne out of compromise. Some of the more valid and reliable questions are often still protested, especially in locations where questionnaires have not been used extensively. Modifications need to be made for use in different regions of the country. If questionnaires have been used extensively, it is important to continuously improve the quality as prosecutors gain familiarity with them and become more sophisticated in dealing with and utilizing them.

The best questionnaires include questions which were developed from national studies in the social sciences for revealing attitudes toward race, the death penalty, rape, child sexual abuse, police brutality, the battered woman syndrome and white collar offenses. If a relevant national survey were conducted, the questions would be suitable for all parts of the country, although certain attitudes of the jurors may vary by proportion considerably. Novel and more powerful questions will give you an advantage because the prosecutors will not have developed counter-tactics to them. Judges are less likely to ask the lawyers to move along if the lawyers do not repeat the same questions. The judges are more likely to grant a challenge for cause when a juror commits a bold prejudicial response in writing.

Review of Prior Studies. Many studies have been conducted on a very wide range of topics. These studies do not fit all of the issues of your case, but are invaluable if sufficient funds for original research are not available. Reading the research in these areas helps lawyers avoid the errors that result from relying on intuition alone. Just as critical to your cases as reading the law is reading the studies for jury selection. Since the law tries to find solutions to social problems, often others have studied attitudes toward these problems and have implemented solutions to those problems which courts may consider in voir dire, evidence, jury instructions, objections to testimony, and sentencing.

In particular, many social scientists have conducted studies regarding racial issues. Because of the devastating impact on minority clients, racial attitudes are critical. During and after World War II, many social scientists had extreme concerns about the nature of racism and the personality characteristics of those willing to impose punishment without thought or remorse, particularly on those of another race or those in a lower social stratum. Methods to better measure the changing and pernicious nature of racism are continuously being developed, especially since the public is more and more reluctant to overtly express prejudice. Learning the causes and correlates of the authoritarian personality lends insight into which jurors are predisposed to prejudicial biases and attitudes. Finding ways to persuading someone with prejudices against your client is necessary when all bias cannot be eliminated from the panel.

Video Reviews. Video reviews can be used to improve an attorney's jury selection skills. See Neiders, Inese, Marketing the Truth, (ATLA paper, Tuscaloosa, AL 1993). Prior to trial, lawyers practice parts of the trial, like jury selection, record them on videotape, and obtain feedback. Trial consultants can help improve the presentations by suggesting and coaching ways of making them more clear and powerful. If trial consultants are not available, feedback can be obtained from "mock jury pools" or colleagues, or the lawyer can do a self assessment.

Trial Observation. Trial lawyers and consultants suggest that lawyers observe trials in their vicinity, the surrounding areas, and at the national level when possible. It is imperative that criminal defense lawyers observe the top national attorneys. It is always helpful to see your opponent and evaluate his or her work. Most criminal defense attorneys are near the court. This affords the defense attorney the opportunity to observe their potential opponents. If you ever need co-counsel on a case, you may want to observe that person in court first. While observing trial attorneys, you can see if other attorneys are getting more rights for their clients. If they are getting more extensive jury selection, then you need to ask for more, particularly if your client is accused of a felony with a longer or mandatory sentence or faces the death penalty. If others are getting supplementary questionnaires or individual sequestered voir dire, there is no justifiable reason for you to be permitted any less in your case.

Conclusion. Whenever possible, obtain the higher-cost, higher-quality jury selection work. With a tight budget, these suggestions can make your work the highest quality possible. Just as lawyers have a policy to provide good services to a wider range of clients, trial consultants have reasonably prices and quality methods for jury selection. Telephone consultation can help defray cost. Ample time is needed to consider the problem carefully.

Dr. Inese A. Neiders
P.O. Box 14736
Columbus, Ohio 43214
Tel: (614) 263-7558

I would like to thank attorney Dale M. Musilli and Rolands Dartaus for editing this article.

Dr. Inese A. Neiders is a jury and trial consultant from Columbus, Ohio. She has been successful in defending death penalty, white collar, drug conspiracy, child sex, policy brutality, and a wide range of civil cases. She obtained her Ph.D. from Ohio State University and her J.D. from Case Western reserve University.

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