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Empirical Approaches to Jury Selection

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					                                                            Jurors CAN Be Selected     1




                                  Jurors CAN Be Selected:

         Non information, Misinformation and Their Strategic Uses for Jury Selection




                           Deborah Davis and William C. Follette

                            Sierra Trial and Opinion Consultants;

                     Psychology Department, University of Nevada, Reno




IN PRESS:



In W. T. O’Donohue, P. R. Laws, & C. Hollin (Eds.), Handbook of forensic psychology. New

York: Basic Books.
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                             “The verdict is in when the jury’s selected”

                                     Trial Attorneys Everywhere

         Trial attorneys enter the first day of trial facing a jury panel of strangers who hold in their

hands not only the fate of the attorney’s client, but also potentially the attorney’s own job,

reputation and/or financial outcomes up to millions of dollars. Somehow, the attorney must

diagnose who among these strangers will fulfill their dreams and who will devastate their hopes.

Yet, even those who successfully diagnose jurors’ favorability cannot then select the jurors they

want (conventional wisdom dictates)—they can only deselect the worst of the lot.

         Our purpose in this chapter is to show that this convention assumption of attorneys and

trial consultants alike is literally, but not functionally, true. The attorney and his/her trial team

can exert much more control over the jury selection process than conventionally assumed.

Through proper use of both his/her own scientific jury research and science based jury selection

strategy and the opposition’s mistaken assumptions, stereotypes and pseudoscientific aids the

attorney can not only deselect jurors through preemptory challenge, (s)he can also significantly

increase the odds that favorable jurors will go unchallenged—in a way selecting those (s)he

wants.

                              Science and Non-science In Jury Selection

         The importance of trial outcomes, in combination with high uncertainty in how to

diagnose individual juror biases and verdict leanings, has led attorneys to seek aid from sources

ranging from professional lore, psychics, private investigators, and graphologists to modern

scientific jury selection services. The uninformed attorney may be easily misled by unfounded

predictions of juror behavior. In fact, however, with carefully crafted strategy all of these sources

can be used to the attorney’s advantage—albeit somewhat differently than one might expect.
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This chapter will explicate the manner in which both scientific and nonscientific diagnostic

criteria may be used to help the attorney actually seat the most desirable jury. That is, we will

show how the skillful trial consultant can use scientific jury selection processes to diagnose juror

favorability, and nonscientific intuition, professional lore and other nonscientific sources to

misdirect opposing attorneys such that they will tend to use their own preemptory challenges to

their own disadvantage. In fact, we will show that the common reminder that one cannot select a

jury—only deselect individual jurors—is an exaggeration. In fact, science based strategy in voir

dire can—at a minimum—increase the odds that particular prospective jurors will be seated on

the trial jury.

        We will begin the chapter with a review of scientific jury research procedures, with

emphasis on those designed to develop accurate diagnostic criteria for juror favorability (i.e.,

those designed to identify juror attitudes, experiences, and demographic characteristics that

actually predict verdict/damage/sentencing decisions). We will then turn to consideration of how

this information may be used, in combination with non-information (i.e., juror characteristics and

behaviors during voir dire that are NOT actually diagnostic, but are likely to be thought

diagnostic by one’s opponent) and misinformation (i.e., characteristics and behaviors that ARE

actually diagnostic, but in the opposite direction than one’s opponent will likely expect), to

produce the best outcome (i.e., the most favorable seated jury) during voir dire. That is, we will

show how the traditional services of trial consultants to aid identification of jurors for challenge

can be expanded to offer voir dire strategy designed to protect desirable prospective jurors from

challenge, and seat them on the trial jury.

                                 Uses of Scientific Jury Research
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        Scientific jury research is employed for three general purposes: (a) to evaluate an existing

jury venue (eligible jurors in the community) or venire (pool of potential jurors from which the

specific trial jury is selected) as a whole, (b) to aid in selection of the trial jury, and (c) to adjust

trial strategy to fit the seated jury. Evaluation of the jury venue or venire is typically done either

in cases involving extensive pretrial publicity, (to evaluate the necessity of a change of venue);

or in cases involving racial issues (to evaluate whether the racial composition of the trial jury

pool or venire is representative of the community, and perhaps aid in a composition challenge).

Jury selection research is done for the more familiar purpose of facilitation of selection of the

most favorable trial jury. Finally, in addition to its uses for case evaluation and general strategy

development, mock jury or trial simulation research is done in part to identify the differential

persuasiveness of alternative themes, analogies, trial stories, analytical versus emotional

arguments, and so on to categories of jurors. Once the jury is seated, the attorney may use this

information to adjust the presentation of the case to fit what has been determined as maximally

persuasive to the predominant juror type or to the jurors expected to be most influential. We will

discuss these techniques in the order in which they most typically arise, with primary emphasis

on the jury selection procedures, and voir dire strategy for actually seating the most desirable

jury. In each case, we will describe the relevant purposes and general procedures, and refer the

reader to sources of more detailed procedural guidelines.

        Generally, however, the reader is referred to the recently published Handbook of Jury

Research (Abbott & Batt, 1999), and to the American Society of Trial Consultants, which

maintains archives of articles, technological manuals, example questionnaires, etc., written by

members. These materials cover a large variety of subjects and types of trials, and can be very
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helpful to those assisting with a particular procedure or case type for the first time. The annual

meetings also provide useful instruction and updates in most areas of trial consulting.

                               Evaluation/Selection of the Jury Pool

       Jury consultants are often engaged well before trial to evaluate the jury pool, for one of

two purposes—either to support remedies for pretrial publicity (such as a change of venue

(location) for the trial), or to support a composition challenge (a challenge to the

racial/demographic composition of the venire). In effect, the trial consultant is asked to aid with

determination of the entire jury venue or venire, prior to selection of individual jurors.

                                  Remedies for Pretrial Publicity

       An extensive scientific literature has documented adverse effects of pre-trial publicity on

juror decision making (Linz & Penrod, 1992; Ogloff & Vidmar, 1994; Otto, Penrod & Dexter,

1994; Studebaker & Penrod, 1997). In the case of criminal trials, for example, there is a

significant association between guilty verdicts and the amount of evidence known to jurors prior

to trial. The pre-trial information appears both to provide extensive facts (or alleged facts)

supporting the assumption of guilt, and to set up initial schemas, trial stories and/or attitudes

toward the defendant through which new information is filtered. Thus, such predetermined

opinions are not readily overcome by remedies during jury selection, or by trial presentations,

and serve the further biasing purpose of providing ammunition for persuasion of other

(unexposed) jurors during deliberation. Further, jurors are unable to identify and accurately

report their biases, making their representations regarding impartiality during voir dire

unreliable. Trial consultants may be asked to aid with two kinds of remedies for this situation.

       First, in recognition of the biasing effects of pretrial publicity, the trial judge may grant a

“change of venue”, moving the trial to a location less blanketed with trial relevant publicity. The
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trial consultant may be asked to conduct a change of venue survey, the purpose of which is to

document the extent of awareness within the community of case parties and facts, and bias

toward the defendant. The purpose of such a survey is to evaluate/support the attorney’s

argument that a fair trial in the existing venue is unlikely, particularly in relation to alternative

venues. Successful change of venue research will typically survey residents of the home venue

and several other locations in order to demonstrate both that substantial awareness/prejudice

exists in the home venue and that less awareness/prejudice exists in alternate locations, varying

as a function of their distance from the home venue.

        Questions in the change of venue survey first screen participants for jury eligibility (to

include only members of the pertinent jury venue(s)). They then proceed from questions

assessing general knowledge of crimes (civil cases) in the community by way of relatively open

ended questions, and proceed through general, open-ended questions concerning the case and

parties at hand, to increasingly closed format, specific, and leading questions. These are intended

to assess both the ease with which a case and case relevant information comes to mind, and the

extent of case relevant knowledge. This section should include assessment of knowledge of

evidence that would be inadmissible in trial (which is deemed particularly damaging by the

courts). The case relevant questions end with assessment of the case, including the respondent’s

assessment of the strength of evidence favoring one or both sides, and their probable verdict or

damage decisions.

        Finally, questions are included that may be useful for jury selection. Generally, profiling

questions are discussed below in the profiling section. Such questions are included in a change of

venue survey to essentially “profile” jurors who are most likely to have been exposed to the

pretrial publicity. These include questions regarding where the person heard about the case (TV,
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newspapers, friend & neighbors, etc.—and the reading/viewing and other habits that tend to be

associated with exposure to the publicity). For detailed explication of pertinent survey methods

see the following (Abbott & Batt, 1999; Abbott, Hall., & Linville, 1993; Nietzel & Dillehay,

1986; Nietzel, Dillehay, & Abbott, 1999; Starr & McCormick, 1986).

       Secondary uses of change of venue research. In the event attempts to obtain a change of

venue fail, the trial consultant may work with the attorney to better evaluate the degree of bias

(due to pretrial publicity) in venire members. This is done through development of

supplementary questions for extended voir dire, which are designed to examine current

knowledge and attitudes regarding the case among members of the jury venire. Such questions

attempt to assess potential for juror bias by asking directly about venire members’ media habits

and familiarity with key persons in the case; and by asking open ended questions regarding what

jurors may know of the case at hand (including statements by the attorneys, reports of physical

evidence, confessions, prior criminal records of the parties, results of lie detector tests or

evidence pertinent to high profile civil litigation). Information acquired through such extended

voir dire questions may be used to establish the basis of challenges for cause, or for the

attorney’s choice of preemptory challenges.

       Judges will not uniformly or automatically allow extended voir dire, even where

extensive pretrial publicity is well documented. However, change of venue research—even when

not successful in leading to a change of venue—may often be used to support arguments in favor

of extended voir dire. Although not the intended use, this secondary benefit of change of venue

research is useful, in that research has shown a positive relationship between extended forms of

voir dire, and successful challenges of biased venire members (e.g., Nietzel, & Dillehay, 1982).
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         Further, in some cases, where change of venue research and/or supplemental questions to

the trial venire show extensive awareness of the case among the venire, demonstration of this

potential for bias can support motions for other remedies. Continuances, for example, have been

shown to attenuate factual, but not emotional, pretrial publicity (e.g., Otto, Penrod & Dexter,

1994).

         Finally, in the event that all motions have failed (and the trial attorney must try the case

in the home venue, with no continuance, and without extended voir dire), the results of the

change of venue survey may be used to create a “profile” of jurors most likely to be biased by

pretrial publicity. This profile would consist of those respondent characteristics shown by the

survey to correlate with the degree of case relevant knowledge and verdict bias, and may be used

as one basis for preemptory challenges during voir dire.

                                       Composition Challenge

         In the event the entire venue (the jurors selected by the jury commissioner to serve as the

pool for all trials) and/or the specific venire (panel selected from the pool from which the case

specific jurors are further selected) appear conspicuously discrepant from the ethnic composition

of the community, the composition of the array of jurors may be challenged. This kind of

challenge is infrequent, and varies widely by region. However, if the attorney believes a

defendant’s fifth and sixth amendment rights (currently interpreted by the courts to mean the

right to a jury that does not systematically exclude any cognizable group--see Weeks, 1999) are

violated by significant under-representation or exclusion of specific demographic groups (most

often racial), (s)he may submit a motion to quash the jury venire.

         The jury consultant may aid in this process by providing an empirical comparison of the

demographics of the jury venue or venire and those of the community from which they are
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drawn. Support for the attorney’s motion will depend upon the extent to which discrepancies are

large and statistically significant. An excellent and detailed analysis of the mechanisms through

which nonwhite racial groups tend to be excluded from jury service is provided by Fukurai,

Butler and Krooth (1993). Statistical reasoning and tests on which to base composition

challenges are provided by demographer John Weeks (1999).

                      Diagnostic Profiling: Identifying (Un)desirable Jurors

       Once the trial venue is determined, the attorney and trial consultant next attempt to

develop a “profile” of desirable and undesirable jurors. This is done in a series of steps, typically

by use of both scientific and nonscientific methods.

                                Developing “Working Hypotheses”

   The first step is to formulate “working hypotheses” regarding which juror characteristics

might be expected to predict verdict decisions. Typically this is done in strategic sessions

between attorneys and trial consultants, in which they consider the potential impact of

demographic characteristics, and case relevant attitudes and experiences. Hypotheses regarding

how these variables may relate to verdicts are based on the trial experience of each, intuition, and

examination of available scientific literature regarding predictive characteristics for the type of

case at hand.

   For an interesting discussion of common “old wives tales” regarding jurors, see Hastie,

Penrod & Pennington (1983) or Fulero and Penrod (1990), who have catalogued some of the

common stereotypes of “good” and “bad” jurors among attorneys. Most of these, the average

trial consultant has repeatedly encountered among their own clients’ contributions to the working

hypotheses.
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   The scientific literature has provided some guidance for both criminal and civil cases in

general, and for some specific case types within each (e.g., Cutler, 1990; Fulero & Penrod, 1990;

Goodman, Loftus, & Greene, 1990; Penrod, 1990). Two characteristics, for example, have been

shown to affect verdicts in a variety of criminal trials. Both authoritarianism (see for example,

Batt, 1999; Dillehay, 1999; Narby, Cutler, & Moran, 1993; Peterson, Doty, & Winter, 1993) and

“death qualification” (e.g., Allen, Mabry & McKelton, 1998; Ellsworth, 1991; Nietzel, McCarthy

& Kerr, 1999; Hans, 1988) have been associated with anti-defendant attitudes, greater tendency

toward prosecution verdicts, and harsh sentencing. “Legal authoritarianism” (Kravitz, Cutler, &

Brock, 1993), a measure of authoritarianism specific to the legal system may be more valuable to

those constructing jury questionnaires, as the items obviously pertain to the legal system, and

may be more easily justified to the judge for voir dire or supplemental juror questionnaires (see

below). Due process orientation has also shown potential for use in criminal cases, particularly

those involving the death penalty, minority defendants and procedural violations/protections

(e.g., Fitzgerald & Ellsworth, 1984; Liu & Shure, 1993), including issues of entrapment (Davis&

Lewis, 2000).

   Other bodies of literature have identified characteristics associated with case relevant

attitudes and verdicts in specific areas such as rape (e.g., Allison & Wrightsman, 1993; Olsen-

Fulero & Fulero, 1997; Ward, 1995), sex abuse (e.g., Vidmar, 1997), sexual harassment (e.g.,

Wiener, Hurt, Russell, Mannen, & Gasper, 1997) or entrapment (e.g., Davis & Lewis, 2000).

Considerably less data has amassed for the civil arena. However, Abbott (1987; 1999a,b) has

provided evidence of the role of several demographic variables, and “economic conservatism”.
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                               Empirical Development of the Profiles

   Once the set of working hypotheses are developed, several forms of empirical jury research

may be performed to establish which among the proposed variables are actually predictive of

verdicts (and secondarily, of reactions to specific arguments, parties, or case facts). The first step

for each of them is to develop a “profiling questionnaire” (or a “profiling section” of a larger

survey) containing questions to assess the demographic, attitudinal and experiential variables

hypothesized to relate to verdicts.

   Developing the “Jury Profiling Questionnaire”

   Most jury consultants have a standard set of questions regarding demographics and general

attitudes toward civil or criminal cases that forms the standardized beginning of their case

specific questionnaires. Both standard questionnaires and case type specific questionnaires are

available from the archives of the American Society of Trial Consultants. (see also Abbott,

1999b; and Starr, 1996 for suggestions for standard juror profiling questions.)

   Demographic questions. The demographic section of the questionnaires contain variables

such as age, race, sex, income, profession, marital status, family variables (number and age of

children, living at home or not, etc.), education, rural vs. central city residence, etc. These

questions may request both current (e.g., current residence) and historical (where the person

grew up) information. This section of the questionnaire will typically contain mostly standard

questions, which may be supplemented if more detailed demographics (for example, family

constellation or work history) seem pertinent. For reviews of the impact of pertinent

demographics, see Bothwell (1999), Golash (1992) or Simon (1999) on race; Dillehay & Nietzel

(1999) on prior jury service, Rothman, Dunlop & Rambali (1999) on age, Simon (1999) on
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gender, and Wrightsman, Nietzel & Fortune (1998, Chapter 14) for a discussion of a variety of

other characteristics.

   Case-relevant attitudes. The attitudinal sections of the questionnaires assess both attitudes

considered generally relevant to either the civil (attitudes toward corporations, attitudes toward

lawsuits or verdict size, etc.) or criminal (i.e., authoritarianism, due process versus crime control

orientation, death qualification) arenas; and those hypothesized to be relevant to the case at hand

(such as those toward medicine, doctors, health behavior etc., for a medical malpractice case).

   Walter Abbott (1987, 1999a, b) has developed standardized demographic and attitudinal

questions termed “The analytic juror rater”, which he suggests is predictive for a variety of

criminal and civil cases. It includes demographic questions, and attitudinal questions to assess

“authoritarianism”, “corporatism” (economic conservatism), “cosmopolitanism”, “tolerance”,

“anomia” and “wordpower”. He offers suggestions concerning the use of the “analytic juror

rater” for profiling and selection during voir dire. Among these, he considers authoritarianism,

economic conservatism, and racial tolerance key to verdict prediction across a wide variety of

cases. He offers published juror ratings, available to those who cannot afford to do case specific

jury research. These should be used with some caution, however, as they are not necessarily

predictive for the case at hand.

   Case-relevant experiences. The third category of questions to be included in the profiling

questionnaires are case relevant experiences. These should include knowledge (or self-perceived

knowledge) level regarding technology, skills, experiences at issue, training that may predict

relevant knowledge, relatives in related professions (for example, doctors’ families when the

case involves a claim of malpractice), and direct personal experience (and those of close friends
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or family) with relevant events, technologies, professions, etc. (including those that affect either

case relevant knowledge, or attitudes).

   Case relevant habits or personality. Finally, many trial consultants and/or attorneys include

questions regarding personal habits that are assumed to indirectly assess attitudes, knowledge,

leadership potential, or relevant personality characteristics; often such behaviors as hobbies,

memberships in various political, social, or fraternal organizations, and reading and

movie/television viewing habits, (including amounts and selection (e.g., Are they Rush

Limbaugh fans?)). They may also include questions regarding distant personal history—such as

where they grew up, what their parents did for a living, details about brothers, sisters and other

family members, and so on.

   These questions will be intended to indirectly assess attitudes, values and personality

characteristics the trial team expects to be crucial to the case (or generally to a specific case

type). For example, Jo-Ellan Dimitrius (the consultant many will recognize as having working on

the O. J. Simpson case), looks in responses to these questions (and others) for evidence of three

characteristics she considers vitally important—compassion, socioeconomic background, and

satisfaction with life (Dimitrius & Mazzarella, 1998).

   There is also growing awareness of the importance of the fit between “affective” versus

“cognitive” individual processing styles, affectively based versus cognitively based attitudes, and

the advantage of tailoring affectively based arguments to affective processors or affectively

based attitudes, and cognitively based arguments to cognitive processors or cognitively based

attitudes (e.g., Fabrigar & Petty, 1999; Rusting & Larsen, 1998).
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   Testing the Profile

       Once developed, juror profiles may be tested by presentation of the case to jury eligible

adults who have responded to the profiling questions. Reactions to the case facts, parties and

witnesses, and verdict/sentencing/damage decisions are analyzed for statistically significant

associations with profile questions. Two general techniques for testing the profile are commonly

employed: the community survey and the trial simulation/mock jury. These general techniques

vary in (a) whether conducted over the phone or in person, (b) the detail of case presentation, and

(c) sample size. Generally, there is a trade-off between sample size (and thus statistical power in

testing the profile) and detail/realism of case presentation (and thus, the validity of results).

Detailed critical and instructional discussions of both methods and appropriate statistical

analyses may be found in Abbott & Batt (1999) or Starr & McCormick (1985).

       The Community Survey. For the community survey, a large sample of community

residents is interviewed by telephone. Respondents listen to a brief synopsis of the case, and then

respond to a series of questions eliciting their opinions concerning the primary issues, parties and

evidence of the case, likely verdict/damage/sentencing decisions, and the reasons for these

opinions/decisions. Finally, they respond to the profiling questions. The strength of the

community survey lies in numbers. Hundreds of participants may be interviewed by phone for

the same or lesser cost than that of a mock jury involving 30-40 participants.

       However, the disadvantage of community research lies in the tradeoff between sample

size and the quality of the case presentation, and the implications for validity of the results. The

well known warning that “the devil is in the details” is clearly reflected in the fact that more

detailed case presentations lead to more predictive (valid) results—both with respect to profiling
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and to predicting verdicts. Thus, it is our view that the community attitude survey is most useful

under two circumstances.

        First, when the nature and facts of the case are extremely simple (i.e., when there is little

detail to be lost by a brief presentation), predictive validity will more closely approximate that of

a more comprehensive case presentation. Thus, the power gained by larger sample size may well

outweigh the less comprehensive presentation.

        Second, the community survey may be restructured such that it profiles those likely to

have favorable or unfavorable case relevant attitudes, knowledge or experience, instead of those

likely to favor a particular verdict/damage decision. The survey, in this case, would not include

presentation of the case or questions regarding reactions to the case, and instead would include

assessment of attitudes believed to predict case reactions. This is particularly useful where

attitudes, knowledge or experiences related to verdicts have already been identified (through

existing literature or mock jury research, for example). The community survey would then be

conducted to try to identify demographic characteristics (or other characteristics of members of

the trial venire likely to be visible/accessible to the trial team) that are associated with verdict

relevant attitudes. Although indirect, this strategy avoids the problems associated with invalid

results due to inadequate case presentation.

        The Trial Simulation/Mock Jury. In a full trial simulation, surrogate jurors witness an

event that resembles the expected trial procedures as closely as possible, including as many of

the actual attorneys and witnesses for the case (or video tapes of them) as possible, and actor

stand ins for unavailable parties (such as the opposing attorneys), voir dire, opening and closings,

and judicial instructions. Less complete simulations leave out some or most of these. Perhaps the

most common version restricts the presentation to an argument (an amalgamation of opening and
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closing) for each side. The results of trial simulations are broadly useful for both jury selection

and trial strategy. For a discussion of these uses see, for example, Abbott & Batt (1999), Davis

(1989), Bennett, Hirschhom, & Dimitrius (1995), Starr & McCormick (1985), Vinson (1986).

        Uses of the trial simulation for jury selection lie in the relationships between juror

characteristics assessed in the “profiling questionnaire” and various case reactions. Surrogate

jurors fill out jury profiling questionnaires prior to the case presentations and individual case

reaction/verdict questionnaires afterward; and finally deliberate in groups to a verdict. More

technologically sophisticated procedures also include computer coded continuous reactions from

jurors during the presentation, which are amalgamated to track the overall sentiment of the jurors

moment by moment.

        Data analyses then associate individual juror characteristics (or constellations of

characteristics) with a range of variables—including pre and post-deliberation verdict/damage

decisions, and reactions to individual parties or witnesses, and specific evidence or arguments.

        In some cases (with more substantial resources), two or more versions of the presentation

may be included, to test both which strategy is more successful overall, and to examine the

interaction of strategy with juror characteristics (to see which strategy is most successful with

which groups of jurors). The latter results become useful once the jury is seated, such that

strategy may be tailored to the characteristics of the seated jury (or to the most probably

influential seated jurors).

                         Getting the Jurors You Want: The “DIPP” Method

        Once the profiling results are in, and the trial team has determined which kinds of jurors

they do and do not want, attention must turn to the twin goals of (a) collecting diagnostic

information on the jury venire members, and (b) executing voir dire strategy that will both
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exclude undesirable jurors from the final seated jury, and retain desirable jurors. Since one is not

allowed to select jurors, but only to challenge (deselect) them, traditional approaches to jury

selection have focused on identification and challenge of undesirable jurors—assuming that there

is no effective strategy for retaining those that are desirable.

        Davis (1996) described a means to accomplish both goals--what she called the “DIPP”

strategy for voir dire. The acronym refers to four central functions served by voir dire: (1)

Diagnosis of juror favorability, (2) Ingratiation of the attorney and client to the jury, (3)

Persuasion (creating favorable disposition toward your side of the case, setting up schemas and

trial story structures for further favorable processing of arguments and evidence, etc.), and (4)

Procuring desirable jurors (i.e., challenging effectively, and protecting favorable jurors from

opposition challenge). As we will shortly demonstrate, the diagnostic, persuasive, and procuring

functions are all central to the process of jury selection, whereas ingratiation and persuasion are

intended to facilitate eventual favorable verdict decisions.

        Davis (1996) further described the strategic use of misdirection, misinformation, and non

information to accomplish these strategic goals. It is in our review and elaboration of this

strategy of misdirection that we will fulfill our promise to show how the skillful trial team can

use scientific jury selection processes to diagnose juror favorability, and (through the use of

science based strategy) to take advantage of nonscientific intuition, professional lore and other

nonscientific sources (i.e., non information and misinformation) to misdirect opposing attorneys

such that they will tend to use their own preemptory challenges to their own disadvantage—and

thereby help the trial team to actually get (procure/select) the jurors it wants.

        We will illustrate the DIPP method (excluding the Ingratiation function) and associated

strategic misdirection in the sections below. However, we will first define three important terms.
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First, diagnostic criteria refer to those juror characteristics that have been empirically linked

(either through existing scientific literature or through the trial team’s case specific profiling

research) to verdicts.

       Second, nondiagnostic criteria (also referred to as “non information”) refer to those that

are NOT empirically linked to verdicts. These fall into two categories. First, non diagnostic

criteria may be identified through jury profiling research. That is, they are criteria included in the

profiling research questionnaire, but found to have no significant relationship with verdict

decisions. Our own experience with profiling research is that of all the juror characteristics

anticipated by the trial team to predict verdicts, MANY more are actually non diagnostic than

diagnostic. Thus, there are always a number of non diagnostic profiling criteria that may be used

for strategic misdirection.

       Non diagnostic criteria may also include attitudes expressed during voir dire in response

to persuasive or coercive questions from attorneys or the judge. These, and the rationale for their

non diagnosticity, will be discussed further in the voir dire section below.

       Finally, reverse diagnostic criteria (also referred to as “misinformation”) refer to those

that ARE empirically linked to verdicts, but in a manner opposite to that expected. In other

words, these are criteria for which intuition, folk lore, and in some cases even some scientific

literature would have suggested a particular link to verdict decisions. However, a significant

relationship was obtained in the jury profiling research—but in the exact opposite of the

expected direction. Reverse diagnostic criteria have appeared less frequently (in our experience)

than non diagnostic criteria, but are exceptionally useful when they do.

       Our proposed methods of strategic misdirection rely on the proposition that the average

trial attorney (in the absence of concrete knowledge/jury profiling research results to the
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contrary) will typically rely on intuitively plausible, but factually incorrect (either non diagnostic

or reverse diagnostic) criteria for diagnosis of juror favorability. These may include intuition,

folklore, unreliable techniques such as graphology, and so on. The trial team may take advantage

of this tendency through apparent emphasis on these non or reverse diagnostic criteria (which

will tend to make them salient to (and thus more likely to be used by) the opposition). To the

extent opposing attorneys employ non diagnostic criteria, their challenges will be at best

ineffective. If they use reverse diagnostic criteria, their challenges will be counterproductive.

Either ineffective or counterproductive opposition challenges are advantageous to the trial team,

however.

                                       I: Pre-Trial Diagnosis

       Diagnosis of juror favorability occurs in several stages before and during trial. Prior to

trial, the trial team may have access to the following information regarding individual

prospective jurors: (a) standard jury questionnaires (those filled out by venire members for all

cases in that jurisdiction), (b) supplemental jury questionnaires (detailed, case specific

questionnaires designed by one or both trial teams), (c) investigative reports of detectives, or (d)

a “network analysis” (Bonora & Krauss, 1979) using community contacts to gain personal

knowledge of the prospective jurors. Each of these provides information that may be compared

to the profiles developed from profiling research as a basis for favorability ratings of each

prospective juror.

       The final diagnostic stage occurs during voir dire, when the judge and attorneys question

the individual jurors either individually or in open court. At this stage, the trial team may attempt

to further assess juror favorability by questions following up on information obtained in the pre-

trial phase, and by observation of non verbal responses. Where little or no pre-trial information is
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available, the attorney will have to question the individual jurors as thoroughly as the judge

permits (addressing as many diagnostic criteria as possible).

        In the sections that follow, we will briefly review the pretrial diagnostic tools, and then

move on to focus more extensively on voir dire. In each case, we will point to the potential for

strategic use of misdirection.

        Standard and Supplemental Juror Questionnaires

        Prior to trial, jurors fill out standard jury questionnaires in which they provide a few,

primarily demographic, family and litigation history self descriptors. A supplemental juror

questionnaire refers essentially to a profiling questionnaire (in that it contains essentially the

same categories of questions, both general and case specific, typically included in profiling

research). However, it is given to the actual jurors before trial (or in court before the trial begins).

Judges will tend to allow such questionnaires in cases where lengthy voir dire is anticipated, or

those with limited or no attorney conducted voir dire, those where large numbers of jurors will

have to be questioned in order to pass enough for cause to try the case, and in those involving

sensitive (potentially personally embarrassing) issues, extensive pretrial publicity, well-known

parties, heinous crimes, or highly charged issues. In such cases, the judge will allow the

supplemental questionnaire to save time during voir dire, and/or to facilitate honesty from (and

avoid contamination between) jurors. Diane Wiley (1999) of the National Jury Project has

provided an excellent summary of the nature and purpose of supplemental questionnaires, how to

convince a judge to allow them, and questionnaire design (including example questions for

specific case issues).

        Supplemental juror questionnaires are highly desirable for the trial team. They provide

much more extensive and sensitive assessment of diagnostic criteria developed in jury research
                                                              Jurors CAN Be Selected        21


than either standard questionnaires or questioning in open court. They are, in fact, the only

means by which each and every member of the venire can respond to the exact questions

included in the jury profiling research in exactly the same format—and thereby provide the

means to compare each juror directly to the desirable and undesirable profiles. Thus, the

supplemental questionnaire provides a crucial diagnostic tool for the trial team.

       Strategic Misdirection and the Supplemental Questionnaire. The supplemental

questionnaire provides the first opportunity for strategic misdirection through use of non-

information and misinformation. This is accomplished through deliberate inclusion of questions

the other trial team will likely believe to be diagnostic, but which your team has determined (in

its jury research) to actually be either non diagnostic or reverse diagnostic. This will be most

effective, of course, when the other team either has not done jury profiling research, or has done

it poorly. Unable to focus on truly diagnostic criteria when developing their ratings of the venire

members, the opposition’s judgment will be at least diluted by inclusion of “noise” from the non

diagnostic criteria, and perhaps led astray through focus on those that are reverse diagnostic.

   Jury Investigation and Network Analysis

   Jury investigation, by private investigator or by network analysis, have in common the fact

that they assess jurors by means other than self report. Further, both are able to assess

characteristics the judge may have excluded from supplemental questionnaires or from

questioning during voir dire. Whereas the judge will often restrict both supplemental

questionnaires and voir dire to questions that are apparently relevant to the case, the trial team’s

investigations are not restricted in this manner, and thereby provide an additional source of

information for comparison of individual jurors to the profiles.
                                                               Jurors CAN Be Selected         22


   Thus, the trial team may obtain information to verify and/or expand upon self-reports from

questionnaires and voir dire. The investigations may uncover dishonesty (for example, we have

not infrequently found venire members to fail to report criminal records, or involvement in

previous litigation, and to over-report income/education/ professional status, etc.). Reports from

the detectives or network analysis have also identified hobbies, group memberships, political

party membership, case relevant attitudes, and even conclusions formed on the basis of pre-trial

publicity. For an interesting (if horrifying) account of the potential excesses of these techniques

(and more generally of extreme abuse of trial tactics) see the account of the Cullen Davis murder

trials, Final Justice: The True Story of the Richest Man Ever Tried for Murder, by Steven Naifeh

and Gregory White Smith (1993).

   Comparing Jurors to Profiles: Rating the Jury Venire

   Once the trial team has gathered all available information prior to trial, the jury consultant

may provide desirability ratings for each venire member, based on comparison of data on that

juror to the profiles. These profile analyses/ratings should include not only an index of likely

favorability, but also an index of leadership potential and probable role in deliberations. It is

typical for trial consulting companies to provide ratings including indices of at least (1)

favorability (indicating probable verdict leaning and/or damage/sentencing decisions), (2)

leadership potential, and (3) an overall desirability rating, based on the combination of the

previous two. The most dangerous juror is one with negative verdict leanings and strong

leadership potential. Some include more indices, including such things as sympathy,

emotionality, authoritarianism, conservatism, and many others.

   Although used primarily for jury selection, juror ratings (along with others one may be asked

to provide – such as probable cognitive style) may also be valuable for trial strategy decisions.
                                                               Jurors CAN Be Selected       23


The common admonition to “Know Your Audience!!” cannot be overemphasized. The more one

knows about the specific individuals one must persuade, the more effectively they can be

persuaded.

                                      II. Diagnosis in Voir dire

       Recall, questions during voir dire serve the four functions of Diagnosis, Ingratiation,

Persuasion, and Procuring. Thus, it is crucial to voir dire strategy for the trial consultant and

attorney to clearly understand which kinds of questions and interaction with the jury serve which

function. Answers to persuasive questions, for example, are rarely diagnostic, and the trial team

must be careful not to consider them when diagnosing juror favorability.

       The trial consultant may assist the attorney in both (a) formulation of questions to serve

each function of voir dire, (b) determination of which questions to use on each individual venire

member, and (c) selection of jurors for preemptory challenge (the most common service). In the

sections below, we will discuss how to formulate questions to serve each of the four functions of

voir dire, and identify which questions are appropriate for which jurors.

       Developing Diagnostic Questions for Voir dire

       Diagnostic questions during voir dire fall into two categories: those asked of the entire

venire and those asked only of specific prospective jurors.

       Questions for the Entire Panel. It is vital to ask each and every juror questions during voir

dire. As most trial consultants will tell you, the most likely person to end up on the seated jury is

the person who has said nothing during voir dire. The person who says nothing scares no one

(assuming no negative pretrial information), and thus goes unchallenged. Thus, in the vast

majority of trials, the prospective jurors about which the attorneys know the least are those that
                                                                Jurors CAN Be Selected       24


end up deciding the case. Particularly when no pretrial investigations and no supplemental

questionnaires are available, the trial team must guard against this possibility.

        When no pretrial information is available (and to the extent the judge permits), voir dire

questions should include the same sorts recommended for jury profiling and supplemental

questionnaires. The attorney should take care to ask all jurors the same questions, to facilitate

comparisons between jurors.

        Where possible, diagnostic questions should be in open format: e.g., “Can you tell me

about…?”, “How do you feel about..?”, “You responded in your questionnaire that…?”, “Could

you tell me what you meant by…?”, “a little more about…?”. “ why you chose..?”, what you

were planning to..?”, etc. Much more can be learned about prospective jurors when they are

allowed and encouraged to talk freely about attitudes, experiences, feelings, behaviors, and so

on. Such open responses also provide more information regarding how jurors think and their

reactions to the attorney.

        Questions for Individual Jurors. Diagnostic questions may relate to something identified

in the particular juror’s questionnaire, or responses to previous questions. Again, even where

extensive pretrial information is available, it is desirable to hear jurors talk about their attitudes

and experiences in the open format illustrated above. The more the trial team can listen to the

jurors’ thoughts, feelings, and reasoning, the better judgments they can make of jurors’ potential

biases, information processing styles, and likely roles in group deliberations.

    Observation of Nonverbal Responses

    Most jury consultants recommend focus on the nonverbal behavior of venire members in

contexts ranging from waiting in the hallways, sitting in the “peanut gallery” when not yet in the

jury box for questioning, questioning during voir dire, and even after the case presentation has
                                                              Jurors CAN Be Selected       25


begun. During voir dire, it is desirable, where possible, to have one consultant focus on the

person being questioned, and another to focus on those not being questioned. Jurors’ nonverbal

responses while not the center of attention are often very revealing, as they are less careful to

control their responses.

    These observations are intended to assess such varied issues as potential relationships

between jurors (potential leadership roles, friendships, etc), reactions to attorneys and case

parties, personality characteristics, and deception. (see Starr & McCormick, 1987; Dimitrius &

Mazzarella, 1998 for specific suggestions for reading these variables from nonverbal behavior).

Caution is in order, however, as many of the common recommendations for reading personality,

attitudes, etc., from nonverbal cues are untested, and may be misleading to the trial team.

    The primacy of diagnosis. Diagnosis is first in voir dire, both in importance and in order. One

must first identify the jurors who will tend to favor and oppose one’s case before proceeding to

challenge those deemed unfavorable and protect those deemed favorable. Thus, when planning

voir dire the trial team must plan to diagnose first, and then proceed with persuasive/lure and

deflection questions designed to actually seat the jury it wants.

    Misdirection with Non and Reverse Diagnostic Questions

    Diagnostic questions during voir dire provide the second opportunity to misdirect the

opposition into counterproductive challenges. Just as questions regarding non diagnostic and

reverse diagnostic criteria are included in supplemental jury questionnaires in order to mislead

the opposition, they should also be included with other (actually diagnostic) questions in open

court. To the extent opposing attorneys have failed to do adequate profiling research, they will be

lured into challenges based on their (probably) inaccurate assumptions regarding the predictive

value of these criteria.
                                                              Jurors CAN Be Selected      26


                                    II. Persuasion During Voir dire

       The trial consultant may help the attorney to formulate persuasive questions and plan

their use for misdirection of the opposition. Persuasive questions during voir dire are

recommended for two purposes: (1) to indoctrinate the jury, or predispose them to favor one

side, and (2) to try to lure the opposition into challenging jurors who would actually tend to favor

their side of the case. In other words, persuasive questions may be used to lure the opposition

into challenging jurors the trial team would actually want to challenge itself (or who the team

considers undesirable, but does not expect to challenge because others must be challenged with

higher priority).

       This “lure” strategy relies once again on the power of “noninformation” to deceive, and

lure the opponent into useless or damaging challenges. This is true because jurors’ responses to

persuasive questions do not typically reflect attitudes predictive of verdict decisions, as we will

shortly explain.

       Attribution theorists have identified a number of common errors in understanding of the

causes of behaviors. Most prominent among them is the “fundamental attribution error” or the

“correspondence bias” (e.g., Jones & Harris, 1967; Humphrey, 1985; Ross, 1977), which refers

to the general failure to recognize the power of the situation to influence behavior. In other

words, in perceiving the cause of others’ behavior and explaining to ourselves why they behave

the way they do (and say the things they do), we tend to be “personality” psychologists. We

assume that people behave and say things in the manner they do because of the kinds of people

they are, rather than the kinds of situations they are in. We also suffer lack of awareness of

“perceiver induced constraint”—meaning our own influence on others, and the way we

“constrain” their behavior by our own actions.
                                                                Jurors CAN Be Selected       27


       In the courtroom setting, these errors of attribution cause attorneys and trial consultants to

overestimate the diagnostic value of juror responses to what are essentially coercive questions

that leave them few to no options of how to respond. Jurors are confronted with a number of

powerful situational constraints on their behavior. They are asked leading (“Do any of you feel

that…?”), and coercive (“Wouldn’t you agree with me that…?”, “Can you put aside that attitude

and follow the law the judge gives you?”) questions from the judge and attorneys that certainly

constrain the answers they can or will give. Jurors are strongly affected by what they think they

are supposed to say, or what they think the questioner wants to hear. These situational forces are

certain to compromise the diagnostic value of jurors’ expressions of attitudes and feelings. Yet,

just as certainly, those hearing them will be victims of the fundamental attribution error—and

tend to overestimate the correspondence between what jurors say in such powerfully constraining

circumstances, and what they truly feel.

       The Coercive Power of Persuasive Questions

       “Persuasive” or “indoctrinating” questions are designed to either make a particular point

or argument, to establish the elements of the attorney’s trial story, or to instantiate a particular

“schema” or structure for understanding and evaluating the case through which jurors will filter

and evaluate the evidence to come. However, persuasive questions tend to share common

features. Generally, whereas diagnostic questions should be structured much like direct

examination of witnesses (i.e., more open ended, and allowing the witness more flexibility in

response), good persuasive questions should be structured much like cross examination of

witnesses (i.e., closed format, and allowing the witness only one reasonable response). Since the

attorney asks the jurors persuasive, indoctrinating questions to help make particular points, (s)he

must ask them in such a way that the juror cannot help but provide a helpful answer. Once the
                                                               Jurors CAN Be Selected       28


attorney gets an initial answer in line with expectations, (s)he may ask the juror to explain why

(s)he answered as (s)he did, and thereby cause the juror to help the attorney argue the point.

Again, the juror is almost guaranteed to give a helpful explanation, because the questions are

structured so that reasonable people can answer only one way.

       For example, we worked on a case where a pilot who poorly maintained his plane, and

who had ample signs and warning that the left engine was compromised (difficult to start, and

leaking fluids), suffered an engine out on take-off. He crashed, killing his wife and seriously and

permanently injuring several passengers—and later sued the manufacturer of the airplane.

During voir dire, our client asked jurors a number of persuasive questions intended to lay the

fault at plaintiff’s door. He asked each juror about vehicles or equipment they might own. Then

when the juror identified something (their car, a tractor or large truck, lawnmowers, and so on),

he asked about what they would do if something appeared about to break—preferably something

that would be dangerous if it did. For example, several jurors were asked if they would continue

to drive a car if one of the tires appeared to be wobbling, or if the tire was threadbare and might

cause a blowout. If not, the juror was asked to explain why not. Then, (s)he was asked if (s)he

did drive and there was an accident, whose fault would that be, and why.

       Like all good persuasive lines of questions, these questions clearly conveyed the point to

jurors, with their full participation, but without allowing them any real freedom of response.

These and other effective persuasive questions constrain jurors’ responses to the point that they

offer no useful diagnostic indication of case relevant attitudes. However, given observer

susceptibility to the fundamental attribution error, responses to such coercive questions can

appear diagnostic. It is this mistake in inference that can be used to the trial team’s advantage in

voir dire. That is, by asking persuasive, indoctrinating questions that in effect force the juror to
                                                              Jurors CAN Be Selected       29


respond with answers that appear favorable to the trial team’s side of the case, the juror is made

to appear dangerous to the opposition (though they actually may or may not be). In this way, the

opposition can often be “lured” into challenging the wrong jurors—those your team finds

undesirable. To accomplish this goal, however, it is important to remember the following.

       Use persuasive-lure questions on jurors your team DOES NOT WANT. All jurors will

hear and be affected by the persuasive questions and their answers. However, because jurors who

respond to these questions will appear dangerous to the opposing attorney, they should be used

only on jurors your team wants him to challenge. Use of persuasive questions on jurors your

team wants risks luring the opposition into challenging them.

       Don’t be hoist by your own petard!! It is important to remember that your own team will

be susceptible to the fundamental attribution error as well, and to be aware of this potential to be

caught in your own trap. Jurors’ responses to persuasive (or any other coercive questions) are not

diagnostic. The trial team must remember that a good persuasive script is truly coercive and

constraining, leaving the juror few to no response options. If the trial team believes a juror is bad

before the persuasive questions, it should stick with that opinion. Diagnosis should occur before

the persuasive questions begin, and persuasive or deflecting questions (see below) should serve

strictly the persuasive or protection/procuring functions of voir dire.

                           III. Deflection: Keeping the Jurors you Want

   The opposition can simultaneously be lured into challenging jurors essentially for your trial

team, and deflected from challenging those the team wants to keep—thus serving the fourth

function of voir dire, procuring the jury you want. Both strategies rely on the fundamental

attribution error, and the tendency of observers to believe in the diagnostic significance of

coercive questions. The difference lies in the direction of the coercive questions.
                                                              Jurors CAN Be Selected        30


   In essence, in order to deflect the opposition from challenges of desirable jurors, one must

(mis)lead him/her to believe the jurors are good for him(her). As we will illustrate below, this is

most effectively accomplished through use of questions made to appear as if intended to discover

attitudes that might be unfavorable for your case. Clearly, one would not want to ask persuasive

questions against one’s own interests. However, it is perfectly appropriate to ask questions to

find out about (diagnose) unfavorable attitudes.

   To execute the deflection function, the trial team must first identify several areas in which a

number of jurors are likely to have attitudes that will appear unfavorable to its own side. Second,

the jury as a whole must be questioned to identify those who hold these attitudes. When a

desirable juror expresses an apparently undesirable attitude, he must be drawn out and led to

express that attitude fully. This should make the juror appear dangerous to your team (and

desirable to the other attorney), and protect the juror from challenge. Finally, once the

undesirable attitudes are fully expressed, other jurors who have expressed the same attitude (but

who your team does not want) must be asked persuasive/coercive questions designed to counter

the undesirable attitude. This should simultaneously (a) protect the desirable juror, (b) lure the

opponent into striking the undesirable juror, and (c) make your team’s persuasive point.

       For this strategy to be effective, however, the deflection questions must address truly non

diagnostic attitudes. For example, a plaintiff’s attorney might ask the question “Is there anyone

who believes there are too many lawsuits in this country?” Many, if not most, jurors will raise

their hands. We have found, in jury research across a number of cases, that this attitude does

NOT predict anti plaintiff bias. The same jurors who believe there are too many lawsuits, also

believe that people should have a right to sue, that there are many legitimate lawsuits, that

corporations should be held accountable, that if a person is genuinely injured through another’s
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wrongdoing, they should be compensated, and so on. However, skillful questioning can lead

such jurors to appear to have an anti plaintiff bias when none exists—and thus protect them from

defense challenges. Similarly, other jurors can be led to elaborate on the right to sue, corporate

responsibility, etc., thereby (a) arguing the plaintiff attorney’s case for him, (b) appearing to

possess an anti-defendant bias, and (c) increasing the odds of challenge from the defense. Used

skillfully together, persuasive and deflection questions can very effectively mislead the opposing

attorney to make challenges exactly opposite to those in his/her interest. For a more detailed

description of this strategy, see Davis (1996), who provided a script illustrating the

persuasive/lure and deflection process for civil lawsuits.

                                     Summary and Conclusions

        Traditional wisdom regarding jury selection, and the role of trial consultants in assisting

attorneys, has restrictively assumed that the trial team is limited to deselection of undesirable

jurors. This view is unnecessarily pessimistic. While it is true that one cannot ensure the

selection of any particular juror, it is also true that well-crafted strategy prior to and during voir

dire can significantly either increase or decrease the odds that a particular juror will be seated—

independently of one’s own preemptory challenges. The sophisticated trial team can, in effect,

increase the number of its own challenges (by luring the opposing attorney into

counterproductive challenges); and protect desirable jurors (by deflecting the opponent’s

challenges of these jurors)—all the while, indoctrinating and beginning to persuade the jurors.

        To understand and help the attorney to implement these strategies, the trial consultant

should be thoroughly familiar both with standard procedures for jury research, and with the

literatures (at least) on cognitive processing, persuasion, and jury behavior. Both diagnosis of

juror favorability and selection strategy should be firmly grounded in scientific findings—either
                                                             Jurors CAN Be Selected     32


existing literature or case-specific jury research. Guesses and assumptions regarding juror

favorability are too often completely inaccurate. In fact, our strategy recommendations depend

on it. Better to be the team working with real information rather than assumption, stereotypes,

superstition, and pseudoscience.

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