15 June 2009

Jury Selection Stereotypes

Few aspects of trial practice are more art than science than jury selection. You have little hard information, so you often turn to stereotypes to make the most accurate possible guess about juror's inclinations from what you know. But stereotypes are often wrong:

Women can be harder on rape victims who put themselves in risky situations. Business people could be bitter toward companies because of economic cutbacks. And minorities, who are supposed to favor the defense because they distrust law enforcement, often side with prosecutors, while whites sometimes favor black defendants, even if it's just out of a fear they'll be labeled racist if they do otherwise. . . .

"The best of all possible predictors are attitudes directly related to the case, attitudes and personal experience," said Sean Overland, who published The Juror Factor: Race and Gender in America's Civil Courts in December.

If you're trying a pharmaceutical case, you want to ask about experiences with prescription drugs, he said. If you're trying a violent crime case, you want to ask if jurors have been victims.

Judges often limit what can be asked, though, out of concern for jurors' privacy and getting the trial under way swiftly. The Byers' and Special juries added another wrinkle in that members were kept anonymous for their safety, further restricting what attorneys could ask.

"Sometimes, you're put in the awkward position of this many men, this many women, this many black people, this many whites," Overland said. "When that's all you have to go on, there's an incentive to use that in jury selection, even though it's illegal." . . .

Maryland U.S. Attorney Rod J. Rosenstein said his office is comfortable with all kinds of jurors, as long as they're not biased against the prosecution, because his prosecutors prepare well for cases and bring in solid evidence. More than 90 percent of those charged in Maryland's federal court plead guilty, Rosenstein said, and more than 90 percent of those who go to trial are convicted.

"The demographics of the jurors have at best a very minor effect on the outcome," said Randolph Jonakait, a professor at New York Law School who published the book The American Jury System in 2006.

"Almost always, it's the evidence that wins the case, not the background of the jury."

I'll agree that demographics, per se, aren't a huge effect on the outcome, but the not that evidence is everything, while the background of the jury is unimportant is doubtful. There may be clear cut cases out there, but they usually don't end up going to trial. Particularly in more discretionary decision making, like setting non-economic damages in a personal injury case, the background of the jurors can have an immense impact.

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