This catch-22 may be one of the reasons Philip Anthony, CEO of one of the country’s largest and oldest trial-consulting firms, is less than effusive about scientific jury selection's effectiveness. "What we've found historically is there isn't one overwhelming pattern you can apply across different cases," he tells me. Instead, says Anthony, "we collect data from enough surrogate jurors in advance of trial that we can then look at patterns in the data at a statistical level, to see what sort of characteristics, behaviors and attitudes correlate with verdict preference in a case."* He's also quick to point out that firms like his do a lot more than just focus on voir dire; they also help clients prepare arguments, witnesses, and evidence, for example."We do our best to apply rigorous social-science processes to studying the data, but at the end of the day, you only know so much about the people in the jury box," says Anthony. "There is as much an art component as there is a science component."
Since even the practitioners of scientific jury selection are reluctant to emphasize the science of what they do, some folks think it's time to get rid of the business altogether. One way to do so would be to do away with peremptory challenges, as England did in 1988. If lawyers aren't allowed to remove jurors at will, there'd be no need for them to consult with jury-selection experts. Sure enough, the English legal system appears to be largely unfamiliar with scientific jury selection.
Then again, such drastic measures might not be necessary. The jury-selection business is facing hard enough times as it is. When I arrived at the courthouse the day of my jury duty, ready to use my list of bad-juror characteristics and botch my way through voir dire, I never even made it into the courtroom. The case had gone away, I'd been told, and likely settled out of court. That's the trend: With the vast majority of criminal cases now settled by plea bargains (last year, 97 percent of all federal criminal convictions came from guilty or no-contest pleas, up from 86 percent in 1990) and an increasing number of civil cases going to arbitration, most legal matters never reach trial. Pretty soon, there might not be any juries left to stack.
Tips from jury-selection experts on how to get out of jury duty
So you've been called up for jury duty, but you really don't want to serve. Are there certain ways you should act during jury selection that will surely get you booted? The short answer is no, since jury-selection experts haven't had much success generalizing about what makes a good juror versus what makes a bad one. But according to jury-selection researchers and trial consultants, there are a few things you could do that might set off warning bells:
Be verbal. If you want out, jury selection is not the time to hold your peace. As Purdue University psychology professor Dennis Devine says, "The ones who don't say anything and fall through the cracks are the ones more likely to stay."
Be subtle. On the other hand, don't ham it up. If you're too blatant in your attempts to get off the jury, the judge may keep you out of spite, warns William Patterson University psychology professor Neil Kressel. In other words, don't dress up like a Princess Leia hologram.
Be biased. Once you've listened to the description of the case, raise your hand and say you can't be fair and impartial about the matter at hand. The judge will probably bark at you, warns Philip Anthony, CEO of the trial consulting firm DecisionQuest, but if you stand your ground, they will have to let you go.
Correction, Feb. 27, 2012: The original version left out part of the quote and in so doing misrepresented Philip Anthony's views on the value of scientific jury selection. (Return to the corrected sentence.)