Jury Selection Essay

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In the U.S. criminal legal procedure, the voir dire process of selecting jury members has been the focus of intense scrutiny by those concerned about procedural fairness in the criminal justice system. Jury selection (or “profiling,” as it is often referred to) is the attempt to exclude certain members of the jury panel on the basis that they may be unsuitable or unrepresentative. Generally, two separate procedures are enacted in this process: peremptory challenges and challenges for cause. The former is predetermined by the judge and the number can vary across different jurisdictions; they usually do not require either counsel to provide any specific or quantifiable reason for the opposition. Challenges for cause are more complicated; here there are essentially unlimited theoretical reasons for excluding any particular juror, although, usually, it is as a result of, for example, a prior relationship between the defendant and the juror. A judge can also deselect for cause without the request of either counsel; in total, estimates suggest this number does not usually exceed more than 5 percent of the total pool of jurors in all trials.

Jury selection has become synonymous with a number of high-profile trials, and, in particular, the controversial decisions in the cases of O. J. Simpson and Rodney King. In both of these instances, the issue of racial and gender bias was, according to many commentators, exploited to reflect favorably upon the respective defendants.

During the voir dire process, trial consultants aim to preempt the inclusion of those jurors they believe will not be sympathetic or congruent with their case and strategy. For example, as a broad cognizable group, it has been assumed that females can be, in some instances, more lenient toward a defendant than males. The prevailing principle of jury selection is based upon the psychological proposition of implicit personality theory (IPT). The basic premise or foundation of IPT is concerned with how individuals organize their preconceived ideas about others’ personalities and attitudes and how they then subsequently believe these will influence people’s behavior in any given situation. Some of these ideas are based on prior experience and may acquire some level of legitimacy, whereas others are based on nothing more than commonly held stereotypes.

IPT falls someway short of a reliable method with which to predict the behavior of jurors, and there has been an effort by social scientists, legal professionals, and trial consultants to look toward other, more established personality characteristics to provide more scientifically based and reliable judgments. In a review of legal research, W. F. Abbott identifies authoritarianism as the most researched topic in relation to the behavior of jurors. Despite the disagreements over the theoretical nature of the authoritarian personality generally, in the spirit of the proposals of Theodor Adorno and colleagues and more recently Bob Altemeyer, people with these characteristics are considered to be submissive to authority, punitive, closed-minded, conformist, conservative, ethnocentric, and intolerant of ambiguity. Abbott also suggests that these traits make them more susceptible to influence by extralegal factors in the courtroom, for example, the ethnic background of the defendant. More broadly, the relevance of authoritarianism can be divided into two separate areas: individual-level processes and group processes. At the individual level, authoritarians are more likely to punish those from out-groups, for example, whereas at the group level they are more inclined to conform to the group majority than nonauthoritarians. Additionally, authoritarians can be dismissive of legal principles designed to ensure fairness and generally more prone to convict than acquit in any given situation.

However, individual factors may have limited influence in the behavior of any given juror, including those predisposed to authoritarian attitudes. Gary Moran, Brian Cutler, and Elizabeth Loftus estimated that the influence of personality characteristics accounted for anywhere between 10 and 30 percent of the variance in jurors’ decision-making processes and that in the majority of cases, individual differences were only important where, for example, there was equally compelling evidence for both sides. Group polarization phenomenon (GPP) attempts to explain individual decision making processes in group situations. Several studies have explored GPP in mock trial situations.

The general consensus in relation to juries indicates that predominant sentiments about the guilt or innocence of a defendant are magnified and solidified during deliberation. Analyzing this in the context of authoritarianism, its influence in group situations was explored in more detail by Robert Bray and Audrey Noble using a mock jury involving a murder trial. Groups of students were divided according to authoritarianism scores and placed into juries consisting of six high or six low scorers on the F-scale. Pre-and postdeliberation indicated that the high authoritarians became more punitive (as measured by mean sentence length) than the low authoritarian group. For the latter, it was observed that their mean sentence length was significantly reduced. Bray and Noble inferred that the presence of other authoritarians in a group served to reinforce their earlier beliefs and further polarize them into becoming more punitive toward the guilty party.

In a meta-analysis of jury research, Douglas Narby, Brian Cutler, and Gary Moran identified two separate concepts in the 20 studies they reviewed. They differentiated studies as those that had examined traditional authoritarianism and those that explored legal authoritarianism. The former is more inline with the conventional use of the term authoritarianism and relates to personality features previously discussed (e.g., closed-mindedness, conventionalism). Legal authoritarianism is more concerned with attitudes toward the legal system itself and, in particular, the rule of law, the rights of the defendant, and other procedural issues. By separating the studies from their meta-analysis in this manner, Narby et al. were able to show that there was a greater propensity to convict where the examination had focused on facets more representative of legal authoritarianism. The importance of this point, along with many other studies exploring different personality features of jurors, has led to a decline in this type of research. The small effect sizes noted by small-scale mock-juror type experiments have led to a greater focus on information processing and the presentation of more complex legal arguments, rather than on individual differences between jurors. Some researchers, however, believe that this shift has been premature and that the importance of more valid indicators of personality, such as the Five Factor Model (FFM), are much more reliable predictors of juror behavior. John Clark et al. show how the old construct of authoritarianism can be integrated into the FFM. Rather than making authoritarianism redundant, they incorporate these traits into a combination of factors (e.g., low openness to experience and high conscientiousness).

Despite the controversy surrounding the trials of O. J. Simpson, Rodney King, and others in which jury selection has been employed, there is still little empirical evidence to support the validity of scientific jury selection as a reliable and useful legal tool. Any research on juries is difficult to conduct and notoriously unreliable due to the reliance on mock or “shadow” juries in most instances. One particular criticism leveled at many survey instruments concerns the assumption that these traits are indicative of a relatively fixed personality type; however, many oppose this view and assert that they are better described as a collection of attitudes and the disparity between attitudes and behavior is well documented in the social psychological literature. Hence, the use of mock jurors may only amplify the inconsistency between simulated and real legal situations. Measures such as the Juror Bias Scale have been developed from initial research into authoritarianism among jury members and have been shown to be reliable predictors of conviction proneness. Jury selection is not only an issue for the U.S. criminal justice system; trial consultants are employed throughout the world to design and modify trial strategies. However, a final word of caution— while personality features as measured through scientific methods might aid in the composition of the jury, the general consensus is that group dynamics far outweigh personal opinions during deliberation.


  1. Abbott, W. F. “Jury Research: An Inventory of Findings.” In Handbook of Jury Research, W. F. Abbott and J. Batt, eds. Philadelphia: American Law Institute and American Bar Association,
  2. Ajzen, I. and M. Fishbein. “The Influence of Attitudes on Behavior.” In The Handbook of Attitudes. D. Albarracin, B. T. Johnson, and M. P. Zanna, eds. Mahwah, NJ: Lawrence Erlbaum Associates, 2005.
  3. Bray, R. M. and A. M. Noble. “Authoritarianism and Decisions of Mock Juries: Evidence of Jury Bias and Group Polarization.” Journal of Personality and Social Psychology, v.36/12 (1978).
  4. Clark, J., M. T. Boccaccini, B. Caillouet, and W. F. Chaplin. “Five Factor Model Personality Traits, Jury Selection, and Case Outcomes in Criminal and Civil Cases.” Criminal Justice and Behavior, v.34 (2007).
  5. Hans, V. and N. Vidmar. Judging the Jury. New York: Plenum, 1986.
  6. Kassin, S. M, and L. S. Wrightsman. “The Construction and Validation of a Juror Bias Scale.” Journal of Research in Personality, v.17 (1983).
  7. Moran, G., B. Cutler, and E. Loftus. “Jury Selection in Major Controlled Substance Trials: The Need for Extended Voir Dire.” Forensic Reports, v.3 (1990).
  8. Moscovici, S. and M. Zavalloni. “The Group as a Polarizer of Attitudes.” Journal of Personality and Social Psychology, v.12/2 (1969).
  9. Myers, B. and L. Lecci. “Revising the Factor Structure of the Juror Bias Scale: A Method for the Empirical Validation of Theoretical Constructs.” Law and Human Behavior, v.22/2 (1998).
  10. Narby, D., B. Cutler, and G. Moran. “A Meta-Analysis of the Association Between Authoritarianism and Jurors’ Perceptions of Defendant Culpability.” Journal of Applied Social Psychology, v.78 (1993).

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