Voir Dire: An Art In Search of a Science?
©Vicky Campagna, 2009
“Never forget, almost every case has been won or lost when the jury is sworn.” Clarence Darrow. (45)
Abstract Voir Dire, that phase of a trial when prospective jurors are theoretically examined by both attorneys to ensure their impartiality, has been considered to be pivotal to a successful verdict. In this article, the current state of voir dire is examined. I then review the current state of the trial consultant’s role in litigation.
The Stage Is Set
It’s the only time during a trial when the playing field truly is level. No impassioned opening statements have been made, no witnesses have testified, no experts have presented their sophisticated and sometimes confusing analyses, no judicial rulings have been made on any motions, not even any evidence has been offered. And yet this brief span may well determine the outcome of this trial, where so much is at stake.
This is the environment in which voir dire exists. Derived from the old French, meaning “to speak the truth,” voir dire is the process by which plaintiff’s and defendant’s attorneys question prospective jurors in an attempt to discern which possible jurors may be most inclined to accept their version of the case. But---as Middendorf (33), Davis and Follette (9), Suggs (54) and others have pointed out---voir dire is not as much a quest for a jury that is likely to be prone to accept one’s perspective as much as it is a search for a jury that has been shriven of jurors who would harbor a pre-trial inclination to accept the opposition’s version. Many lawyers believe that juror interviewing---voir dire---is the key to winning a trial. (30) At the same time, however, scientific scrutiny of this area has yielded only “rudimentary” knowledge (19). One of the few solid conclusions is actually a negative one: individual differences among potential jurors are “not especially potent predictors of juror verdict preferences.” (14, 10). Even where a slight relationship between differences and verdict preferences has been found, it is clear that the case specific factors cannot be generalized from one case to another. (ibid)
The attorney may prevent a juror from being impaneled in a jury by exercising a challenge, either for cause or peremptory. In the former, which are limitless, the juror is shown, by voir dire, to have a bias which cannot be set aside in order to render an impartial verdict in the present case. A peremptory challenge, on the other hand, may be exercised when the attorney believes---for any reason whatsoever---that s/he does not want this particular juror to serve on this jury. Peremptory challenges are strictly limited in number, and used only when there is no basis for challenging for cause.
Little wonder, then, that so much attention has been paid to the question of how an attorney’s voir dire can be made more effective. From folklore nearing superstition (such as the presumption that accountants are pickier) (19) to theoretical strategies (e.g. 6) to opinions derived from personal experience (e.g. 41, 37, 26), there has been no dearth of scrutiny in this area. Attorney folklore regarding voir dire has been existent at least since 1887 (14), even though contradictory advice often is proffered. And this advice is not confined to far earlier, unsophisticated times: one source (29) argued less than 25 years ago that artists, mechanics and office workers are preferable for plaintiff civil cases, whereas bank officers, retired policemen and clergymen’s wives are better for the defense in a civil case.
However, establishing solid scientific evidence has been more problematic. This is an ironic state of affairs, since there is indeed research that finds that the attorney using solely his/her own intuition is prone to use the same stereotypes as does the average lay person. (38) Obviously, lawyers are not trained in social science skills and Suggs and Sales’ research (53) concluded that “the overall performance of attorneys during voir dire is poor.” (p. 371)
scientific jury selection was first employed by the defense in the trial of the
Harrisonburg Seven, defendants who were charged with various anti-war activities. Sociologist Jay Schulman and his colleagues
felt that the jury pool was unfairly biased against the defendants and so offered
their services pro bono to the defense in an attempt to create a more balanced
trial. Accordingly, they conducted
numerous interviews with the local citizenry and were thus able to identify key
characteristics of their respondents that appeared to be related to verdict
preference. The government presented
its case for two months; the defense said only that the seven defendants were
innocent and did not call any witnesses.
After a seven-day deliberation, the jury said they were deadlocked: 10
were for acquittal and two were for conviction.
The defendants were never again tried.
Shulman (26) was also successful in convincing the judge that the
defendants in the
Lieberman and Sales’ perspective (31) is that there are four purposes to voir dire, i.e. educating the jurors about the case’s central issues, building rapport between the attorney and the jurors, requesting that the jurors remain impartial until they have heard all the evidence (since research has shown that people who publicly proclaim a commitment are more likely to act congruently) and emphasizing the juror’s control over the trial’s outcome, thereby enhancing his/her satisfaction with participation. (With respect to ingratiation, however, Brodsky and Cannon (3) assert that excessive ingratiation may backfire as some jurors will resist what they see as being blatant toadying.)
Broeder (4) found that a high percentage of the time spent in voir dire (80%) is spent indoctrinating the jury and only 20% spent trying to determine who among the venire is likely to be the most predisposed towards one’s client. And even that 20% often appears to be wasted time. He concluded that voir dire indoctrination often does not succeed, finding that the process was “grossly ineffective” in detecting jurors likely to be unfavorably disposed towards a position. Zeisel (57) concurred: “on the whole, the voir dire…..did not provide sufficient information for attorneys to identify prejudiced jurors….Perhaps the most significant finding was the inconsistent performance of attorneys. Occasionally, one side performed well in a case in which the other side performed poorly, thereby frustrating the law’s expectation that the adversary allocation of challenges will benefit both sides equally.” (p.528-9)
Horowitz (24) compared conventional jury selection methods with those using “systematic social science methods” in two criminal cases. His conclusion was that it was only when there were “strong relationships” among personality, demographic and attitudinal variables that the social science method was more robust in predicting favorable jurors’ responses. And Hastie (23) and Saks (44) found that attitudinal and demographic models could only account for 11-13% of the variance in verdicts.
But Smith’s research (47) brought to light yet another variable that may strongly influence juror verdict, apart from the traits and perspectives of the chosen jurors. Her large subject pool (N=489) lead her to conclude that a great many of her subjects had knowledge of the law prior to hearing the judge’s instructions on it but yet did not set aside their erroneous preconceptions. Somehow, she deduced, judicial instructions have to not just educate jurors who do not know the law, but must also must “revise jurors’ existing concepts.” (p. 857)
Does the personality of the juror matter not at all, then? There has been some psychological investigation of personality traits as they relate to behavior. One association has been found for the trait of authoritarianism, which has been conceptualized as a strong preference for order, clear rules, conventional norms and strong authoritative leadership. Authoritarianism has been shown to be related to a wish to punish those who deviate from the group norm and to prejudice against those who are in the “out group.” (26) Yet the studies seeking to find a link between authoritarianism and verdict preferences have been only somewhat successful: a meta-analysis of 20 such studies (32) found a “significant” relationship between authoritarianism a propensity towards conviction, but also found that determination of authoritarian attitude might require extended voir dire questioning. Authoritarianism also may be moderated by such variables as evidence strength.
Little empirical support has been found for common stereotypes used to identify jurors with specific attitudes. In a series of studies, (33), researchers found that attorneys employed unsophisticated stereotypes and relied on a few demographic characteristics in judging their jury pool. However, the empirical support for such practice is sorely lacking. (25)
Somewhat less critical,
Frederick (18) found that data from the Joan Little murder trial were “suggestive” of
validity, and felt “more rigorous tests” were needed prior to drawing any conclusions. But
More recent work (8) has found that there is a difference between those attitudes rooted in
thoughts versus those originating in emotion.
Attempts at persuasion must be matched to type of attitude in order to
be effective. Different voir dire
approaches and trial techniques are called for in each case, and as
Darrow (7) concurred regarding the primacy of emotional responses:
“It is not the experience of jurors, neither is it their brain power that
Is the potent influence in their decisions. A skillful lawyer does not
tire himself hunting for learning or intelligence in the box; if he knows
much about man and his malting, he knows that all beings act from
emotions and instincts, and that reason is not a motive factor. If delib-
eration counts for anything, it is to retard decision. The nature of the
man himself that determines the juror’s bias for or against his fellow
man. Assuming that a juror is not a half-wit, his intellect can always
furnish fairly good reasons for following his instincts and emotions.”
Darrow noted also that there was “no sure rule” for choosing a sympathetic juror, commenting that “many irrelevant issues in choosing jurors are not so silly as they seem.”
Darrow (7) believed that “in the last analysis, most jury trials are contests between the rich and the poor…….The most important point to learn is whether the prospective juror is humane.” Yet even Darrow applied idiosyncratic criteria for determining the suitability of a juror: he felt, for instance, that Presbyterians could be counted on for being judgmental: “He is as cold as the grave; he knows right from wrong, although he seldom finds anything right.” More broadly, Darrow felt that “solemn people seem to think that pleasure is wicked. Only the gloomy and dyspeptic can be trusted to convict…..If a man is instinctively kind and sympathetic, take him.”
There is a substantial psychological literature on the subject of persuasion. In sum, the consensus is that the more similarities between himself and the speaker perceived by the listener, the greater the attraction and thus, the greater the believability. (53) When the receiver perceives a similarity with the speaker, the receiver assumes that they share common goals and values. Then the receiver may change his/her attitudes to make them more consistent with the values of the speaker. Most importantly, the greater the perceived credibility, the greater the potential persuasive power of the source.
Enter The Trial Consultant
In cases where the seriousness of the charge is considerable, and when the defendant has sufficient financial means to afford the hefty price, a trial consultant may be called to assist with the case in any number of ways, from help with selecting the jury to creating compelling trial graphics.
Powell (41) contends that the focus on jury selection as a service of trial consultants is misplaced. She believes that the more important goal is knowing how to best present the case “weaving a simple and compelling story for the jury. It should be a story that helps put the spotlight on the strengths of your case and diminishes your weaknesses.”
Trial consultants, first known as jury consultants, have long since expanded their repertoire of services beyond voir dire assistance and changed their name accordingly. (See sidebar.) Trial consultancy has been cited as having grown by 1999 to a $400 million industry, with more than 700 practitioners working in over 400 firms. Most of these are behavioral scientists but others are specialists in marketing and communication: “Trial consulting is very much the use of modern psychological assessment techniques packaged and applied in a marketing-type process.” (43) Just as with the marketing of any product, the consultant identifies the target audience, then comes up with a strategy to persuade the “customers” (in this case, the jury) to buy the product. (ibid) “Like it or not, you are selling a product, and it is important to know what real people, in this instance, the jury, think of your goods and your sales pitch.” (Bennett and Hirschorn, 1993, as cited in 51).
Middendorf and Luginbughl (33) also suggested that the focus of studying the voir dire process should not be on determining who appropriate jurors are, but on the style of the voir dire itself. Traditional voir dire questions are directive, i.e. lead the prospective juror in such a way that s/he finds it easier to respond in one direction vs. another. These have strong “demand characteristics” and do little to foster a relationship with the inquiring attorney. Non-directive voir dire questions, on the other hand, are not leading and do not have a simple yes/no response. An example of a non-directive question would be educating the juror as to the fact that the defendant is not required to testify, and that the decision not to testify may not be taken as evidence of guilt. The juror is then asked how s/he would react if the defendant did not testify in his own behalf. This non-directive style is characterized by eliciting the juror’s feelings about critical legal issues, such as the right not to testify, reasonable doubt, and burden of proof. Middendorf and Luginbulh’s subjects listened to different styles of voir dire and the authors concluded that “a non-directive voir dire style is more effective at uncovering grounds for cause challenges than is a directive style.” (p.129)
One conceptualization that does in fact have research support is the influence of how jurors process the information they take in. In other words, juror cognitions--- the juror creating a story in his/her mind to make sense of the evidence presented--- may make a difference in the trial’s outcome. Developed by Pennington and Hastie (39, 40), the Story Model is seen as the intermediate step between evidence and forming judgments about that evidence, i.e. what does it mean? In their model, Pennington and Hastie posited that “jurors impose a narrative story organization on trial information, in which causal and intentional relations between events are central.” (p. 243) This process of story organization helps the jurors understand the evidence and assists in their being able to reach a pre-deliberation verdict. Pennington and Hastie state that their Story Model contains three components, i.e. evidence evaluation, decision alternative representation and story classification (in which the juror selects the verdict that best fits his story of the evidence). In sum, the Story Model facilitates “critical interpretive processing and organization of evidence” so that the juror can evaluate the evidence against all possible verdicts. In later work (34), they conducted experiments to test their model. That research supported their contention that explanations are key mediators of jurors’ decisions and their confidence in those decisions. The easier it is for a juror to construct a story to fit the evidence, the more comfortable s/he feels with the decision.
Pennington and Hastie also argue that their findings are important when considering evidence presentation order and judgment strategy. They believe, again, that a narrative story sequence is the most effective method of presentation. Instructing jurors to wait until they hear all the evidence before making their judgment may lead to more confidence in their ultimate verdict. As Huntley (25) states,
“Verdicts were made in favor of the side whose evidence presentation most resembled the story sequence. The story model proposes that jurors proceed in three steps. First, they evaluate the evidence and construct a story or stories to make sense of that evidence. Second, they learn the attributes of the different verdict choices. Finally, they reach a verdict by determining which verdict category described by the court provides the best match with the constructed story. Jurors may construct multiple stories, but are thought to select one by assessing the stories on their coverage, coherence, uniqueness and goodness of fit. Coverage refers to the story’s ability to account for the evidence presented during the trial. Coherence of the story is based on the consistency and plausibility of the story…Finally, goodness of fit between the story and the best matching verdict category will determine certainty. Thus, without a good match, jurors will default to a not-guilty verdict because of their concern about the burden of proof.” (Huntley 2003)
However, all of Pennington and Hastie’s work was done in the arena of criminal justice. In 2000, Huntley (26) conducted a study using the story model with civil litigation. Using mock jurors responses to four sexual harassment cases, Huntley found support for Pennington and Hastie’s story model. In 2003, (25) she replicated her study with new cases and concluded again that the story-mediated model worked well again:
“People strive to make sense of their world and this sense-making is often accomplished
through the use of stories. In courtroom disputes, the raw materials for constructing stories
are the preexisting attitudes of jurors, and the…..Jurors bring expectations and pre-conceptions
with them to the jury box, about which they are told, and consciously or unconsciously process in formation, in ways that may strongly influence their decisions.” (p. 29)
She further cites Diamond (14) as stating “The evidence presented at trial cannot account for initial disagreements among jurors: all jurors are exposed to the same evidence. The difference in juror reaction must stem from preexisting differences among the jurors.” Lieberman and Sales (31) point out that jurors come to the trial with their own ideas of what “commonsense justice.” (Commonsense justice is defined as what the juror think the law ought to be.) Scientific jury selection’s task, then is to determine which jurors are more likely to have models of commonsense justice that benefit the attorney’s case.
Hooks---the parts of the story which particularly catch a juror’s attention--- are a major consideration for Macpherson, (32). In her discussion of developing these for civil cases, she argues that creating a story that “incorporates the human factors” will ensure the jurors’ attention. Macpherson believes that a narrative is necessary in order to place the case events in an understandable framework for decision-making. However, the simple transfer of information is insufficient to guarantee how that information will be used. If the presented story is incomplete, jurors will complete it via the insertion of their own assumptions. Main actors and the core conflict must be identified as starting points. The goal is to describe the characters and their actions in such a way so that the juror comes to a conclusion favorable to your side. The “human story in a commercial dispute inevitably touches on the jurors’ everyday experiences and evokes their basic assumptions about how people succeed or fail.” (ibid)
Although most investigators acknowledge that broad attitudinal measures have been only somewhat successful in predicting verdicts, there is also the belief that case-specific attitudes are the key in juror verdicts.
Because prospective jurors may deliberately or even unconsciously attempt to hide their true attitudes, some believe that paying attention to the juror’s nonverbal actions may be the most reliable indicator of that person’s real feelings. Note that there is no empirical evidence to justify this claim; nevertheless, it is a popular one, e.g. 9, 24, 26.
Nonverbal cues can provide telling information regarding which issue(s) evoke anxiety (and thus, possible deception) for each prospective juror. Lieberman and Sales (31) concluded that there are four possible sources of anxiety:
ü The juror may be trying to deceive the questioner and the deception elicits anxiety
ü Even if the truth is being told, strong feelings may be evoked about the particular issue being discussed
ü The individual may have negative feelings towards the person asking the question (i.e. the attorney)
ü Simple shyness about speaking publicly can also cause anxiety.
By carefully observing and recording nonverbal manifestations of anxiety, they state, the attorney may develop a clearer, more accurate picture of the juror’s true feelings. Research confirms that there are common nonverbal indicators of anxiety, according to Suggs and Sales (53) who make the following critical points:
ü The prospective juror will feel more anxiety when being
questioned by the attorney whose position the juror favors
ü Anxiety will occur when the juror is being questioned about
Issues about which s/he has strong feelings
ü The juror will feel anxious when his responses are deceptive.
This type of anxiety is situation-specific and is likely to be displayed in the juror’s “communicative behaviors.” (p. 632)
The authors suggest that the observation begin during initial questioning, as the first questions (i.e. those about innocuous matters such as occupation, place of residence, etc.) will likely elicit little anxiety and therefore can be used as a baseline against which to compare anxiety levels in response to later, more provocative questions. This baseline will provide information regarding the juror’s usual level of anxiety; additional anxiety is presumed to reflect the situational anxiety of the trial. (It is, of course, also possible that anxiety detected at baseline represents pre-existing bias.) However, conclusions as to the meaning of the juror’s displayed anxiety should be made cautiously, since there are several possible origins of that anxiety.
There are basically two types of nonverbal cues. Paralinguistic cues are the manner in which a given message is delivered, e.g. the speaker’s tone, vocal pitch, rate of speech, etc. “Kinesic cues,” on the other hand, refer to physical signs such as body language, expressions, eye contact, hand gestures, etc. Anxious individuals may manifest their nervousness through bodily movements that include averted eye contact and facial cues. Most people are aware of the ability to communicate feelings through facial expressions: universally common attributions of emotions such as happiness, anger and fear are well established. Thus, people may consciously try to control emotions expressed facially but still, remnants of their true feelings may slip out. Ekman and Friesen (as cited in 47) referred to this phenomenon as the leakage hypothesis (i.e. the idea that although people might attempt to control their body language, at least some of their true feelings will “leak” from their bodies.) Research on this point has been inconsistent, but discrepancies between an individual’s facial and body cues at the very least strongly suggest that that juror’s statements be carefully scrutinized.
The amount of direct eye contact from the prospective juror to the questioner is another promising kinesic cue. Theoretically, there should be no difference between the degree of eye contact from the juror to any questioner, since---theoretically again---the juror should view each equally. If the juror displays a greater or lesser amount of eye contact towards one attorney, bias may be suspected.
Hand movements are another potentially fruitful area of observation. Behaviors such as shrugs, tapping, scratching, etc. may signify the presence of anxiety or deception. Since it is unknown whether an increase or decrease in hand movements is correlated with nervousness, what should be watched is a change from the baseline observation.
“Paralinguistic cues” are those nonverbal signals which may identify situational anxiety, i.e. pauses and latencies, speed of speech and breath rate, disturbances of speech and length of speaking time. Suggs and Sales (47) noted four aspects of such cues:
ü Pauses and latencies: Pauses are those periods of silence within a given sentence or phrase, while latencies are the time length between the asking of a question and the answering of it. There has been research suggesting that both pauses and longer latencies are associated with greater anxiety, especially when the speaker is also being deceptive.
ü Speech and respiration rate: Although there is some indication that both speech and breathing are more rapid when responding to anxiety-arousing questions and when attempting to deceive, this relationship may be curvilinear; thus, it is important to contrast the suspected verbalizations with speech in a more typical environment before drawing any conclusions.
ü Disturbances of speech: these include such phenomena as stuttering, inappropriate laughter, changes in voice, etc. Repeated declarations of “I don’t know” may also signify anxiety.
There are a few other areas of nonverbal communication that have been explored:
Clothing: Some authors (e.g. Starr and McCormick, 2000 and Mauet, 1992, (cited in 26) suggest that a potential juror’s manner of dress can provide information on “a variety of issues.” However, no research has explored this assumption.
Graphology: Similarly, the use of a juror’s handwriting has been proposed as a method of discerning his/her true feelings. Yet again, however, there is no published research exploring graphology in a legal context. Indeed, the overall consensus of published research is that graphology is not a useful personality or behavior predictor. In any case, personality itself has been shown to be a weak predictor of jury verdict as has been previously cited.
ü the endomorph (soft body, underdeveloped muscles, round shaped) as being sociable, relaxed and tolerant
ü the mesomorph (hard, muscular body, “overly mature” appearance, rectangular shaped) as being adventurous, courageous, dominant, bold and competitive)
ü the ectomorph (tall, lightly muscled, stoop-shouldered, young appearance) as being self-conscious, introverted, socially anxious and emotionally restrained.
recently as 1974, Sheldon’s theory was treated as a viable way to gain insight
into a prospective juror. For example,
“Generally speaking, the heavy, roundfaced, jovial-looking juror is
most desirable. The undesirable juror is quite often the slight, un der-weight and delicate type. His features are sharp and fragile, with the
lean ‘Cassisus’ look. The athletic-looking juror is hard to categorize.
Usually he is hard to convince, but once convinced, he will usually go
all the way for you.” (p. 376)
However, again there is no real-world, empirical research to support a theoretical relationship between physical body and psychological traits, and Sheldon’s theory itself has “fallen out of favor in the last 30 years.” (53)
Rating Nonverbal Behavior
In observing nonverbal behavior, Suggs and Sales (53) suggested that there be two raters, and their ratings compared. (Preferably, the lawyer is not one of these two, since his/her attention is likely to be caught up in other aspects of the trial.) This method will provide a rough measure of how a given area engenders anxiety in the prospective juror. They presented a simple grid (below) as a format for recording. The present author would suggest an additional column listing the specific subject being discussed. The presence of an anxious behavior should be recorded with a 1; negative behaviors (towards either the judge or attorney) are coded -1. Neutral behaviors earn a coding of 0. Sales notes that such a neutral score can be interpreted in at least two ways: either there genuinely was no reaction to the question or s/he was able to mask his/her reaction to it. (45)
Nonverbal Behavior Rating Grid (54)
Plaintiff atty. quest.
Defense atty. questioning
Pauses and latencies
One grid should be used for each juror. A score may be computed for each interrogator (i.e. judge, prosecuting/plaintiff attorney and defense attorney) and an average obtained for each. Ratings should be made at least twice (once at baseline, once for each examination) and by at least two observers, who must be seated so that they can clearly watch the juror’s behavior head-on. The obtained score then can be used as a hypothesis about that juror’s relative bias.
But Decision Quest (10) urges that caution be exercised when attempting to understand jurors’ body language. It cannot be considered as an independent clue to a juror’s feelings: “since jurors spend most of their time listening, there are few opportunities to match their verbal communication with their nonverbal or vocal behavior.” However, body language should not be completely ignored, and several suggestions for finding significant signs are offered, including being aware of the slight non-verbal reaction (such as looking away, an eye blink, etc.) called “glimmers” that may hint at underlying feelings.
Numerous other methods of classification of juror attitudes have been proposed (54), but all have been lacking empirical validation.
Joellan Dimitrius (15) one of the nation’s most widely known trial consultants (she assisted the defense in the O.J. Simpson trial) does not dispute the significance of body language and physical traits as viable cues to any given juror’s personality. However, she cautions that no one indicator can be assumed to be representative of the juror’s mental state. Providing a lengthy list of physical traits and of body language signs and what they may signify, Dimitrius advocates seeking “consistent combinations of clues” (p.75) to be certain that one is finding accurate information. But again, context is crucial, since the meaning of clues can vary. (ibid)
(ibid) reiterates that no one trait or fact can reliably predict a juror’s
verdict preferences. Rather, it is the pattern of a variety of facts about
that juror---from the neighborhood in which s/he chooses to live, to the style
of clothing worn to court to the various knickknacks displayed on his/her desk
that, when combined and viewed in their entirety, accurately reveal a juror’s
true perspective, but only if that data is interpreted in its appropriate
context. Dimitrius finds that the most
important factors (in terms of their accuracy in revealing a juror’s likely attitude
towards a case) are the juror’s level of
compassion, socioeconomic status and degree of satisfaction with life. Along similar lines, Mills and
Similarly, DecisionQuest (10) stresses that “experience and attitude are more important than demographics in creating a juror’s perspective. Drawing a parallel to Alfred Adler’s lifestyle concept, DecisionQuest promotes the idea that there are four basic patterns, one of which will be dominant and developed in childhood. These are the risk-taker, the victim, the rescuer and personal responsibility. Although jurors will not be likely to make statements that identify themselves as being one or another of these types, DecisionQuest argues that the category may be inferred from other statements, and that different categories are predisposed to favor different verdicts.
When a prospective juror makes a statement during voir dire that seems to suggest the presence of bias, the examining attorney is likely to want to probe more deeply into that area. However, if the juror had indeed been trying to be deceptive, further questioning along the same lines may be ineffective: some research (5) indicates that such probing will not be successful and in fact, may communicate suspicion or uncertainty: these researchers found probing produced changes in nonverbal behavior and suggest that their probing may have suggested to the juror that attorney was suspicious or uncertain and thereby motivated deceptive subjects to mask their nonverbal behavior and appear truthful. Detection of those who were lying was not improved.
As Lieberman and Sales (31) state, classification of nonverbal behavior is a subjective process and thus, is subject to misclassification. There is also some evidence (52) that there is no difference in the nonverbal behaviors of deceivers and truth-tellers. However, the area of nonverbal behavior shows promise as a method of assisting attorneys in voir dire, although much more empirical research is needed in order to produce reliable conclusions.
A large part of the reason for the absence of true experimental research on the issue of jury selection is that it is impossible to control all the variables that might factor into the reason behind a given juror’s decision to vote for one verdict versus another. For example, might not a wealthy, middle-aged businessperson have different values than a college-aged Art History major on a subsistence budget? Would a third set of values be held if that businessperson were female? What if s/he were retired? Then throw in another variable: ethic background. If it’s reasonable to conclude that this too may have an impact on how one sees the world, how will verdict votes be affected? What about the individual’s personal experience with defendants or plaintiffs of a similar type? With no way to know which, if any, of these will influence the individual’s actions as a juror in this case, or how they will affect it, how can the attorney even begin to guess which combination of traits will be most favorably disposed to his arguments? Epstein (17) takes this already impossibly complicated conundrum even further: he states that it is the aggregate of all of the components of an individual’s personality that determines how s/he will respond to any given stimulus.
“A major emphasis is that behavior is often so highly situationally specific that unless this is
taken into account by procedures such as aggregation over situations and/occasions, or by the
investigation of events that are so highly ego-involving that experimental effects dominate situa- tionally unique effects, results will tend to be unreplicable or ungeneralizable, no matter what their
level of statistical significance.” (p. 360)
But Lecci, et al, (30) argue that when the information gathered through the personal judgments (which has been shown to be unreliable) is considered in the aggregate, the result will always be compromised. Moreover, even valid information considered in the aggregate will be unreliable if there is no standardized, quantitative method employed. And since all prospective jurors have biases of some sort or another, comparing different jurors again requires application of a quantitative methodology.
Dimitrius (15) also strongly contends that no one trait can be definitive; it is the pattern of traits that is important. She advocates extensive community sampling to discern the pattern of traits that is most likely to be favorable to the attorney’s case: for example, in the O.J. Simpson trial, her survey indicated that female African-Americans would be most favorably disposed towards Simpson and disliked prosecutor Marcia Clark. The makeup of the final jury reflected Dimitrius’ position and many observers believe this was pivotal in the juror’s acquittal verdict. (Interestingly, the prosecution fired its own jury consultant.) This dilemma is complicated even further by the fact that the voir dire process is not uniform across jurisdictions. Jurors may be questioned individually or in groups; by the judge or the attorneys. (13)
Often-used methods of determining what beliefs an “ideal” juror would have, involve pre-trial research. In criminal cases, there is some existent literature on favorable jurors, but much less information is available when it comes to civil matters, at least when it comes to specific types of cases. But pre-trial research is still possible. Ideally, a mock jury is formed (composed of jurors as similar to the venire pool as possible) and the case presented to them. A profile of jurors likely to be favorably disposed to the attorney’s case (obtained by pairing the characteristics of a juror with his/her responses and reactions in the mock trial) is thereby created, against which all prospective real-world jurors are compared.
Another strategy is the community attitude survey, where a large sample of residents (at least 400) are interviewed by telephone and given the case details. Their reactions are paired with their demographic information to, again, create a profile of a juror most favorably disposed towards the attorney’s position.
The information from these procedures is used to create a pre-trial questionnaire (in jurisdictions where that is allowed) and/or craft the most appropriate voir dire. Critical themes to be emphasized in the trial are also identified. But Hastie (23) and Saks (44) found that attitudinal and demographic models could only account for 11-13% of the variance in verdicts.
Working Without a Trial Consultant
But if financial constraints or any other factor preclude the use of a trial consultant firm, is there no intermediate recourse for the attorney who wishes to employ a courtroom style informed by solid knowledge from the behavioral sciences? Fortunately, this is not the case: there are a number of techniques, applicable to almost all trials, that are based on what is known about personality.
Moreover, many of trial consultant firms make some of their strategies available on their websites. Jepsen (27) suggests “six best practices for improving voir dire results.” These include defusing your case’s weaknesses by acknowledging them openly and then defusing them, becoming familiar with local court rules and customs and preparation of a list of the “top ten” themes for voir dire questioning. Jepsen agrees with the value of written juror questionnaires, and offers strategies to convince the court to allow such a procedure.
Salmons (46) presented the novel idea that selecting jurors ought to be done on the basis of their ability to tolerate boredom. Cautioning that her data applies only to the specific setting of the trial she investigated, Salmons used a scale designed to measure boredom-proneness and found that the degree of boredom proneness was associated with significant difference in verdicts: high boredom prone juries were much more critical in their verdicts for the male defendant.
Several trial consultancy firms offer trial strategy advice on their websites. The Synchronics Group, (55), for instance, believes that there are 6 approaches that lead to more effective voir dires, i.e. engaging each juror in a conversation, exhibiting genuine interest and undivided attention, finding a common bond with each juror so that the attorney is perceived as being “like them,” using humor naturally as a tension release, establish the attorney’s leadership, perhaps by explaining some of the ground rules of listening to testimony, gently teaching appropriate court etiquette (e.g. the attorney is not allowed to chat with jurors outside of court), and acknowledging the juror’s “high purpose” of listening to evidence with an open mind.
Bernstein (1) argued that the most difficult part of voir dire is simply getting the prospective jurors to talk and reveal information about their attitudes. She suggests that the attorney ask questions to which the answer is unknown. Bernstein acknowledged that this flies in the face of the traditional wisdom that an attorney should never ask something without already knowing the answer, but argued that in order to make an intelligent strike decision, it is worth probing into uncharted territory. Once the decision to probe has been made, she offered the following techniques designed to make that probing a worthwhile venture:
· Ask questions beginning with ‘what’ ‘how’ ‘could you’ or ‘would you.’ These are open questions that encourage people to talk and bring forth information or feelings. Avoid questions beginning with ‘why’ as these will likely encourage defensiveness.
· Repeat the juror’s words in your question without paraphrasing. This will convey that you understand the juror’s perspective and encourage further sharing.
· Provide cues to promote continued talking. Such tactics as repeating the juror’s last few words, but raising one’s voice a bit at the end will be perceived as a question being asked, and will encourage further elaboration.
Suggs and Sales (54) also emphasize the importance of open-ended questioning as being
the most likely to elicit the nonverbal behaviors that may provide clues as to the juror’s true feelings.
The key, Bernstein said, is to demonstrate that you are sincerely interested in the juror’s words. By conveying your interest and respect, the interrogation of voir dire can be turned into a revealing conversation. Dimitrius (15) concurs:
“The best way to establish (a juror’s trust in you) is to reveal
something of yourself. Let people read you to some extent,
and they will feel more comfortable. As their comfort level
increases, they will open up to you. It’s simple---if you want
a clear view of another person, you must offer a glimpse
of yourself. (p. 10)
Jones (27) also agrees, noting that research has shown that the more someone discloses personal information, the greater the likelihood that the respondent will reciprocate in kind. Moreover, the more the questioner is liked, the greater the self disclosure from the juror. And the closer the questioner is perceived to be in the same hierarchical level, the greater the self-disclosure. For these reasons, voir dire conducted by a judge is less likely to evoke juror candor than when it is conducted by an attorney. Her empirical research supported these conclusions.
DecisionQuest (12) observed that research indicated that 30%-50% of jurors did not speak up when it would have been appropriate to do so. This was believed due to a need to present a favorable impression in court, to be uncomfortable in disclosing personal information in front of an audience, and to the stiff, formal court atmosphere. Several ideas for fostering increased juror self-disclosure were presented.
Similarly, investigation (42) found that the use of strategic questions could be “identified as a major source of influence.” (p. 171). They defined these as being of three types: 1) questions that seek juror support 2) questions seeking juror commitment and 3) questions that preview the case.
The Synchronics Group (55) also offers specific suggestions on incorporating nonverbal information into a winning presentation. They specify several ways an attorney can make his/her message more powerful to the jury , i. e, keeping an open posture, maintaining visual control, maintaining physical balance and neutral posture and projecting self-confidence.
Giewat (22), noted that several studies had confirmed that jurors were not always as candid as possible and examined 16 trial transcripts, finding that the norm of fairness and impartiality was stressed to a greater extent than that of candor. A study was conducted which candor was stressed to potential jurors. Their results did not support the hypothesis that encouragement of candor and honesty lead to greater self-disclosure, but did show that more self-disclosure occurred in a group versus individual setting.
Giese and Perrott (20) believe that by identifying the “hooks and trigger issues” of the case, and then crafting voir dire questions around those, the attorney can choose “bait” in such a way that the potential juror is comfortable in expressing his/her true attitudes:
“Keep in mind that jurors are under enormous social-psychological pressure in open voir dire to answer your questions in a way they think will make them appear to be fair and impartial….This means that you must pose bias eliciting questions in such a way that jurors can indicate bias without feeling as if they are bad members of society.” p. 2
To accomplish this, they suggest several techniques, including the use of reciprocity: the lawyer discloses a life experience that might make it difficult to be fair in some instances, while not impairing the ability to be fair in most other cases. The authors argue that this tactic has the effect of creating a safe environment in which jurors will feel safe in disclosing their own biases.
These authors also stress the importance of considering each potential juror’s “potency.” In other words, while some jurors will be leaders/persuaders in deliberations, others will be followers. They believe that information about this important dimension can be obtained through observation of the juror’s nonverbal and verbal cues.
However, attempts to use socioeconomic data, gender or ethnicity have not proven to be reliable yardsticks for measuring juror attitudes. (54)
Voir dire has often been described as a process of both retaining jurors whom you deem favorable to the attorney’s client while at the same time, getting rid of those who appear to favor his opponent. However, Davis and Follette (9) propose that voir dire can be a far more proactive process and contend that a well-crafted voir dire can be used to select wanted jurors. They argue that a voir dire strategy can be designed that also protects desirable prospective jurors from challenge.
The first step is for the attorney and his consultant to identify those jurors whom they consider to be unsuitable. This is done by creating “working hypotheses” about juror traits that are likely to predict juror verdicts. The social science literature provides guidance for these hypotheses, they believe, particularly in the criminal arena, although there has been some work done in the civil venue as well. Clarence Darrow once stated the issue concisely: ”Every knowing lawyer seeks for a jury of the same sort of men as his client; men who will be able to imagine themselves in the same situation and realize what verdict the client wants.” (7)
The next step is to create a “profiling questionnaire,” composed of questions about the “demographic, attitudinal and experiential variables hypothesized to relate to verdicts.” (p.10) Besides demographic questions, this questionnaire will contain items concerning attitudes and experiences relevant to the case at hand, as well as habits or personality traits that “are assumed to indirectly assess attitudes, knowledge, leadership potential, or relevant personality characteristics.” (ibid)
Some jurisdictions will allow attorneys to use a juror questionnaire. If permitted, this questionnaire will enable counsel to inquire about areas that would otherwise prove embarrassing to answer in open court. At least one generic questionnaire is available for downloading on the internet at this URL: http://findarticles.com/p/articles/mi_qa4023/is_/ai_n15958186
Ideally, the questionnaire is then given to a community sample or to a mock jury or trial simulation (i.e. a jury made up of those similar to the actual venire). A mock trial with all the components of a in criminal trials, which their research found to have predictive validity superior to other, more generalized instruments) is then conducted. It is critical to note that there is a trade-off between the size of the sample chosen and the quality of the case presentation and how valid the results are likely to be. More attention to detail will likely yield a more precise result, but with trade-offs in both time and money.
Wrightsman and his colleagues (56) compiled a series of questionnaires designed to measure a variety of legal attitudes, such as attitudes towards confessions, entrapment, medical malpractice, death penalty, etc. However, these were designed as course aids in classes in forensic psychology and have not been validated.
Similarly, Gieselman (21) constructed a very brief 4-item scale for use in criminal cases said to predict a juror’s verdict a priori with 11-15% certainty beyond chance. He found four items that correlated with perceptions of fairness in the legal system and reasonable doubt. He believes that the voir dire for a criminal trial should include these questions:
1) Socially speaking, do you consider yourself to be more of a conservative or a liberal?
2) Have you a or a close friend or relative ever been a victim of a violent crime?
3) Do you generally agree with this statement—“Too many innocent people are wrongfully imprisoned.”
4) Do you generally agree with this statement—“In most cases where the accused presents a strong defense, it is only because of a good lawyer.”
In one of the very few
studies conducted empirically, Moran and
Comfort (36) found that in a felony trial, lower SES males were conviction-prone,
while their female counterparts SES showed a lesser relationship. And Mills and
Attorneys appear to have good reason to want to discern the hidden biases of the venire pool: the Chicago Project (cited in 29) found that 90% of individual jurors’ decisions are made prior to beginning official deliberations: the role of deliberations did not so much decide the case as create consensus amongst jury members.
Moreover, Olczak and colleagues (38) found that both trial attorneys and law students in their sample accepted more conviction-prone than acquittal-prone jurors. Since this did not correspond to actual jury selection or juror leanings, it was concluded that trial attorneys use stereotypes similar to those used by laypeople to choose jurors.
Decision Quest (13) cautions against employing too simplistic of a model in gauging prospective jurors. They emphasize that people are not constant over time and that the role the juror is playing---“what a person acts as in a social situation”--- is likely to shift over the course of a trial. It is most important to understand how central the role is to the juror’s sense of who s/he is in order to grasp how it will affect the juror’s behavior.
Davis and Follette (9) and Davis (8) present a strategy they refer to as the “DIPP” method for maximizing the chances of seating a favorable jury:
Diagnosis of juror favorability
Ingratiation of the attorney to the jury
Persuasion by creation of a favorable story for the attorney’s side of the case and
Procuring desirable jurors (challenging those who are considered the strategies of misdirection, misinformation and non information, The authors contended that the well-prepared attorney can craft a jury inclined to favor his/her side. This is done chiefly by “targeting specific questions to specific jurors.”
But sophisticated strategies such as the DIPP method above, require the expertise of an objective professionally-trained party (i.e. a trial consultant) to formulate, research and interpret the venire pool. Such an expert’s services might also be used in other ways as well. (See sidebar) Yet trial consultant services are quite costly: one 1989 survey Fulero (19) estimated a cost of upwards of $100,000. A more recent cost study found that fees can be as high as $500,00. The expense may be justified by the outcome, however: One civil trial resulted in the largest to date antitrust judgment ($1.8 billion awarded to MCI in its lawsuit against AT&T (51). One attorney commented “It’s gotten to the point where if the case is large enough, it’s almost malpractice not to use them.” (ibid) Another chimed in “no self-respecting trial lawyer will go through the process of jury selection in an important case without the assistance of highly paid trial consultants.” (ibid)
But Wait…..Not So Fast!
There have been other concerns raised about trial consultants other than their effectiveness, however. Strier (51) cited concerns about basic fairness. In one study (49), investigators found that trial consulting was perceived as being fair only if it were balanced on both sides (i.e. both sides either having or not having the service). The question becomes more problematic when only one side has a consultant: this may lead to perceptions of jury tampering, unfair advantage of the wealthy, of violating the right to a truly impartial jury, etc.
Some observers (51,30) are uncomfortable with the relative lack of professional standards in the trial consulting industry. Calling the profession “unregulated” and “without professional qualifications and binding ethical restrictions,” Strier (51) notes that “anyone can enter and self-identify as a trial consultant” (p. 107) and further observes that “those without traditional credentials must, of necessity, be adroit at self-promotion.” (ibid). Further, some practices used by trial consultants (e.g. pretrial investigation of potential jurors) may be construed as being, if not jury tampering, then at least invasions of privacy. (However, much of the information gathered---political party, home and vehicle ownership, driving record, litigation history, etc.---is freely available as a matter of public record.) Ratings may be compiled on “favorability index (indicating probably verdict leaning), leadership potential index and an overall desirability index, based on a combination of the previous two.” (Davis 1996)
Lecci, et al (30) argue that like any other profession, trial consultancy should be held to “specific scientific standards with regard to demonstrating its ability to contribute to the legal process. We further argue that the use of standardized measures to quantify assessment in the voir dire is the only way to accomplish this.” (p.69)
They concluded that
“To summarize, the approaches to jury selection generally employed by attorneys appear to
involve conjecture and a reliance on stereotypes, neither of which are valid methods. More-
over, attorneys tend to select the same jurors as do untrained individuals and, in either case,
the resulting jury is rarely less biased than a group of randomly selected jurors ….Although
there are no data that explicitly evaluate the jury selection skills of consultants, there is no
reason to assume that they would be any more skilled as a trial consultant, one might argue
that trial consultants are even less likely to contribute in a meaningful way to voir dire. Thus,
because legal expertise or trial experience does not result in effective jury selection, the onus
is on trial consultants to demonstrate that they can in fact contribute to the jury selection process.” (p.71)
Stolle (49) argued that in addition to the issue of effectiveness, the second question that must be examined is whether or not procedures used by trial consultants are fair. Noting that the popular media has referred to jury/trial consultancy as “the best jurors money can buy,” Stolle stated that the public perception is that these services are only for the very wealthy and for corporations, thus disadvantaging the average litigant. However, Stolle argued that it is equally plausible that the jury would see the use of a trial consultant as more evidence of the wealth of the defendant, and would therefore make a higher award for the plaintiff. This entire concept requires careful scrutiny, he said.
But these shortcomings are not likely to be examined by trial consultants, Lecci, et al, contend, (30) because these firms
“rarely empirically evaluate whether they have made the correct decisions in jury selection.
Instead, they are likely to take a victory in court as an indication that they selected the correct
jury, when in fact the verdict was more likely the result of trial evidence. Likewise, a loss in
court is not likely to be attributed to faulty jury selection….but instead (they) will attribute the
loss to other factors….As a result, trial consultants will consider themselves quite adept at
jury selection, despite unequivocal research findings indicating that individuals, regardless of
their experience, rarely discern bias in prospective jurors at a rate better than chance.” (p. 73)
If an attorney has the luxury of time and money to incorporate the voir dire style of extensive questioning, having the venire complete lengthy questionnaires covering a wide range of seemingly irrelevant questions, conduct mock trials and/or in-depth community attitude surveys, as well as assimilate the information to be gleaned from nonverbal clues and to digest and apply the many analysis techniques suggested by Dimitrius (15) and others, it appears to be quite likely (although not empirically proven) that the use of scientific trial consultants could well be advantageous. However, such a state of affairs is very seldom the case. Thus, the question of the efficacy of scientific jury selection is moot: while the practice may well be quite helpful, the intrinsic limitations of the approach (e.g. cost, local rules of court re: acceptable voir dire conduct) most often preclude its use.
However, Strier (51) makes a telling point:
“The nature of jury decision making and the secrecy of jury deliberations guarantee
that the actual impact of consultants, one way or the other, will remain immune to
empirical verification. But we should not preclude the value of relying on probabilities….
The point here is merely to suggest that inability to prove the infallibility of trial consulting
should not foreclose any consideration of its value. Stated differently, substantially improving
the odds, if not the certainty of victory should not be dismissed as inconsequential.” (p. 102)
He also eloquently stated:
“only trial attorneys suffering from overinflated egos or hubris really believe there is
nothing of value a qualified consulting firm can offer in selecting a jury or trying a case….
No lawyer would be harming his client by taking advantage of scientific jury selection.” (p. 103)
The Bottom Line
The consensus of the literature regarding trial consultants and their ability to guide attorneys in selecting a jury favorable to the attorney’s case is that neither trial consultants---nor attorneys acting independently---have developed a reliable formula for success. And in many cases in which jury selection may have benefitted from trial consultant input, the cost of that help was prohibitive. Finally, the influence of juror factors (e.g. demographics, personality traits) is “often outweighed by the strength of the trial evidence.” (31)
However, the choice not to use trial consultants for any or all of the preceding reasons ---or at least, to be very skeptical regarding their validity---contains the danger of throwing the proverbial baby out with the bathwater. The other aspects of trial consultancy---e.g. determining a compelling way of presenting one’s story to the jury---have not been subject to detailed scrutiny and may well have the ability to have a significant impact on jurisprudence outcome.
One additional area of likely utility is in the area of graphic presentation of the attorney’s arguments. Some research has shown (e.g. (16, 2) that a visual presentation of information can have a significant impact on jurors. Rochelois (43) noted that visual graphics “have a strong positive effect on comprehension and retention. Interestingly, the use of visuals does tend to produce a higher regard for the presenter.” It is suggested that future research pay attention to the assessment of the value of services of trial consultants beyond the area of choosing jurors, such as the use of graphics, witness preparation, and other services. (sidebar)
Sample Trial Consultant Firm Services
“SITUATION ANALYSIS: A non-legal assessment of the case that provides a review of the case situation as it is presented in case documents and trial team discussions. It clarifies and identifies possible key themes and story lines and
forms the basis of optimal case strategy.
THEME DEVELOPMENT RESEARCH: Establishes the clearest and most compelling themes and litigation strategies by using surrogate jurors from the appropriate venue to deliberate on and evaluate case the opponent, making it an invaluable asset in the formation of the most influential case presentation possible, particularly when performed early in the discovery stage. This service concludes with (the consultant) “debriefing” jurors to formulate refinements and devise a course of action that will sway the unconvinced.
MOCK JURY & MOCK BENCH TRIALS: The most comprehensive forms of research offered, entailing the complete setup and execution of mock jury or bench trials using retired judges, fact and expert witnesses, and/or surrogate jury panels relevant to your venue. Mock trials can test every aspect of the case - from the usefulness of graphics to attitudes toward damages - en route to developing the most of focused strategy for trial. (The trial consultant) completes mock trials by holding de- briefing interviews with the jurors or judges to collect nuanced details that will enhance the persuasiveness of the attorney’s trial approach.
WITNESS PREPARATION: A facet of pre-trial work that grooms the witnesses to remain focused and effective on the stand or in deposition. This service allows the consultant to identify the factors that most impact juror decision-making and, in turn, develop a plan as to how witnesses can best support the decided-upon persuasive story.
COMMUNITY ATTITUDE SURVEYS: Custom-tailored questionnaires poll a representative sampling of the eligible jurors in the venue to ascertain current attitudes toward the case and client. The resulting written report conveys an accurate understanding of the trends affecting the case and is accompanied by recommendations for handling them before and during trial.
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