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1 IS ATTORNEY-CONDUCTED VOIR DIRE AN EFFECTIVE PROCEDURE FOR THE SELECTION OF IMPARTIAL JURIES? REID HASTIE* TABLE OF CONTENTS Introduction I. Background II. Attorneys' Behavior in Jury Selection A. Attorneys' Beliefs and Theories B. Attorney Judgments as Expressed in Surveys C. Mock Voir Dire Performance D. Observational Studies III. Effectiveness of Voir Dire Questioning Procedures IV. "Scientific" Jury Selection Methods V. Studies of Alternate Voir Dire Examination Procedures. 720 Conclusions INTRODUCTION Behavioral scientists concerned with legal policy search for "empirical questions;" questions capable of resolution by systematic observations of the behavior of actors in legal settings. Ideally, the scientist also frames the question to address a "middle range" issue that has general implications both for legal policy and behavioral science theory.' Jury selection in petit trials invokes many promis- * Professor of Psychology, University of Colorado; B.A., Psychology, Stanford University, 1968; M.A., Psychology, University of California, San Diego, 1970; Ph.D., Yale University, See Kalven, The Quest for the Middle Range: Empirical Inquiry and Legal Policy, in LAW IN A CHANGING AMERICA 56, (G. Hazard ed. 1968) (discussing relationship between law and science and suggesting that empirical research study "middle range" legal issues, i.e., those with questionable factual premises due to difficulty in determining applicable facts). Middle range legal issues fall somewhere between constitutional values too fundamental for social

2 704 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 ing "middle range" questions for empirical examination. These inquiries relate to attorney detection of pretrial biases in juror thoughts or attitudes, attempts at reduction of juror bias by special instructions or procedure, and use of voir dire to "indoctrinate" jurors to favor a particular side. "Middle range" questions also address how variations in selection procedures affect general juror regard for the justice system and whether such variations affect the defendant's belief that he or she received a fair trial. This Article assumes that the adversarial framework of the petit trial, in which victory motivates each side, has an inherent balance that reduces the overall level ofjury prejudice if attorneys are generally capable of accurately discerning potential jurors' biases. This paper focuses on empirical evaluations of the accuracy of attorneys' judgments during the voir dire examination. I. BACKGROUND Jury selection procedures vary greatly across jurisdictions and courts, but most include the following stages: (a) creation of a list of citizens eligible for service; (b) selection of a sample of citizen candidates to serve on the panel for a particular trial; (c) in-court selection procedure in which the judge and attorneys review prospective jurors, excuse some, and produce a final jury panel, with alternate jurors in reserve. 2 One critical phase of the in-court procedure is the voir dire examination of prospective jurors. As a consequence of voir dire, attorneys may challenge potential jurors either for cause, which requires a specific reason (for example, conflict of interest, potential bias, or lack of candor), or peremptorially, which requires no justification. 3 Typically, each side may exercise an unlimited number of challenges for cause, but a limited amount of peremptory challenges. 4 Obviously, attorneys who accurately assess science to question and mundane premises not requiring scientific confirmation. Id. at 66. Thus, the middle range principles need empirical buttressing to confirm their applicability to real settings. Id. at See generally Balch, Griffiths, Hall & Winter, The Socialization ofjurors: The Voir Dire as Rite of Passage, 4J. CRIM. JUST. 271, 274 (1976) (providing in-depth description of voir dire process); R. Blauner, The Huey Newton Voir Dire, in RACIAL OPPRESSION IN AMERICA 218, 222 (1972) (relating voir dire process in which defense attorney alleged racism on part ofjury); Broeder, Voir Dire Examinations: An Empirical Study, 38 CAL. L. REV. 503, 504 (1965) (setting forth ordinary voir dire procedure); Hans & Vidmar,Jury Selection, in THE PSYCHOLOGY OF THE CouRTRooM 39, (N. Kerr & R. Bray eds. 1982) (summarizing in-court jury selection procedures). 3. Hans & Vidmar, supra note 2, at 60-63; see also Hayden, Senna & Siegel, Prosecutorial Discretion in Peremptory Challenges: An Empirical Investigation of Information Use in MassachusettsJury Selection Process, 13 NEw ENG. L. REV. 768, 769 (1978) (explaining types of challenges lawyers use to exclude prospective jurors during voir dire). 4. Hans & Vidmar, supra note 2, at 62; Hayden, supra note 4, at 769.

3 1991] ATrORNEY-CONDUCTED VOIR DIRE juror biases during the voir dire examination gain a tactical advantage in the case because they can utilize their challenges to eliminate jurors opposed to their side. In addition, the accuracy of attorney assessments is essential to the claim that voir dire proceedings reduce prejudice on the final jury panel. Generally, three functions characterize an effective jury empanelment procedure. First, jury selection procedures, especially those involving the exercise of challenges for cause and peremptory challenges, should increase the impartiality of the final panel. Further, the procedures should eliminate aberrant or incompetent jurors, which in turn improves the deliberation process and prevents the occurrence of unreasonably deadlocked juries. Second, these procedures, particularly those allowing the defense in a criminal action extensive latitude to exercise challenges, increase the appearance of a fair trial, one that is not dominated by a narrow-minded judge or an over-zealous prosecutor. Finally, the jury selection process provides initial instructions to the jurors which inform them about their decisionmaking task and prepare them for any potentially prejudicial material they may face when rendering a verdict. Conversely, certain negative characteristics potentially arise in the selection procedures. For example, selection procedures, especially the improper exercise of peremptory challenges, allow attorneys to systematically exclude a class of prospective jurors, such as potential jurors with similar backgrounds to the defendant, who should not be excluded. Even with extensive questioning of prospective jurors, attorneys may incorrectly judge juror prejudices, making the procedure worthless as a method to identify biasedjurors. Another negative factor in jury selection relates to attorney use of voir dire to systematically indoctrinate jurors by creating doubts about the credibility of opposition witnesses, or construing the evidence or the law in a manner to favor their side of the case. In addition, the voir dire process sometimes introduces illegitimate prejudices against one side, such as when attorneys make a poor impression by exercising peremptory challenges or vigorously questioning prospective jurors, thus introducing unnecessary distractions from proper juror considerations. More generally, jurors may react to the apparently arbitrary behavior of the court or attorneys during jury selection with a decreased respect for the trial process and for the justice system. Finally, jury selection costs both time and money. This Article considers these factors in the final evaluation of the implications of empirical research on jury selection procedures for legal policy. Initially, however, it addresses the central question of

4 706 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 this discussion: whether attorneys can accurately discern the biases of prospective jurors. II. ATrORNEYS' BEHAVIOR IN JURY SELECTION Four possible sources provide information about attorneys actions during the voir dire jury selection stage of a trial: attorneys' theories and beliefs expressed in textbooks and handbooks concemed with trial tactics; attorneys' judgments expressed in survey questionnaires; attorneys' performance on mock voir dire jury selection tasks; and observational studies of attorneys' behavior in the courtroom. A. Attorneys' Beliefs and Theories Professors Fulero and Penrod, Hans and Vidmar, among others, have surveyed trial tactics textbooks and summarized the authors' beliefs about juror proclivities in various types of cases. 5 In general, these sources present simplistic, disordered, and occasionally contradictory advice. Most of these tactics evolve from the simple principle that an attorney should exercise challenges to select jurors as similar to his or her client as possible. Other advice reflects common notions about prejudice and personality. For example, these sources advise a plaintiff or prosecutor to avoid cabinet-makers or accountants because they demand precise, air-tight cases. The academic analyses of these sources provide suggestive evidence to support the conclusion that jury selection tactics, at least those articulated by legal experts, will often be arbitrary by scientific standards. 6 In addition, textbook generalities may not be helpful in courtroom practices. B. Attorney Judgments as Expressed in Surveys Surveys of practicing attorneys that inquire about what information they seek during jury selection provide another source of information on lawyering at the jury selection stage. Researchers in this area surveyed attorneys about the questions posed during voir dire 5. See generally Fulero & Penrod, Attorney Juiy Selection Folklore: What Do They Think and How Can Psychologists Help?, 3 FORENSIC REP. 233, 234 (1990) (evaluating jury selection myths and guides which suggest types of jurors to avoid in selection process) (citing S. Penrod, Study of Attorney and "Scientific" Jury Selection (doctoral dissertation 1979) (unpublished manuscript)) (available at Law School, University of Minnesota, Steven D. Penrod); Hans & Vidmar, supra note 2, at (reviewing literature and discussing sources of bias in jurors, selection procedures, attorney beliefs and behaviors, and systematic selection techniques). 6. See Fulero & Penrod, supra note 5, at (finding lawyer jury selection, relying mostly on instincts, to be arbitrary by scientific standards); Hans & Vidmar, supra note 2, at 73 (noting arbitrariness in lawyer reliance on impressions of prospective jurors).

5 1991] ATrORNEY-CONDUCTED VOIR DIRE 707 and the kinds ofjurors they preferred in various types of trials. 7 A study of Canadian defense lawyers, for example, found that attorneys preferred male jurors to female jurors in fraud, rape, misrepresentation, and murder cases." These surveys have the advantage of more closely measuring attorneys' actual practice. As with the textbook analyses, these studies reveal substantial inconsistencies among attorneys in selection policies. A gap still exists, however, between the general strategy expressed in a questionnaire and an attorney's behavior in the courtroom. C. Mock Voir Dire Performance Several researchers have tried to assess practicing attorney preferences by presenting them with sample profiles of potential jurors and asking them to make accept-challenge decisions or to rate the "goodness" of each prospective juror. 9 These studies reached various conclusions concerning the relationship between juror characteristics and specific -case types and the effect of the relationships upon attorney selection preferences. For example, one study found that attorneys asked to consider jury selection for a murder trial regarded jurors' gender, age, and responses to a question concerning the extent to which legal technicalities allow defendants to escape conviction as most important. 10 Another experiment presented 7. See generally Fulero & Penrod, supra note 5, at (examiningjury selection strategies of nineteen practicing attorneys and asking attorneys to sort thirty-two juror profiles based on similarity and to rate potential bias and finding that attorneys employed relatively simple models in making selections); Hawrish & Tate, Determinants ofjury Selection, 39 SAsx. L. REv. 285, 286 ( ) (studying attorney awareness and use of relationship between juror's social characteristics and verdict); Kallen, Peremptory Challenges Based Upon Juror Background: A Rational Use?, 13 TRIAL LAwYR's GUIDE 143 (1969) (providing results of questionnaire to fifty attorneys and finding disagreement among respondents concerning importance and effect of background upon peremptory challenges). 8. Hawrish & Tate, supra note 7, at See generally Fulero & Penrod, supra note 5, at (concluding that judgments of juror similarity were based primarily on juror attitudes toward legal technicalities, gender, ideological orientation, and age, and that more experienced attorneys focus on juror occupations in selection process); Hawrish & Tate, supra note 7, at 288 (studying prevalent views among attorneys as to type of individual best suited to serve as juror in particular case); Hayden, Senna & Siegel, supra note 3, at 771 (analyzing type and amount of information important to Massachusetts prosecutors when exercising peremptory challenges and finding no patterns); P.V. Olczak, M.F. Kaplan & S. Penrod, Attorneys' Lay Psychology in SelectingJurors and its Effectiveness: Three Empirical Studies 21 (1989) (unpublished manuscript) (available at Dep't of Psychology, Northern Illinois University, Martin F. Kaplan) (discovering that attorneys and lay people base choices on common stereotypes of demographics and personality variables, but that attorneys will seek specific characteristics related to judgment tendencies for specific issues and cases). But see Balch, supra note 2, at 281 (criticizing mock trial studies as lacking pretrial juror socialization phase and accounting for fact that real jurors take job more seriously). 10. Fulero & Penrod, supra note 5, at 244 (citing S. Penrod, Study of Attorney and "Scientific" Jury Selection (doctoral dissertation (1979)) (unpublished manuscript) (available at Law School, University of Minnesota, Steven D. Penrod).

6 708 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 twenty prosecutors from the Boston area with seventeen categories of information on potential jurors for either a heroin possession case or a rape case." These prosecutors generally appeared most interested in juror age, occupation, demeanor, gender, appearance, and residence. Although this research moves closer to sampling the judgments attorneys actually make in the courtroom, researchers noted substantial disagreement among attorneys over the importance of factors and how to best use those factors to select jurors. D. Observational Studies Observational studies in the courtroom during actual trials provide insights into the types ofjurors preferred by attorneys in particular cases. 12 For example, Professor Broeder observed twenty-three jury trials conducted in the late 1950s and interviewed the attorneys and several of the jurors involved in the cases.'1 He found the voir dire procedures brief and "grossly ineffective" in separating favorable from unfavorable jurors.' 4 His subsequent interviews with jurors yielded several admissions that the jurors deliberately hid or distorted personal information during voir dire questioning. Broeder also estimated that attorneys spent about eighty percent of the voir dire attempting to indoctrinate the jurors by commenting on points of law, preparing jurors for the trial, and ingratiating themselves with the jurors. 15 Another study, a journalistic review of the Huey Newton murder trial, provides several examples of an attorney's apparent ability to uncover hidden biases by questioning jurors.' 6 Other researchers 11. Hayden, supra note 3, at Prosecutors in this study received the facts of a case and information on prospective juror qualifications. Id. Prosecutors then selected jurors and explained their choices to researchers. Id. 12. See Balch, supra note 2, at (describing individual's educational journey from "ordinary citizen" to juror in courtroom setting and asserting that most of socialization occurs during voir dire); R. Blauner, supra note 2, at (advising defense in trial of Black Panther member on detecting and evaluating degree of racism among prospective white jurors through voir dire, and concluding that most effective method of eliminating racial bias is jury of minorities, representatives of defendant's community); Broeder, supra note 2, at 503 (relating results of interviews with attorneys and jurors participating in trials and finding no general pattern ofjuror types); Zeisel & Diamond, The Jury Selection in the Mitchell-Stans Conspiracy Trial, 1 Ai. B. FOUND. REs.J. 151, 161 (1976) (discussing utility of public opinion survey by defense counsel in exercising peremptory challenges and concluding that poll affected jury composition and verdict). 13. Broeder, supra note 2, at Id at Id at 522 (noting that only rough estimate possible, but that remaining time spent discovering whether veniremen were favorable). 16. R. Blauner, supra note 2, at Huey Newton, the former Black Panther Minister of Defense, was charged with murder. Id. at 218. The jury convicted Mr. Newton of voluntary manslaughter, but the court of appeals overturned that verdict on grounds of error in not instructing the jury regarding the possibility of an involuntary manslaughter verdict. Id. at

7 1991] ATrORNEY-CONDUCTED VOIR DIRE 709 conducted a content analysis of the transcripts of voir dire examinations in three trials. 17 Their work discovered that about thirty-six percent of the statements pertained to prospective jurors' personal characteristics, while forty-three percent were "instructional statements" which included the types of remarks described as "indoctrination." The researchers concluded that it was unlikely, given the tendency ofjurors to provide the "expected" answers to questions, that voir dire effectively separated biased from unbiased jurors.' 8 A fourth study reviewed reports of the Mitchell-Stans conspiracy trial to discern the attorney's jury selection strategies. 19 The defense relied on an early form of "scientific jury selection" 20 and, following recommendations from a survey research firm, used their peremptory challenges in an attempt to exclude liberals, Jews, readers of the New York Times or the Washington Post, Walter Cronkite viewers, and people well-informed about Watergate from the jury panel. 2 ' This tactic utilized two surveys: a public opinion poll conducted on potential jurors, based on voter rolls, and an indirect survey of prospective jurors for the trial. The research firm designed the public opinion poll to reveal general community attitudes. The second survey sought specific information about the personal backgrounds of the jury pool members, probably obtained from interviews with neighbors, friends, and employers, and investigations of public records. The prosecution, on the other hand, failed to exercise all of their peremptory challenges and appeared to seek jurors with an unfavorable view of the Nixon administration. The defense 219. The state attempted on two other occasions to convict Mr. Newton, but both trials resulted in hung juries and California finally dropped the prosecution. Id. In his study, Blauner reports that defense counsel interpreted side comments, gestures, and Freudian slips of potential jurors in an attempt to maximize the number of open-minded jurors. Id. at Blauner concludes that a 'jury of one's peers" in this case could mean a jury drawn from the ghetto, rather than from the rolls of registered voters. Id. 17. Balch, supra note 2, at Id. at 278. The research showed that in over 2,000 replies by prospectivejurors, only two answers failed to match the expected response. Id. This finding likely resulted from the leading questions asked by attorneys, most of which virtually demanded public commitment to fairness and impartiality. Id. 19. Zeisel & Diamond, supra note 12, at 152. The researchers studied United States v. Mitchell, No. 73 Cr. 439 (S.D.N.Y. Apr. 18, 1974), the trial of former Nixon administration members Attorney General John Mitchell and Secretary of Commerce Maurice Stans. Id. Their indictment charged conspiracy to impede a Securities and Exchange Commission investigation in the matter of a $200,000 cash contribution to Nixon's presidential reelection campaign. Id. 20. See infra notes and accompanying text (describing scientific jury selection as technique utilizing demographic studies to attempt to predict prospective juror bias). 21. Zeisel & Diamond, supra note 12, at 161, 168. The defense originally intended to use the survey to support a motion for change of venue, but then employed the information in an attempt to profile the most prejudiced jurors and challenge those filling the description. Id. at 168. Critics of the survey feared scientific manipulation of the jury. Id. at 167.

8 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 strategy succeeded in yielding a final panel composed largely of moderately educated people who described themselves as uninformed about the Watergate events. This jury acquitted the defendants. 22 In a subsequent project, the same team interviewed attorneys in several federal trials to inquire about their selection strategies. 23 The comments elicited in this survey portrayed "a mixture of idiosyncratic impressions and application of vaguely perceived rules." 24 The survey suggested that attorneys viewed juror demeanor in interactions with the judge and attorneys, such as "looked mean and grim" or "catered to the judge," and group memberships, such as in liberal organizations, as important clues to biases. 25 Although measures of what attorneys actually do in the courtroom are available, they are not conclusive. With no effective or practical method of measuring and comparing one attorney to another the research does not provide direct evidence of the success of any of the arbitrary or contradictory selection policies. The comments of some of the researchers suggest that attorneys expend more effort on the indoctrination of jurors than on the search for juror biases. 26 Furthermore, for the most part, the observers remain unimpressed with the effectiveness of attorneys' efforts to uncover biases. III. EFFECTIVENESS OF VOIR DIRE QUESTIONING PROCEDURES Certain studies adopt an indirect approach to evaluating the potential efficacy of attorneys' selection judgments that is based on the assumption that attorneys rely primarily on demographic characteristics, a few personality judgments, and scanty information about potential jurors' attitudes when making their selection judgments. 22. Id. at 162. An informal ballot before deliberation revealed eight jurors for conviction, four against. Id. Only rarely do pre-deliberation majorities for conviction get overturned. Id. 23. See Zeisel & Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 STAN. L. REv. 491, (1978) (testing effectiveness of attorneys in eliminating hostile jurors with peremptory challenges by employing as shadow jurors those excused by attorneys and concluding that attorneys succeeded to limited extent). 24. Id. at Id. The study found some success on the part of the attorneys in recognizing and challenging biased jurors based upon certain characteristics related to juror demeanor. Id. This conclusion comports with the results from the study of the Mitchell-Stans voir dire and trial. Zeisel & Diamond, supra note 12, at See R. Blauner, supra note 2, at 230 (stating that defense counsel used voir dire to give speech he hoped would deepen juror sensitivity on racial issues); Broeder, supra note 2, at (differentiating between questions designed to elicit information and those attempting to indoctrinate jurors, and estimating that eighty percent of attorney time is spent on indoctrination).

9 1991] ATTORNEY-CONDUCTED VOIR DIRE Research employing this approach evaluates the power of juror background characteristics, primarily demographic information, such as occupation, income, education, gender, and age, with some attitude and personality information added as predictors of juror verdict preferences, in mock juries and actual jury trials. These methods of prediction based on background characteristics employ statistical models (usually regression equations) generally recognized to be at least as powerful a predictor as human judges using the same input information, and probably close to optimal in their predictive power. 27 A survey conducted by Hastie, Penrod, and Pennington provides a representative example of the statistical approach to predicting verdict preferences. 28 These researchers showed a videotaped reenactment of a murder trial to 828 citizens sampled from Massachusetts jury pools. Using regression analyses, they evaluated the predictive power of twelve background characteristics and found that these factors accounted for about three percent of the variance in the jurors' verdicts. A sample of 269 jurors was studied in more detail, with additional background factors and some attitude measures included in the equations. With this additional information, the researchers were able to account for eleven percent of the variance in jurors' verdicts. 29 Other researchers utilized similar methods in mock jury tasks with various types of cases. These surveys reported success rates, summarized as variance accounted for in juror verdict preferences, ranging from less than five percent to almost fifteen percent in different case types and looking at divergent sets of background characteristic measures See Dawes, The Robust Beauty of Improper Linear Models in Decision Making, 34 AM. PsY- CHOLOGIST 571, 573 (1979) (arguing that linear models where weight of predictor variables are determined on basis of intuition or unscientific prediction are no more accurate than statistical models based on quantifiable information). 28. See R. HASTIE, S. PENROD & N. PENNINGTON, INSIDE THE JURY, at (1983) (evaluating predictive power of background characteristics such as age, gender, political affiliation, religion, and occupation). 29. See Abelson, A Variance Explanation Paradox" When a Little is a Lot, PSYCHOLOGICAL BULL. 129, (1985) (explaining R 2 statistic, which summarizes percentage of variance accounted for, as complex (multi-variate) correlation of relationships between characteristics and verdict); J. COHEN & P. COHEN, APPLIED MULTIPLE REGRESSION/CORRELATION ANALYSIS FOR THE BEHAVIORAL SCIENCES (1975) (describing general principles of multiple regression/ correlation analysis which uses several predictor-variables ofsingle outcome such that combination of predictor-variables yields improved prediction of outcome, as compared to any predictor-variable taken alone, where each predictor-variable adds statistically significant prediction value). 30. See Berg & Vidmar, Authoritarianism and Recall of Evidence About Criminal Behavior, 9 J. RES. IN PERSONALITY 147, (1975) (testing relationship between authoritarianism of juror, that is, aggressiveness or assertiveness ofjuror, to juror's perception of criminals and criminal behavior and accounting for significant percent of between-juror verdict variance using background characteristics of authoritarianism, gender, education, political orientation,

10 712 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 Another group extended the same method to study jurors who had completed jury service in Dade County, Florida. 3 1 They mailed questionnaires to jurors requesting information about eleven background characteristics, thirteen attitude and personality scales, and verdict preferences at the start of deliberation. Verdict preferences of female jurors, with an eleven percent variance accounted for, were somewhat more predictable than for male jurors with only six percent of the variance accounted for. These results substantially agree with the figures based on mock jury research. 3 2 Taken together, these studies support the conclusion that a nonnegligible, but small (about ten percent) portion of the variation between jurors in verdict preferences can be predicted from the background characteristics, attitudes, and personality traits of individual jurors using statistical models to make the predictions. If we assume that attorneys rely on some of these same factors and that their efficiency equals that of the statistical models, we would attribute to attorneys some small power to surmise correctly ajuror's vote at the start of deliberation based on information garnered through voir dire. If, however, we accept the principle that the statistical models provide an estimate of maximum accuracy rarely attained by attorneys, an attorney's ability to predict appears limited by a very low ceiling of precision. 33 and others); Bridgeman & Marlowe, Jury Decision Making: An Empirical Study Based on Actual Felony Trials, 64 J. APPLIED PSYCHOLOGY 91, (1979) (examining relation between juror characteristics including gender, age, occupation, religion, political orientation, and socioeconomic class, and jury decisionmaking, and concluding that jurors determine guilt or innocence primarily on factual evidence, not as extension of own characteristics); Buckhout, Licker, Alexander, Gambardella, Eugenia & Kalkois, Discretion injury Selection, in SOCIAL PSY- CHOLOGY AND DISCRETIONARY LAW 159 (L.E. Abt &J.R. Stuart eds. 1979) (discussing utility of various juror selection strategies and finding that use of juror background factors generally marginally useful as predictors ofjuror verdict preference); Mills & Bohannon,Juror Characteristics: To What Extent Are They Related tojury Verdict? 64JUDICATURE 23, (1980) (correlating juror characteristics such as gender, race, education, age, and demographic characteristics with verdicts rendered and concluding that there is significant correlation); Penrod, Predictors ofjury Decision Making in Criminal and Civil Cases: A Field Experiment, 3 FORENSIC REP. 261, (1990) (finding different variance depending on type of case, such as fifteen percent for murder and five percent for robbery, and concluding that even moderate predictive abilities of juror characteristics may be useful in certain trials); MJ. SAKS, THE RULE OF GROUP SIZE AND SOCIAL DECISION RULE (1977) (discussing effect ofjury size and requirement of unanimity on jury performance and concluding that neither specific size, nor requisite of unanimous verdict produce "better" verdict). 31. Moran & Comfort, Scientific Juror Selection: Sex as a Moderator of Demographic and Personality Predictors of Impaneled Felony Juror Behavior, 43 J. PERSONALrrY & SOC. PSYCHOLOGY 1052, 1054 (1982) (requesting background information and verdict preferences from jurors after trial to determine relationship between personal characteristics and predeliberation verdict). 32. Compare id at 1061 (showing relationship between background characteristics and verdict preferences of potential jurors who viewed videotaped trial) with Fulero & Penrod, supra note 5, at 244 (studying characteristics attorneys used as basis for voir dire challenges) and Hayden, supra note 3, at (same). 33. See Dawes, Faust & Meehl, Clinical Versus Actuarialjudgement, 243 SCIENCE 1668, 1668-

11 1991) ATTORNEY-CONDUCTED VOIR DIRE 713 A second set of studies asked attorneys to predict jurors' verdict preferences in mock-jury experiments. For example, Penrod asked nineteen attorneys to predict the predeliberation verdict preferences of citizens eligible for jury service who participated in a mock jury murder trial. 3 4 Each attorney reviewed thirty-two juror profiles, which included a photograph and statements attributed to the juror. The juror descriptions presented information concerning eleven variables ranging from gender, age, marital status, and ethnic extraction to political orientation, party affiliation, occupational status, and apparent intelligence. The profile also noted "harshness" of appearance (in the attached photograph), and reaction to the statement, "[m]any escape conviction on legal technicalities." These juror profiles did not represent actual individual jurors, but the researchers conducted a collateral analysis based on the results of a larger study in which they statistically evaluated the relationships between the eleven dimensions represented in the mock voir dire study and jurors' verdicts in a mock jury experiment. 35 The analysis showed that the factors attorneys used in the voir dire study did not provide powerful predictors of mock jurors' initial verdict preferences. Therefore, the study concluded that current attorney strategies are ineffective for selecting unbiased jurors at trial. 3 6 In a more recent project studying juror verdict preferences by polling attorneys, Olczak, Kaplan, and Penrod used methods somewhat akin to those employed by Penrod. Their study, however, utilized individuals who had actually rendered verdicts in a specific mock jury study, involving a manslaughter trial, as the basis for the juror profiles. 37 Researchers presented thirty-six profiles to sixteen practicing attorneys and asked them to rate the "acceptability as a juror" of each profile as if they were participating in jury selection. The experiment also asked law students to perform the same task and discovered that both groups achieved approximately the same level of accuracy in juror bias detection, with neither predicting at a 73 (1989) (arguing that properly developed and applied actuarial methods can diagnose and predict human behavior better that clinical methods); Goldberg, Simple Models or Simple Processes? Some Research on Clinical Judgements, 23 AM. PSYCHOLOGIST 483, (1968) (summarizing studies on clinical judgment and concluding that actuarial prediction systems can be constructed to perform at higher level of accuracy). 34. Fulero & Penrod, supra note 5, at (citing Penrod, Study of Attorney and "Scientific" Jury Selection (doctoral dissertation 1979) (unpublished manuscript)). 35. Id. Penrod concluded that attorneys based judgments of juror similarity and bias primarily on "attitudes toward legal technicalities, gender, ideological orientation, and age." Id. at See id. (observing that attorney judgments were consistent with finding of stockbroker and radiologist judgments). 37. Olczak, supra note 9, at 2.

12 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 very impressive level. The number of incorrect acceptance and rejection choices exceeded correct ones.38 One exception to the picture of low accuracy in attorney judgments is provided by a study that applied a similar method to evaluate attorney accuracy in estimating the size of the award that would be recommended by individual mock-jurors in personal injury cases. 3 9 It reported accuracy in both plaintiff and defense attorneys' judgments that accounted for more than eighty percent of the variance in mock-jurors' recommended awards and inferred that the attorneys relied primarily on jurors' background characteristics, such as ethnicity and occupation. The major weakness of these studies, regardless of outcome, is the extent to which they depart from the naturally-occurring courtroom selection task. Critics will object that the written profile materials provided to the attorney-subjects in the Penrod 40 and Olczak 4 l studies fail to capture the nuances gleaned from face-toface confrontation between an attorney and a prospective juror at trial. Due to this gap between the experimental and the courtroom situations, these results must be labelled as suggestive rather than conclusive. The essential message of these studies is that attorneys are not able to accurately assess juror verdict preferences. A third approach to the question of efficacy examines the impact of attorney selection behavior on the verdicts of mock or actual juries. A research team led by Padawer-Singer, Singer, and Singer conducted an experiment in which citizens called for jury duty were exposed to prejudicial or nonprejudicial pretrial publicity, viewed a videotaped trial, deliberated in groups, and rendered verdicts. 42 Practicing attorneys selected approximately half of the mock juries in a mock voir dire examination, while the researchers randomly chose the other half of the juries. Juries selected by attorneys through voir dire did not differ from those randomly chosen in terms of demographic background characteristics. 43 Further, con- 38. Id at See Zeisel & Diamond, supra note 12, at 169 (discussing experiments conducted by Professor Strodtbeck explaining ability of civil trial lawyers to recognize "good" and "bad" jurors in personal injury cases and noting that Strodtbeck's findings were unusual). 40. See Fulero & Penrod, supra note 5, at (employing written juror profiles as basis for attorneys to make challenges in mock situations without facing real jurors). 41. See Olczak, supra note 9, at 2 (utilizing profiles similar to Penrod's as basis for challenges by attorneys in research). 42. See Padawer-Singer, Singer & Singer, Voir Dire by Two Lawyers: An Essential Safeguard, 57 JUDICATURE 386, (1974) (concluding that lawyer conducted voir dire provides important safeguard for administration ofjustice by screening out prejudicial jurors, reducing prejudices introduced by pretrial publicity, instilling jurors with importance and meaning of legal procedures, and sensitizing jurors to various aspects of case). 43. lid at 388 (noting that both jury pools were predominantly male, but finding slightly

13 1991] ATTORNEY-CONDUCTED VOIR DIRE 715 sidering all of the jurors exposed to anti-defendant pretrial publicity, the voir dire juries convicted less frequently than the randomly selected juries. Mock jurors not shown the prejudicial newspaper articles, however, exhibited the reverse effect, with voir dire juries convicting more often than randomly selected juries. 44 Zeisel and Diamond followed up their investigation of attorneys' jury selection strategies in the Mitchell-Stans trial by evaluating the success of those strategies based on an account of post-trial interviews with the jurors who decided the case. 45 Jurors reported that the first vote during deliberation found the jury split eight to four in favor of conviction, suggesting a misguided selection strategy by the defense. Ironically, an alternate juror, whose background characteristics led to a defense challenge for cause during voir dire, replaced another juror during the trial. According to jurors' retrospective comments, this juror became the critical proponent of the eventual acquittal. 46 Thus, an overall evaluation of the defense selection strategy seems to be negative. Although the strategy successfully created a jury composed of personal backgrounds favored by the defense, the initial vote supported conviction, and the apparent cause of the acquittal was the presence of a juror the defense had attempted to exclude for cause. Similarly, in hindsight we could say the prosecution erred by not using a peremptory challenge to excuse the alternate juror who became the key acquittal proponent in the deliberations, although at one point in the voir dire proceeding the prosecution requested that the juror be excused for lack of candor. The subtle implications of the attorneys' performance in the Mitchell-Stans voir dire are uncertain: both sides challenged the juror who appears, in retrospect, to have been critical in determining the final verdict, and the prosecution failed to eliminate him with a peremptory challenge (after their challenge for cause was rejected). What does emerge from a careful review of selection strategies in this case is that neither side performed effectively. Zeisel and Diamond subsequently corfducted a second, more systematic study of attorney selection strategies. 47 They arranged for jurors excused from service by challenge in twelve criminal trials to higher percentages of Catholics, professionals, and highly paid persons on randomly selected panels). 44. It at Zeisel & Diamond, supra note 12, at (quoting Arnold, How Mitchell-StansJuy Reached Acquittal Verdict, N.Y. Times, May 5, 1974, at 1, col. 3). 46. Id. at See Zeisel & Diamond, supra note 23, at (attempting to predict effectiveness of attorney challenges during voir dire by comparing excused jurors' verdict preferences to verdict of actual jury).

14 716 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 remain in the courtroom and serve as "shadow jurors." Researchers collected post-trial "verdicts" from the shadow jurors and interviewed the actual jury in each case to reconstruct its first ballot vote. They compared the shadow jury votes with the actual trial jury vote, as reconstructed from post-trial interviews, to determine the relative effectiveness of defense and prosecution jury selection strategies. 48 In seven of the twelve trials, the effect of the attorneys' challenges was minimal; the verdicts of the challenged shadow jury and the real jury probably would have been identical. 49 In the remaining five cases, the differences between the first ballot votes of the two juries were more substantial, and the researchers posited that in at least two of the original twelve cases different verdicts might have resulted if the attorneys had not exercised their challenges on the real jurors. 50 They concluded that the prosecutors ineffectively exercised their challenges, making "about as many good challenges as bad ones," but rated the defense attorneys overall performance as superior. 51 The Padawer-Singer and the second Zeisel and Diamond experiments present the most pertinent conclusions about attorney performance in actual jury selection conditions. The Padawer-Singer result is puzzling. On the one hand, the defense attorneys performed more effectively than chance in selecting unbiased jurors from those exposed to anti-defendant pretrial publicity as evidenced by their less frequent conviction verdicts. On the other hand, when faced with jurors not exposed to such publicity, the defense attorneys appeared to perform less effectively than chance, because those jurors tended to convict. 52 At a minimum, the outcomes suggest that attorneys are not accurate in detecting juror bias. The Zeisel and Diamond experiment is the best study to date that addresses the question of attorney accuracy. Its conclusion of slight attorney effectiveness in some trials 53 probably correctly summarizes how attorneys perform in actual voir dire impanelment proceedings. The study is limited by its small sample and the inherent inaccuracy of reconstructing verdicts from newspaper accounts. 48. Id. at (attempting to treat shadow jury exactly as real one, including passing ofjuror questions to trial judge for actual response). 49. Id. at Id. at Id. at But see Bermant & Shepard, The Voir Dire Examination, Juror Challenges and Adversaty Advocacy, in PERSPECTIVES IN LAW AND PSYCHOLOGY, VOLUME II: THE TRIAL PRO- CESS 69, 115 (B.D. Sales ed. 1980) (criticizing Zeisel and Diamond method because of uncertain statistical validity of small sample and inherent differences between real and mock juries such as social pressure and sense of responsibility of real jury). 52. Padawer-Singer, supra note 42, at Zeisel & Diamond, supra note 23, at 519.

15 1991) ATTORNEY-CONDUCTED VOIR DIRE 717 Furthermore, the finding that "in two or three cases out of twelve the selection strategy probably made a difference" may not be a substantial enough effect to support the conclusion that attorney selection practices make a reliable difference. Nevertheless, the conclusion that attorney selection strategies do exercise a small influence on the outcomes of a few cases 5 4 comports with this author's view. In further support of this generally pessimistic assessment of attorney judgment, research indicates that clinical psychologists and psychiatrists making certain judgments analogous to those performed by attorneys at trial tend to perform well when given only a few (4-5) cues on which to base their assessments. 55 The implication is that extensive questioning by attorneys during voir dire may simply "flood" their judgment processes with information that is useless or even detrimental to accurate assessment of juror prejudices. In fact, evidence suggests that clinicians making personality judgments following a face-to-face interview perform at lower levels than when basing judgments on only written summaries of patients' characteristics. 56 Furthermore, jury selection procedures provide a classic example of a task that provides inadequate feedback in a difficult-to-perceive form, thus sharply limiting the process of learning to make the judgments. 57 IV. "SCIErIFIC" JURY SELECTION METHODS The basic conclusion of this Article is that attorneys, relying on their experience and intuition, are not very acute judges of juror 54. Id. 55. See supra notes and accompanying text (discussing profiles used in research including gender, age, ethnic extraction, and political orientation and concluding general ineffectiveness of attorney juror selection based on those characteristics); supra note 45 and accompanying text (explicating similar juror profile study which found that law students perform as well as practicing attorneys). 56. See Dawes, Faust & Meehl, supra note 40, at (noting biasing effect of face-toface contact between clinicians and subjects in personality judgments); Garb, Clinical Judgement, Clinical Training and Professional Experience, 105 PSYCHOLOGICAL BULL. 387, (1989) (comparing performance levels on judging personalities between clinicians basing judgments on live versus written data and finding written data better basis for prediction); Sawyer, Measurement and Prediction, Clinical and Statistical, 66 PSYCHOLOGICA. BULL. 178, (1966) (recognizing that clinicians may be influenced by face-to-face contact and that influence lowers accuracy of personality judgment). 57. See Brehmer, In One Word- Notfom Experience, 45 ACTA PSYCHOLOGIA 223, (1980) (arguing that many people have biases that prevent them from learning to make judgments); Einhorn, Learning from Experience and Suboptimal Rules in Decision Making, in COGNIIVE PROCESS IN CHOICE AND DECISION BEHAVIOR 1-20 CT. Wallsten ed. 1980) (noting that tasks providing inadequate or difficult to understand feedback increase difficulty in learning process); Einhorn & Hogarth, Confidence in Judgment: Persistence of the Illusion of Validity, 85 PSYCHO- LOGICAL REV. 395, 411 (1978) (explaining use of outcome feedback to evaluate accuracy of judgment model and importance of positive and negative feedback).

16 718 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 biases. A recent innovation in jury selection, however, supplements attorneys' personal judgments with survey analyses and the clinical judgments of psychologists and psychiatrists. This technique factors in the results of statistical analyses of surveys conducted in the venue to identify juror background characteristics associated with a bias toward either side of the case. 58 For present concerns, the relevant question is whether an attorney, assisted by social scientists, performs substantially more effectively during voir dire than an attorney acting alone. Published reports in magazine and newspaper articles emphasize successes associated with applications of the "scientific" selection methods in highly publicized cases such as the trials ofjoan Little, 59 the Harrisburg Seven, 60 and the Wounded Knee defendants. 6 ' Most social scientists, however, doubt the efficacy of these methods 62 and the most thorough case study of an application of this method concluded that it failed. 63 Two systematic empirical studies of the efficacy of the "scientific" selection method exist. One study conducted by Penrod utilized 58. See Schulman, Shaver, Colman, Emrich & Christie, Recipe for a Jury, PSYCHOLOGY To- DAY, May, 1973, at (detailing venue studies conducted by social scientists for defendants in Harrisburg Seven anti-war conspiracy trial, including telephone and personal interviews of random demographic sample drawn from district in which case was heard). The venue study concentrated on ten characteristics, including respondents' choice of news sources, familiarity with defendants, religious attitudes and commitment, and leisure activities. Id. at 40. The jury deadlocked ten to two favoring acquittal on the conspiracy charges, and convicted two defendants on minor smuggling charges. Id. at See State v. Little, No. 75-CRS (N.C. Super. Ct. Crim. Div. Aug. 15, 1975) (acquitting Little of alleged icepick killing of white jailer who reportedly forced defendant to perform sexual act). 60. See Schulman, supra note 58, at (discussing Harrisburg Seven trial where defendants were indicted for conspiracy to perpetuate draft board raids, destroy records, kidnap Henry Kissinger, and bomb Washington, D.C. heating tunnels, eventually resulting in hung jury). 61. See United States v. Banks, 383 F. Supp. 384 (D.S.D. 1974) (dropping charges against defendants, indicted for conspiracy, larceny, and assault in connection with seventy-one day occupation of Sioux Indian village, due to government misconduct and refusal of prosecution to proceed with eleven member jury). 62. See Berk, Hennessy & Swan, The Vagaries and Vulgarities of "Scientific"Jury Selection: A Methodological Evaluation, 1 EVALUATION Q. 143, (1977) (stating that scientific jury selection not to be construed as only effective method); Berman & Sales, A Critical Evaluation of the Systematic Approach to Jury Selections, 4 CRIM.JUST. AND BEHAV. 219, (1977) (contending that systematic approach's effectiveness is inconclusive); Diamond, Scientific Jury Selection: What Social Scientists Know and Do Not Know, 73 JUDICATURE 179, 183 (1990) (stating that systematic jury selection has value of relieving stress of attorney or client, although overall effect is modest at best); HANS & ViDMAR, supra note 2, at 72 (emphasizing that while lawyers and media attribute success to systematic selection, actual effectiveness is debateable because any success may be due to political overtones of trial rather than selection process); MJ. SAKs, supra note 30, at (concluding that evidence, not juror characteristics, determines outcome in most trials). 63. See supra note 52 and accompanying text (discussing results of public opinion survey in Mitchell-Stans trial and finding results disappointing).

17 1991] ATrORNEY-CONDUCTED VOIR DIRE statistical analyses that carefully followed the recipes provided in "scientific" jury selection handbooks 64 to fit statistical models to data from a large-scale mock jury study in which jurors decided a reenacted murder trial and audiotaped summaries of murder, rape, and robbery cases. 65 The project concluded that the statistical models provided some leverage at jury selection, particularly when combined with other strategies for selection. 66 Thus, a strategy could be designed to provide a five to ten percent advantage over random selection for criminal cases such as the felonies presented to mock juries. The second experiment trained law students to apply either a conventional intuition-based selection strategy or a social science method. 67 The two groups of students then observed voir dire interrogations of prospective mock jurors and were asked to make judgments about the probable verdicts of these mock jurors in drug, court martial, murder, and drunk driving cases. 68 Subjects instructed in the social science approach achieved significantly more accurate detection of bias than subjects applying the conventional intuitive approach in the drug and court martial cases, 'but not in the murder and drunk driving cases. 69 As in Penrod's work, the enhancement in performance when supplemented by social science methods was small, yet significant. 70 At present, the conservative conclusion is that the party employing survey-based "scientific" selection methods yields slightly better results than the side using conventional, intuition-based voir dire strategy or random selection. These effects, however, typically fall 64. See generally B. BONARA & E. KRAUSS, JURY WORK-SYSTEMATIC TECHNIQUES: A MAN- UAL FOR LAWYERS, LEGAL WORKERS AND SOCIAL SCIENTISTS (1979) (compiling sample telephone interview data, demographic reports, "how to use census" data, table of disparities, and pre-voir dire questionnaire for attorneys). 65. See Fulero & Penrod, supra note 5, at See Brams & Davis, Optional Jury Selection: A Game-Theoretic Model for the Exercise of Peremptory Challenges, 26 OPERATIONS RES. 966, (1978) (modifying basic model ofjuror selection with game theoretic strategies, which rely on number of players and rules of "game," as opposed to characteristics of "players," to predict how rational people will respond in a given situation); Roth, Kadane & DeGroot, Optimal Peremptory Challenges in Trials by Juries: A Bilateral Sequential Process, 25 OPERATIONS RES. 901, (1977) (defining optimal selection procedure to include statistical models combining analysis of characteristics of potential jurors, rules of trial process, and presentation of evidence). 67. See Horowitz,Juror Selection: A Comparison of Two Methods in Several Criminal Cases, 10J. OF APPLIED SOCIAL PSYCHOLOGY 86, (1980) (instructing law students in social science method to use various personality and demographic data related to juror selection, then providing them with juror profiles for practice before actual jury selection procedure). 68. Id. at (allowing trained law students to ask questions of veniremen, using selection techniques in which they were trained, through practicing lawyers). 69. Ido at See Fulero & Penrod, supra note 5, at (noting that although scientific method gave only small predicted variance increase, practical results might be significant).

18 720 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 in the range of five to ten percent better than chance, and it remains unclear exactly which types of cases will yield the greatest advantage to the "scientific" selection methods. 71 Furthermore, the cost of these methods makes them unavailable to a typical defendant. "Scientific" jury selection methods are relatively new, less than twenty years old, making the development of more effective forms likely. Therefore, future research needs to answer the critical question of whether current methods produce more effective results in some types of cases, perhaps those which involve highly charged attitudinal and emotional issues. For example, the "scientific" selection method based on the results of an attitude survey in a community might be especially effective when the trial invokes political passions, such as the Susan Saxe trial in Boston. 72 A second question is how much the "scientific" selection method increases accuracy over an attorney's unaided intuition. It is plausible that an attorney, appreciating the significance of political issues in a trial, would capitalize on this insight during voir dire without the aid of the "scientific" method, and, through careful questioning, determine existing biases. V. STUDIES OF ALTERNATE VOIR DIRE EXAMINATION PROCEDURES One empirical study compared judge versus attorney-conducted voir dire procedures in a mock-jury experimental setting. In this experiment, subjects' attitudes concerning issues such as the treatment of minorities by the justice system, credibility of criminal justice personnel, and the deterrent effects of punishment were assessed in a written questionnaire at the beginning of a mock jury experiment. 73 Subsequently, the mock jurors underwent a simulated voir dire examination. In one set of conditions, an actor playing an attorney or trial judge conducted the examination. As part of that examination, the questioner elicited prospective jurors' attitudes on the same scales originally measured by the written questionnaire. The researcher then compared the oral and written answers to construct a change score, representing the average absolute difference between the subjects' two response ratings. This 71. Id at (noting, however, that conventional intuition-based approach achieved superior results when predictive characteristics of social science method weak or absent). 72. The Susan Saxe trial involved an antiwar activist Brandeis student charged with felony murder of a police officer during a bank robbery. Wash. Post,Jan. 18, 1977, at A3, col.l. Her first trial resulted in a hung jury. Id. 73. See Jones, Judge Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, I 1 LAw & HUM. BEHAV. 131, (1987) (demonstrating that attorneys were more successful than judges in eliciting candid disclosures from potential jurors based on comparison ofjuror responses to written and oral questioning).

19 1991] ATORNEY-CONDUCTED VOIR DIRE change score was interpreted as a measure of accuracy, on the assumption that the less change between written and oral voir dire statements, the more accurate the response in voir dire. 74 The findings demonstrated a higher change score in subjects' attitudes towards the justice system in judge-conducted voir dire than in attorney-conducted voir dire. Accordingly, the study concluded that attorney-conducted voir dire elicits more accurate statements of individual juror's attitudes and thereby facilitates application of attorney selection strategies. 7 5 Generalizing the results of this mock-jury simulation to all voir dire presents a problem because of the study's limited focus on relevant attitudes towards the justice system, and the use of a change score as the sole index of accuracy. First, any distortion in an individual's statement of attitudes in the face of a formal legal authority, such as the trial judge, will likely be greatest on attitude issues directly relevant to the judge's role in society. Second, the initial written questionnaire responses may not perfectly represent the subjects' "true" attitudes because the results revealed substantial changes in attitudes under both judge- and attorney-conducted voir dire procedures. Furthermore, nothing conclusively suggests that for some jurors the oral statement of their attitude more accurately depicted their true attitude than the written response on the initial questionnaire. One might even argue that, without additional research to identify "true" attitudes, none of the three types of responses (written questionnaire response, oral response to the judge, oral response to the attorney) definitely represents the "true" attitude. CONCLUSIONS A selection procedure based on the competition between two attorneys attempting to eliminate jurors favorable to the other side supposedly produces a relatively impartial jury. Furthermore, such a selection process ostensibly eliminates aberrant or incompetent jurors. The present review of the empirical research, however, rejects the conclusion that attorneys, even those aided by "scientific" selection methods, effectively identify jurors who will favor one side of the case. 76 Moreover, the studies that yielded some accurate predictors, usually through statistical analyses, typically found these 74. Id at Id. at See Horowitz, supra note 67, at (finding low reliability in picking impartial jury in both selection techniques); supra note 62 and accompanying text (stating that social scientists generally doubt superiority of scientific method).

20 722 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:703 predictors to be "obvious" background characteristics of the jurors. Thus, attorneys ordinarily used gender, occupation, income, or residence address as frequently as subtle personality traits or attitudes indirectly related to the specific judgments required to decide the case. 77 This Article concludes that attorney-conducted voir dire is not an effective procedure for selection of impartial juries. Although none of the empirical studies is perfect, all evidence demonstrates a consistent lack of impressive attorney performance in this regard. Attorneys disagree substantially about what information to rely on and which jurors to select, and consistently produce low levels of accuracy in judging juror verdict preference prejudices. Perhaps more importantly, even the heightened power of prediction of statistical models also demonstrates comparatively low levels of success in forecasting juror verdict preferences. Finally, considerable research on other similar "clinical judgments" of peoples' future behavior also concludes that these judgments are sharply limited by a low ceiling on achievable accuracy, and jury selection conditions are virtually a prototype of situations in which "learning to judge" will be difficult or impossible. Note, that the implication of this review is not that attorneys are distinctively poor judges of human behavior. The point is that they are presented during voir dire with an extremely difficult judgment task and that the best current prediction methods provide only slightly more accuracy than the attorneys' judgments. In fact, when substantial accuracy is possible, perhaps because the true relationships between juror backgrounds and their judgments are relatively simple, attorneys perform quite respectably. In the one study where substantial accuracy was achieved, the valid cues for judgments of mock-jurors who recommended awards in personal injury cases consisted of background characteristics related to income and occupation that are available in non-attorneyconducted voir dire proceedings.7 8 Both plaintiff and defense attorneys accurately predicted personal injury awards of prospective jurors. This finding suggests that it may be relatively easy to predict magnitudes of awards from juror background characteristics, per- 77. See Fulero & Penrod, supra note 5, at (concluding that social science method only marginally more effective, but that it relies on obvious background characteristics that attorneys could easily use). 78. See Zeisel & Diamond, supra note 12, at (discussing ability ofcivil trial lawyers to predict accurately amount of jury award based on juror ethnicity and occupation) (citing Strodtbeck, James & Hawkins, Social Status injury Deliberations, 22 AM. SOCIOLOGICAL REV (1957).

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