By Dr. Ken Broda-Bahm:
Imagine you are in a grocery store standing in the cereal aisle in front of a dizzying variety of choices. You pick up one box, and being the healthy person that you are, you check the nutritional information on the label. Then you pick up another box. The second cereal has a little less sugar. So, into the cart it goes and you're off feeling like you've made the wise and responsible choice. But realistically, you have no idea how your cereal compares to all of the many dozens of cereals still on the shelf. Instead, you engaged in a restricted comparison and felt as though your comparison was broader than it actually was. The same phenomena occurs in nearly all shopping situations, and in most other contexts of human evaluation as well. This includes jury selection. A successful selection depends on seeing how an individual panelist stacks up against the rest of the panel, but there is a strong tendency to default to the individualized comparisons of "this potential juror is better than that one."
The social psychologists call the process "narrow bracketing," or the tendency to simplify decision making by relying on artificially restricted choices, while failing to account for the effect of the restricted subset in your ultimate decision. This post takes a look at a recent study focusing on interviews of 9,323 MBA applicants (Simonshohn & Gino, May 2012) and provides some recommendations on broadening your bracketing in order to make your jury selection decisions as rational as possible.
We Narrow the Brackets When Making Choices
Confirming a human tendency to base choices on smaller subsets, the study published in Psychological Science looks at MBA interviews in which candidates arrived in daily sets. The data over the years shows that if you were one of those interviewees, evaluators based your ratings on the arbitrary factor of who else was being interviewed that same day. Instead of being compared to the full panel of applicants, you were compared to those in the subset that came before and after you. Specifically, there was a reluctance to evaluate applicants in too similar a fashion (e.g., I rated the last person as a '4' ... so this one is a '5'), creating more variety in the evaluations than a more 'sequentially unbiased' rating of the applicants would warrant. We might also expect a contrast effect, suggesting that it is better to be the average applicant on a day of otherwise poor interviewees, than it is to be the average applicant on a day of otherwise great interviewees.
But We Shouldn't Do That During Jury Selection
When you are tied to daily sets of school applicants, it may be impractical or even impossible to step outside of one's subset in order to reach a fair assessment. When choosing your strikes from a single venire, however, you do have the opportunity to make sure you are comparing each potential juror to all potential jurors. Despite that, many informal practices in jury selection can contribute to a choice that is narrower than it should be. Here are three pieces of advice for avoiding that.
1. Ask the Key Questions of the Entire Panel
At its best, attorney-conducted voir dire should feel relaxed and unthreatening, and should encourage jurors to open up. Following that line of advice, some attorneys' preference is to conduct voir dire in what I call a "serial interview" mode. In other words, you talk to one juror, then move on and talk to another, and so on. In the end, the attorney has a confident choice to strike the panelist, for example, who said "Products aren't tested enough" in a product defense. But the problem I often see in that method is that this is the only panelist who specifically commented on the topic -- we have no idea what all the other panelists would have said if they had been asked about product testing. Some might have even more extreme views. Instead of basing your strikes on the subset that happened to volunteer their views on a specific topic, you should consciously escape that narrowed bracket by asking the key questions of the entire panel: "If you had to choose between two options, who would say that there is too much product testing...and who would say that there is not enough?" After dividing the group, you can then follow up individually and conversationally with those least likely to identify themselves as strikes for the other side.
2. Wherever Possible, Use Scoring
Experienced trial lawyers and consultants often have a gut feeling about a potential juror. There is nothing wrong with that - it is both human and useful. But the problem with relying chiefly on gut is that, in many to most cases, that "bad feeling" that motivates a strike can stem from a single feature or from a single specific comment the panelist made. On the flip side of the coin, the jury candidate who has said seven bad things for you, and then added one good thing, might be irrationally rehabilitated if what is left ringing in counsel's ears is the one good thing. To avoid the problem of giving disproportionate influence to one factor, we always encourage using some kind of scoring system on jurors. Identify the variables that create higher risk (e.g., in a products defense that might be anti-corporate bias, high expectations for product testing, and low consumer responsibility), and assign a numeric value to responses. This helps you account for the full spectrum of what you've learned about a panelist and allows you to compare each individual to the rest of the panel. The downside to scoring, if you allow it to happen, is a false precision. You should remember that in a loose and subjective scoring system, someone with a "24" isn't necessarily worse than someone with a "23," but the score itself serves as a useful starting point. For example, when someone you like nonetheless has a high-risk score, it is a reason to look again and to check where those numbers are coming from. Without some sort of benchmark, you risk giving too much weight to impulse and to the last piece of information that you learned.
3. Adapt Your Scoring Method to the Amount of Time You Have
Sometimes you have time for a sophisticated scoring system, but many times you don't. It depends on the judge's process and the amount of time allocated for voir dire. But there is always time for some sort of systematic approach. In the most rushed and constrained selection situation, for example, I use a five-point method. Everyone starts at "3," and throughout questioning by attorneys and/or the judge, you are continuously revising those scores: If you learn negative things about the potential juror, they move toward "5," and if you learn positive things, they move toward "1." Then when it is time to strike, you start with your attention on the "5's."
When you have more time and more information, use a more comprehensive method. For example, we've long followed the practice of identifying the variables of interest, then deciding which questions contribute to which variable, then assigning a weight to a given answer. For example, if anti-corporate bias is the variable, then a lack of management experience might be one question that contributes, and that might be, subjectively, a "3" on a scale of "1" to "10." Sometimes those weights are based on mock trial or survey data, sometimes they are just based on our experience and judgment. When factored all together using a program like Jury Box, you can end up with a remarkably precise and robust measure of a potential juror's risk. Again, the score isn't carved in stone, and you should never make your strikes blindly based on the numbers, but it is a very powerful place to start.
Once, for example, I worked on a week long death penalty defense jury selection which included a comprehensive juror questionnaire and individualized voir dire. Because the great majority of removals were for cause, and because we had to decide whether to strike on the spot if the cause challenge failed, we continually needed to know not only how good or bad a particular panelist was, but how they stacked up against those waiting in the hall. To answer that question, we continually recalculated scores as the pool shrank so that we were always able to know for each candidate whether they were better or worse than the average of what was coming up.
Of course, it is possible to exaggerate the importance of jury selection: The case hasn't ended with the empaneling of the jury, but it has started. And it has started with a unique set of unalterable experiences and attitudes that can be nearly impossible to change in a short trial. For that reason, you want to be as systematic and thorough as the circumstances allow you to be. Instead of a narrow bracket, you need a broad mind.
Other Posts on Jury Selection Methodology:
- Jury Selection: Probe But Don’t Embarrass
- Don't Select Your Jury Based on Demographics: A Skeptical Look at JuryQuest
- Tap Into Computer-Aided Jury Selection: A Video Review of Jury Box Software
- iPad or Paper Pad, Have a System for Tracking Information in Voir Dire
Simonsohn, U. & Francesca, G. (May, 2012). Daily Horizons: Evidence of Narrow Bracketing in Judgment from 10 Years of MBA-Admission Interviews. Psychological Science (Forthcoming). URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2070623
Photo Credit: Kokopinto, Flickr Creative Commons