Stop Spinning and Start Striking: Psychology, Evidence-based Best Practice, and the Case for Cause-based Jury Selection

• Year: 2025
• Citation: Vol. 94 No. 2 Pg. 26
• Pages: 26

Stop Spinning and Start Striking: Psychology, Evidence-Based Best Practice, and the Case for Cause-Based Jury Selection No. 94 J. Kan. Bar Assn 2, 26 (2025) Kansas Bar Journal April, 2025

By Kelson Bohnet, Trial Lawyer, Death Penalty Defense Unit of the Kansas Board of Indigents' Defense Services

Introduction

Between fictional depictions and real-life heroes, trial lawyering has acquired a deep accompanying folklore. To many, trial lawyers have superhuman instincts that tell them exactly what to say or do, and when to say or do it. They know the single, devastating cross-examination question to wreck the other side's case. They know the emotional, powerful line that wins jurors over. They know how to find the unfindable evidence, what legal issues to leverage, and when to have their client put the glove on. This ability to know, in ways that other people can't, is the foundation for the folk hero-depiction of the American trial lawyer.

When people become lawyers, however, they quickly learn that no one really has these superpowers. Trial lawyers are ordinary people that must learn and prepare. Thus, starting in the latter part of the Twentieth Century, much of the profession has been dedicated to improving what we do based on what science tells us about how human beings behave in courtrooms. Opening statements went from formalistic afterthoughts to rich and emotional stories.^[1] Crossexamination transformed from a messy "gotcha" exercise into an organized and persuasive story-telling device.^[2] Expert witness involvement went from theoretical luxury to practical necessity.^[3] Especially in recent times, with the staggering amount of data that we can access and use, every lawyer's motions filings, objection strategies, and procedural chessmoves can be informed with real information about how different legal actors behave.^[4] More and more, lawyers are using means-tested, evidence-based methods to help clients as much as possible.

But jury selection has not featured as prominently in the movement to modernize trial practice. While the rise of the jury consultant industry was an attempt at that kind of transformation, that field never lived up to its original promise. Consequently, so much of jury selection remains wrapped up in its own folklore of sorts. Lawyers talk in broad generalities about the jurors they want on a particular case, often delving into demographic assumptions. They focus on hard-to-describe "feelings" they get based on facial expressions or inflection. Newer lawyers are told to focus on "likeability," as if that was something that everyone understood and applied universally. If trial practitioners express any coherent jury selection philosophy, it is often to persuade and pre-try the case as much as possible, and then exercise peremptory challenges based on instinct. Litigation, preparation, and practice for jury selection are almost never spoken about in the same way as trial practice. Therefore, for perhaps the most critical part of any jury trial, so many trial lawyers still accept the folklore. We think we know in that supernatural way. We believe that we can read a juror questionnaire, chat for a few friendly minutes, and then exercise a mystical ability to sort people into the "good" and "bad."

The goal of this article is to give trial practitioners a better way to approach jury selection, and that better way is for-cause voir dire. For-cause voir dire is an evidence-based core philosophy that informs each part of jury selection practice. Based on psychology, it requires that lawyers stop trying to persuade jurors during this part of the trial and stop asking for meaningless promises to be fair. Instead, attorneys need to identify people that can never be persuaded or can never be fair. Then, they must do whatever they can to remove those jurors. For-cause jury selection in every case, every time, is an evidence-based best practice that gives attorneys the most measurable way to protect our clients. Knowing and understanding this philosophy and its psychological underpinnings are the first and most important steps to modern and informed jury selection. If the readers of this article take that core philosophy to heart and use it to inform selection strategy in their next trial, that's an enormous step on the road to better voir dire.

The Science of Human Behavior

Psychology is the study of how humans think and behave. Lawyers often think of psychology as it applies to clients. However, there is also an enormous amount of research involving cognition and behavior that is informative for how we conduct jury selection.

The jury selection philosophy set forth in this article is not based on trial lawyer intuition and instinct. It is not based on one case outcome, or even a series of outcomes. Instead, for-cause jury selection is based on some of these fundamental principles of human behavior. Each part of the for-cause philosophy and technique is rooted in the four specific psychology principles discussed below.

People don't quickly (or ever) change their minds about fundamental beliefs.

Science tells us that there is a significant difference between changing people's minds on something they haven't thought much about, compared to changing people's minds on something that they have thought and believed for a long time. The former is very possible; the latter is almost certainly not.

Research of actual human behavior has long taught that people predictably and vigorously defend their closest beliefs. William J. McGuire, one of the most influential psychologists of the Twentieth Century, conducted a series of research experiments in the 1950s and 1960s that led to important findings regarding the persuasion process.^[5] One of those findings was that people typically avoid exposure to information that is contrary to their beliefs.^[6] If there is any exposure to contrary information, it often comes in small, limited doses.^[7] McGuire showed that, just like with immunity in biological systems, exposure to ineffective prior counterarguments increased immunity to persuasion.^[8]Essentially, this means that small, limited persuasion efforts on important beliefs are likely doomed. McGuire eventually developed a six-step model of persuasion that, from left to right, shows the persuasive process and progression of difficulty for both the presenter and receiver:

In jury settings, there is evidence of McGuire's persuasion theories in terms of the difficulty in persuading to the point of behavior change. Many mock jury studies have examined the relationship between juror predisposition and final verdict decision. Mock jurors who are inclined to certain verdicts are extremely likely to render those verdicts, even in group decision-making settings.^[9] They also are more likely to view evidence presented through the lens of their ingrained views, as opposed to a neutral viewpoint that is open to the lawyer's intended purpose.^[10]

In research studying actual empaneled jurors, the same is largely true.^[11] In-depth analysis of capital juror decisionmaking has found that many people seated in death penalty cases use evidence in capital cases to channel their predisposition, rather than to guide their unbiased judgment.^[12] These jurors often come into the process with a strong bias toward a certain outcome, and they then interpret evidence through that conclusory lens. Almost invariably, these jurors go on to act in accord with their already-hardened views. Specifically, empaneled capital jurors who believed that the death penalty was the only appropriate penalty for some or all kinds of premeditated murder were

virtually unpersuadable in terms of choosing death as their final sentencing judgment.^[13]

Our profession is based on persuasion, and the highest-stakes persuasive setting for most lawyers is the jury trial. Psychology, however, shows that persuading people to change deeply held beliefs to the point of actual behavioral action is a long and complicated process. Real, reliable persuasion involves multiple encounters and inflection points over an extended time period, which is a very different paradigm than jury selection.

Jurors can be persuaded during trial, but they must be a receptive audience to begin with.

A close corollary of the principle discussed above is that, in a trial setting, persuasion is not possible with every single person. Only some jurors are actually persuadable to one side or another, because pretrial biases based on deeply held beliefs make individual juror decisions a foregone conclusion. Again, both mock juror and actual juror research provide evidence for this behavioral principle. Mock jurors are often biased because of their preexisting preference for authoritarianism or libertarianism, which leads to explicit, more specific biases that favor one verdict or another.^[14] Beginning in the early 1980s, researchers constructed a uniform measure of these preexisting attitudes for mock jurors called the Juror Bias Scale (JBS).^[15] The scale, ranging from 17 to 85, measures prosecution or defense bias in criminal cases.^[16] Time and time again, researchers have shown that the JBS has a strong statistical relationship with mock juror decision-making.^[17]

These predispositions play out in significant ways. Civil mock jurors, specifically, have stark and controlling beliefs on issues like punitive damages.^[18] Additionally, as referenced above, confirmation bias is also a factor when considering evidence. Mock jurors' fundamental biases slant their interpretation of evidence.^[19] As one researcher put it: "Life experiences and preconceptions contribute to the narrative or story that jurors develop as they listen to evidence and decide the case. Evidence that is inconsistent with jurors' preconceptions and the developing story may be discounted or ignored."^[20]

With respect to actual jurors, these same...