By: Dr. Ken Broda Bahm –
We are often asked, “What kind of jurors do we want for our case?” and sometimes that question can veer toward demographics: “Do we want women or men?” In personal injury litigation, for example, the lawyers trying the case might suspect that women will show more compassion and sympathy toward an injured party, and want to keep (if they’re plaintiffs) or strike (if they’re defendants) female jurors for that reason. Not only does the Supreme Court tend to frown on the gender-based use of peremptory challenges (see J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 1994), but we also stress that social science is on the same side. Demographics is only a very small slice of what a juror brings to your case. Their case-relevant experiences, and most importantly their attitudes, will be far more important in identifying the high-risk jurors that are most likely to be predisposed against your case from the start.
But no sooner are we able to get out that explanation, when along comes another study that seems to show that demographics might be predictive after all. The latest example (Mercadillo et al., 2011) stems from a brain scanning study conducted by Mexican researchers that compared the brain activity of women and men as they looked at photographs that showed people who were sad or suffering. In the brains of the women, the compassion inducing photographs caused greater activity in several parts of the brain (thalamus, putamen, and cerebellum) that indicate that the women “engaged in more elaborate brain processing” and showed “greater emotional sensitivity” when exposed to the kinds of images that evoke compassion. So does this mean that the demographic determinists are right, and personal injury attorneys should try to tip-toe around court precedent in order to influence the gender composition of their jury? Brain scans notwithstanding, we still say that the answer is no.
Why, no? For a couple of reasons. First, in this relatively small study (involving 12 men and 12 women), we don’t know the extent to which the differences in brain activity will translate into differences in behavior. But the larger problem in drawing jury selection lessons from this and other demographic difference studies is the assumption that what is true in the aggregate, will also be true in the individual case. The jury venire itself is a small slice of the population. So even if we know that women are statistically more likely to be compassionate than men, we don’t know if the same is true of the relatively small sample that has been gathered together for jury selection. In looking at distinctions based on gender (or race, age, or religion), individual differences may be large enough to dwarf the effect itself.
But still, you might ask, if we trust the research, then isn’t there enough to say that “all things being equal, your female juror is more likely to be compassionate than the male”? And the answer is yes, if that were all we knew about the panel. In other words, if voir dire began with an empty jury box and a clerk marching in to somberly announce, “Okay, there are 22 men and 18 women. Exercise your strikes.” Knowing nothing else, the personal injury plaintiff might justifiably strike men. But the reality is that, even with restricted voir dire, you always know more than that, and the case-relevant attitudes and experiences, including occupation, will be a better guide to those who would pose the higher risk given the specifics of your case.
Let me use an example. Let’s say that you go to the store looking to buy some big potatoes to bake this weekend, and looking at potato varieties, you know that on average, Russets tend to be a little bigger than Norkotas (it is scary sometimes what you end up learning from different cases). You might be tempted to say, “well then, I want Russets.” But you are in the store! Look at the darned potatoes and pick the big ones. In that context, observation is better than a knowledge of averages any day. The same goes in voir dire: To the extent that the judge allows you to, observe the case-relevant experiences and attitudes of the jurors using supplemental juror questionnaires and oral voir dire. When compared to the personalized information that you can gain in a thorough voir dire, even proven demographic differences that exist in the aggregate end up being, well, small potatoes.
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Mercadillo RE, Díaz JL, Pasaye EH, & Barrios FA (2011). Perception of suffering and compassion experience: Brain gender disparities. Brain and cognition, 76(1), 5-14 PMID: 21492980
Photo Credit: Daquella manera, Flickr Creative Commons