Friday, August 27, 2010

Tinkering with jury selection

A while back, my colleague, Houston criminal defense attorney Mark Bennett, blogged about an experiment he conducted at trial. Using a set of questions designed to identify whether jurors had a more egalitarian or authoritarian outlook, he scored the panel as a whole, the jurors selected to hear the case and the jurors on whom both sides used their peremptory strikes.

This past week I tried a case down in Missouri City, a bedroom community located in suburban Fort Bend County just southwest of our fair city. My client had been cited for municipal code violations and chose to fight rather than pay the tickets due to the circumstances under which he was cited.

I asked the panel of 25 Missouri City residents three scaled questions to find out who was more state-oriented based on authoritarian beliefs. The scale for each question ranged from 0 to 10 with a 10 indicating a strong authoritarian belief; the hypothesis being that the higher the scores, the more state-oriented the juror would be. The questions were as follows:
1. Do you agree that, in the long run, order is more important than liberty?
2. The freedom of society is endangered at least as much by overzealous law enforcement as by the acts of individual criminals.
3. The Court will instruct you that the State has the entire burden of proof in this case. How would you feel if [the defendant] didn't testify?
For the first question, a 0 would indicated the juror strongly disagreed with the statement and a 10 would indicate the juror strongly agreed with it. For the second question, a 0 would indicated a jury strongly agreed with the statement while a 10 would indicate the juror strongly disagreed with it. For the final question, a 0 would indicate a juror would not hold it against my client if he did not testify while a 10 would indicate a juror would hold it against my client.

For Question No. 1, the average answer for the panel of 25 jurors as a whole was 4.6; the average answer for the six people selected to hear the case was 3.8. The average answer for the jurors struck by the state was 5.0 while the average answer for the jurors I struck was 4.7. There were no jurors struck for cause and each side was allowed three peremptory strikes.

For Question No. 2, the average answer for the panel as a whole was 5.8; the average answer for the six jurors who heard the case was 5.5. The average answer for the jurors struck by the state was 6.0 while the average answer for the jurors I struck was 6.3.

For Question No. 3, the average answer for the panel as a whole was 2.3; the average answer for the six jurors who heard the case was .5. The average answer for the jurors struck by the state was 2.0 while the average answer for the jurors I struck was 6.3.

I also calculated the average answer given by each juror during voir dire by adding up the three answers each juror gave and dividing by three. The average answer given by the panel as whole was 4.2 while the average answer given by the six panelists who sat on the jury that heard the case was 3.3. The average score for the jurors struck by the state was 4.3 while the average score of the jurors I struck was 5.6.

For Question No. 1, 8% of the panel as a whole answered between 0-3 while the remaining 92% answered between 4-6. For Question No. 2, 8% of the overall panel answered between 0-3, 60% answered between 4-6 and 32% answered between 7-10. For Question No. 3, 76% of the panel as a whole answered between 0-3, 20% answered between 4-6 and 4% answered between 7-10.

For Question No. 1, two people answered between 0-3 and the remaining four answered between 4-6. For Question No. 2, one person answered between 0-3, three people answered between 4-6 and the remaining two answered between 7-10. For Question No. 3, the entire panel answered between 0-3.

The jury delivered not guilty verdicts on both counts before them. Of course this doesn't prove anything since we have no way to determine how the panel as a whole would have decided, but the numbers were rather interesting.

2 comments:

Mark Bennett said...

Interesting.

How did you phrase the third question to get a 0-10 scaled answer?

Houston DWI Attorney Paul B. Kennedy, said...

Thanks for the comment, Mark. Here's the wording of the third question:

"This Court will instruct you that the State has the entire burden of proof in this case. How would you feel if [the Defendant] didn’t testify?"

0 means “I wouldn’t give it any consideration”

5 means “It would have some negative impact that I couldn’t set aside”

10 means “If he doesn’t testify, he’s guilty and I can’t set that aside.”