2 Crim. Just. 3 (1987-1988)
How to Play to the Jury You Select - In Complex and Other Cases; Goodman, Jane; Loftus, Elizabeth F.

handle is hein.journals/cjust2 and id is 5 raw text is: Howto
Play to
the Jury
You
Seled-
In Complex and
Other Cases
.       dvice about picking
juries often resembles
superstition-we may
not think it's scientific
__        but our instincts tell us
to follow it anyway.
Defense attorneys should pick
young and unemployed singles;
prosecutors should look for older,
religious, well-to-do surburban-
ites, goes the traditional wisdom.
When picking a jury, however, we
shouldn't be relying on old wives'
tales-especially if that jury is going
to be delivering a verdict in a com-
plex criminal case.
The characteristics of a compli-
cated case, such as its lengthiness,
the technical nature of the evidence
or the intricacy of the legal reason-
ing, necessitate the careful selection
of an appropriate jury. Practitioners
need to know the latest research on
what kind of jurors are generally
available, how they will react to the
defendants, and how they will view

the evidence. Although little re-
search has been conducted on jury
selection in complex cases, and
none specifically about complex
criminal litigation, aspects of data
gathered on jury selection in com-
plex civil cases can help the criminal
practitioner. (Much of the informa-
tion in this article is applicable to
simpler cases, as well.)
Who is available?
Jurors in complex cases have a
more difficult task than jurors in
more straightforward criminal cases
because of elements like compli-
cated evidence or lengthy legal in-
structions. The presentation of a
larger volume of evidence alone will
complicate the jurors' role. Taking
this information into account, one
might conclude that counsel pre-
senting a difficult case will aim to se-
lect jurors better-equipped than
those selected for less complex, less
protracted cases. These would be
jurors with a better education, more
likely to appreciate the strengths and
shortcomings of the evidence, more
likely to understand and appropri-
ately apply the burden of proof, and
more likely to resolve complex
questions and avoid deadlock in the
face of a plethora of jury instruc-
tions. But are these kinds of individ-
uals available?
A recent survey of 511 jurors who
served in the Wisconsin Superior
Court revealed that the prospect of
jury duty is not well-received by
most citizens. As many as 56 per-
cent of the jurors reported negative
reactions to receiving jury summon-
ses. These jurors further noted that
even a regular term of jury service
(two weeks in Wisconsin) held little
appeal for educated citizens. Wis-
consin Judicial Council Committee
on Improving Jury Communications,
Final Report, (Unpublished manu-
script, 1985). Since many complex
trials last longer than two weeks,
what happens when jurors find out
that a trial will last several weeks or
several months? One study of jury
selection in seven complex federal

civil cases (four were antitrust, two
were civil fraud, one was a contract
dispute) in which voir dire lasted one
to two days, revealed that many ju-
rors excused themselves when it
became apparent that the trials
would last for more than a few days.
G. Bermant, J.S. Cecil, A.J. Chaset,
E.A. Lind and P.A. Lombard, Pro-
tracted Civil Trials: Views from the
Bench and the Bar, Federal Judicial
Center, Washington, D.C. (1981).
(The actual trials lasted between 26
and 226 trial days.)
Consequently, the first necessary
step in thinking about jury selection
in a complex case is to ask, Who
serves on a jury in a complex case?
Familiarity with the available data
may cause lawyers to modify their
jury selection techniques in com-
plex cases.
The suggestion by the court that
the trial may last several weeks will
have the effect of eliminating some
jurors from the available venire. Even
attorneys who recognize this may be
surprised to discover in what pre-
cise respects the demographics of
juries in complex cases differ from
the demographics of juries in their
simple counterparts. For instance,
some lawyers believe that jurors in
complex cases-especially pro-
tracted trials-are more likely to be
older individuals, and more likely to
be unemployed and retired than are
jurors in shorter, less complex cases.
Beliefs of this sort are generally
based on the assumption that it is
beyond the financial capacity of
most young working jurors to invest
so much time in jury service, while
older, retired jurors can afford to
undertake a longer term of service.
This intuition is partly right and partly
wrong.
In 1982, Joe Cecil of the Federal
Judicial Center, studied the demo-
graphic characteristics of jurors in
protracted civil cases and reported
his findings to a subcommittee
studying alternatives to juries in
protracted trials. J. S. Cecil, Demo-
graphic characteristics of jurors in
protracted civil trials, (Report on file
at the Federal Judicial Center, Infor-

BY JANE GOODMAN AND ELIZABETH F. LOFTUS

Spring 1987

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