By Dennis Devine
In the classic 1995 film, The Usual Suspects, Keyser Soze (pronounced Kaiser So-zay) is a shadowy, larger-than-life character. His unseen, ubiquitous presence directs and controls the actions of an assembled group like some nefarious puppet-master. The central question of the film is: Who is Keyser Soze? Let’s consider how this mystical character is relevant to picking jurors at trial.
When you think about it, a jury foreperson is kind of like Keyser Soze. Like Mr. Soze, forepersons are elusive and mysterious. They only emerge in the recesses of the deliberation room, where trial attorneys have no control over the proceedings. And like Keyser Soze, forepersons are feared for their influence over others. No attorney wants to lose his or her case because an eloquent, charismatic advocate for the other side talked the jury into an unfavorable verdict.
But 50 years of social science research has managed to shed some light on who forepersons are and what impact they have.
Forepersons tend to be chosen quickly and with minimal fanfare. Picking a foreperson is one of the few official tasks assigned to a jury, and they tend to get right to it. Juries typically select a foreperson as one of the first acts, usually with little or no campaigning or vetting. Forepersons frequently adopt one of several roles. Some act as moderators, others as vocal advocates, and still others as unofficial group secretaries. But forepersons have some similarities too. They usually talk more than other jurors and are generally viewed as one of the more influential members of the jury. In fact, several studies show foreperson opinions correlate with jury decisions even after the views of the rest of the jury are taken into account. In other words, forepersons don’t just represent the jury’s decided opinion—they help determine it.
So who will emerge as foreperson of your next jury? Research tells us something about that as well. For starters, serendipity is sometimes a factor. Jurors sitting at the head of the table are more likely to be chosen as foreperson, as are jurors who are the first to mention the need to select a foreperson. But forepersons also tend to have a few task-relevant qualities. They generally have a somewhat higher education level than the average juror. They also tend to be extroverted. Forepersons often have previous experience as a juror too (especially if that experience was as a foreperson). And civil jury forepersons are sometimes chosen because they have job-related knowledge or skill pertinent to the case at hand (e.g., finance, engineering, medical, or statistical).
None of these characteristics is a great predictor in isolation. But collectively they afford some ability to identify who is most likely to emerge as jury foreperson. To put this information to good use though, trial attorneys also need some idea whether a potential foreperson’s influence would likely be beneficial or detrimental. In essence, how would that individual likely feel about the case?
Much has been written about the “art” of selecting jurors at trial. But research shows convincingly that trial attorneys are not very good at forecasting how a prospective juror will ultimately feel about a case using just the information available from a typical voir dire. Research also shows however that venirepersons’ case judgments can be predicted to some extent using data—there is a “scientific” component after all. An online survey offers an excellent data-based way to identify the characteristics of people who would make unfavorable jurors at trial. Combining a large sample drawn from the trial jurisdiction with formal statistical analyses produces a more reliable—and effective—profile than one based on personal theories or plain intuition.
And the best way to maximize the value of a statistical profile is to pair it with background research. When the names of venirepersons can be learned in advance, public records and social media searches can reveal attitudes, beliefs, and behaviors that match elements of the unfavorable juror profile. Strikes can then be used to remove those prospective jurors most likely to be unfavorable and emerge as foreperson. It’s bad enough if a strong advocate for the other side ends up being on your jury, but it could be disastrous if that person also assumes a leadership role.
In the Usual Suspects, the good guys figure out too late who is Keyser Soze. But it doesn’t have to be that way with your next foreperson. Trial attorneys can get actionable information from an online survey and background research, and then use it to make data-based decisions during juror selection. Each well-deployed strike lowers the odds that a Keyser Soze ends up being the foreperson of your jury.
Dennis Devine, PhD, MJ
Dennis Devine is an organizational psychologist and litigation consultant with ThemeVision LLC.
He is the author of Jury Decision Making: The State of the Science (2012), a book that summarizes and integrates the scientific research on juries.
Dennis Devine is an organizational psychologist and litigation consultant with ThemeVision LLC.
He is the author of Jury Decision Making: The State of the Science (2012), a book that summarizes and integrates the scientific research on juries.