GAUGING YOUR JURY: THINKING OUTSIDE THE BOX ABOUT THOSE IN THE BOX

One of the benefits of having a large team of Tsongas jury consultants and a broad practice reach locally, regionally, and nationally, is that we are able to gather so much unique information about jury selection from hands-on experience. We pride ourselves on examining and reexamining conventional wisdom about jury trials, questioning it, then applying data from actual trials to our trial consulting practice. Sometimes the wisdom is confirmed, other times it is rethought and reframed. Recently, we examined characteristics of actual seated jury panels as a function of estimated trial length and we found, once again, that the conventional “truths” about the types of people who likely end up seated on a lengthy jury trial may not be accurate. Many people opine that for a lengthy trial, the composition of the jury will be more heavily comprised of retired and unemployed community members. However, the jury selection study examines 22 jury trials in urban areas from five western states and the findings are surprising. Read on to find out why.

Thinking Outside the Box About Those in the Box, Part Two

Several years ago, Tsongas examined the characteristics of the local jury pool, based on extensive experience in local jury trials. The results yielded new insight into the types of jurors who actually show up for jury selection.[1] This article addresses the characteristics of actual seated panels as a factor of trial length, but expanded the scope to include jury trial panels in five western states.

Conventional wisdom is that if you have a jury trial lasting over three or four weeks your panel will largely be composed of retirees, the unemployed, the disabled, or homemakers. The reasoning is that length of service will present an undue hardship on many employed individuals, thus skewing the eligible pool to people drawn from the categories above. But that view, which has been shared with us numerous times by our clients, has not been consistent with our experience. In order to test the issue, we examined the demographic characteristics of 290 jurors who sat as actual jurors in 22 different trials located in major cities in five western states over a two year period.

The results stand in stark contrast to the conventional wisdom. Contrary to popular belief that longer trials result in an increased number of retired jurors, jurors over the age of 60 constituted only 15% of this group. Over 50% of the jurors sitting in trials lasting four weeks or longer were between the ages of 40 and 59. With regard to educational background, jurors with a high school degree, GED, or less constituted the largest portion of jurors, accounting for 27% of the population. However, jurors with some college and those with a college degree accounted for 47% of the sample, and jurors with graduate degrees accounted for 10%. Finally, 74% of jurors sitting on trials lasting four weeks or longer were employed in a full-time capacity.

Methodology

The purpose of this research was to examine two key questions: 1) What are the characteristics of jurors who sit on trials lasting longer than four weeks? 2) Are there observable differences between jurors who sit on trials lasting longer than four weeks and those who sit on shorter trials? For the purpose of this research, the final seated jury panels for 22 jury trials were analyzed. The sample included a total of 290 jurors in five states (California, Nevada, Colorado, Texas, and Washington). The sample was divided into three groups. The first group consisted of jurors who were seated in trials lasting two weeks or less. The sample size for this group was 73. The second group consisted of jurors who were seated in trials lasting three weeks or less (this included data from the first group). The sample size for this group was 143. Finally, the third group consisted of jurors who were seated in trials lasting four weeks or longer. The sample size for this group was 147.[i] The overall study focused on a wide analysis of demographics (e.g., gender, marital status, occupation, etc.), but this article only focuses on the issue of age, educational level, and employment status.

Age

1. What is the age distribution of jurors who sat on trials lasting four weeks or longer?

The first factor analyzed by this research was the age of jurors who sat in trials lasting four weeks or longer. The data indicated an average age of 47.[2] The largest percentage of jurors consisted of those between the ages of 50 and 59. Over 50% of the jurors fell between the ages of 40 and 59.

2. Are there age differences between jurors who sit on trials lasting four weeks or longer and those who sit on shorter trials?

Jurors who sat in trials lasting four weeks or longer had a slightly lower average age than those sitting in trials lasting three weeks or less, as indicated in Table A.1.

Table A.1 Central Tendencies for Juror Age

Age2 weeks or less3 weeks or less4+ weeksMean (Avg.)48.6248.8146.56Median494947

Despite the lack of statistical significance for differences in average age, the distributions shown in Table A.2 indicate a slight skew towards younger age groups for jurors sitting in trials lasting more than four weeks. Specifically, there is a significant decline in jurors over the age of 60 and a slight increase in jurors under 30, compared to those jurors who sat on trials lasting three weeks or less.

Table A.2 Distribution of Juror Ages

Age Range2 weeks or less3 weeks or less4+ weeks18-192.7%1.4%0%20-299.6%7.7%13.6%30-3916.4%18.9%15.6%40-4921.9%22.4%26.5%50-5924.

7%25.9%29.3%60-6920.5%20.3%11.6%70-792.7%2.8%3.4%80-891.4%0.7%0%

Education

1. What is the educational background of jurors who sat on trials lasting more than four weeks?

The data indicated the largest percentage of jurors sitting on a trial lasting four weeks have a high school diploma/GED or less. Jurors with a high school education or less accounted for approximately 27% of the jurors in the sample. However, jurors with college degrees, who accounted for 25% of the sample, followed this group closely.

2. Are there differences in educational background between jurors who sit on trials lasting four weeks or longer and those who sit on shorter trials?

The data revealed an increase in three categories: high school or less, some college, and post-graduate. However, the data pertaining to educational background varied greatly between and within the groups, making it difficult to determine actual statistical differences in educational background among the three trial length conditions. Furthermore, a large percentage of jurors in the less than four week-long trials did not report their educational background.

Table B.1 Educational Background

Education Status

2 weeks or less

3 weeks or less

4+ weeks

HS or Less

8.2%

8.4%

27.2%

Some College

8.2%

13.3%

21.8%

Associates

1.4%

0.7%

0.7%

Tech/Bus School

4.1%

4.2%

4.8%

College Graduate

23.3%

23.8%

25.2%

Post-Graduate

5.5%

7.7%

10.2%

Not reported

49.3%

42%

10.2%

Employment Status

1. What is the employment status of jurors who sat on trials lasting four weeks or longer?

The data indicated the majority of jurors sitting on trial lasting more than four weeks are employed in a full-time status. Jurors with full-time employment accounted for approximately 74% of the sample. Retired jurors constituted the next largest portion, accounting for approximately 14% of the sample.

2. Are there differences in employment status between jurors who sit on trials lasting more than four weeks and those who sit on shorter trials?

The data indicated that the number of full-time employees on jury panels increased with the length of the trial from 62% in trials lasting two weeks or less to 73.5% in trials lasting four weeks or longer. The remaining categories largely decreased in percentage, with the most consistent decreases in part-time (7% in two weeks or less to 5% in four weeks or more), self-employed (6% in two weeks or less to 3% in four weeks or more), and homemakers (6% in two weeks or less to 3% in four weeks or more).

Table C.1 Employment Status

Employment Status

2 weeks or less

3 weeks or less

4+ weeks

Full-time

61.6%

62.9%

73.5%

Part-time

6.8%

5.6%

4.8%

Self-employed

5.5%

3.5%

2.7%

Retired

15.1%

16.1%

13.6%

Unemployed

2.7%

4.9%

2.0%

Homemaker

5.5%

3.5%

2.7%

Disabled

1.4%

2.1%

0%

NA

1.4%

1.4%

0.7%

Discussion

This article summarizes some surprising and useful findings about the composition of jurors who actually serve on juries, comparing the characteristics of those jurors based on length of trial. It is important to note that demographics are a potentially useful tool, but when it comes to jury analysis and jury selection efforts, attitudes and experiences are the best predictors of behavior. Relying on demographics alone in assessments of juror behavior can be highly misleading.

Each case has its own factual and characterological sets of eccentricities and particularities, and each jury will be a unique composition of individuals. But when thinking about the potential audience in general, this study should give pause to those who have assumed that their four week trial will be heard by “retirees, the disabled, and the unemployed.” On the contrary, this study suggests that it is likely, at least in trials located in population centers, that your jury may be made up of gainfully employed individuals, many of whom will be educated, and between the ages of 40 and 60. These individuals will bring a set of attitudes and experiences with them based on their life experience, their educational background, and employment and occupational history. It is from this general group of jurors that your jury’s opinion leaders will likely be drawn. And as the students of persuasion will understand, your common ground with the audience must be based on the values and principles that they share, and that you as the advocate can build upon.

One of the other implications of the present study relates to mock trial research participants. If the expected length of a trial is known at the time of the mock trial, it should be factored in to the quota for recruiting. That is, if the trial is expected to be four weeks or longer, participants should skew slightly younger than if the trial is expected to be less than four weeks. Also, the data indicates that mock trial participants for a trial expected to be four weeks or longer should be predominantly those with full-time jobs. This fact highlights a common recommendation to conduct mock trial research on a weekend, in order to have a better chance of recruiting those participants who hold full-time jobs during the week.

Authors:

Theodore O. Prosise, Ph.D., Vice President and Senior Consultant Tsongas Litigation Consulting, Inc.

Theodore O. Prosise, Ph.D., is Vice President and Senior Consultant at Tsongas Litigation Consulting. A partner with Tsongas, the most experienced trial consulting firm in the Northwest, Prosise joined the firm in 2001. Prosise received his doctorate from the Annenberg School for Communication at the University of Southern California.

Jonathan Lytle, Ph.D., Trial Consultant Tsongas Litigation Consulting, Inc.

Jonathan Lytle, Ph.D., is the Tsongas Research Manager and a Consultant. Lytle joined Tsongas in 2013, and focuses on trial consulting and jury research. Lytle earned his Ph.D. in social psychology from Temple University in Philadelphia, Pennsylvania.

[1] Ted Prosise and Matt McCusker, “Thinking Outside the Box About Those Inside the Box,” King County Bar Bulletin, May 2010. [2] Standard deviation = 13.32 [i] Trial length does not represent the actual trial length, but the estimated length indicated by the trial judge to the venire at the time of jury selection. [3] All of the data was drawn from jury selection in urban areas, so the findings may not be generalizable to jury selection in more rural contexts. But, when thinking about your next jury selection in an urban context, and when considering the role of juror attitudes and life experiences (the best predictors of behavior) combined with jury pool demographic characteristics, it may be wise to consider the data from this study and Tsongas’ trial consulting experience.