Modern criminal trial practice demands that the law as an academic discipline cannot exist in a vacuum; quite the contrary, the law must be viewed as an overriding set of principles which must be viewed in conjunction with other academic disciplines (Carson & Bull, 2003). This is particularly true in the case of jury selection in criminal trials where the law has been combined with forensic psychology.
This essay will discuss the policy underlying the incorporation of forensic psychology into formal criminal proceedings, the precise role of the forensic psychologist in jury selection, and what types of juror risk factors are of particular interests to prosecutors and defense attorneys. Forensic Psychology and the Law If the purpose of the legal process is the discovery of truth, and the guarantee of justice, then it is essential that legal procedures facilitate these objectives. Jury selection, the research has demonstrated, has contributed to many miscarriages of justice in criminal cases; indeed, one scholar has pointed out that
In the incidence of capital cases, the U. S. Supreme Court has recognized what research has long shown: Jurors often make sentencing decisions prematurely, and they often base their decisions on their personal reactions to the defendant, their confusion about the rules of law, and their lack of understanding regarding their own role and responsibilities (Schroeder, Guin, Pogue & Bordelan, 2006). As a result of this well-known data, efforts have been made to provide for better jury selection procedures.
This has involved a multidisciplinary approach in which lawyers, both prosecutors and defense attorneys, have retained the services of forensic psychologists in order to make better decisions during voir dire. On the one hand, it is hoped as a matter of sound public policy that intelligent jurors will be selected and that truth and justice will prevail. One the other hand, the potential for abuse of the criminal justice system exists because prosecutors and defense attorneys may use the juror profiles prepared by the forensic psychologists in order to win their case rather than to ensure a neutral type of justice.
Forensic Psychology and Jury Selection Generally speaking, a forensic psychologist is enlisted in criminal trials in order to make psychological assessments about individuals and a certain set of facts underlying a particular type of criminal case. Jan Mills Saeth, a jury consultant who works with forensic psychologists in order to conduct voir dire on behalf of clients in criminal cases, has stated that “Jury selection includes helping the trial team eliminate risky jurors, and I help develop a juror profile, voir dire questions, and jury questionnaires. (“Behavioral Profiling: A Panel of Experts,” 2007).
Generally speaking, therefore, the fundamental purpose of the forensic psychologist is to identify potentially risky jurors. What constitutes a risk depends on who the forensic psychologist is representing and whether the nature of the particular criminal allegations. Risk refers to some factor or set of factors which might predispose a potential juror to making certain types of assumptions, to harboring certain types of bias, or to in some way being psychologically disinclined to vote in favor of the forensic psychologist’s client.
There are numerous tools employed by forensic psychologists in order to assess a juror’s risk factors during the jury selection process. These tools may include written questions, oral questions posed by an attorney after consultation with the forensic psychologist, and other non-verbal clues. The totality of this information is collected and the forensic psychologist then constructs a series of juror profiles which the attorney can then review in order to decide which jurors to retain and which jurors to challenge or dismiss.
One of the difficulties is the fact that, in criminal trials, prosecutors and defense attorneys are zealous adversaries. They are thus required to seek to present their case in the light most favorable to their respective clients; to this end, as is relevant to this paper, the prosecutors and the defense attorneys are interested in jurors whom will be the most receptive to their particular version of the facts, whom are most likely to be swayed by certain facts and witnesses, and whom are most likely to rule in their favor (Tsushima & Anderson, 1996).
A prosecutor will seek jurors that possess some psychological tendency to agree with the case in general, to sympathize with law enforcement or a particular type of victim, or some other type of bias that supports their case. Psychological traits favored by many prosecutors include a trust or confidence in authority figures, a generalized conception that the American criminal justice system is fair and reasonable, and a psychological tendency to agree with majority opinions.
A defense attorney will be concerned with similar issues; however, the defense will also want to choose jurors whom possess a different set of psychological traits. More specifically, a defense attorney will seek individuals that distrust rather than trust authority figures, that question more than acquiesce to majority opinions, and that demonstrate strong feelings of sympathy or empathy. Conclusion In the final analysis, while forensic psychology can be enormously useful in predicting juror behavior, it can also be misused if prosecutors and defense attorneys do not place professional ethics above the winning of criminal cases.
The goal of jury selection ought to be the selection of a jury which will weigh evidence objectively and critically without falling back on extraneous information in order to render a verdict. Forensic psychologists can contribute meaningfully to the criminal justice system, but it is necessary to make sure that their psychological insights are not used by unscrupulous prosecutors and defense lawyers to pervert truth and justice.