Jury Selection In The Post-Kavenaugh Courtroom: Your Guess Could Be As Good As Mine.

“Jury selection is the use of social science techniques and expertise to choose favorable juries during a criminal or civil trial. Scientific jury selection is used during the jury selection phase of the trial, during which lawyers have the opportunity to question jurors.” -Wikipedia-

The 2018 Kavanaugh Supreme Court Justice confirmation came days before I was to address a group of grizzled, experienced criminal defense lawyers Utah conference focusing on the effects of confirmation biases on potential jurors. The massive amount of clickbait-driven media coverage had the adverse effect of turning laypersons into sex-crime forensic experts. Almost everyone had a firm “science-based” opinion on whether Christine Blasey Ford was sexually assaulted decades ago by a man wishing to occupy the highest seat of judgment in American jurisprudence.

Making the matter worse was that this was a congressional hearing, as opposed to an actual courtroom, which has reasonably effective rules of evidence at its disposal to keep out opinion-based evidence to be used as facts. The only rule of evidence that most mainstream media utilized was “#beliveallwomen”. If you didn’t, you were simply labeled as a woman-hater. If you did, your intellect was dismissed as being lazy and agenda-based.

It is my humble opinion that the world of jury selection—and the scientific foundations of such—changed forever for criminal and civil lawyers nationwide after the Kavanaugh hearing. The old and tried rules of the past simply no longer applied. Our jury pools now come to court firmly entrenched in their respective confirmation biases, and it is extremely difficult for trial lawyers to figure out which side of the confirmation bias isle potential jurors reside on.

To make matters worse, the confirmation bias pendulum has now swung directly at expert witnesses themselves. Don’t believe me? Let me prove this by providing an expert’s name, and I promise that you will feel strong emotions, either pro or con, regarding expert witnesses: Dr. Anthony Fauci.

In 2021, when Dr. Fauci interviewed with CNN and told the nation, “I am THE science”, half of a fawning nation fell asleep peacefully that night knowing that “THE Science” was watching out over them and had their best health interests at heart. The other half lost all confidence in anyone who approached them with the title of “expert”.

As a result, not only do a vast majority of jurors summoned to a sex-crime civil suit (or criminal charge) have their minds generally made up via confirmation bias, but they are also now either worshiping, or looking side-eyed at the person introduced by the Court as the defense/prosecution “expert” witness.

If a trial lawyer falls short when it comes to measuring a prospective juror’s level of confirmation bias concerning general subject matters, they have lost before the opening statements have started. If an expert witness does not have a firm grip on the potential jury pool’s view of experts, they risk alienating jurors. I told a defense lawyer several months ago that I have around five minutes to overcome the “expert bias” with a jury, or nothing that comes out of my mouth afterwards will be taken seriously.

Such may be a potential problem if said expert is the primary evidentiary piece in a defense/prosecution jury trial. (Since I’m not a cocky, boisterous person by nature, I tend to strongly push towards the side of humility whenever possible. I would advise lawyers that, if they have a jury pool filled with good people who want an “I am THE science” moment from their expert, they need to find another expert.)

In addition to the rapidly changing constructs of confirmation biases associated with #believeallwomen and experts in general, I would be remiss if I failed to mention the effects that racial views may have on a potential jury pool living during what many feel to be a racial civil war in modern America. By simply asking an acquaintance or a stranger what they think of the “Black Lives Matter'' movement, one can see the effects of confirmation bias in most people.

While waiting for a jury to be seated in a criminal matter in a 99.9% rural, white community, a genuinely curious court police bailiff informed me that in the 30 years of being in this courtroom, I was probably the first African-American to waltz casually into this courthouse as an expert witness.

The bailiff asked me if I was “nervous” and if I was worried that being a Black man would be an issue with connecting with this jury, which now consisted of seven white, middle-aged females and one male Latino. I replied “no” to both questions, and explained to him that I knew the “soul” of this community better than my own children. I also explained my “First Five Minutes” theory and told him to observe how I handled that task; if the defense lawyer and I handled the first five minutes poorly, then the verdict will more likely than not be “Guilty”. If I handled it well, the defendant had a 50/50 shot at acquittal. (Fast forward: We won over that jury and the defendant went home to his wife and children as opposed to the Utah State Prison for 25 to life).

This week, Orion Forensics has the honor of preparing with a fantastic team of experienced defense lawyers and private investigators on a similar case in Southern Utah. My primary duty in this trial will be to rebut the State’s psychology expert witness, as well as the main detective in the matter (who may *think* he is a forensic psychologist).

In addition, I will be present to assist the lawyers with jury selection. I can predict confidently that, during some portion of trial preparation, the subject matter of confirmation biases associated with sex crimes, expert witnesses, and the race of their expert witness will be integrated in our pretrial preparations.

As part of the preparation, I will be emailing each lawyer and investigator the following attached article that I found to be fascinating: “The Unscientific Science of Jury Selection”, by Jane C. Hu(https://psmag.com/news/jody-arias-quackery-behind-scientific-jury-selection-94423). My goal in doing so is not to disparage my profession or my peers, but to simply make members of the trial bar relax a bit with the knowledge that, in most situations, their “guess” is as good as mine when it comes to jury selection.