Crime, forensic and law enforcement shows have been popular genres in the entertainment media (Dowler et al, 2006). There is evidence that the images of crime investigations, law enforcement and legal procedures shown through the media are mostly distorted and do not show an accurate representation of the real world and there is a further discussion that this may influence the beliefs, understanding and perspectives of the general audience. (Soulliere, 2003). The CSI effect is an example of how media portrayal can alter the audience’s knowledge, expectations and opinions about crime scene investigations (Schweitzer and Saks, 2007). Crime and forensic shows are still being consumed by a large number of people, some of which, at some in their lives, might be involved in an actual real-life situation, such as becoming a member of a jury. In this paper, I will attempt to analyze the accuracy of the depiction of jury selection in the popular TV series How to Get Away with Murder (2014) by comparing it to previous research done on jury selection and discuss how this depiction might influence the views and understanding of the general audience.
A jury is a group of members of society who are summoned to serve as a juror for a trial (Department of Justice, 2017). In the few cases where a jury is needed, the process of jury selection is crucial for the outcome of the case. During the process of jury selection, lawyers must ensure that the jury is representative, and impartial (Pozzulo, Bennell & Forth, 2018). Representativeness and impartiality are obtained by acknowledging biases in the process of jury selection itself and implementing the right methods of jury selection.
The main idea is that lawyers should be able to convince an impartial jury. However, there has been researching that has shown that lawyers may be inclined to choose jurors with biases that will favour their cases. Authors Morrison, DeVaul-Fetters and Gawronski (2016) used simulated Voir dire to observe bias in jury selection where lawyers were assigned to be the defence lawyer for a Black defendant. Their aim was to observe whether peremptory challenges made by the lawyers matched the systematic differences in racial bias presented and whether lawyers would be more likely to “stack the jury” in their favour. They found that the layer’s peremptory challenges did not match the levels of explicit bias shown by the jurors, which showed evidence of how lawyers are able to include or exclude biased jurors so that it benefits their case. In order to decrease threats to impartiality and fairness like this one, several researchers have examined different methods of jury selection.
The conventional ‘Folklore’ method of jury selection is based on an intuitive approach, relying on a lawyer’s expertise, past experience and intuition to choose jurors (Fulero & Penrod, 1990). Researcher Horowitz (1980) conducted an experiment to compare the effectiveness of conventional jury selection processes and the scientific jury selection method. Horowitz compared four separate criminal cases and found that systematic methods are only better at predicting favourable jurors’ responses but overall he was not able to conclude that a systematic approach to jury selection was better.
The scientific jury selection (SJS), offers a more systematic approach to the conventional intuitive jury selection process. SJS methods usually rely on telephone surveys, where individuals are asked about their demographic information, followed by a set of questions made during the Voir dire. In the SJS method, an expert consultant (usually a social scientist, or psychologist) is involved in comparing the data collected and aiding attorneys in their decision process (Diamond, 1990). There seems to be an inconsistency in non-empirical literature concerning scientific jury selection with the use of trial experts and results shown in empirical experiments. Researchers Stolle, Robbennolt and Wiener (1996) asked 132 undergraduates to evaluate a civil case and a criminal one in which a consultant was present. Half of the participants analyzed cases where the outcome favoured the prosecution and the other half where the outcome favoured the defendant. They were asked to fill out a questionnaire asking them to assess the consistency, accuracy and ethicality of the decisions made. Results showed that lawyers were perceived to have acted more ethically in the absence of a trial consultant. Researchers do clarify that there might have been some limitations in the analysis of data concerning the significance of the results and encourage further research to be done.
These pieces of research only come to show that many jury selection methods still lack empirical research to support them and to further improve them. Jury selection is still an area of great interest in sociology, psychology, and forensic and legal fields.
Episode 5 in the first season of the popular legal drama TV series How to Get Away with Murder (HTGAWM), produced by ABC Studios in 2014, highlights the importance of jury selection. In this episode, the main character, criminal defence attorney and law professor, Annalise Keating and her top five students are working on a complicated case where their client, a teenage boy, is being charged with murdering his father who had been physically abusing his wife. The case becomes complicated because there is no tangible evidence of this abuse and no witness evidence except for the mother and the boy’s accounts. On top of that, the victim was a police officer, who was perceived as very likeable by friends and acquaintances. Seeing that the odds of winning the case were extremely odd, Dr. Keating assigned each student a pet juror to observe and analyze. She explains that the only way to win this case is not through the evidence, but with the emotions of the jury. The students are instructed to figure out which jurors would be the best to keep so that it benefits their case (for instance, looking for jurors who are prone to distrust the authority).
While the show was able to provide correct information about legal terms, such as jury nullification, stealth jurors and some other concepts talked about during class time, there are certain flaws in the actual process of jury selection. For instance, Dr. Keating should be using expert consultants to run an analysis of the profiles of the potential jurors, according to the SJS methods. Even though Stolle, Robbennolt and Wiener (1996) claim that there seems not to be more ethical decision-making without an expert consultant, first years law school students clearly do not qualify as any sort of experts at all. However, the show does showcase some aspects of jury selection that may be seen in real-life practices. Even though the episode does not show the full process of jury selection, they show small parts of the Voir dire. In terms of accuracy, as far as what is shown in the scene, the process during the Voir dire seemed to be accurate according to SJS methods. It involved a set of questions about jurors’ knowledge of the case (from the media) and their general demographics. Both lawyers were able to challenge some jurors for cause and excuse others. Furthermore, the show is consistent with Morrison, DeVaul-Fetters and Gawronski’s (2016) findings on the inclination to ‘stack the jury’ in their favour, as Dr. Keating was trying to do.
In conclusion, the media portrayal of jury selection, like it is presented in HTGAWM, might not be the most accurate representation of the actual process of jury selection but it does contain some aspects that are in accordance with the research on this topic. More importantly, the depiction of the processes of jury selection, whether they are accurate or not, reveals several clues that may have an impact in the way the audience might perceive jury duty in real life. For instance, knowing that lawyers tend to look for specific characteristics that will favour their case might help jurors know what kind of answers will increase or decrease their chances of being selected as a juror. Having jurors who are biased due to this kind of media consumption can make a significant change to the outcome of the case. Not to mention the knowledge and revelation of jury nullification, which is explained in the show, would imply that the majority of HTGAWM's audience would not be able to be admissible potential jurors. Overall, the ambiguity of the research on jury selection makes it clear that more focus and attention should go into this area of study.
References
Department of Justice. (2017, October 16). The Role of the Public. Retrieved from https://www.justice.gc.ca/eng/csj-sjc/just/12.html
Diamond, S. S. (1990). Scientific jury selection: What social scientists know and do not know. Judicature, 73(4), 178–183.
Dowler, K., Fleming, T., & Muzzatti, S. L. (2006). Constructing crime: Media, crime, and popular culture. Canadian Journal of Criminology and Criminal Justice, 48(6), 837–850. doi: 10.3138/cjccj.48.6.837
Ellis, J. (2014, October 13). How to Get Away With Murder - A Lawyer's View. Retrieved from https://lowenthalabrams.com/get-away-murder-lawyers-view/
Fulero, S. M., & Penrod, S. D. (1990). The myths and realities of attorney jury selection Folklore and scientific jury selection: What works?. Ohio Northern University Law Review, 17, 229–253.
Horowitz, I. A. (1980). Juror Selection: A comparison of two methods in several criminal Cases. Journal of Applied Social Psychology, 10(1), 86–99. doi: 10.1111/j.1559-1816.1980.tb00695.x
Morrison, M., Devaul-Fetters, A., & Gawronski, B. (2016). Stacking the jury. Personality and Social Psychology Bulletin, 42(8), 1129–1141. doi: 10.1177/0146167216651853
Nowalk, P.. (Writer). (2014). We’re Not Friends [Television series episode]. In Rhimes, S. (Executive Producer), How to Get Away with Murder. Burbank, California: American Broadcasting Company (ABC)
The media portrayal of jury selection, like it is presented in How To Get Away With Murder, might not be the most accurate representation of the actual process of jury selection but it does contain some aspects that are in accordance with the research on this topic. More importantly, the depiction of the processes of jury selection, whether they are accurate or not, reveals several clues that may have an impact in the way the audience might perceive jury duty in real life. For instance, knowing that lawyers tend to look for specific characteristics that will favour their case might help jurors know what kind of answers will increase or decrease their chances of being selected as a juror. Having jurors who are biased due to this kind of media consumption can make a significant change to the outcome of the case. Not to mention the knowledge and revelation of jury nullification, which is explained in the show, would imply that the majority of HTGAWM's audience would not be able to be admissible potential jurors. Overall, the ambiguity of the research on jury selection makes it clear that more focus and attention should go into this area of study.