The Art of Judging a Juror

updated 11/18/1991 AT 01:00 AM EST

originally published 11/18/1991 AT 01:00 AM EST

Jury selection, that most delicate of legal arts, is under way in the trial of William Kennedy Smith, 31, who is accused of raping a young woman at the Kennedy estate in Palm Beach, Fla., last March. Each prospective panelist is being questioned by Judge Mary Lupo, prosecutor Moira Lasch and defense attorney Roy Blackā€”a process that requires as much as an hour per potential juror and may take four weeks or more to complete.

Neither side can afford a mistake. The prosecution, apparently, is relying on its own instincts in choosing the six jurors and two alternates who will sit on the panel. The Kennedys have hired a team of three jury experts, headed by Cathy Bennett, 40, of Galveston, who helped automaker John DeLorean win an acquittal in his 1984 drug trial. Last week she revealed she is dying of cancer. "But I have chosen to stay and help Will Smith get the fair trial he deserves," she said. "Of the 750 defendants I have helped, he is my favorite."

Following the case from Williams College in Williamstown, Mass., is Prof. Saul Kassin, 38, a social psychologist who for 13 years has been studying how juries are selected and how they render their verdicts. Coauthor of The American Jury on Trial, Kassin was interviewed in Williamstown by correspondent Gayle Verner.

How do jury consultants work?

Typically they first conduct a survey within the community. They ask a series of questions about the case. For example, "Based on what you heard, do you think William Kennedy Smith is guilty or not guilty?" Then they do a statistical analysis. The result is a profile that correlates age, race, income and other demographic factors with opinions on the case. In the absence of knowing anything else about a prospective juror, the lawyers fall back on the information the survey gives them.

The lawyers already seem to be arguing their cases in front of the prospective panelists. Why?

They're using the opportunity of jury selection to land the first punch, perhaps even a knockout.

Why is Smith looking every juror in the eye and saying hello?

He's projecting a favorable first impression, and first impressions often are enduring. Later on the jury may interpret damaging evidence in light of their first impression. Maybe if they like him, they'll give him the benefit of the doubt.

Why is jury selection so important?

Actually, in most cases it's not. It's the evidence that's most critical. However, in the Smith case it can take on heightened importance because of pretrial publicity. Unfortunately, lawyers cannot tell who has formed an opinion and who has not.

But many people say they don't believe what they read in the press.

It doesn't matter. Even when the story is completely sensationalistic, it influences the jury against the defense. People tend to remember information but forget the source. So jurors could remember the three other women who accused Smith of the same thing. It could influence their verdict.

But you said evidence was critical.

Less so in a rape than in any other sort of case. People's beliefs about rape weigh heavily on their verdicts. Also, evidence in a rape case is often ambiguous. And in an ambiguous situation, people fall back on their biases.

Such as?

Some people believe women can resist rape if they want to. Or they say women have no business being in a man's apartment unless they want sex. Obviously, when people with such beliefs sit on a rape trial, they are more likely to score for the defendant.

Any biases for the prosecution?

The prosecution wants people who believe that when a woman says no it means no. They'll be looking for people who understand that.

How can you tell which jurors will hold these biases?

It's hard. The studies are all over the place. One study shows that people who have daughters are more likely to favor the victim. Others don't show this. In one rape trial, women may be more favorable to a defendant than men. And yet in another trial, you find they are harsher.

What kind of person do both sides want to avoid?

Both sides are likely to avoid people who look like natural leaders. You take a big chance in selecting someone who may oppose your side and then also turns out to be a powerful juror who influences others.

How can a jury consultant tell if a prospective juror is telling the truth?

It can't be done. In fact, it's irresponsible for consultants to claim they can tell when someone is lying from his face or body language. They're psychologists, not mind readers.

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