4 minute read

Stop Relying on Demographics in Jury Selection

If you’re still relying on demographics, even a little bit, during jury selection, stop and dig deeper.

Unless your voir dire is so limited by the court that you must rely on shortcuts and assumptions, there are always better criteria and questions to ask besides gender, ethnicity, age, or even income and education. 

Some of the best attorneys I’ve worked with still get hung up on demographics, asking questions like, “Do we want men or women on our jury?”

I can’t blame them for thinking that way — many jury consultants are guilty of putting demographics in their jury profile reports and believing that demographics are helpful indicators of predispositions and verdicts.

Attorney addressing the jury in a court room

Challenging Reliance on Jury Demographics in Voir Dire

Suppose you have the opportunity to ask your jury even 15 minutes of voir dire questions. Better yet, you have the luxury of a full day of voir dire or jury questionnaires to analyze.

In that case, the truth is that demographics are never the best criteria to use.

In my years of researching juries and analyzing mock trials and focus groups, demographics have never come up as significant factors. That’s not to say that demographics aren’t sometimes predictive.

Perhaps 70% of women and 25% of men favor the plaintiff in a particular case. But every time, there is an underlying reason why men and women are viewing your case differently. That reason is unrelated to gender itself.

If you ever find that demographics are an essential variable, it means your jurors weren’t being asked the right questions.

If you were trying a business litigation case, you’d probably find that 90% of the men, and 90% of the women, with a knowledge of bookkeeping and auditing, might be proplaintiff. I assert that this disposition has nothing to do with demographics but instead because of their shared experiences.

Assumptions Can Harm Your Case

Another commonly held stereotype is that a juror’s race can predict which side they’ll agree with. One misconception is that minorities typically side with the defense in criminal cases, and white people lean toward the prosecution.

In instances where this assumption holds, there are underlying reasons.

My research shows jurors from minority groups can be much more distrustful of police and law enforcement because of lived experiences. They are much more likely to have a negative experience with a police officer, know someone who had a negative experience, heard about negative experiences, and develop a negative impression as a result.

If you were to identify jurors who had negative experiences with police officers instead of ruling out someone based on their race, you would be doing a much better job of identifying pro-defense jurors.

You’d probably find a handful of prosecution-oriented minorities who have positive impressions of the police and a handful of defense-oriented white people with negative experiences.

Relying on demographics is the easy way out.

You won’t need to ask a single voir dire question to identify someone’s ethnicity, gender, age, or visual indicators of their social class or sophistication. Remember that when you rely on demographics to pick your jury, you’re also relying on assumptions. Sometimes those assumptions are wrong.

Focus on Jurors' Experiences, Beliefs, and Values

Jury research has also overturned the conventional wisdom that female jurors are more sympathetic toward female plaintiffs in sexual harassment cases.

The next time you feel tempted to rely on demographics, ask yourself why you believe a male, female, younger, or wealthier juror might be more receptive to your case.

Instead of blindly assuming, identify your underlying assumptions and ask those questions instead. 

  • Do they have experience, familiarity, or an understanding of the issues in your case?
  • Are they less likely to trust the opposing litigant because of negative life experiences?
  • Will they believe your story because they’ve probably seen similar things themselves?

A jury listens to an attorney in a court room.

In commercial and breach of contract trials, older jurors tend to side with the plaintiff more frequently. Not because of their age, but because of the world in which they grew up.

They may have relied on someone’s word or a handshake to seal an agreement. In this scenario, asking questions in voir dire about the importance of contracts or keeping promises would serve you better than assuming the juror’s position based on age. 

In complex patent trials, males tend to be more pro-defense than females. It is not because they have a Y chromosome but because men are more likely to be trained in science, technology, engineering, and math (STEM) in our society. 

Women are no less capable of understanding these fields, and if you rule out a female based on her sex, you could miss out on determining if she has a background in STEM.

Remember that the less you rely on assumptions, and the deeper your questions delve into your jurors’ values and beliefs, the better your jury selection will likely be.

Demographics are only the first layer, so if you have the luxury to ask your jurors about their experiences, take full advantage and make sure your jury selection is as educated as it should be.

Harry Plotkin is a nationally renowned jury consultant and leading voice in jury decision-making, psychology, and persuasion. Since 2001, he has helped shape the outcome of more than one thousand trials in California and across the country. He owns and operates Your Next Jury Trial Consultants and is the facilitator of Steno Focus Groups.


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