The Jury Hall of Fame

Jun 28, 2017

A Student's View: Using Baseball Sabermetrics to Uncover a Potential Juror's Subtle Leanings in Jury Selection

Edmund Rothus, Pepperdine student

I am an advertising major at Pepperdine University. The main reason that I got into advertising was my fascination with market research and statistics. I see statistics everywhere and often find myself running statistical problems in my head for fun. Baseball sabermetrics, the statistics of baseball, are the most interesting statistics to me. I think the rigor that baseball statisticians apply to the MLB could also be quite well applied to work for a law firm. Law firms should hire statisticians, not just lawyers, in order to help them with the jury selection pool.

FiveThirtyEight ran a statistical report on the racial divide in how Americans viewed OH Simpson. In 1995, less than 25% of black Americans thought Simpson guilty; nearly 75% of white Americans thought Simpson was. The defense would want black Americans on this jury and the prosecution would want white Americans.

To draw a baseball comparison to this, getting black jurors would be like acquiring a baseball player that could hit 60 home runs for the team of the defense. A statistic this simple, however, does not do all that much good for the attorneys for two reasons. The first is that you cannot tell a judge, "I do not want this person on my jury because of their skin color." That is racist and would not fly. The other is that getting a case so divided on basis of race is rare. This case was particularly divided not just because it was a black-on-white crime, but also because of the high-profile Simpson had. Furthermore, the 1990s were a racially divided time, especially in LA.

The fact is that this divide and easy statistical solution to get an ideal jury is hard to pull off and quite rare—just like acquiring a baseball player who can hit 60 home runs in a season. This is why lawyers have to ask potential jurors other questions: they ask questions about family and work, among other things. Statisticians could break these down and find extremely efficient, empirical ways to prove negative bias, that could be pointed out to a judge.

The use of extremely advanced analytics in the courtroom may take a while, but it would be worth it if it had the same result it had in the MLB. Now MLB players are valued for much more than just home runs and strikeouts. Craig Biggio, former Houston Astros second baseman and Hall of Famer, would never have been in the Hall of Fame if he played years ago, but he played in the "moneyball era," which recognized his value as a defensive gem that drew walks and got hit by pitches at historic rates. The Craig Biggio of jurors do not have to have an overwhelming racial or religious bias, they just have to have subtle leanings that statisticians could pick up on. Those are your Hall of Fame jurors.

Edmund Rothusis a senior at Pepperdine University majoring in Advertising.

Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at PepperdineUniversity in Malibu, California where he teaches MediaLaw. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.


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