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“The Murky World” of Jury Consultants

jury consultants, members of jury

(photo courtesy of Wikipedia)

“Reading  people is neither a science nor an innate gift. It is a matter of knowing what to look and listen for, having the curiosity and patience to gather the necessary information, and understanding how to recognize the patterns in a person’s appearance, body language, voice, and conduct”         …….Jo-Ellan Dimitrius  

Jury Consultation is one of those “behind the scenes professions” of which the general public is not always aware. It is controversial, can be seen as ineffective compared to other methods and only afforded to those who are wealthy.  If you’ve ever seen a passing mention of this profession on TV, it is always glamorized.  Even so, perhaps some basic features  and illustrative examples can make an otherwise dry topic “come alive” and help us to understand this murky world to some degree.

An Introduction from Audrey Cleary- Villanova University

  • Juries decide thousands of cases every year. Even though the majority of court cases are not settled by juries, predictions about juries influence decisions to pursue or avoid jury trials;
  • Therefore, the jury system maintains a central importance in American law. Given this importance, it is not surprising that the selection of jurors has, for many, become a scientifically-rooted service for which attorneys and litigants will often pay handsome fees.
  • Definition – Scientific Jury Selection:  is the application of behavioral and social scientific principles to the selection of jurors most sympathetic to a particular side in a court case.
  • It has experienced a growth spurt since its inception in the early 1970’s and received substantial publicity in the news media for its use by the defense in the O.J. Simpson criminal trial in 1995;
  • It is  a virtually unregulated field of endeavor;
  • Evidence from academia largely indicates that scientific jury selection does no good, yet the market for such services continues to flourish;
  • Traditional jury selection in most jurisdictions consists of three stages:

Creation of a list of citizens eligible for jury duty, followed by selection of a sample of those persons to be summoned to court. The third  stage is the process of voir dire where potential jurors are questioned either individually or in a group, sometimes by attorneys but often by the presiding judge.

At A Glance: History, Examples and Problems:

Scientific jury selection had its roots in the 1971 trial of Philip Berrrigan and six other anti-war activists of the infamous “Harrisburg Seven.” Among their charges, conspiring to destroy secret service records and kidnap former Secretary of State Henry Kissinger! Synopsis by Defense Attorney, Tom Menneker 

The Case of Joan Little – A Black Woman- Sexual Assault in Prison- Washington, North Carolina. The first two weeks of the trial were consumed by jury selection. Because it was a capital case, prospective jurors were screened carefully by both sides about their views on the death penalty. Although prosecuting attorneys relied on traditional questions to inform their exercise of peremptory challenges, the defense employed a variety of jury-selection techniques that were anchored on a mathematical model portraying ideal jurors that had been constructed by the social scientists on the defense team.

In the 1980’s,  jury selection expanded to trial consulting including focus groups and consumer profiling. An example, David Rudolf hired a jury consultant for the first trial (January 2003) of defendant Michael Peterson (Murder of his wife December 9, 2001). Although the eight part  documentary “drama” The Staircase”  by director, Jean-Xavier de Lestrade is slanted toward the defense’ perspective, you can readily see the true narcissistic character of Michael Peterson.

The defense team had thousands of dollars with which to put up their defense (although they had  “a budget”.) The team began their strategy in closed door sessions in a hotel by beginning with a written accounting of “Good Facts; Bad Facts.”

Jury consultant Margie Fargo, had these telling analytical  words to say when listening to comments of their focus group or in defense strategy meetings throughout the piece:

  • “This is not New York. This is THE SOUTH” regarding the topic of Michael Peterson’s bi-sexuality;
  • “His accent is too hard to understand and the jury may lose interest.” referring to the testimony of  Dr. Henry C. Lee;
  • “The defense hasn’t put up any emotion. It’s been science, science, science. They want to know the story. That’s a problem.”
  • In Michael Peterson’s words: “The DA has to win and on the other hand my lawyer wants to win. The truth is lost.”

With the thousands of dollars spent, and time spent strategizing, going to Germany to do “damage control “regarding the other woman who “mysteriously fell down the stairs,” the defense still lost the case. Was the money for jury consultants well spent? Some say that wealthy, New York Defense Attorney David Rudolf  whose best friend is Barry Scheck, was distrusted by the North Carolina jury.

The Trial Consulting Industry

In 1999, trial consulting was estimated to be a $400 million industry, with over 400 firms and over 700 practitioners  with varying degrees of expertise  in the areas of behavioral psychology, sociology,  the law, and communications and marketing.

Methods Used for Scientific Jury Selection include:  survey questions, focus groups, mock trials, pre-trial investigations and voire dire assistance.

This  “science” is perhaps more of an art in that predicting verdicts depends upon many variables.  Demographics and personalities are reported to account for at most 15% variability in verdicts.  In other words, there is no true way to predict the tendency of juries based on any variable!

Ms. Cleary’s research states that, more than any other factor, the quality of evidence determines the outcome of a trial. Therefore, the implication is that jury consultants might be better served to offer their expertise to attorneys in the area of evidence presentation versus jury selection! Well said!

“Jury of One’s Peers”  A farce? How can the process be fair when  some attorneys pay a lot of money for hand selected jurors and the fact that                            “some Americans, namely, persons who do not register to vote or hold driver’s licenses, are regularly excluded from jury selection”

Other issues brought to bear include the Constitutionality of “a group selected for their biases.” The scientific jury selection really is about “the perception of fairness” versus actual fairness.  The fact is there are no true standards that regulate participating professionals in trial consulting. Why not? SJS proponents essentially say it is better than nothing and that trial consultants don’t rely on “stereotypes of group attitudes” as attorneys do.

The Last Word:

“Never accept a juror whose occupation begins with a P. This includes pimps, prostitutes, preachers, plumbers, procurers, psychologists, physicians, psychiatrists, printers, painters, philosophers, professors, phony’s, parachutists, pipe-smokers, or part-time anythings.” –William Jennings Bryan (U.S. Congressman, Democratic presidential nominee, and former Secretary of State)

 

References:

“The Murky World” of Jury Consultants

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