Reviewed by Paul Lermack, Bradley University
Trial lawyers have always known that the most valuable thing they can do for any client is to empanel a jury that is sympathetic toward that client and the client’s cause. Jurors are picked at random from lists, but lawyers can influence a panel’s makeup by using challenges to exclude jurors who seem predisposed to favor the opponent.
But which ones are they? Favorable jurors have values and attitudes that a lawyer can appeal to. Or perhaps they have values that favor prosecutions (or defenses) in general. Clarence Darrow was reluctant to let a Methodist be seated on any criminal jury called to try one of the defendants he represented. He believed that Methodists held themselves to high standards of rectitude and were intolerant of those weaknesses of the flesh that the rest of us tolerate. So they were more likely to support the prosecution.
For Darrow’s day, rules of thumb like this one represented enlightened jury management. A lawyer could know very little about a prospective juror; the trick was to draw an accurate inference, based on experience, from the fact that a juror was a Methodist – or well-heeled, or elderly, or something else that could be seen. Trial lawyers sold this experience; it was one of the few perceptibly valuable skills that they had to sell.
Behavioral research later found (pp.84-88) that there is little validity in these rules of thumb. Sometimes there simply was not enough data to work with. Moreover, values like Methodism may lead to different predispositions in different communities. The intolerant Prohibitionist Methodists may not even be acquainted with the pro-civil rights Methodist congregations in other cities. More refined interpretive techniques were needed, as well as more data.
Both were eventually supplied by social science. In the Harrisburg Seven case of 1973, sociologist Jay Schulman applied a community survey designed to identify distinctly local attitudes and values. On the basis of the information thus obtained, he developed a profile of an “ideal juror” for the defense. Following his advice, the defense attorneys successfully eliminated most of the jurors they thought predisposed toward the other side. They were successful. The jury deadlocked 10-2 towards acquittal.
Schulman went on to publicize his methods (Schulman, et al. 1973) and to found his own consulting firm. Ever since, jury consultants have been expected to administer local surveys, systematize the data thus obtained, and advise lawyers on which prospective jurors to challenge. Where there has been extensive pretrial publicity, consultants also aid in the construction of motions for remedies. Finally, in [*118] cases in which the pool of prospective jurors seems to have been tainted by racial bias, consultants can help construct challenges to the array or appellate briefs alleging a denial of equal protection.
The profession grew and prospered, giving birth to a professional association, the American Society of Trial Consultants, in 1982. The Association holds professional conferences and publishes newsletters, and has developed a code of professional conduct and a grievance procedure.
The O.J. Simpson case gave the profession a well-publicized boost. The lead prosecutor, Marcia Clark, had prosecuted abusive spouses and perceived the murder of Simpson’s wife as just another abusive relationship in which violence escalated to murder. Her experience taught her that African American women made good jurors for the prosecution in such cases. The consultant advised her to try to keep local African American women off the jury because survey evidence revealed that they tended to be sympathetic to Simpson. They put him into the category of successful African American males being destroyed by the racist power structure. Clark famously disregarded her consultant and went with her gut. Post-trial analysis concluded that this was a serious mistake.
Stories like this emphasize the value of the survey and the extent to which a consultant’s advice is scientific. But experienced practitioners remind us that surveys have to be interpreted and findings need to be applied to strategic considerations that vary from case to case. The consultant’s work still has at least a limited artistic and experiential dimension.
The members of the first generation of consultants came from diverse backgrounds and learned as they went along. They now feel a need to sort out what works, to advise each other on proper uses of the data they collect, and to develop measures to determine competence. In addition, as they age, there is a growing interest in training their successors. What should a graduate program in jury consulting teach?
The present authors have written a brief guidebook, part of a series, Best Practices in Forensic Mental Health Assessment. Kovera, professor of psychology at the John Jay College of Criminal Justice, has served as a trial consultant and expert witness. Cutler, professor of social sciences and humanities at the University of Ontario Institute of Technology, has done research on juror behavior and has also been an expert witness. Here they draw on the body of rigorous empirical research on juries, on their own experiences, and on the anecdotes that practitioners tell.
Their task is to identify regularities that can be stated as “best practices,” which are mostly procedural guidelines. “Best practices” are “essential requirements for ethical and professional conduct;” they are guidelines for behavior that are supported by empirical evidence (to the extent that it is available), legally relevant and consistent with ethical and professional standards; and they “incorporate the practical,” meaning that experience indicates that following them increases the chance of success (p.vii). Although the series editors state that [*119] “best practices” are sometimes goals to be aspired to rather than rules that must always be followed, (ibid) the assumption is that once they are articulated jury consultants will always at least try to follow them. They will contribute to uniformity within the profession and can constitute the core teachings of that graduate program.
The first chapter sets out the legal context. The process through which individuals are chosen to be prospective jurors, members of venires, and, ultimately, jurors is obscure and varies extensively from community to community. Here the “best practices” serve as checklists for what a consultant should know before beginning work on a particular case: “As a consultant be knowledgeable about whether the particular court practices minimal voir dire or allows for extended procedures and if so, which ones;” (p.10) “[b]e aware of the number of peremptory challenges to be allowed in the particular case and the procedure to be used for exercising challenges (i.e. strike and replace method, struck procedure, backstriking)” (p.21).
The body of the book follows jury consultants through their pretrial work, describing the techniques they use and providing many practical tips for being effective surveyors, writers and advisers. At various points, the Kovera and Kutler set out information about jurors and juror behavior, but they are necessarily selective. There is no room here for, nor would it be useful to have, a comprehensive summary of research findings like Devine’s (2012) Jury Decision Making: The State of the Science.
Kovera and Cutler are interested in determinants of jury verdicts and concentrate on studies that bear on how these variables can be determined. They provide much practical information about designing and conducting surveys, and useful detail is boiled down into manageable sentences: “The three personality traits with the most empirical support as predictors for jurors’ verdicts are: [b]elief in a just world[, l]ocus of control[, and a]uthoritarianism” (p.37). Some of what is suggested may seem obvious or even simplistic: “Beware: exercise caution using measures for which reliability and validity have yet to be established” (p.50). But the focus is firmly on what the clinician (or clinician-in-training) must keep in mind while working, rather than on what academic social scientists will discuss at conferences.
Perhaps the most valuable single topic, and the one to which the experience of working professionals is most necessary, is the section on report writing. Since the consultant’s documentation is necessary to support various motions, it must be clear, must include what the law requires to be included, and must not be vulnerable to legal challenge: “Keep in mind that a written report on a change of venue survey will take the form of an affidavit and will also be read by the judge and opposing counsel” (p.137). Attorneys often need help. The “best practice” is, as is often the case, airily general: “Provide an affidavit that accurately represents the literature but also speaks to the motion made by the attorney” (p.141). But the authors flesh it out with specific detail: “Identify whether there is a substantial proportion of the venire that is [*120] potentially biased against the attorney’s client. This evidence may convince the judge to extend the voir dire to identify those eligible to be excused for cause” (p.135).
Kovera and Cutler advise consultants to base their voir dire participation on survey evidence and to limit their participation if that evidence is lacking or inconclusive. They recognize that consultants are often asked to observe prospective jurors and to comment on their deportment, but they have little to say about this practice except to caution against interacting with them. Science, in their view, trumps art. I would suggest an additional “best practice,” which reflects this unspoken assumption: Always keep in mind that you are an applied social scientist and not a seer, psychic, or one of those television actors whose powers of observation are so keen that they can identify the murderer by detecting the flutter of an eyelash.
The utility of the book for practitioners goes beyond the listing of “best practices,” which often remain superficial checklists – ”Advise attorneys on effective techniques for voir dire, including: [s]elf disclosure[, a]sking open-ended questions[, and u]sing a diagnostic strategy” (p.149) – to the identification and highlighting of specific and very practical tips:
Beware: items [i.e. Survey questions] that assess respondents’ self-reported ability to be fair and impartial jurors may result in socially desirable responding. It may then be necessary to educate the judge about the likelihood of the responses’ invalidity.(p.127)Like any guidebook, this one is most concerned with summarizing what has worked in the past, what is routine, and what is so commonly done that its absence would indicate malpractice. The book is not forward-looking. But the profession is dynamic. Future lawyers may need other kinds of information. For example, hung juries are increasing in some communities. Some research has found that juries are more likely to deadlock if they adopt certain “deliberation styles” rather than others (Devine et al. 2007). Since each jury is free to set its own deliberation rules, we can assume that the adoption of any given style depends on the personalities, values or attitudes of the jurors who feel comfortable using it. The identification of the relevant values, and the design of surveys to disclose them, will be tasks for future consultants.
Similarly, we find that despite the judge’s sternest warnings about sharing information about the case outside of the deliberations, some jurors persist in tweeting, Facebooking, or otherwise blabbing on social media (cf. Krawitz, 2012). Here, too, some as-yet-unidentified personality traits may make some individuals more “sociable” than others; there will be times when lawyers will want to determine what they are.
Devine, Dennis J. (2012). Jury Decision Making: The State of the Science. New York: NYU Press.
Devine, Dennis J., Jennifer Buddenbaum, Stephanie Houp, Dennis P. Stolle and Nathan Studebaker. 2007. “Deliberation Quality: A Preliminary [*121] Examination in Real Juries,” 4 Journal of Empirical Legal Studies 273-303.
Krawitz, Marilyn. 2012. “Guilty As Tweeted: Jurors Using Social Media Inappropriately During the Trial Process,” University of Western Australia Faculty of Law Research Paper No. 2012-02, SSRN #2176634.
Schulman, Jay, Phillip Shaver, Robert Colman, Barbara Emrich and Richard Christie. 1973. “Recipe for a Jury,” Psychology Today (May): 37-87.
Copyright 2013 by the Author, Paul Lermack.