Jury Consultants
It has been argued that the United
States courts do not begin with the assumption that a juror will perform
his duties in accordance with his oath by setting aside whatever biases
or preconceived notions they have and by following the judge's
instructions. Valerie P. Hans and Neil Vidmar, Judging the Jury, 69 (Plenium
Press, New York, 1986). On the contrary, courts and lawyers frequently
expend significant amounts of time and money on researching prospective
jurors' attitudes and lifestyles often with the aid of a hired jury
consultant, in order to satisfy themselves about the citizen's
competence to serve as an impartial juror. There is, in effect, a
presumption of bad faith.
This has not only led to excessive jury
selection time, but left a sour taste in the mouths of prospective
jurors in the community unable to rationalize why they have been
excluded. See Michael Sartisky's editorial in "Louisiana Cultural
Vistas" (Fall 1997). The use of jury consultants is now
commonplace in the United States and can be quite expensive. While the
ability of the jury consultant to predict how jurors will
ultimately respond to the evidence cannot be measured accurately,
Michael J. Saks, Social Scientists Can't Rig Juries "in" In The Jury Box
- Controversies in the Courtroom, 56 (Lawrence S. Wrightsman, Saul M.
Kassim and Cynthia E. Willis eds. 1987), they are nevertheless employed
in a variety of ways.
Jury
consultant are used to assist attorneys in selecting jurors or
understanding jury behavior, including the employment of community
attitude surveys, juror questionnaires, focus groups, mock trials and
shadow juries.
Jury Consultants
often use Community Attitude Surveys.
The mainstay of a jury
consultant's method of research is the "community attitude
survey". This is usually a large survey conducted by telephone in an
effort to obtain a random selection of voting residents. The survey
will contain a range of questions endeavoring to sample the
attitudes of the various citizens, not just about the criminal case
at hand, but also regarding the more general psychological
predispositions of those interviewed.
The particular demographics of each
respondent (age, gender, race, education, occupation, religion and
political party) are also inquired into and this data compiled
statistically to create profiles of jurors who are favorable
or unfavorable. These surveys are valued by attorneys who prepare
questions for voir dire and devise trial strategy with this
information in mind, though there are reported cases of attorneys
ignoring or refusing to accept the logic of their conclusions. See
Jeffrey Toobin "Marcia Clark: How She Lost the Simpson Case." The
New Yorker, 58-71, Sept. 9, 1996.
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Furthermore, by assessing
prevailing attitudes in the community, attorneys can draft
questionnaires, under the judge's strict control, to be sent by the
clerk of court to the venire. It is important to remember that
courts do not like hearing from the opposing party that you are
conducting polls in the community. Whenever possible, let the court
know that you are doing this, at least in camera, before your
opponent does. Otherwise, the court may not let you use that
information. Compare United States v. Collins, 972 F.2d 1385 (5th
Cir. 1992) and United States v. Lehder-Rivas, 667 F. Supp 827 (M.D.
Fla. 1987). You should also check your local federal and state bar
rules regarding ethical parameters of juror investigations. See
Debra Sahler's, "Scientifically Selecting Jurors While Maintaining
Professional Responsibility: A Proposed Model Rule", 6 Alb. L.J. Sci.
& Tech, 383, 400 (1996).
Questionnaires are
also used by jury consultants
Numerous questions regarding the
particular trial those questioned may be called upon to decide, as
well as general inquiries on a range of personal subjects, including
the prospective juror's attitude toward law enforcement, the
criminal justice system and the demographic questions of age,
gender, race, occupation, education, political party and religion.
They can also be asked questions concerning the kinds of programs
they enjoy on television, preferred literature, their hobbies and
the social organizations to which they belong. All of this, of
course, is at the discretion of the judge who can edit the
questionnaire or refuse to send one out altogether. See Mu' Min v.
Virginia, 500 U.S. 415, 431 (1991); Turner v. Murray, 476 U.S. 28,
36-37 (1986).
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