Legal Commentary

Should Prosecutors Hire Jury Consultants?

By Professor University of Miami School of Law

I don’t do criminal law, never have. But stuff like this makes me feel like an innocent, a babe in the woods.

Vanessa Blum’s article in the Sun-Sentinel, Liberty City Six: No verdict yet in the Liberty City Six terror trial, and the government has spent millions, reports that the government has just spent a fortune on three trials of what from here seem to be a relatively harmless bunch of garden-variety hoodlums whom an agent provocateur raised up into mock terrorist wannabes. But that’s not the shocking part, no, that is the sort of ordinary outrage one gradually builds up calluses for.

What’s amazing, at least to this innocent, is this:

Among the payments by federal prosecutors is $95,755.79 to Varinsky Associates, a California-based jury consulting firm.

Jury consultants are people who advise lawyers on what sort of jurors to pick in order to increase their chances of a favorable verdict; they may also give advice, based on focus groups or polling, on what sort of arguments are likely to work or to fail.

Jury consultant services utilize sociological and psychological research. [FN250] These services include both qualitative and quantitative jury research. [FN251] Qualitative jury research uses a limited number of surrogate jurors (typically, up to fifty) drawn from the relevant community. The research identifies these jurors’ reactions to evidence and arguments that can be presented in the future trial. After hearing the evidence and the arguments, the surrogate jurors will be divided into subgroups that will separately deliberate the verdict. This methodology singles out the most effective arguments and evidence along with the jurors’ profiling trends. [FN252] The jurors’ profiling trends are the sets of attitudes, experiences and beliefs that are favorable or, inversely, inimical to the client’s case. [FN253] Quantitative research focuses on a large pool of surrogate jurors (about 400), who respond to carefully designed questionnaires (“community attitude surveys”). [FN254] These responses identify attitudes, experiences and beliefs favorable and unfavorable to the client’s case. [FN255] This research strategy aims at developing dependable juror profiles. [FN256] It also identifies the “hot questions” that facilitate the jurors’ selection and de-selection during voir dire. [FN257]

— Uzi Segal & Alex Stein, Ambiguity Aversion And The Criminal Process, 81 Notre Dame L. Rev. 1495, 1548 (2006)

I repeat that this isn’t the sort of law I work on, and I look forward to correction by readers who live in the criminal justice trenches. But from over here on the civil side, I still think that jurors, and especially criminal juries, are ideally supposed to represent the community. (And yes, I’m aware that the reality departs from the ideal in multiple dimensions.) If the US Attorney’s office uses jury consultants to tell them how to select a prosecution-friendly jury, that would seem to me to be not just unsavory, but to raise some due process and right to jury trial issues.

But, I have to say that based on a cursory survey of the literature, it seems my instincts here may be misplaced: I’ve found half a dozen academic articles that just report on this phenomenon as if there is nothing odd or unsavory about it; if anything the drift is that the poor under-resourced prosecutors (the ones who just spent $5-10 million on the Liberty Six trials) need consultants to level the playing field.

I suppose if all the consultants are doing is helping the prosecution spin better then that doesn’t raise a constitutional question, although I still think that it is not a good use of public money. But if they are helping prosecutors identify pro-prosecution jurors, even by attitudinal rather then demographic factors, that seems to to me to take us yet another step away from the jury system we would wish for.

Some surely would say that the government is only responding to an arms race started by wealthy criminal defendants and, who knows, there may be something to that in some cases. But in this case the defendants are not wealthy. Has the public defender’s office got jury consultants too? If they do, couldn’t they make a non-aggression pact on the jury consultants and save us all some money?

(I’m reminded of the old joke about the judge who calls the plaintiff’s lawyer in a civil case into his chambers and says, “Fred, I wanted you to know that defense counsel have offered me $5,000 to rule in their favor. So how about you give me $5,000 too and we try this one the merits?)

Full post as published by Discourse.net on May 11, 2009 (boomark / email).