Courtroom Consultation Research Paper

1. Historical Context

The first well-publicized instance of social scientists serving as jury consultants was the trial of Philip Berrigan and seven other defendants charged with criminal conspiracy involving numerous anti-Vietnam War activities. Faced with defending their clients, known as the ‘Harrisburg Seven,’ in the conservative community the federal government had chosen for the trial, the defense attorneys asked a group of social scientists, headed by Jay Schulman, a Columbia University sociologist, to help select a favorable jury from a largely unfavorable community. Using special public opinion surveys, the team interviewed hundreds of citizens to determine what background characteristics were correlated with pro-prosecution and pro-defense attitudes. They then used these empirical relationships as the basis for recommending which prospective jurors the defense attorneys should ‘strike’ from the panel. The trial ended in a hung jury (the vote was 10–2 for acquittal). Based on this outcome and several other highly visible trials through-out the 1970s in which politically liberal defendants relied on social scientists for jury selection advice and were found not guilty, trial consulting blossomed into a cottage industry.

In the first decade of psychology and courtroom consultation, consultants typically worked for poor defendants or socially unpopular individuals charged with political crimes. Their work was often done pro bono, and after the death penalty was approved by the Supreme Court in 1976, a particular focus of what was then called ‘jury selection’ was on defendants charged with capital crimes. Capital litigation proved to be a major training ground for jury consultants in part because the jury selection process (known as voir dire) is expanded in the typical death-penalty trial and in part because juror attitudes tend to correlate more strongly with beliefs about penalties than with assessment of evidence. As jury consultation became better known, its application spread to civil trials and to litigants with greater financial means. A landmark was MCI’s antitrust suit against ATT in 1980, in which the MCI plaintiff team relied heavily upon jury consultant recommendations and won a nearly two billion dollar judgment.

By the 1990s, what had begun as a largely volunteer activity born from social consciousness and intellectual curiosity had become a large commercial enterprise associated with trials carrying enormous financial stakes. Jury consultants were credited with major roles in several trials involving the wealthy and the privileged, including O. J. Simpson, William Kennedy Smith, Imelda Marcos, and a host of large corporations. Consultants such as Jo-Ellan Dimitrius and Donald Vinson received a level of media attention normally reserved only for celebrities. Some consulting firms now employ scores of doctoral-level researchers and consultants and generate millions of dollars in fees annually. Formed in 1982, the American Society of Trial Consultants is the field’s main professional organization; it has published a Code of Professional Standards that is a statement of aspirational practices rather than an enforceable set of regulations. On-line trial consulting was introduced in the 1990s; one service impanels ‘cyberjuries’ to listen to evidence and render mock decisions that can be analyzed by consultants and trial attorneys (Strier 1999).

2. Techniques Of Psychology And Courtroom Consultation

Courtroom consultation is not limited to weeding out unfavorable prospects from juries although that goal has received inordinate attention in popularized accounts. Recognizing that jurors’ demographic and personality characteristics usually do not correlate strongly with group verdicts in general, litigation consultants have turned their focus to studying intensively the dynamics and issues of each specific case (Vinson and Anthony 1985). Therefore, courtroom consultation applies many techniques to the detailed analysis of the individual case and considers how the main issues in that case will be evaluated by different types of jurors. Among the techniques employed by trial consultants, the following five are the most important:

2.1 Public Opinion Surveys

Consultants conduct public opinion surveys, usually by telephone, to measure the attitudes and beliefs of residents in communities from which jurors subsequently will be drawn. These surveys yield empirical profiles of favorable and unfavorable jurors, which are then used to guide the exercise of peremptory challenges, the mechanism by which attorneys arbitrarily deselect a certain number of individuals from serving on a jury. Although demographic and personality characteristics tend to show modest-at-best correlations with case-relevant beliefs, life experiences (e.g., personal victimizations, individual litigation history), attitudes about social issues, and general values can be fairly robust predictors of verdict tendencies and therefore are the focus of many surveys.

2.2 Focus Groups And Mock Juries

A favored tool is the pretrial focus group or mock jury in which the consultant arranges for a jury-sized group to evaluate an abbreviated, ‘dress rehearsal’ version of the upcoming trial, including opening statements, evidence, and closing arguments. The focus group then discusses the evidence and makes individual and group decisions as the consultant observes the process. These simulations allow the consultant to pre-test several dimensions of the upcoming trial—impact of attorney styles, coherence of the theory of the case, clarity of exhibits, and persuasiveness of the overall presentation—before a group of people selected to resemble the real jury. Focus groups are sometimes repeated more than once before a trial, giving the litigation team the opportunity to gauge the effects of variations that were suggested from initial iterations of this methodology. In a few complex, lengthy trials, consultants have impaneled a mock jury to listen to the case simultaneously as it unfolds before the real jury, providing day-by-day data on how the trial is being perceived and enabling suggestions for mid-course corrections and adjustments.

2.3 Pretrial Investigations; In-Court Observations; Post-Trial Interviews

Consultants use several techniques to gather information about individual jurors. Pretrial investigations of jurors’ backgrounds or interviews with key in-formants who know specific jurors are employed, but both methods have two drawbacks—resentment over what jurors perceive as an invasion of privacy and limitations in the reliability and validity of informant data.

Consultants emphasize the in-court observation of prospective jurors as a basis for their advice on exercising peremptory challenges. A key element in this strategy is to evaluate prospects’ answers to questions that have been crafted carefully to reveal their beliefs, biases, and preferences. In addition to the content of the answer, the nonverbal cues associated with jurors’ responses reveal attitudes as well. For example, aloofness toward one type of person coupled with deference toward another may suggest authori-tarianism, a juror quality generally not favorable for criminal defendants. Another technique is to conduct post-trial interviews with the jury to assess the validity of the consultant’s decisions and to learn how the jury evaluated the trial. This method is not always available because some judges prohibit such interviews.

2.4 Modification Of Attorney Style; Enhancement Of Voir Dire; Preparation Of Witnesses

In addition to studying and predicting juror behavior, litigation consultants often attempt to modify aspects of litigant behavior or influence the litigation process itself. In both instances, the purpose is to use psycho-logical knowledge or techniques to gain an edge over the opposing litigant. For example, consultants can teach attorneys how to ask questions of prospective jurors so they are comfortable revealing their true feelings about sensitive topics of crime, race, justice, and punishment. Open-ended questions, often pre-faced by a self-disclosure by the attorney, are effective in this regard as are those active-listening techniques used by contemporary psychotherapists. Similarly, consultants often recommend how voir dire can be conducted so that the maximum amount of candid information can be obtained from prospective jurors without biasing other members of the panel. Creating special questionnaires to be completed by prospective jurors prior to trial is a prime example. Another strategy is to seek permission to question jurors one at a time on key issues rather than to interrogate them as a group. Whether any of these innovations is used in a given trial is a matter over which the trial judge has almost total discretion so the consultant’s role is simply to suggest that the attorney request the judge to allow them.

Most controversial among these techniques is wit-ness preparation. Some consultants help prepare witnesses for their testimony with the intention of assisting them make as effective a presentation of the facts as possible. Other consultants are reluctant to prepare witnesses because of ethical concerns about the possibility of unintentionally encouraging or suggesting changes in the ‘facts’ to which a witness will testify. In general, most consultants believe that interventions aimed at ‘how’ the facts are presented or at the ‘style’ of testimony are acceptable.

2.5 Development Of A Case Theme

Essential to the success of litigation consulting is the development of a case theme to which prospective jurors will be sympathetic. The modern trial has been likened to a morality play in which an audience of jurors writes the final scene (Nietzel et al. 1998). The first task is to deselect from this audience people whose personal characteristics and experiences might make them unfavorable ‘playwrights.’ Second, armed with the knowledge gleaned from public-opinion surveys and mock juries, the consultant will attempt to develop a case theme that promotes the plot lines and final resolution most favorable to the consultant’s ‘side.’ This theme will then be reinforced in every way possible. Through the selection of voir dire topics, the framing of an opening statement, the structure of evidence presentations, and the building of a closing argument, the consultant will help the attorney repeatedly stress the most salient psychological factors of the case.

Jurors tend to form a narrative or private story that summarizes trial evidence into a coherent, emotionally and cognitively compelling account (Pennington and Hastie 1988). To the extent that a consultant helps an advocate present evidence that advances a captivating narrative, that advocate should improve the chances of a favorable verdict. For example, in the sentencing phase of capital trials, defendants strive for narratives that emphasize personal mitigators of culpability— e.g., youthfulness, psychological disturbance, a history of abuse, and deeply-felt remorse. Conversely, prosecutors fashion stories that emphasize the brutality of the crime, the loss suffered by the victim’s family, and the deterrent value of capital punishment. The side that promotes the most convincing narrative enhances its chances of jurors finishing the script with the moral resolution it desires.

3. Effectiveness Of Psychological Courtroom Consultation

The effectiveness of psychological courtroom consultation is disputed. Its initial successes in the political trials of the 1970s lent it an aura of potency that was exaggerated by the fact that political conspiracy charges are difficult to prove before juries of any kind. An additional confound is that attorneys who make the extra effort to employ trial consultants might also be more diligent in preparing other facets of their cases than attorneys who forego litigation consulting services. In fact, little empirical research evaluating the effectiveness of litigation consulting has been published, and what is available is plagued by questionable methodology (Cutler 1990; Strier 1999), including an over-reliance on mock jury studies. Consequently, it is still not certain whether and to what extent ‘scientific jury selection’ surpasses the effectiveness of traditional selection strategies. However, Horowitz (1980) did compare scientific jury selection to traditional attorney methods in four simulated criminal trials. Neither approach was superior across all trials. Psychological consultation was more effective when there were clear-cut relationships between personality and demo-graphic variables and jurors’ votes, but when these relationships were weak, consultants’ accuracy did not surpass the conventional wisdom of practicing attorneys.

One common claim is that jury consultants are unlikely to exert significant effects because the weak relationships between individual juror characteristics and verdicts would vitiate almost any empirical selection strategy (Saks 1976). In cases where the evidence is about equally persuasive for both sides, or where the trial issues provoke strong attitudes, individual juror characteristics have been shown to exert small to moderate influences (Hastie et al. 1983, Moran and Comfort 1982, Penrod 1990) that provides an opportunity for consultants to have an impact. Further, even when a collection of individual difference variables account for only a small amount of verdict variance, this relationship can still translate into trial outcomes that are of substantial practical importance.

One study of defense-team psychological consultants examined 35 jury verdicts in capital trials (Nietzel and Dillehay 1986). Juries recommended the death sentence in 61 percent of verdicts in trials where no consultants were employed compared to 33 percent of verdicts in trials with jury consultants, producing an effect size of 0.26. Because the cases differed on several variables besides the use of consultants, it is not possible to conclude that the effect was due to consultants, but the results are consistent with claims that consultation might be effective in cases in which juror attitudes are important, as they are likely to be when a jury must choose between life and death.

4. Ethical And Legal Criticisms

As the practice of psychology and courtroom consultation expanded, so too have legal and ethical objections to it. Critics have condemned these techniques as ‘jury rigging’ or ‘jury tampering’ and claim that they undermine the fairness of trials and the public’s confidence in jury verdicts (Adler 1994). Another objection is that courtroom consultants have become affordable only by wealthy individuals or large corporations, producing a fundamental disadvantage for poor or even average-income litigants.

Fueled by these criticisms as well as by outrage over what have appeared to be miscarriages of justice in a few trials where consultants played a major role, public concern about litigation consultation has led to several suggested reforms. The following proposals are the most common (Strier 1999): (a) a complete ban on courtroom consultation; (b) a restriction of voir dire such that only limited questioning by the judge rather than the attorneys is permitted; (c) a curtailment of peremptory challenges so that there is less opportunity to remove jurors perceived as unfavorable; (d) a requirement that survey data or other information developed by a trial consultant be shared with the opposing litigant; (e) a prohibition against pretrial investigations of prospective jurors; (f ) a requirement that litigants disclose publically their use of consultants; and (g) a suggestion that courtroom consultation be regulated through professional licensure and practice standards.

Few, if any, of these ‘reforms’ have been implemented, at least in the US, nor is it clear that they would be beneficial or yield fairer justice. The American system of justice is fundamentally adversarial in nature; each litigant is expected to present its case as zealously as possible, within the confines of the law, with the goal of persuading the jury to return a verdict favorable to that litigant. Attorneys on both sides of a case are expected to use every legal means available to woo the jury, present evidence, offer arguments, and counter the opponent in order to win the dispute. The objection that courtroom consultation gives one side an advantage ignores the fact that one side almost always has advantages—a better attorney, more persuasive expert witnesses, more skilled investigators. To single out courtroom consultation, voir dire, or peremptory challenges for special curtailments is a slippery slope premised on the faulty notion that each side in a trial can be ‘required’ to be equal. It is also important to remember that consultants cannot ‘stack’ juries in their favor; they can only prune juries of individuals they believe are unfavorable. The ability to eliminate jurors perceived as biased through the skillful use of peremptory challenges might be worth preserving, particularly if it enhances the general perception of trial fairness.

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