Unfair

by Adam Benforado

  Little claimed that the guard had: Neil J. Kressel and Dorit F. Kressel, Stack and Sway: The New Science of Jury Consulting (Cambridge, MA: Westview Press, 2002): 62–63.

  A group of scientists led by: Kressel and Kressel, Stack and Sway, 62–63.

  In addition, the team collected: The scientists identified other factors, as well, that correlated with a pro-prosecution disposition. Kressel and Kressel, Stack and Sway, 62–63; Crocker and Kovera, Systematic Jury Selection, 25–26; Frederick, Social Science Involvement, 375–94.

  Although the trial dragged on: Kressel and Kressel, Stack and Sway, 62–63.

  Some critics now question: Kressel and Kressel, Stack and Sway, 82–83.

  It is still standard practice: Lieberman, “The Utility of Scientific Jury Selection,” 49.

  Actual jurors are generally scored: Hutson, “Unnatural Selection,” 93; Kate Early, “The Impact of Pretrial Publicity on an Indigent Capital Defendant’s Due Process Right to a Jury Consultant,” Roger Williams University Law Review 16 (2011): 694–95. Although they are not always permitted, in the search for deeper insight into potential jurors, questionnaires can sometimes push past a hundred questions: the one in O.J. Simpson’s trial had some three hundred questions or, put differently, roughly 50 percent more questions than on the Multistate Bar Exam that Simpson’s lawyers had to pass in order to practice law. Hutson, “Unnatural Selection,” 93; National Conference of Bar Examiners, “The Multistate Bar Examination (MBE),” http://www.ncbex.org/​about-​ncbe-exams/mbe/.

  Today, though, trial consultants provide: American Society of Trial Consultants, “Areas of Consulting,” accessed May 4, 2014, http://www.astcweb.org/​public/​article.cfm/areas-​of-consulting.

  Trial consultants may put together: Lieberman and Sales, Scientific Jury Selection, 11, 39; Hutson, “Unnatural Selection,” 93.

  Historically, the big concern has been: There has always been a danger of bogus expertise and advice from those offering to reveal the secret tricks for wining trials. Amy J. Posey and Lawrence S. Wrightsman, Trial Consulting (New York: Oxford University Press, 2005): 22. Although the notion, back in the 1950s, that a New York prosecutor should go for Yankee fans and strike Brooklyn Dodger fans is a close second, my favorite bit of historical flimflam is that it is best to get rid of all jurors who work in professions that start with the letter p, including “pimps, prostitutes, preachers, plumbers, procurers, psychologists, physicians, psychiatrists, printers, painters, philosophers, professors, phonies, parachutists, pipe-smokers, or part-time anything.” Lieberman and Sales, Scientific Jury Selection, 58 (quoting William Jennings Bryan, The Chosen Ones: The Psychology of Jury Selection [New York: Vantage Press, 1971], 28). Such advice seems clearly absurd, but the desperation of those facing criminal punishment can make them easy marks, even today.

  A related issue is that efforts to predict jury behavior, in general, based on personality traits or demographic factors such as race, gender, age, and income have produced decidedly mixed results. Lieberman and Sales, Scientific Jury Selection, 79–80. Certain personal characteristics and preferences have shown promise, including an individual’s preference for clear rules, order, and authoritarian leadership, which appears to be linked to having a pro-prosecution bent (that is, being more inclined to find a defendant guilty and support a harsher sentence). Lieberman and Sales, Scientific Jury Selection, 80–81. Yet, for many factors, there appears to be a lot of within-group variation and the correlations are often highly dependent on the particular facts of a case. Lieberman, “The Utility of Scientific Jury Selection,” 49. For instance, consultants are aware that the influence of juror race appears to turn on whether the juror and the defendant are the same race: we favor our fellow ingroup members, in part, because we are motivated to see those who are “like us” in positive lights. Lieberman, “The Utility of Scientific Jury Selection,” 49. But if the defendant is clearly guilty of a quite significant harm, and the other jurors happen to be of a different race, the effect may flip, with harsher resulting judgments of the defendant (scientists refer to this, rather aptly, as “the black sheep effect”). Lieberman, “The Utility of Scientific Jury Selection,” 49; Crocker and Kovera, “Systematic Jury Selection,” 20. As a result, it can be tricky to figure out how known predictive factors will interact in a particular case.

  That said, as additional research is conducted, and trial consultants continue to incorporate insights from psychology into their practice, it is likely that a lot of the current haziness may clear and trial consultants will become more adept at predicting general jury behavior.

  The expansion of the industry: Stephen J. Paterson and Norma J. Silverstein, “Jury Research—How to Use It,” United States Attorneys’ Bulletin 48, no. 3 (2000), 1, http://www.justice.gov/​usao/eousa/foia​_reading_room/usab4803.pdf; Early, “The Impact of Pretrial Publicity,” 692–93.

  The result is that trial services: Crocker and Kovera, “Systematic Jury Selection,” 27.

  Jury consultants are commonplace: “Trial Consulting for Criminal Cases,” NJP Litigation Consulting, accessed May 4, 2014, http://www.njp.com/​notable_CriminalCases_cases​.html; Rachel Hartje, “A Jury of Your Peers?: How Jury Consulting May Actually Help Trial Lawyers Resolve Constitutional Limitations Imposed on the Selection of Juries,” California Western Law Review 41 (2005): 493.

  And it’s part of the standard defense: For example, former McKinsey and Company managing director Rajat Gupta, former Credit Suisse First Boston banker Frank Quattrone, and former Tyco chief executive L. Dennis Kozlowski all hired trial consultants. Peter Lattman, “Jury Is Seated in Rajat Gupta Trial,” New York Times, May 21, 2012, http://dealbook.​nytimes.com/​2012/05/21/​jury-is-seated-in-rajat-gupta-trial/; Bloomberg News, “Stewart Sued by Jury Consultant for $74,047 in Fees,” Chicago Tribune, November 18, 2005, accessed May 4, 2014, http://articles.chicagotribune.com/​2005-11-18​/business/0511180118_1_martha-stewart​-living-omnimedia-investment​-banker-frank-quattrone-jury-consultant.

  But those with fewer resources: Hartje, “A Jury of Your Peers?” 503. Judges have rarely sought to even the playing field. In the voir dire of Rajat Gupta’s insider trading trial, for example, although the prosecution objected to the use by the defense of jury consultants and lawyers outside of the courtroom who analyzed potential jurors as their names were called out, Judge Jed S. Rakoff allowed it on the grounds that finding out potential juror conflicts earlier in the trial would improve the efficiency of the proceedings. Lattman, “Jury Is Seated in Rajat Gupta Trial.”

  Some scholars have made the claim that a poor defendant ought to be provided with a trial consultant if he cannot afford to hire one on his own as a basic due process right. Steven C. Serio, “A Process Right Due? Examining Whether a Capital Defendant Has a Due Process Right to a Jury Selection Expert,” American University Law Review 53 (2004): 1186. And at least one court has provided a consultant for an indigent defendant when there was significant damaging pretrial publicity. Corenevsky v. Superior Court, 682 P.2d 360, 369 (Cal. 1984); Serio, “A Process Right Due?” 1186. As much as I agree that justice should not depend on one’s wealth, I am skeptical that recognizing an ineffective assistance of counsel claim brought by defendants whose public defender did not employ a trial consultant is the right approach. Kressel and Kressel, Stack and Sway, 75. In such a scenario, many low-income (but not destitute) individuals will still be denied access.

  Justice Hugo Black was right when: National Legal Aid and Defender Association, “Collected Quotes Pertaining to Equal Justice,” Communication Resources, accessed May 4, 2014, http://www.nlada.org/​News/Equal_​Justice_Quotes.

  Like those who assisted Joan Little: This is generally considered the first instance of modern trial consulting, but that may partially be due to the high-profile nature of the case. Myrna Oliver, “R.D. Herman; ‘Harrisburg 7’ Trial Judge,” Los Angeles Times, April 9, 1990, http://articles.latimes.com/​1990-04-09/​news/mn-674_1_trial-judge; William O’Rourke,
The Harrisburg 7 and the New Catholic Left (Notre Dame, IN: University of Notre Dame, 2012): 266; Crocker and Kovera, “Systematic Jury Selection,” 15.

  Seven antiwar activists: Oliver, “R.D. Herman.”

  The government elected to stage: Lieberman and Sales, Scientific Jury Selection, 4.

  Jay Schulman and his team: Lieberman and Sales, Scientific Jury Selection, 4. Over the next decade and a half, Jay Schulman’s focus shifted from solely assisting the less fortunate—Attica inmates, radicals, battered woman—to also providing services to the wealthy and powerful, including the socialite Claus von Bulow and Wall Street bigwigs accused of insider trading. E. R. Shipp, “Jay Schulman, Expert on Juries,” New York Times, December 3, 1987.

  With clients paying tens of thousands: Tricia McDermott, “The Jury Consultants,” CBS News, June 2, 2004, http://www.cbsnews.com/​8301-18559_​162-620794.html; “Use of Jury Consultants,” USLegal.com, accessed May 4, 2014, http://courts.uslegal.com/​jury-system/selection-process​-at-the-courthouse/​use-of-jury-consultants/.

  It presents a golden: What is for sale is not truth or accuracy—it is the keys to manipulating the system and its central players. The product at The Advocates—the leading jury and trial consulting firm in the United States—is influence: “successfully persuading judges, juries and arbitrators in trial and arbitration,” and the means are an understanding of human psychology. “About The Advocates,” The Advocates, accessed May 4, 2014, http://www.​theadvocates.com/​philosophy.htm. As DecisionQuest—another leading trial research company—explains in its promotional materials, “Our job is to arm you with an understanding of what, why and how the decision-makers are thinking as your case evolves.” “Trial Consulting and Research,” DecisionQuest, accessed May 4, 2014, http://www.​decisionquest.com/​utility/showArticle​/?objectID=1536.

  Today, witness preparation is a key service: LeGrande and Mierau, “Witness Preparation and the Trial Consulting Industry,” 949–50.

  This preparation carries a number of benefits: LeGrande and Mierau, “Witness Preparation and the Trial Consulting Industry,” 953; Richard C. Wydick, “The Ethics of Witness Coaching,” Cardozo Law Review 17 (1995): 12–13; Peter A. Joy and Kevin C. McMunigal, “Witness Preparation: When Does It Cross the Line?” Criminal Justice 17 (2002): 48.

  Lawyers are responsible for the: As the Maryland Court of Appeals explained, “Attorneys have not only the right but also the duty to fully investigate the case and to interview persons who may be witnesses.” State v. Earp, 571 A.2d 1227, 1234–36 (Md. 1990).

  In fact, a defendant can actually bring: See, e.g., Gilliam v. State, 629 A.2d 685, 694 (Md. 1993).

  The American Bar Association: Model Rules of Professional Conduct R. 3.4(b); LeGrande and Mierau, “Witness Preparation and the Trial Consulting Industry,” 947, 951.

  As the North Carolina Supreme Court explained: State v. McCormick, 259 S.E.2d 880, 882–83 (N.C. 1979). A large majority of judges and attorneys see nothing wrong with a lawyer or consultant refreshing the memory of a witness during trial preparation. As the Appellate Court of Illinois articulated, “An attorney is bound by the testimony of his witnesses and there is nothing improper in refreshing their memories before they take the stand. Reviewing their testimony before trial makes for better direct examination, facilitates the trial and lessens the possibility of irrelevant and perhaps prejudicial interpolations.” People v. McGuirk, 245 N.E.2d 917, 922 (Ill.App. 1969).

  Members of the United States Supreme Court: United States. v. MacDonald, 456 U.S. 1, 23 (1982).

  And they have repeatedly emphasized: MacDonald, 456 U.S. at 23; Geders v. United States, 425 U.S. 80, 89–91 (1976). As the Ninth Circuit has explained, “Cross-examination and argument are the primary tools for addressing improper witness coaching.” United States v. Sayakhom, 186 F.3d 928, 945 (1999).

  All of this means that: Interestingly, although a lawyer is responsible for the trial consultants that he or she hires, trial consultants are not regulated—you can call yourself a trial consultant and go to work without any particular qualifications at all. LeGrande and Mierau, “Witness Preparation and the Trial Consulting Industry,” 951, 957. The American Society of Trial Consultants does have a professional code, with standards enforceable by the society, as well as purely advisory guidelines. American Society of Trial Consultants, The Professional Code of the American Socidety of Trial Consultants (2013), http://www.astcweb.org/​userfiles/​image/ASTCFullCodeFINAL20131​.pdf. But the standards are extremely general and easily met, even when an attorney engages in conduct that is very likely to distort witness memory and testimony: for example, “Trial consultants shall advocate that a witness tell the truth.” American Society of Trial Consultants, The Professional Code, 31. The guidelines also leave an incredible amount of latitude to the trial consultant: they suggest not scripting “specific answers” or censoring “appropriate and relevant answers based solely on the expected harmful effect on case outcome.” American Society of Trial Consultants, The Professional Code, 32. Moreover, the guidelines approve of methods of witness preparation that have been shown to lead to distortion including “[w]ork[ing] to increase witness comfort and confidence in testimony” and “conduct[ing] and review[ing] a sufficient number of mock examinations to encourage the greatest improvement.” American Society of Trial Consultants, The Professional Code, 33.

  And because such preparation invariably: LeGrande and Mierau, “Witness Preparation and the Trial Consulting Industry,” 954–55.

  Take a recent set of experiments: Sarah G. Moore et al., “Wolves in Sheep’s Clothing: How and When Hypothetical Questions Influence Behavior,” Organizational Behavior and Human Decision Processes 117 (2012): 175.

  In the experiment, every mock juror: Moore et al., “Wolves in Sheep’s Clothing,” 175.

  Even when it was made explicit: Moore et al., “Wolves in Sheep’s Clothing,” 176.

  According to the researchers: Moore et al., “Wolves in Sheep’s Clothing,” 175.

  Is it any surprise, then: James J. Gobert, Ellen Kreitzberg, and Charles H. Rose III, Jury Selection: The Law, Art and Science of Selecting a Jury (Eagen, MN: West, 2009): § 14:3; Twila Wingrove et al., “The Use of Survey Research in Trial Consulting,” in Handbook of Trial Consulting, eds. Richard L. Wiender and Brian H. Bornstein (New York: Springer, 2011): 100–01.

  In some ways, research like this: As another example, one of the fascinating ways that scientific jury analysis is employed is for identifying potentially helpful jurors who the other side might try to remove for an impermissible reason, like the fact that they are African American. Paterson and Silverstein, “Jury Research—How to Use It.” However, it can also have a dark side: coming up with alternative reasons for preemptively challenging someone that you want to remove based on race or gender. Indeed, an article in the United States Attorneys’ Bulletin more than a decade ago suggested that U.S. prosecutors already had the capacity to employ questionnaire data and statistical analysis to do exactly that. As the two government attorney authors explained, “for each juror the government was likely to strike, the computer identified and included in the report those areas of the questionnaire that could be used to defend against a potential Batson challenge made by the defense.” Paterson and Silverstein, “Jury Research—How to Use It.”

  12. What We Can Do ~ The Future

  A little over one hundred years ago: G. K. Chesterton, “G. K. Chesterton Empanels a Jury,” Lampham’s Quarterly, accessed May 20, 2014, http://​www.laphamsquarterly.org/​voices-in-time​/g-k-chesteron-empanels-a-jury.php?page=all.

  After taking his oath: Chesterton, “G. K. Chesteron Empanels a Jury.”

  From that intimate vantage point: Chesterton, “G. K. Chesteron Empanels a Jury.”

  As he explained, the problem: Chesterton, “G. K. Chesteron Empanels a Jury.”

  For Chesterton, the solution was: Chesterton, “G. K. Chesteron Empanels a Jury.”

  The good news is that: Calvin K. La
i et al., “Reducing Implicit Racial Preferences: I. A Comparative Investigation of 17 Interventions,” Journal of Experimental Psychology: General 143, no. 4 (2014): 2; Calvin K. Lai, Kelly M. Hoffman, and Brian A. Nosek, “Reducing Implicit Prejudice,” Social and Personality Psychology Compass 7 (2013): 315–30. doi: 10.1111/spc3.12023; Rajees Sritharan and Bertram Gawronski, “Changing Implicit and Explicit Prejudice: Insights from the Associative-Propositional Evaluation Model,” Social Psychology 41 (2010): 113–23, doi: 10.1027/1864-9335/a000017; Leon Neyfakh, “The Bias Fighters,” Boston Globe, September 21, 2014, http://www.bostonglobe.com/​ideas/​2014/09/20/​the-bias-fighters/​lTZh1WyzG2sG5CmXoh8dRP/​story.html.

  There’s now evidence, for example: People show racial bias both in how quickly they make decisions to shoot or hold their fire and in how accurate those decisions turn out to be (that is, whether they fire at those pointing guns and don’t fire at those holding wallets or cell phones). So, when presented with an unarmed black man, experimental participants are more likely to shoot him than if he is white, and they are also more hesitant in responding to armed and dangerous white men. For an overview of the research, see Adam Benforado, “Quick on the Draw: Implicit Bias and the Second Amendment,” Oregon Law Review 89: 42–44. For a sample of some of the research studies investigating the role of race in shooter decision-making, see Joshua Correll et al., “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot,” Journal of Personality and Social Psychology 92, no. 6 (2007): 1006; Joshua Correll et al., “Event-Related Potentials and the Decision to Shoot: The Role of Threat Perception and Cognitive Control,” Journal of Experimental Social Psychology 42 (2006): 120; E. Ashby Plant and B. Michelle Peruche, “The Consequences of Race for Police Officers’ Responses to Criminal Suspects,” Psychological Science 16 (2005): 180; Anthony G. Greenwald et al., “Targets of Discrimination: Effects of Race on Responses to Weapons Holders,” Journal of Experimental Social Psychology 39 (2003): 399; Joshua Correll et al., “The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals,” Journal of Personality and Social Psychology 83 (2002): 1314. For discussion of the positive effects of simulator training, see Benforado, “Quick on the Draw,” 46–48; Correll et al., “Across the Thin Blue Line,” 1007, 1020–21.