High profile trials often lead to temporarily renewed awareness of the litigation consulting field. This time around, the rediscovery has to do with the first sexual assault trial for the actor and comedian Bill Cosby. An article entitled, "Bill Cosby's Trial is Already Showing How Twisted America Is" came out recently in the online source Vice. Beyond the click-bait headline, writer Sonja Sharp who also writes for the Wall Street Journal, targets both race-based selection as well as the role of jury consultants. While Vice is not the kind of source I ordinarily go to in this blog, I do believe that popular media references, like the current television series Bull, contribute to a skewed public perceptions of what litigation consultants actually do. So even though this humble blog lacks the reach of Vice, I feel a defense of my field's virtue is necessary.
Sharp's article focuses on the problems in selecting juries based on race, and what she feels is a lesser known problem: trial consultants. Both, she feels, contribute to a new, unusual, and unfair method of trying cases. "The disgraced comedian's sexual assault trial has barely started," she writes, "and it's already revealed the bizarre way in which juries are selected and justice gets meted out." While race-based selection is indeed a problem (and most often a problem in the lowest-profile criminal trials), I believe that the implied connection to trial consultants is misplaced. The goal of ending racial discrimination in the jury box is best accomplished by paying attention to the social science that matters most in checking bias: attitudes, psychology, human experiences, not skin color. In other words, reducing racial bias in jury selection means listening to consultants more, not less. In this post, I will flesh that out.
Yes, Race-Based Strikes Are a Problem
The first part of the article is focuses on the race-based strikes often made by prosecutors, and Sharp quotes a number of law professors calling out that problem as well as the ineffectual checks on that unconstitutional process, since a Batson challenge is typically hard to prove. Bryan Stevenson of the Equal Justice Initiative is quoted: "There is perhaps no arena of public life or governmental administration where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries."
It is indeed a problem generally. Whether it is a problem in the context of Cosby trial, however, remains to be seen. Sharp, for example, points out that only two of the twelve regular jurors selected are African American, but that is seventeen percent, roughly twice the proportion of African Americans that show in the most recent census data for the trial's original venue of Montgomery County, Pennsylvania.
But Trial Consultants Are a Step in the Right Direction
Sharp's focus on both race-based selection and the role of trial consultants implies that there is a connection, and some readers might assume that in some way, one causes the other. I think that the opposite is true, with trial consultants pushing for the kinds of information that lead lawyers away from a reliance on race. This is likely to be true because the research and training of a typical trial consultant leads to an understanding of two key principles:
- Attitudes and personal experience are what matter most in determining bias.
- Demographics like race tend to be poor predictors of the kinds of attitudes and experiences that matter in most cases.
In other words, just about any consultant would strongly advise, "It's silly to rely just on what you see... ask them what they think!" As a result, consultant-assisted voir dire is likely to move in the direction of focusing strikes on actual expressions that could lead to bias, and that is exactly the direction it should move in. In one line, Sharp seems to acknowledge this when she writes, "If picking a sympathetic jury were as simple as black or white, there wouldn't be a shadow industry of such experts who command thousands of dollars a day to sit in on selection."
Trial Consultants Are Not Stacking the Jury
Beyond the racially-biased jury selection, the Vice article also gives voice to many of the generalized complaints that trial consultants are corrupting the jury selection process. Sharp focuses on voir dire questions, taking aim at, "Highly paid trial consultants who craft those inquiries and judge their answers." Interviewing Drexel law professor Adam Benforado, whose critiques of the profession I've written of before, she quotes, 'The goal is no longer to take off jurors who may be harboring racial biases, but to get jurors on the jury who harbor biases in your favor,' Beneforado said. Whether those attitudes are about women or sexual assault or celebrity, they often transcend race, he said. 'Today, we're really trying to find not just a black or a white juror, but a juror who is pro-Cosby or anti-Cosby.'"
Of course it is no surprise that in adversarial settings, each side is using voir dire (and motions, procedure, facts, evidence, etc.) to its own advantage. But that said, neither side has a means for 'getting jurors onto the jury.' Challenges and strikes are the only tools wielded by each side, so it is really unpicking, not picking -- unstacking, not stacking. In this case, one side is motivated and empowered to remove the most extreme pro-Cosby jurors while the other side is motivated and empowered to remove the most extreme anti-Cosby jurors. From the perspective of justice and an unbiased jury, that doesn't seem like a bad thing.
And Trial Consultants Are Not skewing Voir Dire
Aside from the strikes, the article also takes aim at the effect of questioning itself. Again going to professor Benforado, Sharp argues, "The media's hyper-focus on race may be blinding observers to the sophisticated science of juror selection, as well as the way in which courtroom arguments increasingly creep into the panel. The moment voir dire begins, 'they're already asking questions that frame the way the case will be heard,' Benforado said. 'It's permissible and it's biasing.'"
First of all, it is only partially permissible. Most judges expect attorneys to use oral voir dire questioning to uncover bases for cause challenges and to explore a basis for peremptory strikes. The attorney who goes too far in framing out the case can expect to hear an embarrassing correction from the bench. But of course, there will still be some selective emphasis and some spin aimed at putting the potential jurors in a positive frame of mind for hearing your side. Whether that is "biasing" or not depends on what you mean by the word. Sure it can be expected to have an influence on the way jurors see a case, but the same can be said for all of the attorneys' communication, the judge's communication, and even the courtroom itself. Seeing all of that as "biasing" seems to miss the point of an adversarial system of justice. Sure it's persuasion, but both sides get their opportunity.