Last week, I wrote about the defense team in the recent criminal case against Roger Stone, and their post-conviction focus on the alleged bias of the jury foreperson. More recently, I saw news of a parallel tack being taking by the former Hollywood producer Harvey Weinstein, following his conviction for sexual assault and rape. Based on a story in Law 360, the Weinstein defense is similarly taking aim at the alleged misconduct of a single juror. In this case, the team knew that Juror 11 was writing a book whose description includes a focus on “predatory older men,” and did try to get her excused for cause, and also tried to have her removed during trial when there was information suggesting that the juror was writing book reviews that bear on issues addressed in trial. Now that Mr. Weinstein is at Rikers awaiting sentencing, it appears that there is a full-court press to investigate possible dishonesty or other misconduct by this juror. As Law 360 notes, “The effort also shows how much of jurors’ lives are fair game and how invasive it can get.” In both the Stone and Weinstein cases, there may or may not be bases for appeal. But I am hoping that this focus on post-trial juror investigations isn’t the start of a trend.

If the pattern of looking for misconduct after an unfavorable verdict were to become a trend, that would set a bad precedent. We shouldn’t normalize the idea that, “If we lose, then let’s focus on one person who shouldn’t have been on the jury.” Lawyers, of course, know that this almost never works. Judges who will tolerate robust public research, before jury selection, are extremely reluctant to open the door to admissible testimony about misconduct after the fact. There are good reasons for that. In this post, I will argue that, while evident misconduct cannot be ignored, lawyers and the consultants who work for them have a responsibility to not go looking for it after the verdict.

Post-Trial Juror Investigations Shouldn’t Be Part of the Adversarial Frame

The “adversarial frame,” as I call it, means to use what you can in order to improve your case. That is how lawyers usually work, and you might say that it is at the heart of our system. With the facts, the arguments, and the law, both sides are motivated to do everything within the rules in order to end up ahead of the other side.

But there are good reasons not to extend that attitude to juror investigations. If there is obvious knowledge of misconduct, of course you can’t ignore it. But for our system to have popular legitimacy, citizens cannot feel like they are being targeted just for showing up to do their civic duty as a juror. Normalizing that notion, or even emphasizing it in a few high profile trials like Stone’s and Weinstein’s, could further reduce support for jury trials at a time when they’re particularly in danger.

Post-Trial Adversarial Juror Investigations by Trial Consultants are Ethically Questionable

There is a popular view that trial consulting is an unregulated profession. That is not entirely true. While there is no professional licensing, there is a professional organization (the American Society of Trial Consultants, or ASTC), that creates professional standards. In this case, the standards on conducting post-trial interviews note that interviews are only “rarely” (and, for this consultant, never) conducted for the purpose of discovering misconduct, based upon the view that only exceptional cases would justify it. While the standards, in my view, don’t go far enough in advising on what is “exceptional” and what isn’t, there is a common consensus within the field that any interview or other investigation that serves as a “fishing expedition” to look for juror misconduct is a misuse of our services. It is a misuse, first, because it strays from our proper role of understanding juror decision-making, and second because it can foster distrust for the field and for jury service generally.

What is proper is to thoroughly, but sensitively, investigate the potential juror before they are selected. Interviews conducted afterward should focus on learning about your case and learning about their process, and not pushing for the right answer that could support a misconduct claim. In any case, using what you learn from jurors, or through other investigations, doesn’t generally work, because judges are appropriately reluctant to open the door of the jury room. For example, the hearing held in Roger Stone’s case, in which judge asked three jurors to testify about their deliberations, is extremely unusual. And the view of this consultant is, let’s keep it that way.