Monday, May 11, 2009

Should prosecutors hire jury consultants?

Michael Froomkin, blogging at Discourse, raises the very interesting question here. From his post:

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?

Prosecutors use jury consultants in high-profile cases all of the time. Other than the cost, I had never thought that it was an issue, but Froomkin raises some interesting points. Thoughts?


Anonymous said...

I think Froomkin has been in academia too long. Every litigator knows that jury selection is about finding jurors who will view your case/client favorably. Surely, defense lawyers worth their salt treat jury selection in that manner. Further, Froomkin's argument appears to raise a criticism that extends beyond racial, gender and other lines covered by Batson. If so, his criticism taken to its logical conclusion would suggest that peremptory challenges should not be used at all. That just sounds silly.

Further, jury consultants are effective ONLY IF the judge gives you enough time to voir dire. Most federal judges do not give you enough time to make the kind of judgments that are at the core of Froomkin's criticism.

That said, I don't believe that jury consultants are worth the money (not to mention that its indicative of laziness to the extent that the lawyer is farming out a skill set that he/she should learn for themself!)

Anonymous said...


IF the government is being handed profiles or recommendations based on race, then the whole fucking case should be thrown out, consistent with Supreme Court precident.

Michael Froomkin said...

OK, I'll bite. Why should the prosecution have any peremptory challenges at all? On what grounds should the prosecutor -- whose goal is justice, not convictions, right? -- have the right to exclude persons from juries without having to show cause?

More generally, other than a desire to win, why should we accept the prosecution can scheme to get a pro-prosecution jury as opposed to one that is fair and representative of the community? And yes, I know we've arguably moved a step away from that with 'death-qualified-juries' but do we need more steps?

[I accept that defense lawyers can and sometimes should do things we don't allow the prosecution to do; the argument for that is that balances out the state's much greater power and (usually) resources.]

I'd also note that a commentator on my blog (also named Michael, but not me) said this:

My uninformed opinion is that regardless of the constitutional issues, the use of jury consultants raises a professional ethics problem for the prosecutors. Their interest is not to win the case but to see justice be done. The line between using consultants in the interests of justice rather than in the interests of convictions is sufficiently hazy that prosecutors should stay away from it.

I'd also wonder whether the use of consultants for advice on arguments changes what should be considered unduly prejudicial, the concern being that something that appears innocuous to the judge, and the vast majority of the populace, may be inflamatory to some targeted subset of the jury.
Those seem like real issues to me.

Anonymous said...


Anonymous said...

Professor, if I have one preempt and there is one slot left on the panel, is it wrong to strike the white dude so I seat the super hot juror?

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David Oscar Markus said...

I deleted the last two comments. Come on guys, keep it clean.

Anonymous said...

censorship? nice. there was nothing not clean about those comments. you're a bit of a hypocrite, mr. markus. you don't want people expressing competing views? too busy kissing the ass of people who may send you business?

Anonymous said...

Let me at em....let me at em. Who the hell is criticizing David....let me a em, sons of bitches.

swlip said...

Froomkin should read Daniel Petrocelli's "Triumph of Justice," particularly the chapter on the mock trials that were conducted on behalf of the plaintiffs. It's an eye-opener.

Anonymous said...

Mister Markus, isn't it time to update your "The next Supreme Seat" by changing the name from George Bush to Barack Obama?

Rumpole said...

The simple answer is "Yes" because otherwise they have no shot to beat me.

Anonymous said...

Prof. Froomkin,

Let me start by saying that I believe prosecutors should view facts objectively, not believe everything law enforcement officers tell them, and—where there is any doubt—err on the side of disclosure for purposes of compliance with Brady, Giglio etc. (i.e., they should be risk-averse when it comes to their disclosure obligations under Brady, Giglio et al.). However, I do believe that prosecutors are advocates and they are not appendages of the district or appellate courts—they should be allowed to make novel arguments, pursue novel charging theories, etc. With that in mind . . .

First, your argument appears to imply that “show cause” is a fairly easy standard to administer that is consistently applied in any given case. Any trial lawyer will tell you that, like beauty, “show cause” is in the eyes of the beholder (in this case, they eyes of the judge). What constitutes “show cause” in Judge X’s courtroom might be insufficient in Judge Y’s courtroom. Second, your argument suggests that peremptory challenges are incongruous with “doing justice” or inherently nefarious. (BTW—I prefer “fair trial” which is more firmly rooted/defined in articulable legal principles/standards because “doing justice” is a phrase that notoriously begs the question). I do not believe that this is necessarily the case.

For example, you might have a drug case where a prospective juror states that even though his brother—who he visits regularly—is serving 15 years in prison for PWID cocaine, he can objectively apply the facts to the law. In light of this answer, the judge does not allow a for-cause challenge (this happens quite often) and the prosecutor exercises a peremptory. The exercise of that peremptory is not based on any impermissible ground (i.e., race, gender etc.) Rather, one might say that it is based on the common-sense determination that, notwithstanding his/her words, this juror might not be as objective as he/she stated even though he/she genuinely believes otherwise.

Much of trial practice—good or bad—is based on these types of common sense and on the spot “gut” decisions. That might make some uncomfortable or make it difficult to pin down or predict the application of certain concepts, but that is just the reality. The existence of peremptory challenges appears predicated, at least in part, on the reality that there is a territory not covered by for-cause challenges that nevertheless undermines and threatens the attainment of a “fair and representative” jury panel (to the extent that is possible within the limits of human nature and experience). If peremptory challenges are exercised improperly, we have Batson principles to serve as a backstop against such behavior. Do you believe that Batson is insufficient as applied to the government? If so, why?
Also, if you believe that peremptory challenges can be used in a “scheming” fashion to undermine a “fair and representative” jury, why would you allow the defense to use them but not the government? Merely allowing their use by the defense because you “accept that defense lawyers can and sometimes should do things we don't allow the prosecution to do . . . [because it] balances out the state's much greater power and (usually) resources” is not only a cop-out but strikes me as intellectually dishonest. The analysis should not focus on the party that uses them, but on how their use affects the administration of the trial/judicial system. Nor should reliance on “zealous” advocacy excuse their use.

You also state: “More generally, other than a desire to win, why should we accept the prosecution can scheme to get a pro-prosecution jury as opposed to one that is fair and representative of the community?“

Do you view a “desire to win” as a bad thing? I would reject the concept that a “desire to win” is somehow a dirty little thing when it comes to prosecutors. A desire to win in a way that assumes compliance with constitutional principles, the rules of evidence and other applicable standards is not a bad thing—prosecutors are not automatons.

Also, what exactly is a “pro-prosecution” jury? When exactly is a jury “fair and representative of the community?” You posit these concepts in a hermitically sealed fashion when I submit they are not. For example, a juror’s belief on a particular issue might connote/imply beliefs on other issues that make it difficult to label him/her as “pro-government” or “pro-defense.” In other words, a juror might abide by a set of principles that lead to both “conservative” and “liberal” outcomes/opinions. In a gun and drug case, you might have an avid hunter as a prospective juror. He might be against gun control (a position usually labeled as “conservative”), he might believe that once an individual has served time for his offense he has paid his dues and should be allowed to possess certain types of firearms, he might be a libertarian (which suggests that he might be for the legalization of certain narcotics etc., a “liberal” position), and he might be pro-environment (because he doesn’t want his hunting grounds spoiled). In short, jurors are not easily labeled as pro government or pro defense and they might hold beliefs that in a particular case, cut for and against your client.

Anonymous said...

Prof. Froomkin:

This is the author of 4:00 and 12:16. I also wanted to add the following to my post. I do not believe that you have addressed my argument that jury consultants are effective ONLY IF the judge gives you enough time to voir dire and that most federal judges do not give you enough time to make the kind of judgments that are at the core of your critique.

Michael Froomkin said...

I've posted a further comment attached to my original post.