Stack And Sway: The New Science of Jury Consulting. . - Trial by Jury Consultant - book review

Washington Monthly, Jan-Feb, 2002 by Dorothy Samuels

STACK AND SWAY: The New Science of Jury Consulting by Neil Kressel and Dorit Kressel Westview Press, $27.50

SPEAKING TO REPORTERS FOLlowing his 1991 acquittal of charges that he raped a woman at the Kennedy family's Palm Beach estate one moonlit night over the previous Easter Weekend, William Kennedy Smith thanked his mother, his family, his defense lawyer, Roy Black, and members of the jury. In a true sign of the times, he also thanked the jury consultants who assisted his high-powered attorney in picking the sympathetic panel that cleared him in just 77 minutes.

For many Americans, including this one, the painstaking four weeks of jury selection that kicked off the Kennedy rape trial was a troubling introduction to the burgeoning field of jury consulting. Nowadays, it seems, nary an important criminal or civil proceeding is litigated in this country without one or both sides relying on expensive hired guns, typically with a background in psychology or the social sciences to assist the legal team in shaping trial strategy.

Deploying techniques imported from the world of commercial advertising and marketing, and less scientific sociological hocus-pocus, the growing cadre of trial consultants is transforming American justice, though not necessarily for the better. The services these consultants offer run from soup to nuts--beginning with help in selecting the "right" jury, and extending to conducting market surveys and mock trials designed to test the appeal of various theories of the case and hone the critical opening and closing arguments to achieve maximum legal and dramatic effect.

Since the Smith rape trial, trial consultants have played a key role in some of the nation's most celebrated cases, including the trial of Louise Woodward, the 18-year-old British nanny accused of killing eight-month old Mathew Eappen; the racial maelstrom known as the O.J. Simpson murder trial; and the trial of 12 mostly Arabic-speaking, Muslim defendants for plotting to blow up various NYC landmarks.

Should Osama bin Laden or any of his top lieutenants be captured alive in Afghanistan and put on trial before one the military tribunals authorized by President Bush, it is not farfetched to imagine some trial consultant being handed the infant profession's most challenging assignment yet. ("Osama," I can practically hear this vexed expert gently advising his client during witness prep, "you need to tone down that `death to America' stuff. It's not playing well with our focus groups. We want the jury to see your warm, human side. And while we're at it, Osama, could we please do something about that beard?")

Readers interested in a carefully researched examination of this influential but largely hidden growth profession will find it in Stack and Sway: The New Science of Jury Consulting. Written by Neil Kressel, a social psychologist at New Jersey's William Paterson University, and his wife Dorit, a practicing attorney, this surprisingly engaging book provides an even-handed accounting of the methods and madness of this relatively new phenomenon, and the possible implications for American justice. Best of all, it manages to do so without being preachy or simplistic. Indeed, the book's real fun lies in the Kressels' admirable habit of presenting from opposing angles the various issues raised by the panoply of services which jury consultants so enthusiastically provide.

One moment, for example, the authors are raising the temperature about the thin line between legitimate witness preparation and unethical scripting in a consultant's effort to persuade a man sued civilly for date rape to take a softer approach in testimony to avoid turning off jurors by seeming sexist. In the next, they complicate matters, arguing that such advice may sometimes serve justice by helping a witness overcome personality quirks or poor communication skills.

Of course, a central issue about the use of jury consultants involves the sensitive matter of race, which in turn engages the most fundamental controversy: What is it, exactly, that jury consultants do? Are their elaborate efforts to assist lawyers in the jury selection process by identifying attitudes, values, and would-be demographic predictors merely benign efforts to screen for biases that could jeopardize fair trials, as practitioners like to claim? Or, alternatively, do these amount to attempts to circumvent the Supreme Court's ban on using preemptory challenges to eliminate potential jurors based on race?

How one responds to those issues, I am now convinced after reading the book, has a lot to do with one's own level of cynicism about lawyers, and the gaming of the justice system generally. For their part, the Kressels' rather cheerful conclusion, based on whatever scant research exists, and the opinions of assorted experts, is that the fears about consultant-concocted juries defeating the right to trial by an impartial jury are greatly overblown. That is not for a lack of trying, and the authors take pains to note that the chance that the use of selection consultants will determine the outcome increases in highly publicized, racially divisive, or otherwise controversial cases. Moreover, jurisdictions that allow the most preemptory challenges are most vulnerable to unseemly influence by jury consultants. But in most cases, jurors transcend factors like race, gender, and other background characteristics in responding to evidence, and the responsibility of serving on a jury can lead people to suspend their prejudices, especially when they are instructed to do so by a judge.