There are two scenarios in which attorneys may consider using a jury consultant to further assist them in selecting jurors. First, if their client is a celebrity, there may be very strongly divided opinions among potential jurors on whether they like or dislike that client. This would be a great obstacle to finding at least an impartial jury. Second, even if their client does not provoke any strong sentiment, if he has a great deal to lose, they may still want to improve the probability of a favorable outcome. In either instance, to use a jury consultant constitutes an additional expense. The average cost is $250 per hour, and it could total anywhere from $10,000 to $250,000.
Most jury consultants have backgrounds in law, psychology, or sociology. In spite of the expertise a jury consultant may have, the profession is largely unregulated. Although jury consultants claim to be accurate in their appraising potential jurors, many scholars are skeptical. Another criticism is that using a jury consultant gives the general public the impression that a favorable verdict can be purchased if the right jury is selected. In light of this criticism, some judges have taken the initiative to have consultants appointed for indigent defendants.
The primary purpose of hiring a jury consultant is to help uncover hidden bias of potential jurors. Because preemptory challenges are limited, lawyers may be unsure about some of those questioned. The job of jury consultants is to give attorneys the criteria necessary for the ideal jury for their clients and to assist in determining what biases do not fit that criteria.
A good illustration of this principle is the trial of Daniel and Philip Berrigan in 1972, the first known use of jury consultants. The Berrigan brothers were accused of conspiring to plan violent demonstrations against the Vietnam War. The defense attorneys decided that in order to have the best jury possible they should poll those persons likely to qualify as jurors in Harrisburg, Pennsylvania, the site of the trial. The purpose of this polling was to determine which demographic groups would be most sympathetic to their clients. The results led the defense attorneys to conclude that Episcopalians, Presbyterians, and other Protestant denominations with a fundamentalist outlook would favor the prosecution, as would college graduates because of their support for the position of the U.S. Government on the Vietnam conflict. Accordingly, the defense was successful in having a jury selected that consisted of entirely blue collar workers who would likely not have graduated from college and who were also of a different denomination from those listed above. This jury deadlocked at 10-2 in favor of acquittal. The government afterwards declined to retry the case.
There are two kinds of techniques jury consultants use. The first category is pretrial research. The easiest research in this category is attitude surveys conducted in phone or in person as was done in the Berrigan trial. A second technique is to form a trial simulation with a group of people representative of what the jury picked will most resemble. At the end of this mock trial, the participants are surveyed as to how persuasive each side was in general and in its use of the evidence. Also, a focus group may be formed and the facts of the case and the position of each side will be explained to it. Those in the focus group will be asked how they would decide the case and their opinion on which side had the best arguments supporting their position. A third method is personal background research made through credit checks, hand writing analysis, and an examination of property and tax records.
A second category relates to what they do when the trial takes place. One commonly used method is for the consultant to prepare a questionnaire for the attorney designed to uncover juror biases. Another is for the consultant to observe the facial expressions and posture of those being considered for the jury; these unconscious reactions may indicate whether the response to the questions of the lawyer are sincere or misleading. A third technique is to observe the jury during breaks for lunch; if certain persons on the jury always eat together this may indicate that alliances have formed that could impact how the juries will deliberate once the case is given to them to decide and could help determine the verdict they reach. In some cases, consultants will recruit a shadow jury resembling by various demographic factors the one actually deciding the case. This shadow jury will be interviewed during the trial for the purpose of determining how the real jury is perceiving their side.
Moreover, some jury consultants believe that people in general fall into one of two groups: Those who conclude that what happens to a person is determined by the person’s reaction to those events, and the rest who believe what happens to an individual is dictated by circumstances and context.