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As trial consulting proliferates, two broad categories of concerns regarding its use have spurred calls for reform. The first concern pertains to fairness, both as popularly conceived and as contemplated under the Constitution. The second involves the professional standards of trial consultants. This chapter outlines the specific problematic issues within each category and then presents various reforms proposed in response. The sources of the proposals vary; academic scholars, judges, attorneys, psychologists, and trial consultants themselves have all contributed.

Trial Consulting and Fairness

In trial consulting, the issues of fairness and efficacy are inextricably intertwined. If, for example, trial consulting is so effective as to significantly impact the composition or mind set of juries, it may violate the Constitutional right to an impartial jury. The impartiality mandate would seem most threatened when only one side has access to jury science. Whether or not unconstitutional, if consulting is effective, its availability to, and use by one side only would seem clearly unfair.

Given the problems inherent in measuring the efficacy of trial consulting, it is unlikely we will ever know precisely how effective any trial consulting technique is. Yet even absent such an unequivocal determination, trial consulting tends to create an untoward public perception of the jury being manipulated by psychological devices (Gold, 1987), in essence, high-tech jury tampering. This, in turn, detracts from the legitimacy juries bring to the administration of trial justice, for the appearance of justice is undeniably as important as the reality in order to preserve and maintain public support. The presence of consultants in high profile cases with verdicts that seem more the product of bias than evidence feed skepticism about the jury system. Instead of a jury representing a cross-section of the values of the community, it may seem a body stacked with people holding biases favoring the side with the trial consultant, or the best trial consultant. And rather than evidence presented to reveal the truth, the trial may appear an exercise in cryptic but effective exploitation of juror biases.

The perceived fairness of trial consulting is an empirical issue capable of being experientially evaluated. In one study, investigators tested how the use of a psychologist trial consultant for jury selection and trial preparation impacted the perceived fairness of trial procedures and outcomes. A key finding was the effect of balance on perceived fairness. Trial procedure was generally seen as fair when both sides had a consultant or neither side had a consultant. In other words, procedural justice is seen as greater when there is a balance in the presence or absence of trial consultants (Stolle et al., 1996).

Only Affordable by the Wealthy

The escalating costs of trial consulting render it a service available only to the rich – typically corporations, governments, and wealthy individuals. A Los Angeles ­attorney who often uses trial consultants writes, “Very few trial consultants can come in and do any meaningful work for less than $50,000–$100,000” (Lambert, 1994, B7). A New Rochelle trial consultant adds that a full scale workup can run as high as $500,000 (Hunt, 1982). With respect to specific services, a partner at New York’s Proskauer Rose law firm estimates rates to be $30,000 for focus groups, twice that for a mock jury trial, $100,000 for a shadow jury and $125,000 for a sophisticated electronic presentation (Post, 2004). This widens the already-substantial advantage of the wealthy who can afford the best legal representation, investigators, and expert witnesses. When only one party can afford jury selection experts, it puts into relief the imbalances created by a mismatch of client resources, and raises the issue of whether giving government, large corporations, and wealthy individuals such an advantage over their opponents undermines the very foundation of a fair trial.

Hans and Vidmar (1986) project this line of thought further. They refer to critics who believe the potential imbalance created by scientific jury selection threatens the institutional justifiableness of the jury and adversary systems:

Within the adversarial context, it is presumed each side will eliminate those prospective jurors most favorable to the other side and that the end result will be an impartial jury. Yet, this assumes equal resources and skills for the two sides. The viability of the adversary system to ensure a fair and impartial jury and trial, in jury selection as well as in other stages of the trial, is sorely tested when the adversaries possess unequal resources. In this light, the major ethical problem with social science in the courtroom is not the techniques themselves but rather the fact that in our society the condition for equality of resources is most often not met. Jury experts may exacerbate the impact of such disparities. There are no easy answers in this ethical quagmire, since the issues extend beyond the techniques themselves to the nature and functioning of the adversary system itself. But the ethical issues must constantly be confronted by those who conduct and those who benefit from the new developments in jury selection (pp. 93–94). (Emphasis supplied)

Saks (1987, p. 55) adds that we must look at the social and legal context within which scientific jury selection occurs before rendering ethical judgments. He writes:

If both sides have social science help … scientific jury selection would make the goal of impartial jury decisions more attainable than has ever before been possible. But, the critics would interject, the presence of such expertise on both sides is a fantasy that ignores the realities of justice in America. Today only the wealthy and celebrated have such help, and tomorrow the only additional people to have it will be prosecutors, and they will use it routinely … But it does not demonstrate some evil inherent in scientific jury selection. It points instead to a fundamental inequity in our courts. (Emphasis supplied)

The Distinctiveness of Jury Selection

Although the consensus is that postselection services are probably more outcome-determinative than jury selection, it is the latter which draws the most light and heat. Given that one of the most important issues of trial consulting is the unfair advantage it gives to those who can afford it, and since it is presumably better to spend limited client resources on postselection services, one might wonder why jury selection attracts a disproportionate share of attention. Two compatible answers can be offered.

Scientific Jury Selection is Qualitatively Different from Postselection Services

Postselection services refer primarily to those enhancing evidence presentation and argumentation, i.e., traditional attorney functions. As such, they do not seem to go beyond the conventional bounds of legal representation. Conversely, scientific jury selection techniques are almost exclusively extralegal psychological devices that may seem to many to transgress the rules of what is a “fair trial.” Put differently, it may seem acceptable to help the attorney be a better attorney, but unacceptable to “stack the deck” before the trial starts. People will more readily accept courtroom persuasion by the attorney – even excessive and pandering tactics a la Johnny Cochran, who represented O.J. Simpson and other prominent clients – than they will social science techniques by unseen behaviorists aimed at “fixing the jury” by altering its composition. This can appear an unfair deviation from the rules of the game.

Jury Selection is Sacrosanct Because the Jury is Sacrosanct

It would betray great naivete to deny that trial consultants believe it their role to choose favorably biased jurors, as opposed to impartial jurors. The jury, however, is an enduring institution of American trial justice. Its special status stems from colonial times, when it served as a bulwark against England’s crown-appointed judges. So esteemed is the jury that it is the only decision making body legally empowered to nullify the law and vote its collective conscience. Consequently, perceived tampering with the jury system, in any way, shape, or form, is tantamount to undermining a cornerstone of trial justice.

Professional Standards

A second major concern involves professional ethics and standards. Many if not most professions applying academically oriented skills, such as medicine, law, accounting, and psychology, are regulated to the extent necessary to protect the public against unskilled or unscrupulous practitioners. Some of this regulation is external, in the form of state licensing or certification. Often there is a continuing education requirement to instill some public confidence that the practitioner keeps current on germane new knowledge and developments. Additionally, professional associations or agencies frequently prescribe binding ethical standards in the form of a code of behavior. In a relatively new and explosively developing field such as trial consulting, the establishment of such standards is important, if not essential (see other chapters in this Section, especially those by Cutler and Stinson (Chap. 15), Stolle and Studebaker (Chap. 16)). Practitioners need guidelines. The public needs assurance that the profession sincerely intends to abide by some sort of moral compass.

An Unregulated Profession

The trial consulting industry is presently unregulated. Anyone can enter and self-identify as a trial consultant. Without professional qualifications and binding ethical restrictions, untrained and incompetent individuals can advertise and practice with impunity. Further, there are no continuing education requirements. Coupled with the as yet unproven relationship between trial consulting services and trial outcome, this conduces an environment for practitioners of questionable competence and ethics, since those practitioners without traditional credentials must, of necessity, be adroit at self-promotion. To this end, they often engage in misleading practices, such as laying claim to a won–loss record in their advertising.

ASTC Standards are Minimal

The industry’s sole professional organization, the American Society of Trial Consultants (ASTC), does not require any specific credentials for membership nor restrict its members’ advertising in any enforceable way. The ASTC has a Professional Code that prescribes certain ethical and professional and ethical ­principles and standards. These are rather anemic, however, and not nearly as rigorous as those of related professional organizations such as the American Psychological Association (APA). Moreover, some current practices of trial consultants may violate APA ethical standards, as follows. To the extent social scientists help produce biased juries, they may violate General Principle A: “Because psychologists’ scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against … factors that might lead to abuse,” and, more specifically, General Principle E: “Psychologists try to eliminate the effect on their work of biases based on [gender and race differences], and do not knowingly participate in or condone activities of others based upon such prejudices” (APA, 2002). Advising consultant-psychologists also breach APA rules to limit their practice to their demonstrated areas of professional competence when they are not honest to clients as to what they can do (Standard 2.01).

Current practices of trial consultants may also violate the standards of the legal profession. Attorneys often delegate some or all of their witness preparation to the trial consultants they hire. Although the ASTC Code has practice guidelines regarding witness preparation, they are somewhat vague and, in any event, unenforceable. Conversely, an attorney (but not the trial consultant he hires) is subject to discipline for violations of the American Bar Association’s (ABA, 2003) Model Rules of Professional Conduct (MRPC) regarding witness preparation. If a trial consultant breaches these rules, the attorney client would probably be vicariously liable under agency law and a Comment to Model Rule 5.3, which reads, “The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline” (Comment 1).

Investigations of Prospective Jurors

A considerable part of the impetus for more rigorous and well-defined professional ethical standards in trial consulting issues from pretrial investigations of prospective jurors by trial consultants. Many procedures skirt the outer limitations of acceptable practices. Some investigations may constitute jury tampering, obstruction of justice, or invasion of privacy (Pierce, 1990; Hunt, 1982). Herbsleb, Sales, and Berman (1979) offer the following illustration of how an ostensibly innocuous pretrial investigation procedure can run afoul of the law. In developing a community network model, trial consultants usually rely on friends of the defendant or other nonprofessionals untrained in the skills of this type of information gathering. There is a high probability some of these people will act or appear “suspicious.” If a person so contacted by someone in the network in turn informs a prospective juror that persons of questionable character or motive are conducting an investigation into his or her personal affairs, the prospective juror may well feel threatened or intimidated. That may constitute obstruction of justice. The federal statute, for example, defines this infraction as “whoever corruptly... endeavors to influence, intimidate, or impede... any grand or petit juror... in the discharge of his duty” (18 U.S.C.A. sec. 1503). Importantly, this section has been held to apply to prospective jurors as well as sworn jurors (Osborn v. U.S., 1966).

Prospective jurors experience another face of the invasion of privacy in court, during voir dire. Vividly illustrated in the O.J. Simpson criminal case and other high profile cases, the questioning of prospective jurors can be prolonged and delve into intensely private and intimate details of the questioned individual’s life. This is motivated by each trial attorney’s desire to make the most informed and effective use of his or her peremptory challenges. Contrasting our system with England’s, where both peremptory challenges and pretrial investigations have been eliminated, David Weinstein (1997) observes: “In the U.S., where voir dire allows for vast intrusions into private lives, the result has not been greater impartiality, but a proliferation of methods by which skilled litigators and expensive consultants tailor juries to their clients’ needs” (p. 50).

Proposed Reforms

Several reforms have been proposed in response to these concerns. Their adoptions would variously affect the growth of the industry, the nature and quality of the tools and methods used by trial consultants, and the qualifications of the practitioners. Save for the last (appointment of consultants for indigents), all would constrain, directly or indirectly, some aspect of consulting or the range of individuals who can practice. Some of the commonly voiced proposals follow.

Outlawing Trial Consulting by Nonlawyers

Obviously, the most draconian response to the perceived ills of trial consulting, this measure was proposed by Illinois Senate President James Philip in 1995 (Hanna & O’Brien, 1995), and has some support in the academic community (Etzioni, 1974). A spokesperson for Philip expressed the senator’s rationale: “It’s an inappropriate way to influence the jury system... The whole role of a trial consultant is to stack the deck” (Hanna & O’Brien, sec.3, at 3). A related proposal, to eliminate the use of jury science (Barber, 1994), would have an identical effect.

There have been other calls for eliminating consultants. Typical is this rationale:

“They undermine our confidence in the criminal jury system by making the jury selection process appear unfair, and in some cases be unfair. They intrude into the lives of people who are simply fulfilling their civic duty. They institutionalize a system of unequal justice making it far more difficult for the People to prosecute wealthy defendants successfully. They make it far more likely that the side with money, either the prosecution or the defense, rather that the side with justice, will prevail” (Geller & Hemingway, 1997, p. 296).

Unless advocates of this proposal could demonstrate something singularly ­pernicious about consulting, they would leave themselves open to a reductio ad absurdum challenge: If consultants are banned on grounds of unfair advantage, why not also expert witnesses, investigators, and all the other professions in the proliferating field of litigation support? As a practical matter, legislators who vote to outlaw constituents’ livelihoods tend to have short political careers.

Reducing or Eliminating Peremptory Challenges

Perhaps the most frequently made trial reform proposal is to reduce or eliminate peremptory challenges (see, e.g., Adler, 1994; Bader, 1996; Hastie and Pennington, 1996). Peremptory challenges are the primary means by which the information derived from voir dire comes to fruition. (Thus, this proposal is often made in concert with limiting attorney-conducted voir dire.) Eliminating or restricting the attorney’s ability to utilize the trial consultant’s advice in strategically picking the composition of the jury would undercut scientific jury selection. Instructively, the British have eliminated peremptory challenges.

As with the proposal to limit attorney voir dire, this reform proposal has a long and contentious past. Proponents maintain that the peremptory challenge: (a) is a limited privilege, neither constitutionally protected nor essential to a fair trial; and (b) perpetuates forbidden stereotypes (Bader, 1996). Trial attorneys claim that reducing or eliminating peremptory challenges would immeasurably impair their clients’ rights to impartial juries. If peremptory challenges were eliminated or severely restricted, it is likely that at least some trial judges would adopt a more expansive definition of the challenge for cause as an anodyne. This expansion could have two aspects: the courts could be more lenient in allowing questioning directed at uncovering bias sufficient to permit a challenge for cause; and the grounds which constitute cause could be expanded.

Two 2005 U.S. Supreme Court cases have fueled the effort to constrain peremptory challenges and, at least in the case of one justice, the movement to abolish the peremptory challenge altogether. Both cases involved the prohibition of using race as the grounds for a peremptory challenge, as established under the landmark Batson v. Kentucky case (1986). In Johnson v. California (2005), the Court struck down California’s test for racial bias in jury selection as too difficult for those contesting a peremptory challenge. And in Miller-El v. Dretke (2005), the Court expressed exasperation with the way the Texas courts ignored obvious racial bias when the Texas prosecutor, using peremptory challenges, excused ten of eleven blacks from the panel in a trial of a black defendant. The first case spoke to state law, the second case to the application of law. Together, they strongly suggest that federal courts will exercise greater review of state decisions involving claims of racial bias in jury selection where the state has not taken more aggressive steps to investigate such claims.

Batson set up a three-part judicial test of claimed racial bias in the exercise of peremptory challenges. Step one requires the claimant to establish a prima facie case of discrimination. Step two requires the prosecutor or other party exercising its peremptory challenges to establish a race-neutral reason for the peremptory challenge. Step three requires the claimant to prove that the neutral reason offered is pretextual.

In his concurring opinion in both cases, Justice Stephen Breyer explained the intrinsic defects of the Batson test:

At Batson’s first step, litigants remain free to misuse peremptory challenges as long as the strikes fall below the prima facie threshold level…At Batson’s second step, prosecutors need only tender a neutral reason, not a “persuasive or even plausible” one…And most importantly, at step three, Batson asks judges to engage in the awkward, sometimes hopeless, task of second-guessing a prosecutor’s instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the challenge (Miller-El v. Dretke, pp. 267–268).

Breyer went on to cite studies and reports indicating that, despite Batson, the discriminatory use of peremptory challenges remains widespread. A good example is the jury consultant questionnaire used by the O.J. Simpson criminal defense team. This instrument contained several questions directly addressing the respondents’ views on race, racial tendency towards violence, and comfort level around members of different races (Anderson, 1998). This led Breyer to suggest that peremptory challenges represent an anomaly. “On the one hand, the Court has widened and deepened Batson’s basic constitutional role…On the other hand, the use of race- and gender-based stereotypes in the jury selection process seems better organized and more systematized than ever before” (Miller-El v. Dretke, 2005, p. 269).

Breyer concluded: “[T]he law’s antidiscrimination command and a peremptory jury selection system that permits or encourages the use of stereotypes work at cross purposes” (Miller-El v. Dretke, pp. 271–272). Breyer’s solution was to call for the abolition of the peremptory challenge. In this proposal, he joined former Justice Thurgood Marshall’s concurring opinion in Batson and a considerable list of cited law review articles proposing the elimination of the peremptory challenge.

The long-term impact of Breyer’s call on the trial consulting profession remains to be seen. But it certainly engendered some immediate criticism of scientific jury selection. When Breyer observed that notwithstanding the Court’s ban on ethnic jury-packing, race- and gender-based stereotyping in jury selection was more systematized than ever, he was clearly referencing jury selection consultants. No interpretation was necessary for a remark later in his opinion: “The ‘scientific’ use of peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government” (Miller-El v. Dretke, p. 273). Joining Breyer in his critique were several editorials. A Los Angeles Times editorial, for example, charged, “peremptory challenges…turn jury selection into a classic game that is supported by a massive industry of consultants peddling dubious theories” (“Laying Down a Challenge,” 2005, p. B12).

Many of those advocating elimination or reduction of peremptory challenges also offer a variety of complementary remedial reforms. Montoya (1996), for example, suggests the use of “blind” peremptory challenges, whereby litigants would conduct voir dire by questionnaire only. Panelists would remain anonymous and not be obliged to answer questions about race and gender, per Batson and its progeny. Thus the exercise of the peremptory challenge would be made without the attorney’s or consultant’s knowledge of the sex or gender of the panelist.

Another commentator has suggested allowing (at least) criminal defendants to affirmatively select some of their jurors from a pool of qualified jurors (Anderson, 1998). Under this proposal, the prosecutor could respond by making a choice of his or her own, limited by the number that the defendant has directly selected. The intent is to remove the concoction of race-neutral reasons for prosecutorial peremptory challenges, and to enhance respect for and legitimacy of the trial outcome.

A middle ground between retention of peremptory challenges and abolition (with or without proposed alternatives or palliatives such as expansion of challenges for cause) is a reduction of the number of peremptory challenges. Jonakait (2003) provides a rationale: “Attorneys would quickly learn that most often even if a group were disfavored, distinctions among members of that group would have to be made and the least disfavored ones allowed to be sworn…[Such] individual distinctions among the group …is precisely what Batson seeks” (p. 170). The author posits that a reduced number of peremptory challenges would still retain their presumed benefits: party control and greater public acceptance.

A concern among proponents of retaining the peremptory challenge is that its elimination would lead to an increase in hung juries because certain individuals who are obstructionists or stubbornly erratic, but not necessarily biased, could not be removed. One solution proposed for this eventuality is to give the judge the power to remove such people, i.e., judicial peremptory strikes (Weinstein, 1997). An alternative would be to relax the unanimity requirement, where applicable. In England, hung juries were a concern when peremptory challenges were abolished, and brought some pressure to relax the unanimity rule (Jonakait, 2003, p. 169).

Those advocating the retention of unreduced peremptory challenges identify potential problems attributable to abolition of peremptory challenges. They reference the situation where an attorney is asking probing questions of a jury panel member whom the attorney suspects is at least unconsciously biased. If the responses aren’t sufficient to result in grounds for a challenge for cause, the attorney may well be left with an antagonized juror. Eliminating the peremptory challenge removes the attorney’s insurance policy in that predicament. Finally, elimination of the peremptory challenge would necessarily result in the devolution of more – and some would suggest too much – power to the trial judge.

Although trial consultants offer several services other than assistance with jury selection, that is the service most associated with consultants (see Chap. 2 by Crocker and Kovera) – in no small part due to popular books and movies. Elimination or even reduction of peremptory challenges would presumably have a commensurately negative effect on consulting revenues. Professor and trial consultant Gary Moran has called the peremptory excusal system the raison d’être for jury selection consultants (2001). If the Supreme Court heeds Breyer’s fillip to ­reconsider the constitutionality of the peremptory challenge, it would not be inconsistent with Batson to eliminate peremptory challenges or develop a more rigorous test for countering a prima facie showing of impermissible bias, i.e., a new, fortified Step two. More likely this will be a matter resolved on a piecemeal basis by state legislatures.

Limiting Voir Dire Questioning by Attorneys

Scientific jury selection usually seeks to extend the voir dire questioning by attorneys who heed their consultants’ suggestions (see Chap. 2 by Crocker and Kovera). Such questioning is the best way for trial consultants to confirm their hypotheses and assumptions about the prospective jurors. But as the O.J. Simpson case demonstrated, this extended voir dire can be quite lengthy and excessive, and can allow the side with the most (or best) resources to obtain an advantage. More importantly, the object, as Hastie and Pennington (1996) charge, may be to create substantially unrepresentative panels. Thus they and others (e.g., Barber, 1994) advocate reforms to limit voir dire questioning by attorneys.

One potentially important downside of such a reform may be less candor in the responses of prospective jurors. In a study by Jones (1987), attorneys were more successful than judges in eliciting candid disclosures from prospective jurors based on a comparison of juror responses to written and oral questioning. Under the proposal to limit voir dire questioning, the trial judge would conduct most of the voir dire, with attorneys retaining the right to submit proposed supplemental questions.

The debate over judge- vs. attorney-conducted voir dire has been robust for quite a while, waged in literature and legislature. In general, trial attorneys claim that restrictions on their voir dire inhibits their ability to make informed use of their peremptory challenges, and that judges are not as motivated or effective in fleshing out potential juror bias. Judges counter that attorneys use voir dire for improper purposes, such as conditioning potential jurors, and unnecessarily prolong trial time (Strier, 1996).

California and a number of other states have enacted restrictions on attorney-conducted voir dire in criminal cases, motivated in part by the desire to safeguard juror privacy (see “Limiting or Barring Pretrial Investigations of Jurors and Prospective Jurors,” below). California’s changes came about via Proposition 115 the so-called Crime Victims’ Justice Reform Act, in 1990. Under this law, voir dire is conducted by the judge, relegating attorneys to supplemental inquiries upon a showing of good cause (California Civ. Proc. Code 223, 1990). Further, voir dire questions are only permitted “in aid of the exercise of challenges for cause” (Id).

Trial attorneys, consultants and other advocates of relatively open-ended attorney-conducted voir dire maintain that limiting attorney voir dire will increase the likelihood of peremptory challenges based on gross racial and gender stereotypes and biases. That would confound the goal of Batson and its progeny. Put differently, restrictions on attorney-conducted voir dire are at cross-purposes with a system that allows for peremptory challenges.

Allowing Discovery of Consultant Surveys

Requiring the sharing of the trial consultant’s raw survey data via discovery (Barber, 1994; Hastie, 1991; Herbsleb et al., 1979) would vastly mitigate, if not neutralize, the competitive advantage of hiring a consultant. Release of the survey findings would plausibly increase the chances of impaneling an impartial jury, and relieve the perceived and/or actual unfairness of one-sided use of such information. The work product doctrine has been interpreted as barring (see, e.g., People ex rel. Keller v. Superior Court, 1959; People v. Heard, 1975) or limiting (People v. Aldridge, 47 Mich. App. 639 1973) the discovery of juror information obtained by attorneys or their consultants. Herbsleb et al. (1979) argue, however, that American Bar Association standards make the doctrine applicable only to the opinions of attorneys and their agents (e.g., trial consultants), not facts; and further, that social science data such as survey results fall outside the scope of this doctrine and should be discoverable.

Most recently, the federal Third Circuit Court of Appeal ruled that trial consultant communications are shielded from discovery under the work product doctrine (In re Cendant Corporation Securities Litigation, 2003). The work product doctrine is governed by a uniform federal standard set forth in Rule 26(b)(3) of the Federal Rules of Civil Procedure, and includes documents and other tangible things prepared in anticipation of litigation by a consultant. But the Third Circuit noted that the work product doctrine is not an absolute bar to discovery of such materials. Work product can be ordered produced upon a showing that the party seeking discovery has “substantial need” of the materials in preparation of the party’s case and that the party is unable without “undue hardship” to obtain the substantial equivalent of the materials by other means (p. 663). The Cendant case dealt specifically with “opinion work product” by the consultant which the court said was entitled to greater protection under the federal rules, i.e., in addition to the need and hardship showings, discovery of this type of work product was discoverable only upon a showing of rare and exceptional circumstances. Consultant surveys, therefore, would still be discoverable under the lesser standard.

Rather than brave the vicissitudes of judicial rulings on an ad hoc basis, another possible route to the opposing trial consultant’s surveys would be through a change in the American Bar Association’s Model Rules of Professional Conduct (MRPC). Sahler (1996) proposes the following new rule and related comment:

3.45: Use of Consultants and Use of Social Science Research in Jury Selection

A lawyer shall not use jury selection information in a manner that is inconsistent with the responsibilities of a lawyer or in a manner that undermines faith in the jury system.

Comment

A central goal of the legal profession is to ensure the impartial and efficient ­administration of justice. This rule seeks to prevent an advocate’s utilization of information from jury consultants and social consultants to predetermine the jury’s verdict. The use of social science information to select jury members may harm litigants and may undermine public confidence in our judicial system. Using information in an attempt to predetermine the outcome of the verdict suggests an inability to fulfill the lawyer’s professional role as a public citizen concerned with the fair administration of justice. Where juror questionnaires or other community attitudinal surveys are used by either the defense, the prosecution, [or the plaintiff], the … data should be made available to both sides [prior to jury selection] (p. 404). (Emphasis supplied.)

It should be noted that the language in the proposed comment, “the lawyer’s professional role as a public citizen concerned with the fair administration of justice,” is apparently drawn from the Preamble of the MRPC, where it is more hortatory than prescriptive. Nevertheless, it provides the philosophical foundation for the proposed rule.

Although the narrow issue of attorney work product will likely dominate future debate over this proposal (see, e.g., arguing for discovery, Barber, 1994; Moskitis, 1976; and against discovery, Davis and Beisecker, 1994), a more disinterested perspective is possible. If either party convinces a court that impaneling an impartial jury will be problematic, the court has a nonpartisan alternative to an immediate change of venue or venire. The court could order, at its discretion, a community survey by a neutral party, such as a court-appointed master or other expert, under Rule 706 of the Federal Rules of Evidence, or Rule 53 of the Federal Rules of Civil Procedure, or comparable state statutes, that would be available to both parties. Willging (1986) describes numerous instances where courts have used this power in appointing experts to assist in pretrial activities.

Requiring Disclosure of the Use of Trial Consultants

The comment to Sahler’s proposed new rule for incorporation into the MRPC also requires litigants to inform the court and the members of the venire at the outset of the trial when they use consultants. Such disclosure could serve several purposes. It would give the opposing party the opportunity to hire its own consultant, and the indigent criminal defendant the chance to request the court to appoint one (see below). It would also facilitate study into the use of jury science (Barber, 1994). Gold (1987) suggests this proposal be effected by giving the judge the power to compel disclosure. The disclosure could be made through a pretrial memorandum to the judge describing the advice received from the consultant and plans to implement that advice at trial.

This is a middle ground proposal, neither banning nonattorney consulting nor allowing discovery of the consultant’s research. But it invites the same criticism as a ban, i.e., consistency requires a justification of why all other forms of litigation support should not be disclosed. One possible consequence of a required disclosure of consultants might be that suggested by Adler (1989): an attorney who did not respond to such a disclosure by hiring his or her own trial consultant might open himself or herself to a charge of malpractice.

Limiting or Barring Pretrial Investigations of Jurorsand Prospective Jurors

Several avenues could be explored to protect the privacy and sensibilities of jurors and prospective jurors from pretrial investigations and unduly invasive questions in court. One would be to outlaw, as they do in Great Britain and Canada, intrusive pretrial investigations. A second would require that jurors receive notice: (a) that their names are to be made public, (b) of the right to petition to suppress that information, and (c) of the right to insure that their in-court responses to voir dire questions are kept private. That would at least keep inquiries into their private lives within the confines of the courtroom (Weinstein, 1997). A third would bar questionnaires and all other forms of questions which inquire into subjects unrelated to impartiality, or which are otherwise harassing (Gordon, 1995).

A fourth would be judicial measures that indirectly but effectively prevent juror investigation. Augmenting the size of the venire, for example, would sharply decrease the feasibility of juror investigations; it is one thing to investigate thirty persons, quite another to investigate three hundred. Alternatively, the judge could withhold the juror list until immediately before trial (Gobert & Jordan, 1990). An attorney deprived of juror identities until a few days before trial lacks adequate time to investigate. (A counter-argument would be that advance jury lists promote fair trials by aiding the determination of whether jury pools truly represent a fair cross-section of the community).

Assuming the most conservative proposals have the best chance of adoption, the notice requirements seem the most likely option to be acted upon. A British-type outright ban is an extreme remedy, and a question-by-question review of all juror questionnaires would be highly subjective and occupy an unacceptable amount of the judge’s time. Juror privacy concerns are being discussed in several jurisdictions under the rubric of a “Juror Bill of Rights.” For example, the District of Columbia’s Council for Court Excellence’s recommendations included informing the jury when serious security concerns cause the court to order that the jury be anonymous, and allaying concerns in all other instances by providing jurors with full explanations of exactly what specific information about them is made available and to whom (1998, p. 22).

Recently, the American Bar Association (ABA, 2005) has addressed the issue of juror privacy in its Principles for Juries and Jury Trials, a report by the ABA’s American Jury Project. Their recommendations, expressed as “Principles,” may serve as guidelines for the states. One of these principles asserts that juror privacy must be balanced against party and public interest; to that end, judges must ensure that juror privacy is reasonably protected. Nevertheless, the Principles advise that closed voir dire be granted only “after a finding by the court that there is a threat to the safety of the jurors or evidence of attempts to intimidate or influence the jury” (Prin. 7.A.1.). The courts are further urged to permit private juror questioning or questionnaires in appropriate circumstances. Finally, surveillance of jurors or prospective jurors is banned without first obtaining express court permission (Prin. B.).

The ABA invited the ASTC to comment on an earlier draft of the Principles. One responsive comment recommends that juror candor will be increased “if jurors are permitted to indicate whether they wish any special information they have been asked to provide in a sequestered voir dire or in a juror questionnaire to remain private” (ASTC Comments on ABA Jury Standards).

If implemented, some of the proposed reforms in this aspect of trial consulting may well have an impact, albeit unintended, on other trial consulting activities. Just as there is a relationship between a diminution of the permissible scope of attorney-conducted voir dire and the effective use of peremptory challenges, so there is a relationship between the permissible scope of attorney-conducted voir dire and pretrial investigation of prospective jurors. Greater privacy rights for jurors in court could well increase the use of pretrial investigations of prospective jurors to obtain the information deemed necessary to conduct jury selection in an informed manner (Weinstein, 1997).

Requiring State Licensing of Consultants

The incidence of incompetent practitioners is hastened when, as with trial consultancy, the field of practice has no entry requirements (Cutler and Stinson, Chap. 15). Incompetence begets lawsuits. The question is whether malpractice litigation will remain the sole protection for users of trial consulting services – a remedy that comes into play only “after the blood is on the ground.”

If the experiences of professionals in the related fields of law and psychology were a reliable barometer, the eventual licensing of trial consultants would seem likely, if not inevitable. As the number of practitioners expands, consumers (mostly trial attorneys) will probably demand some external indicia of minimum education, knowledge, or ethical standards before committing thousands of dollars for the services of a consultant. Knowledgeable consumers should be attracted by the security that a licensing body provides: an established minimal academic background and/or certification; penalties against those who falsely advertise themselves as licensed; and sanctions against licensed practitioners who violate the standards of the licensing body. If it is within its mandate, a licensing body would also ensure that licensees continue to educate themselves as to new developments in their field. Gordon (1995) suggests that once trial consultants are required to be licensed, they would be responsible for reporting the unethical conduct of their ­colleagues to the licensing body and the court.

Although there have been published debates arguing for (Strier, 2001) and against (Moran, 2001) licensing, there has been little movement on the licensing question. If trial consultants are to be subject to more rigorous and clearly defined standards, more likely they will come internally from the ASTC. In a 1999 survey of the ASTC membership, 29% favored state licensing of trial consultants, 55% opposed it and 16% were uncertain (Strier and Shestowsky, 1999). In an open-ended comment, one of the survey respondents who opposed licensing rhetorically inquired why trial consultants should be licensed if expert witnesses aren’t. This is an apt observation, as both the expert witness and the trial consultant are on the hiring attorney’s “team,” retained to persuade the factfinder. Legitimate reasons justify discriminating between the two services, however. Unlike trial consultants, expert witnesses do not work covertly. They are identified to the court as witnesses for one of the litigants. Moreover, expert witnesses are subject to cross-examination – perhaps the single greatest due process protection offered by the adversary system – and to the scrutiny of the factfinder. Another distinction is that because expert witnesses are verifiably expert, incompetence is ordinarily not an issue. Conversely, trial consultants need not have any verifiable credentials, a state of affairs commensurately raising the prospects of incompetence.

Self-interest militates in favor of opposing licensing for many trial consultants: they may not meet the minimum qualifications, e.g., education or experience tests; or they may be averse to the time and costs of obtaining additional qualifications required by the state. By the same token, one can postulate some benefits of licensing for the upper-echelon consultants who are most likely to survive the winnowing out of the licensing process: higher public regard for state licensees, less competition, and higher fees.

Potential benefits and drawbacks attend the licensing proposal. On the salutary side, licensing would establish minimum entry standards of competence and professional ethics. A licensing body could stipulate educational credentials, passage of state sanctioned tests, experience or some combination of the three as the prerequisite to practice. Additional public protection (against the unskilled or unsavory practitioner) could be provided through the ongoing oversight of the licensing body or other designated monitoring office. Licensing would undoubtedly lend legitimacy to, and enhance the stature of, the profession. As trial consulting proliferates and comes under growing public scrutiny, particularly as a consequence of unpopular jury verdicts, the state’s imprimatur would be invaluable.

A final projected benefit of licensing is the possible stimulus to scholarship. Once trial consulting is licensed, educational training programs will almost certainly follow. Those programs housed in traditional, accredited colleges and universities should produce commensurate scholarly research.

On the down side, licensing carries potential drawbacks. Limiting entry to any field drives up the fees of the field’s practitioners. As their prices escalate, trial consultant services become even less accessible, exacerbating an already sensitive issue. Licensing requires a licensing body, another bureaucracy with attendant costs. Initially funded by fees charged to licensees, these costs would ultimately be passed on to the consumers of trial consulting services – private attorneys, governments, and corporations – and eventually borne by clients, constituents, and customers, respectively. Coupled with the expectable increase in trial consulting prices, these additional bureaucratic costs would represent a significant diminution in the affordability of trial consulting services for most litigants.

Another anticipated objection to licensing trial consultants would target the presumed preeminent goal of the licensing process – the competency of the licensee. If trial consulting is more art than science, then no amount of education, test-taking, or experience will guarantee competence. By the same token, licensing would freeze out many gifted consultants who cannot or will not meet the necessary conditions for licensing. Exponents of this position would urge the marketplace as the optimal device for ferreting out incompetence (see, e.g., Moran, 2001).

The response to this objection would be that licensing is no more a guarantee of competence than the utilization of a competent trial consultant is a guarantee of ultimate success at trial. Licensing in any field only warrants that certain minimum criteria in education, experience, etc. have been met. Moreover, the rigor of the licensing requirements tends to directly correspond with the risk to the public from incompetent licensees: the more that public safety or health is at stake, the more demanding the licensing prerequisites. That is why physicians must serve a year of internship (in addition to passing the medical board exams) in order to practice, whereas attorneys need only pass a bar exam. Incompetent trial consulting does not directly jeopardize public safety or health, but licensing could offer an appropriate degree of assurance that the licensee has met and continues to meet prescribed standards that suggest, if not guarantee, a base level of competence.

Similarly, licensing and a regulatory body do not guarantee the ethics of those licensed. Nevertheless, they do delineate a clear ethical framework for licensees. Using typical bar entrance requirements as a paradigm, applicants could be required to take a course in the accepted ethics and standards of the profession, and pass an ethics exam and/or demonstrate a record absent of moral turpitude before being admitted to practice. Once licensed, the practitioner could be subject to license suspension, revocation, or other sanctions by an oversight board.

Upgrading Professional Standards

History indicates that the state is more likely to step in and regulate where self-governance appears inadequate to protect the public. The ASTC – or another group speaking for the profession – may feel compelled to fortify its existing Code of Professional Standards. Alternatively, the ASTC could limit its membership to those with prescribed minimum experiential and educational backgrounds and training. Another provision that could inure to the benefit of the profession and the public is a required percentage of pro bono service from members. The existing Code merely encourages pro bono service, and in terms so broad as to be unclear if the exhortation could be satisfied by other services. If the ASTC adds to the rigor and specificity of its ethical and professional standards, it might induce the respect and trust of jurors, clients, judges and the general public, assets of inestimable value to a profession whose good will may be waning.

Robert Gordon (1995), a psychologist and attorney, has proposed the following ten ethical principles for trial consultants:

1) Trial consultants must possess both a thorough knowledge of the legal system and an expertise in the research methodologies used in behavioral sciences; 2) Trial consultants must respect the legal system; 3) The privacy and sensibilities of jurors and prospective jurors must be respected; 4) It is the responsibility of the trial consultant to assist in the seating of fair and impartial juries; 5) Trial consultants must strive to ensure that the testimony of witnesses is truthful and accurate; 6) The rights of clients must be protected; 7) Trial and settlement scientists must provide objective and reasoned opinions; 8) Trial consultants shall contribute to the amicable resolution of disputes; 9) Trial consultants shall accurately and truthfully present their credentials to the bar and the judiciary; 10) Trial consultants shall keep current with research and theory in the field and seek to advance and share their knowledge. (p. 34).

These principles exceed, in varying degrees, all comparable constraints in the ASTC Code. Conversely, the ASTC Code contains standards with no counterpart in Gordon’s list. For example, the ASTC Code proscribes publication of a win-loss record and misrepresentative advertising, bars conflicts of interests, and exhorts its members to perform pro bono services annually (1997). Conceivably, an amalgam of these two sets of standards will eventuate.

For the past several years, the ASTC membership has engaged in a debate over whether the society should certify trial consultants. The society’s tentative definition of “certified” is an individual who: (1) is a member in good standing of the society, (2) possesses appropriate academic training relating to the development of skills and communication, persuasion, law, the humanities or social sciences, (3) possesses the knowledge, skills and attitudes to practice effectively and abide by the ASTC standards of practice, (4) possesses a specified period of active experience as a trial consultant, and (5) engages in a prescribed number of hours of continuing education in trial consulting each year.

Some of the more salient arguments can be culled from the debates. Advocates of certification contend that it would create a baseline level of competency, to the extent that competency is inferable from a practitioner with the requisite academic training, experience and continuing education requirements. That, in turn, should improve the public perception and credibility of a profession which now allows anyone to become a trial consultant simply by proclaiming himself to be one. Unlike licensing, certification does not preclude self-annointment, but the lack of certification would give prospective clients pause. Conversely, certification would bestow the imprimatur of the profession’s sole organization. A related benefit would be to assist clients in deciding upon which trial consultant to use.

Finally, there is the concern that without certification and whatever protections that provides, the state may step in and regulate the profession, as it does in the related fields of law and psychological counseling. In that event, prerequisites would be imposed from without. Probably all consultants would agree that they, not the state, should decide what the criteria should be for credentialing. According to this view, to be proactive is to be preemptive.

Opponents of certification have several counter-arguments. Since many members will oppose certification, some bitterly, imposing certification requirements would factionalize the ASTC membership. Although this argument does not speak to the putative benefits of certification, the virtual certainty of divisiveness resulting from certification sets a floor-level, “Is this worth it?” minimum for the benefits.

Another frequent opposing argument is that “certified” does not mean “qualified.” The premise is that trial consulting is as much an art as a science, and therefore particular academic training, experience, and continuing education do not guarantee efficacy. A cognate fact is that the backgrounds and methodologies of trial consultants are quite diverse. Opponents say that certification cannot and should not promote consistency of practice, and that consultants’ backgrounds are too diverse to be included in a common set of certification criteria. The proposed academic requirements would be a disadvantage to those with degrees or backgrounds in the humanities instead of social science. The aforementioned 1999 survey of ASTC members found that 57% had academic specialization in psychology only or in psychology and another area, 16% in communications, and the rest in various other areas, including law, political science, and theater (Strier & Shestowsky, 1999).

Opponents also point to the practical difficulties of implementing the proposed certification, especially the continuing education component. Critical questions arise: What should be taught? Who would teach it?

One of the opposing arguments that directly disputes one of the claimed benefits relates to prospective clients. Many opponents say that clients do not and would not care about certification. Almost all clients are attorneys, who (presumably) would be savvy consumers. They will rely instead on experience or word-of-mouth. This is essentially a “let-the-market-decide” argument.

In a 2005 internal survey of the ASTC membership, 47% favored certification, 37% opposed, and 16% were unsure.Footnote 1 Certification would thus seem slightly more likely than not. If the society does ultimately pursue certification, a key remaining question is how it would evaluate the prescribed prerequisite qualifications (academic training, experience, etc.) of applicants for certification. Three possible methods were put to the membership in the internal survey: 37% favored board review by an elected panel; 36% favored a test; and 57% favored affirmation by the applicant that he/she meets the established criteria. Should the society choose the most popular method per the survey, it is uncertain how much credibility or impact such a certification will carry.

One of the questions on the survey was whether “a means of assessing attitudes including ethical commitments relating to the consulting field” should be included if the ASTC pursued certification. (The responses were evenly divided: 50% yes; 50% no.) The issue of ethical standards within the profession arises in various contexts. A recent example involves motions for change of venue based upon community surveys of public attitude. These surveys may demonstrate so much prejudice against a party as to make obtaining an impartial jury problematic. In that event, the survey results may support pretrial motions to request a change of venue or venire (i.e., a redrawn panel), to expand the scope of voir dire, or to increase the number of peremptory challenges. Considerable research addresses various aspects of studies used to support motions for a change of venue, such as a report on the biasing effect of pretrial publicity (e.g., Fulero and Penrod, 1987; Kramer et al., 1990; Moran and Cutler, 1991; Nietzel & Dillahay, 1983; Padawer et al., 1975; Simon, 1980; Steblay, Besirevic, Fulero, & Jimenez-Lorente, 1999).

Public opinion surveys can run amiss in some instances, however, because the trial consultants who conduct them lack relevant ethical and educational requirements. A recent illustration occurred in the Scott Peterson case. After a change of venue was granted, students of the university professor who conducted the survey without adequate training and time admitted that they had falsified portions of the survey by providing fabricated results (Stapley, 2004). On other occasions, judges are forced to assess the credibility of conflicting surveys, a condition made possible by the nebulous standards and the wide array of factors used. Shahani (2005) calls for the use of court-appointed trial consultants to eliminate these problems, but not before reforms are implemented to improve educational requirements and ethical standards in the trial consulting profession.

Witness preparation is another area implicating the need to upgrade the ethical and professional standards of trial consultants. As noted earlier, attorneys often contract out witness preparation to consultants who are not regulated by the ethical standards applicable to attorneys under the MRPC. Yet witness preparation is an area ripe for abuse (LeGrande & Mierau, 2004).

Appointment of Trial Consultants for Indigents

Not all of the reform proposals regarding trial consulting are constricting. From its public interest beginnings, trial consulting has evolved into high stakes poker, affordable only by the wealthy. Indigent criminal defendants often petition the court for experts such as trial consultants, private investigators, and psychologists on grounds that they are necessary for due process in their case (Buser, 1994). Judges occasionally oblige. In the 1993 trial of the two men charged with the attempted murder of Reginald Denny, Los Angeles Superior Court judge John Ouderkirk appointed Jo-Ellan Dimitrius of Litigation Sciences, Inc. to assist the defense (Cox, 1993).

Judge Ouderkirk’s appointment may signal a return to jury consulting pioneer Jay Schulman’s original goal of leveling the playing field. Most other state courts have not found trial consultants necessary to the defendants’ due process rights (see, e.g., Spivey v. State, 1984). Thus court funding for trial consultants remains at the discretion of the trial judge. However, in Ake v. Oklahoma (1985), the U.S. Supreme Court held that the state must provide an indigent defendant with a psychologist when the sanity of the defendant is a substantial factor at trial. Courts favorably disposed to funding requests of indigents for trial consultants will look for authority to Ake or the federal Criminal Justice Act of 1964, which allows ­indigents to request expert services which are “necessary to an adequate defense” [18 U.S.C. sec. 3006 (e)]. Clearly, the strongest case for appointment under either the “adequate defense” principle or Fourteenth Amendment equal protection of the law would be when the prosecutor has retained a consultant.

Despite the prognostications of some (see, e.g., Pierce: “[T]he requirement of providing jury consultants to indigent criminal defendants is coming soon,” 1990, p. 14), almost all efforts by indigent criminal defendants to have the court appoint a jury consultant have failed (Hartje, 2005). Alternative routes to the same goal would be a pro bono ethical requirement for continuing membership in the ASTC, or for a license – if licensing is ever required by the state.

Conclusion

Courts and legislators have not as yet addressed themselves to a waxing tension regarding the professional responsibilities of trial consultants. On the one hand, we have witnessed the vertiginous growth in the number of trial consultants and the cost of their services. On the other hand, that growth has been realized devoid of any enforceable standards or regulation from within or without. Collectively, these tensions augur changes that may profoundly affect the profession.