Shortly after I became a law professor, I received a jury summons. I knew that law professors rarely make it onto juries; attorneys regularly strike them out of a fear that they will dominate the jury’s decision-making—and also, I hear, because no attorney wants to feel like she is back in law school, with a professor analyzing her every word. However, I held out hope that I might pass through the gauntlet of background questions and find myself among the chosen twelve.
The first step was to fill out a juror information questionnaire with demographic information and then answer some “yes/no” questions. “Would you be more likely to believe the testimony of a police officer or any other law enforcement officer just because of his or her job?” “Would you have any problem following the Court’s instruction that the defendant in a criminal case does not have to take the stand or present evidence, and it cannot be held against the defendant if he or she elects to remain silent or present no evidence?” “Is there any other reason you could not be a fair juror in a criminal case?”
If you checked “yes” for any of the boxes, the judge asked you some follow-up questions. For example, if you indicated that you were more likely to believe the testimony of a police officer, he explained to you that your job as a juror required you to treat every witness the same regardless of his or her position, race, gender, or the like. Then he asked whether you still thought you would have a problem being impartial. Everyone who had checked the “yes” box on that question changed his or her answer to “no.” The judge was satisfied, and we moved on.
Many people would view this interaction as a perfect example of what works in our criminal justice system. Here, it would seem, we have not put our heads in the sand—we’ve acknowledged that there are prejudices certain jurors bring to court, and we’ve directly addressed them. We haven’t shied away from asking awkward questions, and we’ve followed up to make our expectations clear. Just as important, we’ve gone big: Every jury in every criminal case is taken through the screening. Even if they don’t make it onto a panel, those in the jury pool leave with an understanding of what impartiality means and how to achieve it. Isn’t this meaningful, honest progress?
In fact, our approach to juror screening provides a good illustration of precisely what we are doing wrong in our quest to eliminate unfairness from the law. It represents a serious challenge we face in realizing science-based reform. While we purport to address bias, what we actually do is reinforce a false narrative of what bias is, where it comes from, and how it can be remedied. And this puts us in a worse spot than if our system took no position on bias at all.
Take the matter of introspection. There’s a wealth of research suggesting that many biases can’t be detected through soul-searching. And while it’s one thing for us all to walk around believing that it’s possible to self-reflect and identify all of our hidden proclivities, it’s quite another thing to have the legal establishment confirm that intuition. Unfortunately, that is exactly what many of our rules and procedures do.
In the Third Circuit, for instance, jurors are asked questions to determine if they “have any beliefs, feelings, life experiences, or any other reasons that might influence [them] in rendering a verdict.” Does the fact that the defendant was born in Guatemala matter to you? Would you discriminate against someone based on the color of his skin? As a juror, you think about the person you are—someone who believes deeply in equality—and you answer, “No, of course not.” You know you’re not racist. Case closed: There is no threat of bias toward the Hispanic defendant.
What’s so damaging about this is not just that a juror may end up mistakenly believing that he’s capable of objectivity, but that by weighing in, the Third Circuit stacks the cards against addressing the scourge of implicit racial bias. Now, to enact reform, we must overcome not only people’s inherent skepticism but also the fact that they have been told repeatedly that such bias does not exist: If you know you are completely egalitarian, you cannot discriminate.
The same thing happens when our legal system bolsters the myth that being impartial is simply a choice. Over and over, during the trial process, jurors are instructed to switch off their irrelevant thoughts, emotions, and beliefs. “Do not allow sympathy, prejudice, fear, or public opinion to influence you,” Third Circuit jurors are told. “You should also not be influenced by any person’s race, color, religion, national ancestry, or gender.” Likewise, whenever the judge sustains an objection, “you must disregard the question or the exhibit entirely. Do not think about or guess what the witness might have said in answer to the question; do not think about or guess what the exhibit might have shown.” And if the judge orders evidence to be stricken or removed from the record, “you must not consider [it] or be influenced [by it] in any way.”
Knowing how little control we have over the many automatic processes in our brains, such directives seem almost laughable. But this is no farce: These are the instructions that guide those participating in our legal system every single day. Out of thin air, the Third Circuit has conjured up a magical remote control for the brain, allowing jurors to erase, pause, and mute on command.
As amazing as our minds actually are, our legal rules, regulations, interpretations, and instructions make them out to be many times as impressive. To hear the law tell it, we are supermen and wonder women, able to rise above our prejudices, see through lies, and recall past events with crystal clarity. Every juror and every witness in every case is encouraged to have faith in his or her basic intuitions. Every judge on every court has been told that judicial bias can be controlled simply by making good choices. And every police officer and prosecutor has been trained to avoid misconduct with the same mantra of moral integrity through self-discipline. So, we vanquish our misgivings. Yes, we are able to set aside our political beliefs to decide this case. Yes, we are 100 percent certain that this man was the perpetrator. Yes, in carrying out our duties, we will treat every victim as equally worthy of respect.
Being aware of our natural limitations isn’t a cure-all, but it’s a necessary first step. Without self-doubt, you cannot convince anyone that they really do have it wrong or that change is urgently needed.
Not everyone is naïve about the “real” legal system—the manipulations, the loopholes, the human weaknesses and quirks. And another challenge to addressing the hidden unfairness in our midst has to do with inequality: specifically, the unequal access to the truth about how legal actors perceive, think, and behave. Some participants in criminal law cases are much savvier than others when it comes to human behavior. And these powerful individuals and institutions are already exploiting the weaknesses in our legal system for their own gain. What does that mean in practice? If you are rich and connected, you go free. If you are poor and uneducated, you go to prison.
A major source of the disparity has to do with how knowledge is disseminated in society. As we’ve seen, researchers are producing an ever-expanding pool of data about what really moves police officers, judges, jurors, and others. The problem is that for much of the population, there is no point of entry. Journal paywalls deny access and many scientists are reluctant to point out the practical applications of their work, lest they be accused of going beyond their data.
But as the masses wait for research to become sufficiently established to trickle into the public dialogue, others are carefully reading the preliminary findings. They are trial consultants, members of a rapidly growing half-a-billion-dollars-a-year industry focused on bringing the insights and methods of social science to the world of litigation. Before the 1970s there was no such thing as a jury expert or a witness preparation guru, but today there are over six hundred firms in existence, and they exert a significant force on our criminal and civil legal systems. In major litigation, trial consultants are now used as a matter of course.
Interestingly, these consultants are not primarily lawyers: In one survey, only 5 percent of consultants had a JD, and only 11 percent reported any background in law. Rather, they are social scientists: About half of trial consultants hold a Ph.D, and about half are trained as psychologists (with obvious overlap between the two groups). As one litigation consultant explained, “Basically, jury consulting is applied psychology. ... We’ll read studies from The Journal of Applied Psychology or Law and Human Behavior. We are practitioners but pretty much everyone here could flip and become an academic.”
And, in fact, it is academics who are credited with launching the field. One of the first and most prominent cases involving consultants was the 1974 trial of Joan Little, a young African American woman from North Carolina who was charged with murder in the death of a white prison guard at Beaufort County Jail, where she was locked up. Little claimed that the guard had raped her and that she had stabbed him with an ice pick in self-defense. A group of scientists led by John McConahay, a psychology professor at Duke, decided to offer their services.
The first step they took was to survey county residents concerning their feelings about the case, as well as their general attitudes on matters like whether black women are inclined toward violence. By providing evidence that potential Beaufort County jurors were twice as likely as those in other jurisdictions to have made up their mind that Little was guilty, McConahay and his colleagues helped get the trial moved to Wake County, a significant benefit to the defense. In addition, the team collected data in order to figure out which traits and preferences suggested that a juror would side with the defendant and used this information to strike jurors with authoritarian views who were older, Republican, and less educated.
Although the trial dragged on for five weeks, the jury acquitted Little in just over an hour. Some critics now question the ultimate impact of the jury research, given the seeming weakness of the prosecution’s case against Little, but McConahay’s team helped pave the way for modern trial consultants.
The team’s methods live on. It is still standard practice before a trial begins for consultants to collect information on the potential jury pool, discover any correlations that exist, and then target a sympathetic jury. Actual jurors are generally scored and ranked in terms of how closely their responses align with the ideal pro-prosecution or pro-defense panel member.
Today, though, trial consultants provide many other services, including assisting with overall strategy development, presentation effectiveness, deposition preparation, media relations, and negotiation. Their advice is based not only on existing psychological and marketing research but also on their own data collection in a case. Trial consultants may put together focus groups or stage full mock trials to test out particular approaches, theories, witnesses, or pieces of evidence; employ shadow jurors to watch the actual proceedings and provide feedback; and conduct post-trial interviews to better understand juror decision-making and develop strategies for future cases.
This all seems beneficial—a natural development in the pursuit of more effective and complete legal representation. So what’s the problem?
Historically, the big concern has been charlatanism and the difficulty of assessing whether trial consultants make a significant difference to the outcome of trials. But with the industry rapidly becoming more sophisticated and honing its practices, the major issue for the future is access: who will get to enjoy consultants’ services and who won’t?
The expansion of the industry has been fueled by attorneys representing corporations in complex civil suits with hundreds of millions or billions at stake. The result is that trial services are now very pricey, with fees averaging around $250 an hour and some significantly higher. Jury consultants are commonplace when the rich and famous are dragged into court: O.J. Simpson, Martha Stewart, Calvin Broadus (aka Snoop Dogg), Robert Blake, and the Menendez brothers all used trial consultants for their criminal cases. And it’s part of the standard defense package for high-rolling white-collar defendants. But those with fewer resources have often been left to fend for themselves. That’s fundamentally unfair. Justice Hugo Black was right when he wrote, more than a half century ago, that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
And the gap between the haves and have-nots is only going to widen. For those at the top, crime really does pay—and the more you make, the more access you have to those who can help you game the system. And the more you have that power, the less likely the government is to investigate you, prosecute you, or take a hard line in plea bargaining, because they know that they aren’t going to win at trial.
For those at the bottom, by contrast, the lack of access initiates a devastating downward cycle. You can’t stop losing, because every time you return from prison, you are in a worse position to gain the help you need. Each new sentence keeps you away longer from gainful employment, education, and personal connections. You never have the chance to build up the necessary capital to buy in to the secret world that hedge-fund fraudsters take for granted. And you pass on the curse to your children: When you’re incarcerated, they, too, are less likely to go to college or rise out of poverty. Entire inner-city communities become locked into this self-reinforcing inequity, while gated ones across the river are able to secure wealth and success for generations to come.
The cruel irony is that the trailblazers of the trial-consulting industry were motivated by a desire to defend the poor and vulnerable. Like those who assisted Joan Little, the sociologists involved in the first example of modern trial consulting two years earlier sought to ensure basic fairness for others, not to make money. The purpose was simply to negate the government’s unfair advantages—to even the scales.
But much has changed in the intervening decades. Trial consulting’s tether to social justice has been severed, and balance is no longer the aim. With clients paying tens of thousands of dollars—or even, in the case of high-profile murder trials, hundreds of thousands of dollars—for the services, delivering a fair trial isn’t enough. Clients want the verdict to go their way. In some ways, then, the goal of the trial consultant has been entirely reversed. If once the aim was to bring to light unappreciated biases and eliminate them, the focus now is on using social science to catalogue, control, and all too often accentuate biases. In fact, from the perspective of a trial consultant, a system that is predictably unfair, in ways that are hidden from most court participants, is the best possible situation. It presents a golden business opportunity.
Of course, there are still some in the industry who see their role as serving justice by helping lawyers and experts explain complex concepts to jurors, counteracting biases that courtroom actors may bring to trial, and identifying people with undisclosed prejudices. Yet these well-intentioned individuals are extremely vulnerable. When you possess the scientific knowledge to bend legal processes, judges, jurors, and witnesses to your ends, it’s hard to say no to the easy money.
Weak ethical guidelines and loose professional constraints further encourage trial consultants and attorneys to use the insights from psychology and neuroscience to the detriment of accuracy, fairness, and justice. And with more and more research studies offering ways to directly influence the outcome of trial, there’s often no need to extrapolate or read between the lines. Take a recent set of experiments in which scientists decided to see if they could use the juror screening process not to detect and remove bias—as intended—but to prejudice real people. In the experiment, every mock juror was asked two neutral questions, but some people were asked an additional question about whether they would be able to act impartially if the defendant turned out to be a gang member. Even when it was made explicit that the question was merely hypothetical, it had a powerful biasing effect: Participants who were asked the question were significantly more likely to reach a guilty verdict than those who did not. According to the researchers, because gangs are associated with criminal behavior, exposure to the hypothetical question made that negative stereotype readily accessible and encouraged participants to find the defendant guilty.
Is it any surprise, then, that trial consultants now use voir dire not only to select favorable jurors but also to establish impressions that influence juror perceptions and judgments once the trial begins? In some ways, research like this can be read as a how-to manual for unscrupulous attorneys. Yet it need not be; it has just as much potential as a powerful force to eliminate bias in our system. For this transformation to take place, however, we need to be committed to reshaping how trial consultants and lawyers do their work. This does not mean changing who we are; it means reaffirming the principles upon which our criminal justice system is based. The purpose of voir dire is to pick a fair jury; when it is being used, instead, to stack the deck, then we have truly lost our way.
There is no reason to think that the people who make their living in the trial-consulting industry are somehow less moral than the rest of us. But they are creatures of their environment, and the current environment tells them that using knowledge of the human mind to manipulate legal actors is not only permissible but commendable. Not going the extra mile for your client is letting your client down. Witness preparation and juror analysis are all just part of the modern trial. Thus, few of these good people—trained scientists, lawyers, and others—ever stop to consider the far-reaching effects of their actions: We are selling jurors’ and judges’ minds to the highest bidder. It’s time for honest reflection. Justice should not be a commodity.
This article has been adapted from Adam Benforado's forthcoming book, Unfair: The New Science of Criminal Injustice.