Across the Atlantic, potential jurors face stringent checks before they can attend trials. But it is not an exact science, reports Jon Robins


‘Trials are too important to be left up to juries,’ was the cynical mantra of trial consultant, Rankin Fitch (played by Gene Hackman) in the Hollywood hit film ‘Runaway Jury’.



‘There is a perception here in the UK that if your case comes before a jury in the US, it’s a complete lottery and the verdicts are likely to be emotionally-driven rather than based upon any analysis of the facts,’ comments Ted Greeno, a litigation partner at City firm Herbert Smith. ‘It’s not a perfect system and UK companies are perhaps overcautious because there have been so many scare stories. There has now developed a strong irrational fear of being caught up in US litigation.’



So how does jury selection work in the US? Citizens are chosen randomly for jury service and form a jury pool, says Nancy Kestenbaum, a partner at US law firm Covington & Burling who served for nine years as a federal prosecutor in the US Attorney’s office for the Southern District of New York. ‘For any given trial, the jurors come before the court and then either – and this varies from jurisdiction to jurisdiction – the judge or the lawyers question them. Ultimately, these are questions that the judge decides to pose, and they usually solicit the views of the parties about what questions should be posed for a prospective juror. Sometimes there are written questionnaires which the judges hand out.’ It is the same process for both criminal and civil cases.



Ms Kestenbaum continues: ‘Once the panel of prospective jurors has been questioned, litigants may move to strike or exclude prospective jurors “for cause”, meaning that they think something about a juror’s answer shows that they could not be fair and impartial. Then each side gets a number of “pre-emptory” challenges, which means they can strike out a set number of prospective jurors even if it is not ‘for cause’.



How are lawyers’ views informed in that striking-out process? It is hardly an exact science. When jurors were sworn in to decide the fate of Michael Jackson – accused and acquitted of molesting a 13-year-old boy last year – Paul Lisnek, a lawyer and author of the book The Hidden Jury: And Other Secret Tactics Lawyers Use to Win, shone some light on the art of the trial consultant. ‘The prosecution will be looking for Republican, conservative, religious folks, probably Bush voters,’ he explained to the press. ‘The defence will be looking for somebody who is more sceptical on religion, an agnostic or an atheist.’



So is the great American jury undermined by real life Rankin Fitches? Stephen Herzberg, professor emeritus of law at the University of Wisconsin Law School and trial consultant, says: ‘The American jury system is the last bastion of American democracy. All political institutions are touchable by wealth and power but the jury system is not. When I look at our jury system, I see it as the last place where the ordinary American citizen can have a meaningful impact upon important decisions.’



Ms Kestenbaum reckons it is ‘impossible to know’ whether juries are swayed by consultants. But she adds: ‘I have a lot of faith in our jury system and I believe that for the most part our juries get it right.’



Prof Herzberg, who is the producer of an award-winning film Inside the Jury Room which explores how US juries work, adds that he used to dismiss those trial consultants who claim that they can distort a jury’s deliberations as being engaged in ‘voodoo jury selection’. He continues: ‘But I was lucky enough to go to the Caribbean, and now I have a lot more respect for voodoo. When a trial consultant says to a lawyer, I can configure a jury and guarantee that they are going to vote for you, or that he can tell their personality type, there is absolutely no support in science for that.’



Predicting personality types might pay off in product placement, he argues, but ‘when you’re selling soap you’re pitching to a market of hundreds of millions of people and if you have a market shift of half a per cent, then that’s significant’. He adds: ‘When you’re picking a jury you’re picking 12 people and the numbers don’t work in your favour.’



Secondly, the academic dismisses the ‘assumption that there are demographic variables that you can identify’. He says: ‘Personalities are far too complex. Every trial is individual and every juror’s experience is individual and you can’t predict from a hierarchy of values how they will be affected in the jury room.’



Prof Herzberg reckons lawyers use ‘the most superficial stereotypical ways of identifying values’. In particular he rejects the use of racial, or any other form of demographic profiling, as overly simplistic. ‘Engineers are too precise, bankers too conservative, Jews are bleeding hearts, and fat people are jolly,’ he says. ‘It is horrendous, the worst kind of stereotyping.’



Jon Robins is a freelance journalist