Recently, it's been in the news that federal prosecutors used jury consultants in a terrorism trial. Essentially, jury consultants are hired to advise lawyers on what type of jurors to select and to give advice - gleaned from polling, the use of mock juries, etc. - regarding what arguments are most likely to be persuasive to these jurors. Leaving aside the politics of a terrorism trial, the question some have raised is whether it is appropriate to be spending public dollars on jury consultants in any criminal trial.
Most commentators take it as a given that defense lawyers should use jury consultants if they can afford it; the sticky point seems to be that some find it unseemly that prosecutors - representatives of the people - would use public dollars in an effort to somehow "skew" the jury from an idealized version of the "cross section of the community" that jurors allegedly represent.
Perhaps you can tell from that last sentence that I don't see anything wrong with prosecutors using jury consultants (although, I'm not saying they should - that's a resources consideration).
Sure, the goal of every ethical prosecutor is to see that justice is done in the case, but the fact remains that our criminal justice system is an adversarial one. Once the prosecutor has reviewed the facts, determined that charges should be brought, and fulfilled her ethical obligations to the defense and the court (turned over exculpatory evidence, etc.), it's a fight. And the prosecution is entitled to try just as hard as the defense to win.
Keep in mind that prosecutors aren't reporters; they don't simply read a litany of facts to the jury. They are advocates, working hard to get the result - a guilty verdict - that they believe the community deserves. Like anyone trying to persuade an audience, they tailor their arguments, language and demeanor to the 12 faces staring at them from the jury box. They even tailor the witnesses they use based on the makeup of the jury. Any prosecutor who tells you that she has never called witness A over witness B because witness A is a woman or young or African-American, is a liar.
And, the pool from which the jury will be selected is what represents the "community". The system already allows each lawyer to keep out a number (say, 5 to 10) of potential jurors for "no reason at all", as long as the decision isn't based on an impermissible consideration, like race, etc. "No reason at all" always comes down to: "this juror would not go my way". Believe me, no prosecutor in American history has ever thought: "I should strike this juror because I think she will be too willing to convict and won't give the defendant a fair shake". So what if a prosecutor has some help in figuring out what he's already trying to do?
That's my position. What's yours?
