Ideally, mock trial or focus group research is conducted in the actual trial venire, but sometimes accommodations must be made for unique circumstances. As an example, while we were planning four consecutive one-day research projects for a large manufacturer, there was breaking news regarding a recall by another industry manufacturer involving consumer injuries and deaths. In a situation like that, what do you do? Do you continue with the research knowing the recent publicity might impact the results of your test or do you postpone until the media coverage subsides? If there is time between when the publicity occurs and your scheduled test, do you consider keeping the research in the original location, or do you move it to a surrogate venue?
Whether or not to change the location of or postpone your project depends on certain factors, and there are questions a client should ask and have answered as part of those considerations. Below we have outlined a few of those questions and how we would answer them when planning a mock trial in the wake of pre-trial media publicity.
How far in advance of your mock trial did the media publicity occur?
Like the real world example discussed above, what do you do when a national news event breaks after you have already prepared your mock trial and recruited the mock jurors? Do you continue with the test or do you postpone?
It is important to carefully consider these questions because, assuming trial is many months away, the media impact most likely would not be present or duplicated at trial, which means you’re obtaining test results you can’t rely on. Therefore, moving the date of the test may be advisable, time permitting. If you cannot postpone the research since trial is quickly approaching, then take care to measure how and to what degree the media coverage affected mock jurors’ verdicts and damage awards.
Does the pre-trial publicity affect jurors’ attitudes in my case?
Sometimes you have time to conduct a survey to assess the attitudes in the community to see how they may have been impacted by the pre-trial publicity (national or local media coverage). Two types of surveys are available to assist with this effort. First, the Community Attitude Survey measures how much the pre-trial publicity affects jurors’ attitudes, and the Change of Venue Survey informs us not only about the pre-trial attitudes but also the various potential surrogate venue options should you desire to relocate. Therefore, if you and your client believe the jury panel would be influenced by the pre-trial publicity and receiving a fair trial would be virtually impossible, a Change of Venue Survey explores the unique characteristics of a particular venue including demographic, socio-economic and political factors to help identify a good alternative venue match – and ultimately inform a motion to transfer the trial to a different venue. At a minimum, consider conducting an online or traditional Community Attitude Survey to gauge community members’ reactions to the parties in your case as well as whether their knowledge of the case or media coverage affected their opinions of either side.
When to conduct the Mock Trial in the actual jurisdiction with pre-trial publicity
While there is pre-trial publicity and you are faced with no option to change venues, there are times when conducting the research in the actual jurisdiction is advisable. When dealing with local publicity, it typically cannot be duplicated in any other jurisdiction. Consequently, the jurors in the surrogate venue would not have been exposed to the same breadth and depth of media coverage. That is one important caveat of choosing a surrogate venue when pre-trial publicity is involved. Therefore, so long as confidentiality is not a concern, it may be worth staying put in the original location (where the trial will be held) in an effort to mirror the conditions that will be present at the upcoming trial. If you decide to move your mock trial to a surrogate venue that did not have the publicity, your results may produce a false positive – a result that will do a disservice to any client and their case-specific strategy.
Pre-trial publicity can impact jurors’ impressions of your client and ultimately your case. It is important to identify if there is a bias as a result of this publicity and to carefully consider when mock trial or focus group research should be conducted to ensure your results are valid and not a result of a false positive or negative.
By: Jessica Baer, M.A. – Consultant
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