In the aftermath of the George Zimmerman verdict, the airwaves, blogosphere and social media have been ablaze with argument, indignation and calls for reform. On major networks, “experts” of all stripes have bellowed their “no ways” and “told you sos,” and the debate about whether “the system” is “broken” or not rages on. Rather than add one more voice to the noise, however, I’d like to examine how the losing side might well have benefited from pre-trial jury research.
This will be an academic exercise. There are those who would argue that one has to be living in some sort of parallel universe to expect prosecutors to entertain, much less embrace, jury research. Most of us remember Marcia Clark, the prosecutor in the O.J. Simpson case who famously rejected the results and concomitant recommendations of focus groups as presented to her by a trial consultant hired by the Los Angeles District Attorney’s office. And we all know what that led to: a book deal.
But let’s just say, for the sake of argument, that Florida State Attorney Angela Corey and the prosecutor in the Zimmerman case, Bernie de la Rionda, called upon a qualified trial consultant in Florida, perhaps a qualified consultant with extensive criminal defense experience (no names, please) who could bring some opposing perspective to the table when helping them strategize about this multi-layered case. What would that parallel universe have looked like? What could they have tested? What might they have learned?
For many jurors, “beyond a reasonable doubt” translates to “without doubt.” It is difficult for most people to deprive an individual of his or her liberty while doubts about guilt remain in their minds. Would it have been helpful for the prosecutors to hear jurors talk about their lingering uneasiness with the notion of doubt, and would they have been able to frame the case from the beginning in such a way that would give jurors permission to make a difficult decision, even in the presence of doubt? Had they heard mock jurors talk about doubt, could they subsequently have recognized the need, in closing argument, to arm those three jurors who entered the jury room believing the defendant guilty with the right words to assuage the doubt-driven concerns of their fellow jurors?
Vetting the Counts
By deciding to charge Mr. Zimmerman with second-degree murder, the prosecutors raised their own burden of proof. They required themselves to prove, beyond a reasonable doubt, that the defendant acted out of “ill will, hatred, spite or an evil intent.” Strong words. A great deal stronger than “the killing of a human being by the act, procurement or culpable negligence of another, without lawful justification…” which are the words contained in the Florida manslaughter instruction. The prosecutors, seeking to hedge their bets, added the manslaughter charge just before closing. Yet, the case they had tried up to that point was a murder case. Jurors rejected both charges. What if they had tested both charges before they went to trial? Would they have learned that jurors tended to reject the strong accusations inherent in the second-degree murder charge, but that they were more willing to believe that Mr. Zimmerman’s actions conformed to the language in the manslaughter statute? Would the prosecutors then have, as Steven Covey would say, begun with the end in mind, simplified the case and right from the start, made it about culpable negligence (e.g., he picked the fight that led to his killing of another man) rather than about hatred and evil intent?
Among others, Rachel Jeantel, the friend that Trayvon Martin was speaking to just before the fatal altercation occurred, gave a deposition in the case. What if jury eligibles had seen some of that deposition and given feedback about it? Would the prosecutors have received a guide to witness preparation for their star witness?
Narrative and Metaphor
No case – civil or criminal – is ever presented in its entirety. There are always gaps in the story. And research shows that all of us – jurors, judges, attorneys and yes, trial consultants – use heuristics– cognitive shortcuts – to create a more complete case story. Those heuristics are grounded in our own attitudes and the life experiences that shape the way we “fill in the gaps” about unknown case details. The prosecution could have used some insight into the case story that jurors were going to build in their minds when faced with incomplete information—particularly details of the confrontation between Martin and Zimmerman. What path did each of the two men take after the first 911 call? Who started the fight? Who hit whom first? What alternative actions could each man have taken to avoid a confrontation? Whose voice was on the second 911 tape? What case story construct made it acceptable for Zimmerman to pull the trigger? What story construct made it unacceptable? Hearing jurors’ stories before the trial – rather than after the verdict – would have provided the prosecution with an opportunity to build their narrative in a way that conformed to most jurors’ plausible case story that led to a decision that pulling the trigger was unacceptable.
The defense team had the formidable Bob Hirschhorn sitting by their side during jury selection. Bob was focused on two key indicators in voir dire: honesty and guns. Most likely, these distinguishers were borne of pre-trial research. What was the prosecution looking for? Did they have a specific profile – attitudes, experiences – of the juror they wanted to de-select? Or was it guesswork, grounded in demographics? What if, subsequent to pre-trial research, the prosecution had the benefit of statistical analyses that produced specific, experiential and attitudinal markers around which they could have built their line of questions in voir dire, and which could have guided their strike hierarchy? Would their strike strategy have changed? What would the seated jury have looked like?
How many lawyers (trial consultants) does it take to change a light bulb? Five – one to change the light bulb, and four to sit there and talk about how they would have done it differently. There were a lot of moving parts in this case that made it problematic for both sides. Political considerations, along with intense media and social scrutiny created a challenging trial atmosphere. The folks in the courtroom were the ones who had to try this case. The talking heads on the outside (this author included) can’t say for certain that a different strategy would have produced a different result. But, the purpose of good pre-trial research is to reduce uncertainty going into trial. And if ever a case cried out for the need to cut through the noise and reduce uncertainty, this one would be it.
By: Robert Gerchen, Senior Consultant
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