By Melissa M. Gomez
Special to the Legal
In my career as a jury consultant, I have been confronted repeatedly with the concept of what it means to have a fair trial. The criminal child-molestation trial of Jerry Sandusky was quite a headline-maker for 2012 and I received calls from several newspapers and news stations alike to provide commentary from a jury perspective. Each reporter was concerned with the jurors’ connections to Penn State University, for whom Sandusky was the former assistant football coach. Each reporter asked about the implications of jurors’ Penn State connections and, considering those connections, whether it was possible Sandusky could have a fair trial. It all got me thinking about what it means to have a “fair” trial as a general concept.
Anais Nin wisely said, “We don’t see things as they are. We see things as we are.” So, if we consider the concept of fairness as having jurors who come in as blank slates upon whom the trial evidence is placed and weighed, then no one can have a fair trial. Ever. It is just not the way that people work. It is human nature that people will look at the evidence and arguments in any case through the spectacles of their own experience. Having experience or opinion with a particular subject matter will give that person a perspective before hearing any case facts, but does that mean that person can’t be fair? It depends on the relevance of that experience to the person, the strength of their opinion and how that opinion comports with the evidence that will be provided to them at trial. The question comes down to whether their experience outside of the courtroom will take priority over the evidence or will the evidence take priority over their experience, not whether we can eliminate that experience from their minds. In other words, it is not just the experience in and of itself that is relevant. It is the perspective about that experience and the strength of the beliefs that resulted from it.
Preconceived opinions in your jury pool can’t be eliminated completely, no matter how good you think you are at jury selection. Instead, you can hope to take out the people who are completely closed to your story through the voir dire process. What you have left are people who still may be skeptical. Is this fair? I can’t say that it is or is not, but it is the system we have and the issue applies to both sides. Admittedly, though, they often can be more troubling to one side over the other depending on the case and the venue.
As a result, it is imperative to understand, as much as possible, the mindset of the jurors and their community before you go to trial and be sure to tell a story that accounts for it. If your arguments are contrary to a widely held belief, you are unlikely to succeed. You must make sure that your strategy accounts for the people who are hearing it. Don’t expect them to change their perspectives for you and your case. They won’t.
Let’s go back to Sandusky’s case. Did a connection with Penn State automatically render jurors incapable of being fair and impartial? The judge didn’t think so, and neither do I. The issue here was really whether a juror, given his or her background and experience, regardless of whether or not he or she resides in or has connections to the Penn State community, was willing to listen to both sides and carefully consider the evidence. For the Sandusky trial, the jurors took two days to deliberate, requesting some of the trial testimony be read back to them. To me, that seems to pass for careful consideration of the evidence. As for the result, after having read the synopsis of trial testimony provided to me by one of the news stations, a couple hundred years behind bars for this particular fellow sounds pretty fair to me.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at firstname.lastname@example.org or call 215-292-7956.