09:28, July 06 192 0 abajournal.com

2017-07-06 09:28:04
Could a jury consultant like ‘Bull’ have been a boost or a blow to Bill Cosby’s chances at trial?

The process differs from state to state. As a defense attorney in Oklahoma, I end up last on the question-asking pecking order. Until then, I wait and gather as much information as possible while the prosecution rehashes the same old “cake-making” metaphor for explaining elements to a crime.

A jury consultant can be an invaluable tool to an attorney, particularly in high-profile cases such as the criminal trial involving Bill Cosby. But most jury consultants work in the background with the public knowing little about their role or existence. That is, until Bull hit the airwaves this past season; it’s a series based loosely on the career of jury consultant Dr. Phil McGraw before he became famous to viewers as Dr. Phil on Oprah.

The credits for Bull list McGraw as one of its creators, and by all indications, he was a successful jury consultant before gaining fame as daytime TV’s resident psychologist. Consequently, comparisons between the show and the careers of real life consultants are inevitable. However, as is often the case, the producers and writers of the show have taken some liberties.

The series follows Dr. Jason Bull as he travels around the country with his team of experts to consult on behalf of the client of the week: some person on trial in need of a little “Bull” to bolster his or her chances. It is clear from the high-priced, state-of-the-art electronics and databases on display in each episode that Dr. Bull’s services aren’t cheap.

The show offers hints that it is more a reflection of Hollywood’s idea of the work done by jury consultants rather than a realistic depiction of what actually happens in the courtroom. For example, while consultants in real life do research on jurors and use focus groups to evaluate responses to certain evidence or the manner in which it is presented, the information Bull and his team manage to dig up on prospective jurors probably runs afoul of privacy laws.

Seeing Dr. Bull’s weekly exploits might make the unversed viewer believe a jury consultant is necessary in every case, because he or she can practically predict the future. Psychologists and other experts dismiss that as being unproven. Still, jury consultants can definitely be helpful to attorneys.

Consultants don’t simply gather information about each juror. They advise on potential pitfalls and prospective strategies. Several years ago, prosecutors around the country couldn’t figure out why they were losing cases with the same evidence that had previously led to convictions. The reason is now referred to as the “CSI effect.”

Viewers had become fixated on TV dramas focusing on crime scene investigative units who magically find DNA and other scientific evidence to solve crimes, all in about an hour or less. Prosecutors were suddenly confronted by jurors expecting DNA and other high-tech evidence in every case just as they’d seen on TV. “If the CSI guys and gals can do it in an hour, surely these prosecutors can over the course of an entire case, right?” Wrong.

Jury consultants and mock juries help prosecutors identify a possible “CSI effect” issue before the start of the actual trial. They test their evidence and trial strategy in advance and make changes to offset juror bias or TV-influenced expectations. This allows prosecutors to bring up any potential deficiencies in their case during jury selection.

But none of this is foolproof. Regardless of focus groups, consultants, and any other outside perspective, you will never find a self-respecting trial attorney, criminal or otherwise, willing to say with a straight face that he or she has never picked wrong during jury selection. Sometimes it comes down to a gut decision, and that’s something that television shows such as Bull fail to focus on.

According to a story in the Washington Post, Bill Cosby’s defense team at trial included at least one jury consultant. Apparently, spotting him wasn’t too difficult for anyone in the courtroom. He was seated at the defense table along with Cosby and his attorneys.

There has been much speculation as to the consultant’s role in selecting the seven men and five women, and whether the composition of the panel had any effect on the eventual deadlock. According to the Washington Post, the consultant seen in the courtroom is from a company known more for its work on behalf of corporations in patent and antitrust claims than it is for selecting juries in criminal cases. Two anonymous jurors have given conflicting stories about the jury vote, so the true reason for the deadlock remains a mystery.

Could a consultant who specializes in criminal defense have had a better shot at stacking the deck in Bill’s favor? Did the consultant matter at all? The defense only needed to generate reasonable doubt in the mind of one juror to hang the jury. The outcome might have had more to do with a well-executed defense strategy during the trial than the decisions made by the defense during jury selection.

Did the jury expect more from the consultant at the defense table? Perhaps we need to start worrying about potential jurors, full of a bunch of Bull, expecting to see high-tech jury consultants in every case. We can call it the “Bull effect” (not to be confused with livestock).

Attorneys know how important jury selection is, but we also know how unpredictable the process and results really are, regardless of the tools employed. Whenever I have co-counsel, we always try to guess who the foreperson will be. Win or lose, consultant or not, we are rarely right.

Adam R. Banner is the founder and lead attorney at the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. Mr. Banner’s practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes, and white collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seems to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.