Thank you very much.
I would like to say thanks to the committee for inviting the American Society of Trial Consultants to speak to you. I understand that trial consultants are rarely used in Canada, and perhaps after speaking today that might change a little.
Many brilliant and skilled professionals have spoken to this committee. They have presented many ideas, many solutions, and much data. I am not here to go back over all of that. What I would like to do is talk to you about how we can make a difference during the jury selection process, in particular in identifying and eliminating potential jurors who end up being in the situation of experiencing high stress, so it's more of a preventative measure.
Let me give you a little background about who I am. I have a Ph.D. in psychology from the University of North Carolina in the United States. I have been a practising trial consultant for 32 years, all of which, up until December, were within a law firm, Womble Bond Dickinson, in North Carolina.
While there, I created a trial consulting business and not only helped the lawyers in that firm, which is a very large law firm on the east coast and now worldwide, but I also had other clients. It's the kind of business where if you do good work, it gets you more work with the next person down the street, which gets you more work.
I have participated in many trials. Just for one client who is faced with 30 years of mass tort litigation, I stopped counting at 150 trials.
I am bringing to you a lot of personal experience of being in the courtroom at trials. I probably have participated in more trials than most of the attorneys I have worked with over the years.
Let me also tell you a little bit about the American Society of Trial Consultants. ASTC was formed in 1982 when a group of 24 professionals met in Phoenix, Arizona to share their experiences in a new profession, jury consulting. The group grew over the years, meeting yearly to share their growing wisdom. Today ASTC has about 300 members. We are called jury consultants, trial consultants, and litigation consultants. Most frequently we are referred to as jury pickers.
Although we would like to think of ourselves as selecting or picking juries, the reality is that the process is one of deselection, both sides aiming to remove those jurors who are unsuitable for rendering an impartial verdict for their client and hoping that when finished they have a group of open-minded, unbiased jurors to decide the outcome.
The main mission of the American Society of Trial Consultants is as follows. Our legal system is based on the principle that each party putting forward the best case, making the most of facts, law, and presentation skill allows the truth to win out far more often than not. In that kind of a system, the goals of the ASTC lie at the very heart of the law's ability to deliver justice. We help litigators become better at persuading jurors and other fact-finders, and that makes the system work in a way that is more meaningful, more reliable, and ultimately more fair.
Not all trial consultants in the United States are members. It is an unregulated profession with no credentialling. Those who are members of ASTC are expected to uphold certain ethical standards and practice guidelines.
ASTC established the only set of ethical principles and practice guidelines that exist in this unregulated profession. It developed a statement of shared values that are intended to inform the professional judgment of the working trial consultant striving for the highest professional ideals.
Among our principles, members of ASTC are expected to conduct themselves at all times with professional integrity, personal dignity, and respect for the legal system. They are expected to uphold professional standards of conduct and to clarify their professional roles and obligations. They comply with the law and encourage the development of law and social policy that serves the interests of their clients and of the public generally. We maintain the integrity of the jury pool. In other words, we do no harm.
The right to a trial by jury should not mean it's at the expense of jurors' emotional well-being, but a sacrifice they make out of a sense of civic duty, which to this day I find absolutely amazing. To give you an example, I participated in a civil trial in Minnesota that was expected to last four months. The judge was insensitive to hardships and bias. There was a 100-plus item juror questionnaire and lengthy voir dire by counsel for both of the parties.
We had a lot of information about these jurors. For example, we knew one juror worked two jobs so his son could go to college. Serving would mean the elimination of one of the jobs. Another would not be paid for jury duty. These jurors were not removed for cause by the judge, and peremptory challenges were focused on eliminating very biased jurors, such as a research clinician who had received a grant from the government to study the very product that was at issue in the trial. The concern was that a person of this nature would be the expert in the jury room, and the decision would be based on information other than what was presented.
On the hardship individuals, we just expected that in a four-month trial, eventually they would just drop off. They just would not be able to withstand it. Surprisingly, they all stayed for the four months. In the case of the juror with the son in college, the son withdrew from college that semester so he would not be a financial burden on the family. As for the juror who was not paid, the jury itself took up a collection and paid his house payment one month. That is a sacrifice beyond what any juror should be asked to do, but they did it. Minnesota is one of the few states that has a very strong civic duty, and they will do anything to fulfill that civic duty.
While some people watch YouTube videos on how to get out of jury duty, others make the commitment to serve. Minnesota has an exceptionally strong sense of doing one's civic duty. Of interest is that it was the judge who actually had a mental health breakdown after the trial.
Most people experience some stress when placed in new situations such as jury duty. Jurors are people plucked from the various life situations. Although they have seen court proceedings on a variety of television programs, reality is never like Hollywood. The show Bull, currently on television, is nothing like what goes on in a real courtroom, nor is it a good example of what we do as professionals.
For some, there is no frame of reference to help understand and control the situation, and we know that stress is reduced if an individual feels they have some control. Although most jury duty is a low-stress experience, certain types of jury service can produce higher levels of stress. Those involving particularly horrific crimes with gory crime scenes are sometimes very difficult to overcome, but even civil trials that last for a long period of time are difficult. I had two trials where jury selection took four months, and then the subsequent trial was almost a year. I had another case where jury selection lasted 15 months. We went through over 1,400 jurors to empanel the jury, and the trial then lasted for a year and a half. This is a huge time sacrifice that people make. In all of those situations, though, there was no juror who complained of extreme stress or reacted with PTSD.
Most symptoms of stress related to jury duty go away in a day or so, as the life of a juror normalizes. Even in those exceptional situations mentioned above, not everyone suffers to the degree that PTSD is experienced.
Paula Hannaford-Agor cites that 70% of all jurors report some stress, but it's only 10% who report high levels of stress. A lot of what the committee is focusing on is that 10%—the people who have the high levels of stress. How do we uncover that 10%?
In the U.S., Canada, Australia, and England, there is the right to a jury trial, yet only the U.S. allows voir dire beyond judicial inquiry—the questioning of prospective jurors in a trial to determine their suitability for rendering a fair and impartial verdict. Jurors are presumed to be fair and impartial.
In most countries, they just pluck 12 people from the community, or whatever their number is, and they are left to decide the outcome of the case.
Voir dire in the United States is the process of probing a juror's state of mind that might provide grounds for excusal. Jurors can be excused from serving because the trial will be a financial burden, for child or adult care duties, because they hold essential public jobs like firefighters or policemen, and for bias that could be a prejudice against one of the parties. Jurors with experiences too close to home, for example they have a family member the same age as the victim, observed someone, or they themselves have been sexually abused, assaulted in the past, are at the mercy of sufficient questioning, and the court's mercy, to be excused.
The ASTC has a special practice section called jury selection. In it, it says that:
In preparation for jury selection, trial consultants may perform a variety of functions including, but not limited to: (a) conducting pretrial research (quantitative or qualitative research) with Respondents who meet the criteria for jury service in the trial jurisdiction; (b) preparing profiles of juror characteristics believed to be positive or negative for the client; (c) preparing voir dire questions to be submitted to the Court or to be used by counsel in conducting voir dire; (d) preparing a juror questionnaire to be submitted to the Court; and (e) making recommendations for improving voir dire conditions.
We're actively involved in trying to create a situation in which it will be a fair trial and the jurors who serve are suitable to serve for whatever reason.
One of the things we find is that judges have a lot of control in the United States over the jury selection process. Federal court is a little more controlled with generally judicial questioning. Attorneys are allowed to submit questions in writing. The judge will sometimes ask the questions and sometimes won't. State court is a little better in that there is attorney voir dire. The time can be controlled in some cases. It can can go on for weeks, questioning jurors before the panel is passed to the other side.
People in general are poor predictors of their feelings or behaviour. You may think that you can set a bias aside or be able to view graphic evidence, but when that bloody photo of a child's badly abused body, who is the same age as one of your own children, is shown, a connection can be made with feelings in that juror that they're unable to control.
How do we help jurors realize that they're going to have difficulty serving in a particular case? We structure the situation to identify and uncover those jurors who are going to have difficulty. It's through proposed questioning. If you're not able to ask a certain number of questions, jurors are not going to just come out and say, I observed this, or it was a part of a situation in my past, so I don't think I can be fair, because everyone thinks they can be a fair juror. Everyone thinks that they can set the information aside.
You have to help the juror uncover their own potential biases with questions we can ask. For instance, do they have any medical, physical, or psychological conditions that might interfere with their ability to serve? That might be something you ask in judge's chambers. Also, they've not seen the evidence, so it would be difficult for them to predict how they would react. How do they typically react watching horror or particularly violent, bloody TV or movies scenes? Do they keep watching, or do they close their eyes and turn their head the other way? Have they ever watched something horrific and had it affect them for some period of time? Some people have a difficult time viewing cases involving abused children or bloody crime scenes or autopsies. Others are able to separate themselves and have a more clinical experience. Which of these best describes you?
These are questions that, depending on the jurors' answers, they wouldn't have thought to just come out and say themselves. Once this is said, and with further exploration, there are jurors who might experience the kind of harm you're talking about and get them off the jury.
As a conclusion, I would like to recommend some suggestions that Canada might employ, such as improving and allowing more voir dire in the judicial setting to help identify and uncover those jurors who could be harmed. Include attorney voir dire and written juror questionnaires so that they can uncover these things privately, rather than stating them publicly in front of everyone in front of everyone.
Given advance notice of the trauma that's involved in a case, we've done things such as cover the face of a juror or we have explained something in a model format as opposed to with the actual crime scene evidence. A consultant who I know, in a mass shooting case, would use paint gun examples as a way of demonstrating a mass shooting but without involving the actual people. It was more the strategy that was involved.
I would like to make these recommendations. I know they put a burden on the system, but they are things that can be preventative measures.