By Dr. Ken Broda-Bahm:
High profile trials often lead to temporarily renewed awareness of the litigation consulting field. This time around, the rediscovery has to do with the first sexual assault trial for the actor and comedian Bill Cosby. An article entitled, "Bill Cosby's Trial is Already Showing How Twisted America Is" came out recently in the online source Vice. Beyond the click-bait headline, writer Sonja Sharp who also writes for the Wall Street Journal, targets both race-based selection as well as the role of jury consultants. While Vice is not the kind of source I ordinarily go to in this blog, I do believe that popular media references, like the current television series Bull, contribute to a skewed public perceptions of what litigation consultants actually do. So even though this humble blog lacks the reach of Vice, I feel a defense of my field's virtue is necessary.
Sharp's article focuses on the problems in selecting juries based on race, and what she feels is a lesser known problem: trial consultants. Both, she feels, contribute to a new, unusual, and unfair method of trying cases. "The disgraced comedian's sexual assault trial has barely started," she writes, "and it's already revealed the bizarre way in which juries are selected and justice gets meted out." While race-based selection is indeed a problem (and most often a problem in the lowest-profile criminal trials), I believe that the implied connection to trial consultants is misplaced. The goal of ending racial discrimination in the jury box is best accomplished by paying attention to the social science that matters most in checking bias: attitudes, psychology, human experiences, not skin color. In other words, reducing racial bias in jury selection means listening to consultants more, not less. In this post, I will flesh that out.