Legal Update

Balancing the trial consulting scales

A reply to Prof. Benforado and a call to AP-LS for action — an argument for the legitimacy of trial consultation in the legal system.

By Ken Broda-Bahm

As any watcher of the Marvel movies knows, origin stories are important. You can't fully understand The Wolverine until you know how he came to be sporting those retractable adamantium claws. Trial consulting also has an origin story, coming from cases in the early to mid-seventies, when academics interested in legal psychology (not unlike many of today's AP-LS members) provided their expertise on juror psychology, weighing in firmly on the side of social justice. A current critic of the field, however, argues that trial consultants have strayed too far from those noble origins. Adam Benforado, associate professor of law at Drexel University, authored an article in a recent issue of Atlantic titled, “Reasonable doubts about the jury system.” It is an adaptation from his book, “Unfair: The New Science of Criminal Injustice,” and it is a pretty broad swipe at the trial consulting field. The subheading is, “Trial consultants allow the affluent to manipulate the biases of those who judge them, putting justice up for sale.”

Benforado's argument, however, is a little different than most previous broad swipes at the field of trial consulting. Most often, those who argue for licensing, limiting or just banning the practice will proceed on the assumption that trial consultants are like a toxin that distorts an otherwise fair process, and manipulates those terribly impressionable juries (cue Billy Flynn from the Broadway play “Chicago” to sing “Razzle-dazzle”). Benforado shares some of these attitudes, but with a little more nuance. For example, he starts the piece by astutely observing the many ways the formal legal process upholds images of bias and human influence that are wildly out of step with the social science. Also, unlike most critics, he seems to have a pretty accurate understanding of what consultants do, and an appreciation for our role in bringing the process toward a more realistic understanding of human psychology. The main problem for Benforado, however, is that these fruits aren't distributed evenly. And he's right about that. Still, he fails to appreciate the trial consulting community's goals and actions in addressing that imbalance and in sharing the wealth when it comes to expertise. As much as trial consultants like myself might naturally bristle at the criticism, I think that full-time litigation consultants, as well as academics who study legal psychology and do some consulting from time-to-time, would be better off taking some of Benforado's point to heart, and using this argument as an impetus to promoting even broader access.

Where he got it right, part one: The legal system needs a more sophisticated understanding of bias

Prof. Benforado begins by reviewing the variety of “... but, can you be fair?” style questions that are asked in courtrooms across the country. The problem in these questions, he notes, is that they embody the belief that biases are known by the individual and can be addressed through that individual's awareness of that bias combined with their conscious decision to “set it aside” in order to consider only the evidence in the case. “While we purport to address bias,” Benforado notes, “what we actually do is reinforce a false narrative of what bias is, where it comes from, and how it can be remedied.”

Every trial consultant I know, and probably most every member of AP-LS, is vigorously nodding their head in the affirmative on that statement. Trial consultants are generally at war with the conventional process of jury selection that ends up reinforcing a mistaken belief in the power of objectivity and conscious control over biases, presenting impartiality as a choice to be made by each prospective juror. When addressing bias, our focus isn't on self-diagnosis and promises, but on effective questioning and strikes.

And as Benforado also agrees, this unsophisticated attitude toward psychology applies not just to voir dire, but also to the handling of evidence, legal objections and witnesses. “To hear the law tell it, we are supermen and wonder women, able to rise above our prejudices, see through lies, and recall past events with crystal clarity.” He also gets it right that not everyone is naïve about that, and some are savvier than others. Trial consultants are singled out in the article as the savviest. After describing what we do in advising on more effective voir dire, witness and message strategies, he notes, “This all seems beneficial — a natural development in the pursuit of more effective and complete legal representation. So what's the problem?”

Well, the problem is the next point he got right.

Where he got it right, part two: There is an imbalance in access to the trial consultants

Benforado is initially complimentary about trial consultants, introducing us as a group that is carefully reading the research findings and applying that knowledge to obtain better results in trial. The problem, in his narrative, is that the profession has lost its way. Starting off as a tool for balancing the scales when political activists or the socially downtrodden faced trials in communities that had already arrived at a pretrial verdict of “guilty,” the field these days is more likely to serve powerful and moneyed interests. In a familiar tale, we've gone from fighting “the man,” to being “the man.” The result is that we have “unequal access to the truth about how legal actors perceive, think, and behave.” Standard in high-roller or high-profile criminal defenses, trial consultants are generally missing in the more common trials, and that means that in practice, the rich or the notorious are more likely to go free while the poor and the unknown go to prison.

In saying that, Benforado seems to be relying on a broad perception or an anecdotal understanding of the field. It would be interesting to see data on the rates at which criminal defendants of various means, as well as prosecutors for that matter, have access to trial consulting assistance. The collection of such data might fall squarely within the bailiwicks of many of the AP-LS members who are readers of this publication. Also, Benforado doesn't account for civil practice where, often, both sides are moneyed interests with equal access to trial consultants. Still, I suspect most working trial consultants, and most academics who study legal psychology, will acknowledge that there is some truth to this critique of imbalance, understanding that it applies to both civil and criminal settings.

And where he got it wrong: Litigation consultants do care about that imbalance

Benforado doesn't say how he knows, but says that trial consultants don't care about this skew on the process: “Few of these good people — trained scientists, lawyers, and others — ever stop to consider the far-reaching effects of their actions: We are selling jurors' and judges' minds to the highest bidder.” This, he says, is at odds with the profession's origin story. “The cruel irony is that the trailblazers of the trial-consulting industry were motivated by a desire to defend the poor and vulnerable.” However, he believes those good intentions have been overthrown by commerce. “When you possess the scientific knowledge to bend legal processes, judges, jurors, and witnesses to your ends, it's hard to say no to the easy money.”

Again, it would be pretty interesting to see the data: On a year-to-year basis, how many trial consultants serve more than money by engaging in meaningful pro bono service? I do, those I know and respect do as well, and I bet many AP-LS members have donated their time to serving the criminal or civil justice system in one form or another. But more broadly, there is an absence of data. So, I don't truly know the answer to that question, and neither does Benforado. Benforado might not even know that the only professional organization for the field, the American Society of Trial Consultants (ASTC), is currently prioritizing pro bono access and initiative. There's certainly room to do more, and AP-LS members who are interested in learning more about this, can contact the society's pro bono committee.

But Benforado seems to be making an even larger point about just keeping our information to ourselves. “As we've seen, researchers are producing an ever-expanding pool of data about what really moves police officers, judges, jurors, and others,” he writes. “The problem is that for much of the population, there is no point of entry. Journal paywalls deny access and many scientists are reluctant to point out the practical applications of their work, lest they be accused of going beyond their data.” But that simply isn't true. There are more points of entry than ever before, and plenty of sources that are willing to go beyond the strict academic descriptions of the research in order to talk about the practical lessons of the research, such as the many law and psychology blogs that now exist. Sure there are criticisms that can be leveled against blogs. But, because of blogs, those wanting to have access to the kinds of specialized knowledge applied by trial consultants have better access than ever before. That's no substitute for having a trial consultant in your corner, of course, but it is an important step toward democratizing the knowledge base.

Even superheroes, in addition to origin stories, also have weaknesses. And consultants should admit their weaknesses as well. Benforado writes of “weak ethical guidelines and loose professional constraints.” In response, I could point to the ethical codes of psychology that guide the work of most AP-LS members. I could also point to ASTC's professional code, including ethical principles and general practice guidelines: It is more constrained than most in the legal world would credit. But, truthfully, trial consulting is still a relatively open and unconstrained profession.

However, as much as Benforado faults court system for assuming super powers on the part of jurors, he may be doing the same on the part of trial consultants. In critiquing the field for “using social science to catalogue, control, and all too often accentuate biases,” he is acting as though we are simply pushing magic buttons that cause influence in the courtroom. Instead, trial consultants are one part of a team trying to do the best for the client. As far as trying to win, I'll plead guilty as charged. It is in the nature of an adversary system that if both sides should be doing their best to win within the limits of the facts and the law, then the truth wins out. That is where Benforado's most valid point comes into play: Too often, particularly in criminal settings, it isn't both sides, nor is it all or most defendants. That isn't a reason to downplay or avoid trial consulting, but a reason to spread the benefits. Because many members of AP-LS interact with the justice system and serve, at least from time to time, as “litigation consultants” in the broadest sense of the word, I humbly call upon the AP-LS membership to “spread the benefits” by embracing more pro bono representations, more court-appointed consultants, more practical application of the knowledge and data we generate, and more sharing of that knowledge with those who will benefit from it.