With all of the high profile trials such as the Laci Peterson, Martha Stewart and Bernie Ebbers either underway or about to get started, I’m guessing that the attorneys involved, if they’re any good, have either already or are planning on presenting their case to what’s known as a mock jury.
So, what is it?
I guess the easiest definition that comes to mind is that a mock jury is the legal professions version of a focus group. Your typical mock jury is made up of anywhere between 8 to 12 members. If the trial hasn’t started yet, the attorneys involved might present different versions of their case in order to gauge the members’ reactions. This is usually done behind one of those one-way mirrors or videotaped so that the “jurors” are free to discuss the elements of the case and the evidence presented without actually having the attorney in the room.
Naturally, mock juries aren’t used in every case. Most attorneys will only poll a mock jury when the stakes are pretty high. Usually, that involves a case where there’s a potential award that runs in the millions of dollars or when the defendant’s either facing a long stretch behind bars or the death penalty is involved. While the basic purpose of a mock jury is to try and predict the outcome of a particular case, they can be used for other reasons.
We’ve all probably watched enough television or seen enough movies that involve the criminal justice system. I think there’s a scene that’s become pretty familiar in which a witness or a defendant is asked something along the lines of “Did your attorney tell you to say that?”. That’s what known as “witness coaching” and while I’m not sure if it’s a legally accepted practice (Haze, feel free to chime in here) it certainly seems to be frowned upon. Well, mock juries, while supposedly falling short of placing words in the witnesses mouth, can certainly be used to gauge other things such as body language, demeanor and candor. Should the case go to trial, all of these factors might influence the real jury and a lawyer can use the mock jury and their determinations to better manage his or her client.
An attorney can also use a mock jury to help them decide certain matters regarding evidence and facts. Was it too technical for the jury to understand? Does the testimony need to be corroborated? Which was either the most important or least important to the jury in making their determination? How credible were the witnesses? What type of jurors are you looking for during the voir dire process?
Who do I pick?
In order for a mock jury to be truly effective it should be as close to a mirror image of the real jury that might be empanelled. So what does that mean?
Well, for starters any members of the mock jury should not be associated with law enforcement or the criminal justice system. Journalists and other members of media organizations are generally frowned upon too. The reasoning behind this is that very few individuals in those professions are often called upon to sit on an actual jury due to certain real or imagined prejudices. The attorney should also set up a quota system that involves men, women and minorities based upon the individual being tried and the circumstances surrounding the case. Those days when juries consisted of basically white males seem to be gone for good. It also helps to have any members of your mock jury be citizens or reside close to where the trial is scheduled to be conducted.
Arguing your case
Okay, you’ve got your mock jury seated and the time has come to argue your case. Naturally, you can’t argue both sides so it would probably be to your benefit to know who the opposing counsel is and to have somebody of equal experience argue the opposing side. This way the “jurors” are most likely to receive the closest representation of what would happen in the real world and their findings would in turn be more accurate.
You can also poll the “jurors” and ask them for feedback. What was the strongest point of the case? The weakest? The single, if there was one, determining factor? Besides any witnesses, how did I come across? Was I too aggressive? Not aggressive enough? Were the facts clear? Did I seem trustworthy or did I come across as one of those “slimy” lawyer types? What did you like about my presentation and, more importantly, what didn’t you like? What, if anything, should I change?
Based upon the responses given by the mock jurors, the attorney can do one of several things. First off, he or she can alter their presentation in such a way to either highlight or downplay certain aspects of the case. They can decide which testimony is the most credible and what witnesses and evidence were the most reliable. Lastly, if the mock jury comes back and has nothing good to say at all about the case and the probable outcome, the attorney can decide whether to initiate a plea bargain agreement and possibly avoid the trial entirely.