Book Review
November 2003, Page p42

Stack and Sway: The new science of jury consulting; Review by Mark Stevens.
Murder and the Reasonable Man; Review by Ellen S. Podgor
By Ellen S. Podgor; Mark Stevens

Stack and Sway: The New Science of Jury Consulting
By Neil J. Kresset and Dorit F. Kresset
Westview Press (2002)
List Price: $19.25

Reviewed by Mark Stevens
This wasn’t the book that I hoped it would be when I bought it. Rarely having had truly well-heeled clients and only once have I had the luxury of using jury consultants and mock juries. While this sole experience with consultants was fascinating, it left unanswered many questions about their utility and methodology. Regretfully, after having read this book, most of those questions remain unanswered.

Jury or trial consultants come from extremely varied backgrounds, including marketing, mass communications, psychology, sociology, theatre and law. Despite this variety of backgrounds they offer, or purport to offer, insights to trial counsel about juries and how to persuade them. This book attempts to explain and discuss what this diverse group of people actually do to assist lawyers with their cases but largely fails to do so.

The authors discuss the two aspects of trial consulting in this book: jury consultancy, which seeks to assist counsel in picking the jury and actual trial consultancy, which largely, through the use of focus groups and mock trials, aids counsel in shaping the way the case will be presented at trial. Although these two aspects to consultancy can, and sometimes do, overlap, they employ very different techniques and lend themselves well to being discussed separately. Unfortunately, the authors didn’t succumb to the temptation to divide the material so neatly. The material jumps back and forth from one topic to the other between, and sometimes within, individual chapters.

The authors’ approach to these topics are by way of anecdotes, generally drawn from a handful of extremely high-profile and atypical cases such the William Kennedy Smith rape trial, the O.J. Simpson murder trial and a few of the big tobacco cases. While this can have some benefit when they are used to illustrate a particular point, they are of little utility when they take the place of a measured discussion of the studies that have been done regarding the effectiveness of various jury selection techniques. There are but brief, passing, references to the studies that have been done. While the footnotes do, at least, direct you to the studies themselves, it merely allows the reader to undertake a project that the authors profitably could have done for the reader.

The only truly startling part about this book is the conclusions that it draws. The authors are of the opinion that jury selection consultants border on useless and that trial consultants probably do have a positive effect of case presentation but their effectiveness cannot really be measured. On these rather benign conclusions rests the final chapter entitled “Saving the Jury” in which they advocate for the abolition of unanimous verdicts, voir dire as we know it, and peremptory challenges. These seem to be rather harsh remedies given the fact that the authors do not come close to making out a case that there exists a problem arising from the use of trial consultants.

In summary, while this book is clearly aimed at the lay reader rather than lawyers, it’s worth some attention by a legal audience for two quite different reasons. First of all, the last chapter aside, it can serve somewhat as a primer for those of us who know nothing of jury or trial consulting. The second reason is more serious: you need to know your enemy. You never know when a populist legislator could become enamoured of the crackpot reforms advocated by the Kressets.   n


Murder and the Reasonable Man
By Professor Cynthia Lee
New York University Press (2003)
List Price:   $37.95  
Reviewed by Ellen S. Podgor

If you plan to use the provocation doctrine or self-defense in a homicide case, and you represent a woman, a gay or lesbian, or other minority, this book is a must read.  Professor Cynthia Lee offers defense counsel innovative arguments and legal reasoning that could truly make a difference in how you present the case to the jury. Her advice can be used to make a jury empathize with the defendant who is being judged under a “reasonable person” standard in a society that is not always attuned to perspectives of gender, sexual orientation, or race. She states, “[t]he problem with the reasonableness requirement is not that it exists, but the way it is applied.”  

In the introduction, Professor Lee outlines her two goals in writing this  book, as : (1) “to work within the law to prevent the doctrines of provocation and self-defense from becoming havens for sexism, racism, and homophobia,” and (2) “to encourage people interested in criminal justice to think critically about what it means to be ‘reasonably’ provoked and when it is ‘reasonable’ to use force in self-defense.” The pages that follow this introduction meet these goals.

The book starts with an overview of the provocation doctrine noting that historically it was gender biased.  Professor Lee explains how a man who killed upon observing his wife committing adultery had a provocation defense that mitigated the crime from murder to manslaughter, while a women committing a comparable act was left to face the murder charge.  As the author progresses to discussing more modern approaches, she looks at the effect of gender, race, and sexual orientation on the reasonable person standard.  Focusing first on the provocation defense, she discusses issues related to a gay panic defense.  Professor Lee also explains how the “mere words” rule is not applied consistently in a race-neutral fashion.  A similar analysis is used in the second part of the book when the discussion concerns self-defense.  

Throughout these first two parts of the book one finds real stories, often acquired from newspapers and magazines, that bring real lives and cases to the reader.  The notes found in the back of the book offer additional articles and case citations that may prove helpful to support arguments presented to a court.

In contrast to many books that merely explain existing inequities, Professor Lee offers advice to cure existing problems.  She presents three suggestions, two of which relate to legal and doctrinal reforms.  It is her first suggestion that I will focus on, since this proposal  may prove the most helpful from a tactical perspective.  

She starts by taking us from our usual mode of thinking, that being whether the standard of reasonableness is objective or subjective to looking at “reasonableness in terms of gradations of objectivity.”  

Noting that “most jurisdictions utilize a hybrid subjectivized-objective standard,” she explores how to apply this approach “into the Reasonable Person standard.”  After referencing feminist literature that concentrates on “sameness-difference” concerns and the “color-blind versus color-conscious debate,” Professor Lee suggests using “switching . . . (imaging the facts of the case with the defendant and victim of different genders, different races, or different sexual orientations).”  It is this suggestion that may prove most powerful for the defense in their case preparation and presentation.


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