Should You Quiz Jurors Whether They Watch Law and Order?

polikujThe Wall Street Journal recently mentioned a UC Irvine doctoral student who “worries,” in a forthcoming academic paper, that realistic police procedural dramas (i.e., cop shows) significantly impact potential jurors.

Specifically, he’s “concerned the show’s influence may be leaving jurors with a distorted view of how investigations are conducted and the judicial system works. The world of Law & Order,† he says, is one in which prosecutors and police give off a soft glow of righteousness, while public defenders and defense lawyers toil under a harsh light.”

The WSJ quoted from a draft of the paper:

“The police and prosecutors in this view are portrayed as the “good guys” keeping the people safe from a dangerous world of criminals, and their tactics, regardless of how draconian and unconstitutional they may be, are necessary to get the job done effectively and expeditiously. On the other hand defense lawyers, the occasional by-the-book ADA, and even the Constitution are portrayed as impediments to justice. They obfuscate and distract from the correct outcome – a guilty verdict. The show suggests that if a suspect isn’t guilty, he or she isn’t brought to trial. The cops end up with the right person.”

This struck me as quite a mouthful, particularly when I read that the author “concedes that he doesn’t have empirical evidence to support his suspicion.” Aren’t academic papers supposed to rely on empirical evidence? (Unless they appear in the Journal of Speculative Philosophy?) I’m sure the paper, when it appears in an upcoming issue of the Law and Psychology Review (where it is indeed destined), will someday be cited as authority why medical malpractice plaintiffs should routinely challenge potential jurors who grew up watching Marcus Welby.

Snarky jokes aside, and recognizing that neither the doctoral student nor I are truly “experts” on this, I solicited input from jury consultant and Juryology blogger Rich Matthews. It turns out Rich had seen the paper and didn’t think too much of it, either. He described the author’s concern as both “much ado about nothing new” and the exact opposite of how it really works. He said, “It has always been the case that people have a psychological need to believe that police and prosecutors conduct their work competently and honestly. Thus TV didn’t create that mindset but rather plays to it in the form of police and law enforcement shows since the dawn of television.”

Makes sense. But even if the TV -show-shaping-our-views hypothesis is sketchy, that doesn’t mean it wouldn’t be useful to know what kind of TV prospective jurors watch or don’t watch. I’m not suggesting this always makes good voir dire, but, as Rich points out, jury experts are interested in “what pre-sets citizens have when they come into court, and how they play into one’s specific case.” If the TV shows we watch reflect our need to believe our “doctors are caring and unfailingly accurate,” couldn’t that indeed be useful in a malpractice or medical device case? If we watch a police procedural because we have a “need to believe” our police officers, would knowing your jurors are rabid Law & Order fans be interesting in a case where the outcome may hinge on an officer’s testimony and believability?

Or not. Feeling in my bones that cold dread of Kierkegaardian ambivalence, I consulted Professor McElhaney’s views on voir dire. In a chapter called “Picking a Jury” in his Trial Notebook (Third ed. 1994), he doesn’t address whether a prospective juror’s TV proclivities are necessarily useful, but he does reaffirm that, among the uses of voir dire, you want to “figure out whom you are talking to.” (Id. at p. 123.) After all, he says:

“You would never dream of giving a Law Day speech without knowing whether the audience was a political reform organization, a group of retired workers, or a class of high school students. One of the most important things you can do in jury selection is to study the jury. Find out what the jurors like and don’t like.” (Id.)

The upshot, I guess, is that, if you’re interested at all in what jurors watch, it’s not because you’re worried their views have been shaped by those shows, but because what they watch may reflect how deeply they hold certain beliefs in the first place. I continue to have my doubts.

†Brief aside: Wasn’t Law & Order just more classic back when there was just one show and Chris Noth and Paul Sorvino were in the cast?

About Alex Craigie

I am an AV-Preeminent rated trial lawyer. My practice focuses on helping companies throughout Southern California resolve employment and business disputes. The words in this blog are mine alone, and do not reflect the views of the Dykema law firm or its clients. Also, these words are not intended to constitute legal advice, and reading or commenting on this blog does not create attorney-client relationship. Reach me at acraigie@dykema.com. View all posts by Alex Craigie

4 responses to “Should You Quiz Jurors Whether They Watch Law and Order?

  • Rich Matthews / Juryology

    Thanks, Alex. Let me clarify something that those kids’ silly article might obscure: WHAT YOUR JURORS WATCH ON TV CAN BE IMPORTANT TO FIND OUT BECAUSE IT *IS* TELLING ABOUT THEM… just not for the reasons those authors hypothesize. Mainly, depending on my case, I DO want to know whether someone is “story driven” versus “intellectual.”

    For instance, a person who watches nighttime soaps (and I would group ‘Law & Order’ together with ‘Downton Abbey’ for this taxonomy) is a fundamentally different person from someone who watches, say, hummingbird documentaries on the Discovery group of channels. People who are more heavily invested in stories are going to be less likely to be comfortable with ambiguous endings — such as ‘not guilty’ verdicts in criminal trials, or specific and foreseeable outcomes in civil trials. Depending on my case & which side I’m on, I FOR SURE want to know whether a potential juror is the type of person who really wants beginnings & middles & tidy endings to stories, or is less driven by that and more open to endings that are not so clear-cut.

    All I’m saying is that viewers are whichever sort of person they are BEFORE they pick up the remote and watch ‘Law & Order.’

  • Rich Matthews / Juryology

    [Sorry– in my comment about possible outcomes in civil trials, I mean *certain* specific and foreseeable outcomes, not ALL specific and foreseeable outcomes. It depends on the case and the side, but there are certain possible outcomes that the more story-driven types are going to find unsatisfying, and those are knowable in advance.]

  • Steve Coronado

    Depending on the case and the anticipated evidence I certainly might want to know what TV shows a juror enjoys watching because it also gives you a reference point. For example if my case involves scientific testing and my expert does the necessary testing to prove or disprove a point while the oppositions expert did not I would likely ask the jury panel if anyone watches the popular show “Myth Busters”. I certainly think that popular shows such as CSI create juror expectations as to what can be done to prove a case. Bottom-line its good information to have.

    • Alex Craigie

      Steve: “Myth Busters” is a perfect example. Even if there had been no forensic testing done in the case, but still lots of technical concepts and some jargon, the fact that some jurors are fans of programs like that (or watch the Discovery or History Channel) would tell me that they have an inquisitive, interested brain that is open to learning new or competing concepts. Brilliant example. Thanks.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: