Vol. 12 No. 11 (November 2002)

STACK AND SWAY:  THE NEW SCIENCE OF JURY CONSULTING by Neil J. Kressel and Dorit F. Kressel.  Cambridge, MA:  Westview Press, 2002.  302 pp. Cloth $27.50.  ISBN:  0-8133-9772-3.

Reviewed by John F. Kozlowicz, Political Science Department, University of Wisconsin-Whitewater.  Email:  kozlowij@uww.edu

Like many political scientists and the general public, this author has followed with interest some of the famous jury trials over the last forty years.  High profile jury trials have changed with the rise of jury consultants as trial participants.  Both sides in both civil and criminal cases increasingly use jury consultants.  Too often we have only vague notions of what they can do and what they cannot do.  STACK AND SWAY:  THE NEW SCIENCE OF JURY CONSULTING helps fill that void, providing solid information on the role and responsibilities of jury consultants.  It accomplishes this end by richly drawing from the experiences of trials over the last forty years.

STACK AND SWAY:  THE NEW SCIENCE OF JURY CONSULTING is not a book that will likely be assigned to many undergraduate political science classes.  Nor is it a recipe book on how to engage in the profession of jury consulting.  However, the book is one that will interest teachers of courses on the judicial process, criminal justice professionals, lawyers, and defenders of the jury system.  It is informative, well written, and adequately documented.

At first glance it is a book that judicial process scholars will want to read to enhance their understanding of the operation of the jury process.  Additionally, trial lawyers will be interested in learning what jury consultants can add to their case preparation and execution.  The authors do provide useful suggestions on how consultants can help throughout the trial in evaluating how juries might receive evidence presented to them. 

It soon becomes clear that the book is about the behavior of juries as nearly as much as it is about the profession of jury consultants.  Once readers understand what the book is about and what it seeks to do, the obvious conclusion is that the authors were successful in meeting their major goals.  As stated on page 17, their goals in this study are 1) to determine if juries reach their verdicts objectively, 2) explore how lawyers and jury consultants predict and use information to sway juries, 3) investigate whether they are successful at this, and 4) assess the various responses to challenges to the jury system.  Subsequent chapters nicely carry out each of these goals.

The authors of STACK AND SWAY effectively trace the rise of jury consultants in the judicial process with illustrations from a series of mini case studies where they have been employed—both successfully and unsuccessfully.  Currently, the authors contend that jury consultants are used primarily in high profile cases where cost is not an issue.  In some ways jury consultants may seem more effective than they really are because of their successes and publicity in early high profile cases.  Kressel and Kressel point out what has been a major concern of academics and the public alike when looking at the jury process.  They rightly contend that the more money you can spend on jury consultants, the more “justice” you are likely to receive.  Having made that point, they proceed to make positive observations on how consultants often do more than simply assist in the jury selection process.  They, in fact, become part of the trial team providing insight on a wide variety of legal issues as a trial unfolds.  Rather than advocating that consultants be banned, the authors suggest that a wide range of social scientists might serve in this capacity at not such outrageous rates bringing these benefits to the average citizen and average lawyer.

It is clear that the authors have a deep and abiding respect for the jury system, in the behavior of juries, and in the quality of jury decisions.  Hence, their focus is more on improvement of the jury decision-making process than trying to exclude or limit jury consultants.  For them jury consultants have become an integral part of the jury system and will be with us for quite some time.

Interestingly, rather than suggest ending the use of jury consultants which—given that the genie is out of the bottle—they realize would be impossible, they suggest a number of measures to strengthen the jury system and protect them from the improper influences.   Their solution is relatively simple.  Trial judges need to exert effective leadership, providing juries with the tools for fair decision-making by supplying more extensive guidelines and clearer instructions.  The Kressels have little doubt that juries will respond positively to this challenge.

This is a book that will satisfy many different audiences.  It will not be viewed as a great theoretical study, although it is not without some sound theories of jury behavior.  It will be recognized as an accurate and thorough study of jury consultants and their role in the judicial process. One of this book’s best attributes is its readability.  It is nicely illustrated and documented with cases that many of us will recognize and have some preliminary knowledge about.  The authors treat the subject matter in a highly objective and unsensational manner, even though it would have been easy to do otherwise.  Their reasoned approach is convincing to this reader. 

Lawyers will find the book a practical examination of the changes that have been and are occurring with the rise of this new profession.  The book helps answer questions about the effectiveness and value of jury consultants, who would make a good practitioner, and how to locate less expensive service providers than those used in high profile cases.

Teachers of public law, judicial process, and criminal justice courses will find this book helpful in preparing lectures and discussions about the operation of the jury system.  While the focus of the book is the rise of jury consultants, the book is equally an extensive study of how juries decide cases.  The authors include references to some of the leading academic works about juries, but most of their evidence comes from their knowledge of trials over the last half-century.  It would have been nice if they had spent a little more time on the classic Chicago jury study.  Nevertheless, as we attempt to develop an understanding of the jury consultant process, this will be one of the works we will need and want to consult.

This book is highly recommended for the academic and the legal practitioner alike.  There is little doubt that it will remain on my bookshelf, and I will consult it as I deal with issues related to both jury decision-making and jury consultants.

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Copyright 2002 by the author, John F. Kozlowicz.