Source of article DOAR Litigation Consulting.
Defending White Collar Criminal Cases
Defending an allegation of white collar crime is replete with challenges. Some arise from the evidence: for example, badly timed calls and trades in insider trading cases, emails that are suggestive of wrongdoing when taken out of context, and accounting practices that seem suspicious to those unfamiliar with the vagaries of GAAP rules.
And then, there are the jurors: a dozen or so people who bring to the case their own life experiences and too often, their own assumptions about corporate executives, those who work in finance, or just “the rich.” Certainly, life experience is key to how people think about a case. But, our recent analysis of survey data across eight white collar cases suggests that demographics – some ascribed, some achieved – can be significant predictors of verdict.
Improving The Odds: Identifying Best And Worst Jurors
Survey data from close to 3,000 respondents from cities along the Eastern Seaboard (MA, CT, NY, NJ and FL) revealed that conviction rates varied by gender, age, ethnicity and education, Highlights of the findings include:
- White men were less conviction-prone than other groups: Their conviction rate was 58%, lower than non-White men (63%) and both White and non-White women (64%).
- Those under 45 years old convicted less (58%) than those 45 and older (66%).
- The impacts of gender and age were more apparent when considered jointly. Younger men were the least conviction-prone (57%) and older women were the most (69%). Rates for older men and younger women were 62% and 59%, respectively.
- Adding ethnicity to the mix highlighted further differences. Two extreme cohorts emerged:
- Younger White men were the least conviction-prone, at 55%.
- Older non-White women were the most conviction-prone, at 71%.
- Rates for other cohorts ranged from 57% (younger White women) to 68% (older White women).
- Education predicted verdict voting for Whites but not non-Whites – and in different ways for men and women:
- Among White men, college graduates were more conviction-prone (61%) than non-graduates (54%)
- White women displayed the opposite pattern: College graduates convicted at lower rates (58%) than non-graduates (69%).
Navigating the Batson Waters: Interpreting and Using Demographic Information
We recognize that highlighting the predictive impact of demographics can be complicated and fraught: Attorneys are properly constrained by Batson from using this information to guide peremptory strikes. We can, however, consider the meaning of these demographic predictors as proxies for life experiences that vary across demographic cohorts. Gender differences in verdict voting may reflect differential familiarity with corporate settings, particularly the executive office. Older non-White women may be the least powerful, the least resourced, and have the least experience in financial settings. Younger jurors may have less invested in the market than their elders, making alleged exploitation of the market less of a personal threat.
Ultimately, these data are food for thought for attorneys and jury consultants. With these findings in mind, we can consider what life experiences will come into play for jurors and how such experiences are likely to vary across demographic cohorts. Then, we consider how to elicit such information in voir dire, whether conducted by attorneys or the Court, or in a Supplemental Juror Questionnaire. The internet searches of prospective jurors that we conduct, within the constraints of ABA and State ethical opinions, are also valuable in reducing the risks of violating Batson provisions. The goal is to get the information you need to use your strikes wisely, while standing up to a Batson challenge. Demographic predictors are a useful beginning, and can illuminate the next steps to understanding your jurors.
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