In an interesting article in today’s Maryland Daily Record, the concept of a “Shadow Jury” is discussed. One is presently being used in a multi-month trial in Baltimore City against a hotel operator where 22 plaintiffs are suing for carbon monoxide poisoning.
Shadow juries are rarely used and typically are hired by jury consultants to watch the trial as it transpires to provide daily guidance to the attorneys who hired the consultant about the day’s events. The consultants choose prospective shadow jurors to mirror as closely as possible the actual jurors who are selected to sit and hear the case. To what extent those consultants are provided with the real jurors’ demographic information contained on the prospective juror pool list used by attorneys in identifyingjurors’ occupation, level of education, age, and spouse’s occupation, is unclear. It is actually questionable whether dissemination of that information to third parties is permissible. What is clear, though, is that the use of a shadow jury is both controversial and not widely accepted.
Some lawyers believe hearing the shadow jury’s perspective of the day’s events is helpful in readjusting the next day’s case presentation, while others find it distracting. What an attorney believes is a smooth, effective presentation or examination of a witness may well turn out to be a useless endeavor in the eyes of shadow jurors. Some attorneys find merit in such real time feedback, while others find it unnerving and potentially harmful.
Some lawyers are very instinctive about the look and feel of the evidence and the jurors’ reactions and attentiveness. It is very possible to lose sight of the courtroom dynamic by micro managing the case through the eyes of people who, although paid hundreds of dollars a day to sit and listen, will not be the ultimate decision makers and do not have the vested interest in the outcome of the case as do real jurors.
The size of the shadow jury may vary from one or more hired individuals to a mirror image of the size and “shape” of the jury actually sitting. Many more lawyers use jury consultants to arrange for “mock trials” where a mock jury comprised of paid individuals with similar demographics to the jury likely to sit at an upcoming trial hear the full case presentation in advance and render a verdict. The lawyers can then take their ques from what they hear from the mock jurors about the effectiveness of witnesses, evidence, lawyer demeanor and tactics and readjust their case in advance of opening statements.
This writer is in the camp of lawyers who would not use a shadow jury, as the instinctiveness factors is of paramount importance in understanding how the evidence is being received by the jury. Not only would it be a distraction likely to result in more second-guessing than is already inherent in the trial process, but it may also create a distraction for the real jury who will realize very quickly that they are being watched by a similar group of people whose true role and purpose of being in the courtroom everyday they will not understand until the case is over.
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