Brooklyn Law Review


Over the last four decades, trial consultants have become integral members of the venire process. Before the trial consulting field emerged, attorney-conducted voir dire focused too heavily on an attorney’s gut instincts and subconscious biases. This note highlights two concerns arising from attorney-conducted voir dire. First, in Batson v. Kentucky and its progeny, the Supreme Court addressed the unconstitutionality of a system that permits attorneys to strike jurors based on unfounded prejudices. Although Batson and its progeny prohibit lawyers from exercising discriminatory challenges against prospective jurors, this practice can easily go undetected. Second, as illustrated in Peña-Rodriguez v. Colorado, the effectiveness of attorney-conducted voir dire must be questioned when overtly biased jurors are still being selected to sit on the jury, even after being questioned by the lawyers. This note proposes that courts delegate jury selection, in its entirety, to a trial consultant. This would eliminate a fundamental problem with the current system: a defendant has a Sixth Amendment right to an impartial jury, yet the venire process exists in an adversarial context. As it currently stands, however, the field’s lack of regulations raises serious concerns. This note also proposes that states implement a licensing body to protect the credibility of the trial consultant field and protect the public from retaining incompetent services. State regulated trainings would ensure that consultants base their analyses on scientific data, rather than speculative stereotypes. These trainings would also offer a stronger guarantee that the consultants have the tools to efficiently elicit a prospective juror’s biases.