Abstract
This Note agrees that the trial consulting industry merits regulation, it departs from the literature inasmuch as it argues that the profession should be regulated with respect to its influence on juror decision-making, as opposed to trial consultants' professional and ethical obligations. To that end, Part II seeks to establish the persuasive effect of nonverbal communication and provides a brief history of the trial consulting industry. Part III continues with an examination into the relevant law with respect to nonverbal communication and trial consulting. In particular, Part III.A.1 considers the various ways in which the law recognizes the role of nonverbal communication in the formation of attitudes and beliefs. Part III.A.2 evaluates the current attitudes towards and criticisms of the trial consulting profession, and addresses whether trial consultants could be held accountable for their unethical actions. Thereafter, Part III.B first considers how individuals process persuasive messages, and then applies those findings to jurors in particular to examine juror cognition during trials. While the law recognizes the persuasive effect of nonverbal communication in various situations, both the law and published literature take for granted that all actors in the courtroom communicate (nonverbal) messages to jurors. Therefore, Part IV analyzes the strategy that consultants use with the greatest potential to effect juror decision-making-shadow juries-and argues that this service should accordingly be regulated. Issues resulting from the use of shadow juries, possible solutions, and impediments to banning shadow jurors from the courtroom are also considered in turn.
Recommended Citation
Jaclyn M. D'Esposito,
Note, The Role of Nonverbal Persuasion in Juror Decision-Making and the Need to Regulate the Trial Consulting Industry,
30
Notre Dame J.L. Ethics & Pub. Pol'y
143
(2016).
Available at:
https://scholarship.law.nd.edu/ndjlepp/vol30/iss1/6