Selling Influence: Using Advertising to Prejudice the Jury Pool

• Jurisdiction: United States,Federal
• Citation: Vol. 83
• Publication year: 2021

83 Nebraska L. Rev. 685. Selling Influence: Using Advertising to Prejudice the Jury Pool

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Robert Trager*
Sandra Moriarty**
Tom Duncan***

Selling Influence: Using Advertising to Prejudice the Jury Pool

TABLE OF CONTENTS

I. Introduction ..................................................... 686
II.Advertising's Effects on Jurors .................................. 692
A. How Advertising May Influence Jurors .......................... 692
1. Association ................................................ 694
2. Networks of Associations ................................... 695
3. Framing and Schemas ........................................ 696
4. The Cueing Process.......................................... 697
5. Priming and Closure......................................... 697
6. Elaboration................................................. 698
7. Emotion and Memory.......................................... 699
8. The Relevance Factor........................................ 700
B. Assessing the Impact of Peripherally Processed
Advertisements ................................................ 701
C. Advertising's Dependence on Context ........................... 702
III.Defining Juror Bias ............................................. 703
A. Fair Juror Standards in Criminal Trials ...................... 703
B. Fair Juror Standards in Civil Trials ......................... 711
C. Social Scientists' Analysis of Jury Bias ..................... 713
IV. Possible Remedies for Advertising-Induced Juror Bias ............ 716
A. Using the Commercial Speech Doctrine to Suppress
Pretrial Advertising Campaigns ............................... 717
B. Using Procedural Remedies to Eliminate Juror
Bias ......................................................... 721
C. Gagging Lawyers to Prevent Pretrial Advertising
Campaigns .................................................... 724

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V. Conclusion ....................................................... 729

I. INTRODUCTION

Assume that before jurors were chosen for Timothy McVeigh's trial, federal prosecutors purchased advertising time on Denver television stations to show pictures of the Oklahoma Federal Building in ruins, of firefighter Chris Fields carrying a dead baby out of the rubble, and of crying relatives looking at the devastation.(fn1) Imagine that at the end of each advertisement, superimposed over a particularly heartwrenching picture, was the word "Remember."(fn2) Or consider the consequences if the plaintiffs' attorneys in the O.J. Simpson civil trial had placed advertisements on Los Angeles County television stations showing a white Ford Bronco slowly driving on a freeway, followed by the word "Justice" overlaid on a single glove.(fn3)

Advertisements have rarely been the issue in prejudicial cases in which extrajudicial publicity has allegedly caused unfair trials. Instead, these cases usually involve news stories revealing information not admitted at trial, or inflammatory comments from attorneys. Judicial decisions and social science research concerning jury bias have also dealt primarily with news reports--sometimes inaccurate, sometimes inflammatory--but news articles, nonetheless. However, advertisements may be an even more serious impediment to empanelling a fair jury than are news stories, since advertisements appeal to seated or prospective jurors' emotions. As one commentator said: "Critics of the jury system occasionally claim that jury verdicts are more likely to be driven by whim, prejudice, or emotion than by the hard facts of the case."(fn4)

Research suggests that jurors acting on emotions will likely fail to carefully consider evidence during deliberations.(fn5) Studies also show that advertising often effectively accomplishes its purpose by appeal

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ing to people's emotions.(fn6) If under some circumstances news reports can bias a jury, advertisements about a pending trial certainly could do the same. This Article argues that trial judges should, and do, have the constitutional authority to order attorneys not to publish advertisements about cases in which the attorneys are representing clients. This contention is based on the U.S. Supreme Court's ruling that trial judges may prohibit officers of the court from extrajudicial speech reasonably likely to cause an unfair trial.(fn7) As this Article explains, advertisements are intended to influence people and, when used by attorneys to reach potential or sitting jurors, may be more likely to cause a "substantial likelihood of material prejudice" than nearly any other form of expression.(fn8)

Consider a civil case in which an attorney spoke to the public not through interviews with reporters, but by placing advertisements on a local cable television system. In April 2002, in an out-of-the-way courthouse in Trinidad, Colorado, a defendant (Wal-Mart) was granted a change of venue based on a finding that the plaintiff had tainted the jury pool with prejudicial pretrial advertising.(fn9) The ruling was part of a class action suit by Wal-Mart pharmacists who claimed that Wal-Mart had violated the terms of their employment contract, particularly relating to overtime compensation.(fn10)

The basis for the change of venue request was two thirty-second television commercials that the plaintiffs' law firm Frank Azar and As

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sociates ran in the local Trinidad market area.(fn11) These commercials dramatized a historical event that took place decades before just outside Trinidad--the Ludlow Massacre.(fn12) The commercials visually and verbally described how mine workers and their family members were killed in 1914 when the workers went on strike for better, fairer pay and safer working conditions.(fn13)

Using a selection of historical black-and-white photographs, the advertisements showed workers organizing and then being fired upon by troops hired by, according to the commercials' narrative, "corporate capital."(fn14) Other visuals depicted the death and destruction that resulted from the troops' setting fire to the workers' tent village where women and children were hiding in holes under the tents that had been dug to shield them from gunfire. In a transition to modern times, slightly more than halfway through each thirty-second commercial, the plaintiffs' attorneys--Frank Azar and John Barkely--were featured prominently as they spoke to the audience, giving what adver

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tising experts refer to as "the call to action."(fn15) The attorneys admonished Trinidad residents to "never forget" their civic responsibility to defend workers struggling for fair pay. One advertisement closed with the attorneys standing in front of the Ludlow Massacre memorial statue, located near Trinidad; the other ended with the attorneys standing in front of the Las Animas County courthouse where the modern day trial was scheduled to be held.(fn16)

The question before the judge was whether the advertisements had contaminated the jury pool in Trinidad and, further, whether the impact of the commercials could be determined in voir dire,(fn17) through procedures commonly used to evaluate the impact of pretrial publicity.(fn18) This case is particularly illustrative, because the commercials

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used were not typical pretrial publicity in which either the defendant or plaintiff is discussed. Rather, in these commercials neither the pharmacists nor Wal-Mart was mentioned. Thus, determining the effects of the commercials on the jury pool required an entirely different understanding of message impact than that of the traditional tests to determine the impact of pretrial publicity.

Advertisements are meant to accomplish precisely what judges want to prevent--influencing decisions, usually at some later point in time when a consumer is considering a purchase. Creators of advertisements, like trial lawyers, have the ability, when they want to use it, to "deceiv[e] one's listeners or readers with partial truths."(fn19) When advertisements lead to decisions about what cola or laundry detergent to purchase, advertising is a useful tool in a capitalistic society. However, when advertisements influence decisions about a defendant's guilt or innocence, or which party wins a lawsuit, advertising can undermine a democratic society.

Democracy and the United States Constitution demand public confidence in fair jury decisions.(fn20) The Sixth Amendment to the U.S. Constitution requires that juries in criminal trials be "impartial,"(fn21) the Fifth Amendment ensures that criminal defendants be given "due process of law,"(fn22) and the Fourteenth Amendment guarantees citizens "due process of law."(fn23) A fair trial, secured by these constitutional protections, is among the "most fundamental of all freedoms,"(fn24) the

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Supreme Court has said, and is necessary for "the preservation and enjoyment of all other rights."(fn25)

However, the First Amendment's protection for "the freedom of speech [and] of the press"(fn26) may conflict with the Sixth Amendment's stated guarantees(fn27) and the Seventh Amendment's implied assurances of a fair civil trial.(fn28) News stories and editorials in print and electronic media reveal information that might not be presented at trial, including defendants' confessions, past criminal histories, and polygraph test results.(fn29) Appellate courts have overturned some jury decisions due to inflammatory publicity.(fn30) Despite earlier justices' concern about pretrial news coverage,(fn31) the U.S. Supreme Court recently has made it more difficult for defendants to show that media coverage prejudiced their trials.(fn32)

Part II of this Article uses communication theory to discuss the ways in which advertisements may affect jurors and potential jurors. Part III summarizes historical and contemporary court decisions in

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volving prejudicial publicity in criminal and civil cases...