The use of jury consultants adds a ruthless dimension to American justice, reports Grania Langdon-Down

While UK juries maintain the lowest of profiles, quite the opposite is true in the US, where jurors can stand on the courthouse steps at the end of a trial and explain how they came to their verdicts.

The differences start with the jury selection process.

In New York, America's domestic goddess Martha Stewart is standing trial charged with lying to investigators about illegal share tip-offs, which she denies.

The jury of eight women and four men was selected after jury consultants advised her lawyers whom they should strike out as potentially unsympathetic.

This included the man who told the judge that his view of the rich was that 'sometimes people who are that powerful are not so trustworthy'.

The only UK case that in any way compares with that style of full-blown, pre-trial jury vetting was the Maxwell case, which involved an unprecedented empanelling process because of the enormous amount of publicity surrounding the publisher's death - including a national research poll to find out the level of prejudice and recognition about the case.

But while the US system of jury selection may seem anathema here, the law lord Lord Hobhouse of Woodborough has warned it could be one of the consequences if jury confidentiality is abandoned.

He pointed out in the Mirza and Connor and Rollock appeals (see [2004] Gazette, 12 February, page 18) that the way US juries are selected compensates for allowing individual jurors to give their reasons for voting for a particular verdict at the end of the trial.

Juries are much more widely used in the US than in the UK, particularly in civil litigation, where either party can demand a jury.

In the federal courts in 2002, juries were involved in 3,006 trials compared with 1,563 bench trials.

Trish Refo, chairwoman of the American Bar Association's litigation section, is a commercial litigation partner with Snell & Wilmer in Phoenix, Arizona.

She says the US's more open system does not make it any easier to challenge a jury verdict unless the jury's behaviour has been 'really egregious, for instance visiting the crime scene without telling anyone'.

However, it can help lawyers learn for the future because they can generally approach the jurors after a trial to find out what worked and what did not.

'I talked to one juror after my very first trial and he told me that when they retired for the first break of the day, the first thing they discussed was what I was wearing.

It was an important lesson because you want them to focus on what you are saying, not what you look like.'

She says that in a case of any consequence, most lawyers will use jury consultants to help prepare their trial strategy, including trying out arguments in front of a mock jury, as well as having them sitting next to them in the courtroom during jury selection.

Ms Refo explains: 'They can help you with anything from body language, which my eye might not be trained to see, to demographic information.'

Some high-profile trials - such as the OJ Simpson trial - have led to claims that the legal system is being distorted by the use of jury consultants.

Certainly the latest John Grisham thriller-turned-film, 'The Runaway Jury', does the jury-selection process no favours with its expos of a ruthless jury consultant who will stop at nothing to secure a verdict in an explosive trial but finds himself faced by a juror with his own agenda.

However, Jeff Herman, senior vice-president of US jury consultants DecisionQuest, says the film is 'pretty far-fetched.

My secretary came in after seeing it and said: 'Now I know what you do - you go around killing people''.

'But jury selection is not about manipulation,' he adds.

'It is about using the system to do what it is designed to do - namely, make sure that everyone gets a fair hearing.

The more you know about the jurors, the better you can ensure that you get a panel of impartial people.'

He says DecisionQuest has had cases where it has helped draw up questionnaires for prospective jurors, which ran to 20 pages.

'One of the most inescapable conclusions of our research is that people with certain attitudes and predispositions will never see a case your way, no matter what the argument.'

Michael Feldberg, a former federal prosecutor and now head of Allen & Overy's US litigation practice in New York, sums up the argument.

He says: 'The most experienced trial lawyer I ever worked with said there are two rules about picking a jury - one, you can never predict who is going to go which way, and two, you will always try.'

Grania Langdon-Down is a freelance journalist