Sample Affidavit to Appoint a Trial Consultant

Individuals represented by public defenders or court-appointed counsel in numerous states, including California, New Jersey, New York, Minnesota, Pennsylvania and Vermont have had the benefit of professional trial consulting assistance in connection with trial preparation. The sample affidavit (see below), from a New York City case involving spousal abuse, can be used as a model. Each request to the court should be tailored to your case, providing a clear picture of the particular problems and unique factors in a given case that require a trial consultant’s expertise. If you would like assistance in preparing an affidavit, please contact us.
Sample Form

Supreme Court of the State of New York
County of______: Criminal Term
_______________________________x
People of the State of New York ATTORNEY AFFIRMATION

v. Indictment No. ________

_______________________________x

_____________, an attorney admitted to practice law in the State of New York hereby affirms the following to be true and subject to the penalty for perjury:

I am the attorney of record for the above named defendant, and as such I am familiar with all of the pleadings and proceedings heretofore had herein. _____ is charged with manslaughter II in the shooting death of_______. I submit this affirmation in support of defendant’s request for appointment of _________, a trial consultant with the National Jury Project to assist me in preparing the defense to the charges now contained in Indictment no. ________.

The services of a jury trial consultant are essential in assuring that my client have the opportunity to select a fair and impartial jury. A trial consultant’s professional expertise is in the areas of juror decision making, juror questioning, juror comprehension and juror evaluation. These skills are needed to formulate voir dire questions and to design a supplemental juror questionnaire that will effectively elicit bias and also provides me and my client with the information needed to intelligently exercise peremptory challenges. These skills are also necessary to assist me in court evaluating jurors’ responses to voir dire questions and making decisions about exercise of peremptory challenges. A professional trial consultant will enable me to prepare and present a defense and effectively represent my client.

This case presents areas of bias requiring that special attention be paid to voir dire and jury selection. My client faces three areas of potential bias. In any case involving criminal charges, there is a danger that juror bias will prevent the defendant from obtaining a fair and impartial trial. This is because a substantial proportion of prospective jurors enter the courtroom believing that an indictment is tantamount to guilt and that persons on trial ought to be required to take the witness stand and testify and prove their innocence.

Surveys conducted in jurisdictions throughout the country indicate that: between 16% and 45% of jury-eligible respondents believe that a person who is brought to trial is probably guilty; 50% to 66% believe a defendant should be required to testify; and 30% to 62% of jury-eligible respondents expect defendants to prove their innocence, despite judge’s instructions to the contrary. Krauss and Rountree, eds. JURYWORK: SYSTEMATIC TECHNIQUES.

For some jurors, these attitudes are a result of misinformation or misunderstanding; for others these attitudes are expressions of deeply held beliefs and opinions that will prevent them from following the law. A trial consultant can help design questions that will identify and distinguish between those jurors who cannot be fair and those who simply misunderstand the law.

The second area of bias concerns experiences with and attitudes toward domestic violence. [Put statistics for your community in place of these.] Domestic violence is unfortunately fairly prevalent in American Society. According to the New York State Division of Criminal Justice Services, in 1995 there were 87,591 police reports of family offenses, which include spousal and child abuse. Also in 1995, the New York State Department of Social Services reported that 4,848 battered women received residential services; 15,434 battered women received nonresidential services; and 23,165 battered women and children were denied shelter because of lack of space. According to the New York City Program for the Prevention of Domestic Violence, an incidence of adult domestic violence occurs every three minutes in New York State. As a result of this prevalence, a number of jurors in the panel can be expected to have personal knowledge of or experience with physical abuse.

Jurors will bring many assumptions and misconceptions about domestic violence into the courtroom. Many prospective jurors tend to blame women for domestic violence, either for bringing it on themselves by their behavior or for failing to leave an abusive relationship. In this case, where the defendant and the victim had no children, jurors may find it even more difficult to understand why _______ did not end the relationship.

In this case, the danger of juror bias is even greater than in other criminal cases because the defendant is asserting a defense of self-defense. Many jurors will be unable to comprehend how one person could be forced to take the life of another. It is impossible to imagine that any prospective juror will arrive in the courtroom free of opinions concerning domestic violence and intentional murder. These opinions may be the result of exposure to publicity and/or the result of personal experiences. Under these circumstances the court and counsel are faced with a delicate and complex task: eliciting sufficient information from the jurors about their experiences and opinions concerning domestic violence and the defense of self-defense to ascertain whether those opinions or experiences will interfere with impartiality, while at the same time assuring that individual jurors’ biased opinions do not affect or influence other jurors. A trial consultant provides the professional expertise necessary to help draft questions that will elicit complete responses from prospective jurors and to assist counsel in interpreting the meaning of those responses.

The field of trial consulting began more than 20 years ago. Today, its professional association — the American Society of Trial Consultants, founded in 1982 — has over 300 members providing professional trial consulting services throughout the nation. Trial consultants are routinely hired by attorneys representing criminal defendants in high profile cases and unknown cases tried in federal and state courts in virtually every state in the nation. Some recent high profile cases where financial resources were available to pay for trial consulting services included the trials of Don King in the Southern District of New York, OJ Simpson in California, and Louise Woodward in Massachusetts. Individuals represented by public defenders or court-appointed lawyers in numerous states, including California, New Jersey, New York, Minnesota, Pennsylvania and Vermont have had the benefit of professional trial consulting assistance in connection with trial preparation.

This affirmation seeks funds to retain ________ of the National Jury Project, a national trial consulting company with offices in New York City, Minneapolis, MN, and Oakland, CA. Over the past 25 years, National Jury Project trial consultants have been retained to consult on more than one thousand criminal trials. They have conducted research on juror bias and juror decision making; provided expert testimony on approaches to minimizing bias in jury selection; designed voir dire questions and supplemental juror questionnaires; assisted in court during jury selection; and interviewed jurors post-trial. The defendants in these trials include individuals who could afford to pay for these services, and those who could not; they have had private or court appointed counsel or public defenders. In at least 125 of these cases trial consultants were appointed by courts to assist counsel to indigent defendants. (Krauss and Rountree, eds. JURYWORK: SYSTEMATIC TECHNIQUES, Appendix A). Recently, _________ of the National Jury Project has been appointed as a trial consultant by judges in Manhattan and Brooklyn on behalf of indigent clients at the request of their attorneys.

[Put trial consultant’s credentials and experience in a paragraph here.]

[Replace next 3 paragraphs with relevant language for your state or county.]
The defendant is currently incarcerated in ____________ on a remand status. S/he is not in a position to work to earn money to help pay in any way for any and all expenses necessary to his defense. Furthermore, on information and belief, s/he has no money saved nor any money from any source available to pay for any of the expenses incurred regarding any aspect of her defense.

I have examined the financial resources available to my client and have found and determined that he is unable to pay any of the costs of the services needed. My client is as deserving of a fair and impartial jury as those defendants who are able to pay for these services,

WHEREFORE, it is respectfully requested that this Court grant defendant’s request and issue an Order in the form annexed, providing the appointment of ________, a trial consultant with _______, pursuant to ________ of the _____ Law, and that she be compensated in accordance with said law.

Dated: