"Making a Murderer" and Your Jury

Following on the heels of last year’s hit real-crime podcast Serial, Netflix appears to have a home run with its documentary series Making a Murderer.  For those who haven’t binge-watched the 10-hour series, it focuses on a Wisconsin man falsely convicted of rape who served 18 years in prison and was exonerated and released – then was charged with murder two years later under what many would call questionable circumstances. It’s addictive television.  But it also taps into what is emerging as part of our cultural zeitgeist: mistrust of police and other institutions. In the wake of highly publicized police shootings in Ferguson, Staten Island and North Charleston, among other places, a Gallup poll in June found only 52 percent of Americans expressed "a great deal" or "quite a lot" of confidence in police – the lowest percentage during the 22 years Gallup has been asking the question.  Only 23 percent of respondents have "a great deal" or "quite a lot" of confidence in the criminal justice system, only slightly higher than the percentage that trust TV news. In the litigation world, the implications for civil rights cases are clear.  With public trust in police and the criminal justice system on the decline, we have found during our focus group research that many jurors – even those we would otherwise consider conservative – are quick to believe plaintiff claims of being mistreated or railroaded by police and prosecutors.  When even Fox News spends valuable screen time debating Making a Murderer and covering police shootings, it should come as no surprise that many laypeople have begun to question the infallibility of law enforcement. From our perspective, the litigation ramifications go beyond civil rights cases.  Gallup has documented that trust in most institutions, including big business and medical systems, has declined in recent years, which may make jurors more receptive to claims against "institutions" including hospitals and Fortune 500 companies.   So what’s a lawyer to do?  There’s no changing the climate of the times, but you can try to identify during voir dire those jurors most likely to be suspicious of and hostile to institutions.  The Gallup poll found Democrats and racial minorities were most likely to hold such views, but – as noted earlier – these attitudes can cross political and racial lines.  Asking jurors about their views of institutions such as the criminal justice system, big business, the media and healthcare companies can help identify those who might be most hostile to your client. And perhaps it goes without saying, but you’d be wise to take a critical look at potential jurors who have recently viewed Making a Murderer. If you have a case where you think anti-institutional bias might come into play, we can help you figure out how best to mitigate that issue.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.