By Thomas M. O’Toole, Ph.D.
Check the trending news stories at any moment these days and it becomes clear that Aaron Hernandez’s legal troubles have the makings for the next big courtroom drama. This country loves its courtroom dramas (see OJ, Casey Anthony, Lindsay Lohan, MJ, Zimmermania, etc.). The best candidates have intrigue and controversy. Aaron Hernandez presents both of those. The media coverage has been extensive and has left no potential detail unreported. Unfortunately for Hernandez, this creates significant hurdles to receiving a fair trial.
A wealth of research over the last few decades has shown that pre-trial publicity can create significant bias in a jury pool. I have seen (and worked on) cases where the media reported confessions that never occurred, key evidence that did not exist, and analysis designed to create strong impressions about the case. Maybe it’s irresponsible journalism. Maybe it’s just recognition that the media faces an impossible task of covering complex, detailed issues in the courtroom that simply cannot be encapsulated in a column or a three-minute nightly news segment. Regardless of the reason, the result is often a trial venue where significant portions of the jury have already pre-judged the case, making it extraordinarily difficult for someone like Hernandez to receive a fair trial.
That brings me to the first strategy the defense team must explore: a change of venue motion supported by community attitude research. Community attitude research can substantiate the argument that bias in the current venue makes it difficult for Hernandez to receive a fair trial. Someone might argue that this is a national news story, so any bias created by news coverage is going to exist in any trial venue. While sensible on the surface level, my experience conducting community attitude research and serving as an expert for change of venue motions contradicts this notion. While general awareness of the Hernandez story may be national in scope, what I tend to see is that detailed awareness of the case varies as one gets further from the trial venue. In other words, potential jurors in the current venue are more likely to have followed the details of the case as reported by media, whereas jurors in other venues may be familiar with the fact that Hernandez has been charged with murder, but are less likely to have followed the actual coverage of the case. In fact, my experience has been that potential jurors in a venue where a national news story is taking place are more likely to closely follow the details of the case, whether that be through consumption of the news or mere socialization where the case details become common water cooler or happy hour discussion topics. This distinction between general awareness and detailed exposure is significant because it means jurors in other venues are bringing less to the table. Jury selection can safeguard against a situation where venire members have general awareness that something happened, but know little in the way of details about the case. Jury selection becomes ineffective in a situation where the trial venue has been continuously exposed to significant details about the case that are more likely to lead to prejudgment. In short, the defense team needs to try to change venues if they hope to receive a fair trial.
The second element the defense team needs to focus significant attention on is jury selection. Jury selection is about de-selection. It’s about identifying individuals who hold attitudes or have experiences that make them resistant to your case theory. This is the only thing attorneys have control over: getting rid of problematic jurors. Focusing on who is “good for you” is critical mistake that cedes control over the process and fundamentally misunderstands human psychology. Adverse traits are always going to be more predictive than friendly traits in a jury selection setting.
The Hernandez case taps into a variety of adverse attitudes that are prevalent in certain segments of the population. On a generic level, there are those who believe, if one is indicted, they must be guilty. These people need to be identified and removed from the venire. Then there are adverse attitudes about athletes and the NFL. There are segments of the population who believe athletes are incredibly arrogant people who think they’re “above the law.” This attitude is dangerous because it motivates people to want to “send a message.” In other words, this attitude puts the arrogance of high-paid athletes on trial, not the evidence against Aaron Hernandez. These are just a couple of many key focal points for the defense team during jury selection.
The final strategy component is witness preparation for Hernandez if he chooses to testify. In cases like this, his appearance and presentation is critical. Research shows 50% of an audience’s credibility assessment of a speaker is based on the visual presentation (how he looks), 30% is based on vocal presentation (how he sounds), and only 20% is based on verbal presentation (what he actually says). Consequently, Hernandez’s presentation and communication at trial is make or break. If he looks, sounds, or acts like someone who is arrogant, reckless, or any of the other endless disparaging adjectives, he is toast. People judge others with their eyes and make “gut” assessments. If he loses on the gut assessment, it’s a long road to restoring his credibility, if such a thing is even possible at that point.