Trying a white-collar case carries unique challenges, and they begin with selecting a jury. Even now, almost a decade after the financial crisis that affected so much of the American population, many jurors view financial institutions and those who work at them with a certain degree of anger and suspicion. And, when your client is a corporate executive, the pool from which you are selecting jurors may be far from a jury of one's peers, professionally speaking. Rather, you will be trying your case to a group in which many will not understand the financial transactions at issue, and will not be familiar with the workings of corporations and the role of executives in these corporations.

Prosecutors often take full advantage of the disparity between the lives of most jurors and the lives of white-collar defendants. They start with references to greed and point to “lavish” and “extravagant” lifestyles if they can. Dennis Kozlowski's $6,000 shower curtain and his $15,000 umbrella stand became the centerpieces of the Government's presentation at his 2005 trial, and we heard about them from mock jurors in white-collar cases for years to come.

Bias Against White-Collar Defendants

White-collar defendants may not be the first group that springs to mind when one thinks about bias. Most are White men and many are quite wealthy, earning seven-figure salaries and amassing personal fortunes. In fact, most jurors would call them “privileged.”

And yet, time and time again in mock trials, supplemental juror questionnaires and in other contexts, we hear comments suggesting strong levels of bias against these defendants:

• We regular people have to pay taxes; why should these rich people get off?

• I loathe those who have entitled themselves. I probably would assume [the defendant] to be guilty like everyone else who enriched themselves off the backs of the productive public.

• After reading about other white-collar crimes, I feel these defendants are all liars, driven by greed … I'm very sympathetic to those deceived by white-collar criminals who are driven by greed.

Beyond these explicit biases, jurors may harbor implicit bias against white-collar defendants—biases of which they may not even be aware, but that exert strong influence on decision-making. Recently, DOAR explored whether the American public harbors implicit bias against a group well-represented in white-collar cases: corporate executives. We created an Implicit Association Test (IAT), a computerized sorting task that measures the strength of our unconscious associations between two ideas or categories by measuring the speed with which we co-sort them. In this IAT, we had two categories of workers: corporate executives (CEO, Wall St. analyst, hedge fund manager, CFO) and “others” (teacher, barista, social worker, artist). In some rounds, the corporate executive terms were paired with “good” (generous, honest, happy, good, kind, lawful) words while the others were paired with “bad” words (greedy, unpleasant, mean, ugly, dirty, dishonest). In other rounds, the pairings were reversed.

The results were striking: Sorting speed was significantly faster when respondents were co-sorting corporate executives with “bad” words than when sorting them with “good” words. Clearly, these professions were more strongly associated with negative descriptors than with positive ones.

It was noteworthy that levels of implicit bias were strongly correlated with self-reported attitudes about corporate executives, corporate greed and greed among the wealthy. Instinctive associations and explicitly held attitudes went hand in hand. While seeing bias, explicit or implicit, is unsettling, it is actually reassuring to see the two correlated. Armed with knowledge and the right questions, it becomes easier to identify and de-select those most biased against the white-collar defendant.

Finding the Least Biased Jurors

Culling the results of several analyses of collected surveys and other pre-trial research activities, we have identified demographic and other predictors of the best (and sometimes the worst) jurors for the white-collar defendant. Broadly speaking:

• Men are less likely to convict than women, and White men are the least conviction-prone of all;

• College graduates are less likely to convict than non-graduates;

• Higher incomes are associated with lower rates of conviction;

• Those invested in the market are less likely than others to convict; and

• Those who follow news about corporate executives (including regarding criminal allegations against them) are less likely than others to convict.

A few groups also emerged from the research as particularly problematic for the defense. The most conviction-prone groups were older non-White women and women without college degrees.

It is hardly surprising that the “best juror” profile matches that of the typical white-collar defendant: male, White, educated, higher-income and financially knowledgeable. Beyond our tendency to identify with those who are most like us, this is also the juror most likely to understand the nature of the white-collar defendant's work, and such understanding is key to appreciating central defense themes. Analyses of our qualitative pre-trial research data—mock jury deliberations and focus group discussions—have clearly identified some key psychological characteristics and life experiences of good defense jurors. Knowledge of these characteristics can take you beyond reliance on basic demographics in selecting your jury.

Characteristics of the Best Defense Advocates

We tend to see five characteristics common to those who advocate for the defense in white-collar cases:

An understanding of corporate life, including how executives delegate responsibility. People who have worked in or who know about corporations understand, for example, that a CEO does not know everything that happens on a daily basis, and trusts and relies on those under him/her to do their jobs honestly and responsibly. And, they understand that an executive's corporate responsibility for the activities of those beneath him/her is different from criminal responsibility, and that violations of company policy differ from violations of the law.

The ability to see “the big picture” and to view things in their proper context. Context is one of the central tenets of white-collar defense: Prosecutors often drill down on specific transactions or emails or documents and it is up to defense counsel to remind jurors to look at the broader context, to see the hundreds of pieces of evidence that paint a different picture, or to consider the single small transaction at issue in the context of the much larger financial picture of the firm.

Perception of corporate executives as motivated by emotional investment rather than money. Those who know financial or other executives see the emotional investment and professional pride that these individuals feel, and understand how unlikely they would be to jeopardize their positions by committing financial misdeeds. These are the jurors best positioned to refute the Government's “greed, greed, greed” mantra.

A tolerance for ambiguity, especially in financial regulations. It is often hard to persuade jurors that financial regulations are not black and white. Accounting and the interpretation and application of GAAP rules involve judgments, and erroneous judgments are not crimes. Those whose work lives require them to line things up precisely and make everything fit—bookkeepers or even architects and engineers, in some cases, may find this a hard principle to believe. Here, again, big-picture thinkers are likely to serve the defense better.

A Final Note: Learning What You Need to Know About Your Jurors

Especially in federal court, voir dire can happen quickly and with minimal attorney input. How, then, do you find out which jurors do and don't possess these key characteristics? First, learn as much as you can about attitudes in the venue toward your case, and consider survey research that will allow you to identify demographic and other predictors of such attitudes. Second, ask for a supplemental juror questionnaire and try to build in as many open-ended questions as possible. Third, include in your voir dire strategy internet searches of prospective jurors—with the important caveat that you either retain a firm knowledgeable about legal and ethical constraints of such searches to conduct them for you, or be sure to educate yourself on these constraints. It is too easy to run afoul of the law unintentionally in doing these searches, and that's the last thing you want. Fourth, ask the court to include a few open-ended questions in voir dire that will offer you insight into the jurors' experiences: What exactly does your job entail—what do you do at work every day? Have you ever worked in a large corporation and if so, what was that experience like? Listen for indications of level of responsibility, whether the juror focuses on the “forest” or the “trees,” and how he or she thinks about rules and regulations.

Armed with an understanding of what characteristics you want, and with strategies for identifying which jurors will possess them and be open to your themes, you can begin to level the playing field in your defense of your white-collar client.

Ellen Brickman is a director in DOAR's jury consulting practice. She has played a leading role in high-profile criminal and civil cases including World Trade Center insurance litigation and the defense of UBS executive Raoul Weil.