The news that an uncle of Yorgen Fenech’s, the man recently acquitted of any involvement in the murder of Daphne Caruana Galizia, commissioned a survey in the run-up to the trial asking about various aspects of the crime has generated mixed responses.
On one side, some have questioned whether this practice is legally or ethically prohibited, or whether it could amount to jury tampering.
Others, including pollster Vincent Marmarà, who conducted the survey, defended the practice, saying that although it may be new to Malta, it is a legitimate strategy for a defence team to adopt.
“For many years, in numerous countries around the world, research has been conducted that enables parties involved in legal proceedings to investigate public sentiment regarding a particular case,” Marmarà told Times of Malta, describing it as a “legitimate and recognised field of international research”.
It is “used in various judicial systems worldwide to assess whether public opinion may have influenced judicial proceedings or the perception of a case,” Marmarà added.
Several readers wrote to Times of Malta to question this claim, asking whether this sort of research is really as universal as Marmará suggested.
What was this survey?
According to sources, pollsters questioned a randomly selected sample of 500 members of the public about their views on Yorgen Fenech, Daphne Caruana Galizia and the police investigation into her murder, among other things.
This was the third in a series of such surveys, with similar studies previously carried out in 2021 and 2023.
Although the survey was commissioned by Fenech’s uncle, Ray, its questions were vetted by Fenech’s defence lawyers .
The survey was carried out by one of Malta’s most established pollsters, Vincent Marmarà, who was reportedly approached in March to carry out the poll. The poll was eventually carried out shortly before the trial kicked off in early July.
The survey was known to the parties involved in the case before the trial kicked off, with the judge reportedly chastising defence lawyers for not having disclosed the surveys sooner. However, the public only became aware of the surveys once the trial had ended.
Are these sorts of pre-trial surveys really carried out elsewhere?
Yes – and no.
While Marmarà is right to argue that some pre-trial research is a recognised and widely practised activity, this is mostly true of America.
Defence lawyers in the US sometimes turn to this kind of survey during litigation, to the extent that research firms openly advertise them as a service they offer and have even been given a name, commonly referred to as community attitude surveys.
In practice, these surveys use traditional polling techniques, such as those used in the run-up to elections, and apply them to an upcoming trial.
One US firm specialising in jury research describes community attitude surveys as particularly useful in cases which have received widespread media attention. Another promotes them as helping to identify potential biases among potential jurors.
Countless others promote their services in similar ways.
In practice, the surveys are often used for reasons that would make little logical sense in Malta.
For instance, defence lawyers sometimes use them to argue that their client would be unable to receive a fair trial in a particular jurisdiction, as they push for the trial to be held elsewhere. These surveys are generally referred to as ‘change of venue surveys’.
However, they can also be used to shape a defence team’s legal strategy, scoping out the public’s (and, consequently, potential jurors’) understanding of the case and their attitudes towards it, and adapting their plans accordingly.
These surveys are just one of a repertoire of tools that defence lawyers have up their sleeves.
US research firms also promote mock trials, in which lawyers can hone their opening and closing statements, as well as the rest of their case, as they face mock jurors.
They also offer more detailed jury profiling, using big data techniques to infer which approaches and arguments are likely to resonate with potential jurors.
Isn’t this controversial?
It can be, even in the US.
In one high-profile case, defence lawyers defending Bryan Kohberger, a man accused of stabbing four university students to death, found themselves in trouble after prosecutors objected to them polling residents on their attitude towards the case.
Defence lawyers said the surveys were intended to establish whether he could receive a fair trial given the media scrutiny into the case, as they pushed for a change in venue.
The judge overseeing the case initially halted the surveys, after prosecutors argued that the survey could prejudice the case. However, the judge changed tack a month later, allowing them to go ahead.
In another, earlier, case of a man facing drug trafficking charges, a Florida judge banned a planned pre-trial survey aimed at profiling potential jurors, saying it risked contaminating the pool of potential jurors and prejudicing the trial.
This despite the courts having previously allowed another survey in the same case, as the defendant sought to shift the trial to a different jurisdiction.
More broadly, legal scholars have flagged a range of ethical issues linked to such surveys.
These range from standard methodological concerns about a supposedly neutral researcher being commissioned by one side, to fears that such surveys could contaminate the jury pool.
Enough about the US, what about Europe?
This is where Marmarà’s claim about pre-trial research being the norm around the world begins to falter.
Unlike the US, similar pre-trial research in Europe is rare, although perhaps more by accident rather than by design. On the whole, there is little evidence of US-style, party-commissioned polling being an established feature outside America.
Several legal scholars point out that traditional juries in criminal justice systems are on the decline across parts of Europe, being replaced by hybrid juries, bringing together lay persons and legal professionals or judges.
In practice, this means that the need to gauge the public’s opinion on the various aspects of a case is less pressing, potentially making such surveys redundant.
Even in jurisdictions, such as Malta, in which criminal trials (mostly) rely on lay persons to serve on the jury, pre-trial polling of potential jurors is almost unheard of, as Marmarà himself pointed out.
However, other forms of jury research, particularly mock trials, do take place in Europe, although this is typically for academic, not litigation, purposes.
In one instance, the Scottish government carried out a large-scale exercise, enlisting 863 members of the public for a series of mock juries.
In another, researchers at University College London questioned almost 700 jurors as part of a wide-ranging study examining juror behaviour and whether juries typically lead to fair results.
However, unlike the US, these studies are not designed by one party involved in litigation to support its case or inform its strategy. Rather, it is carried out by neutral third parties to learn more about how juries operate.
A regulatory void
Europe’s reticence towards US-style pre-trial research is also reflected in the relative lack of regulation.
Pre-trial surveys are established widely enough in the US for professional bodies to have developed guidelines on how they are to be carried out.
The American Society of Trial Consultants, for instance, dedicates a chapter of its code of conduct to venue surveys, outlining how they should be carried out, designed and reported.
However, the same guidelines tellingly add that consultants must not conduct polls “whose primary purpose is influencing respondents by systematically presenting biased information rather than measuring existing opinions”.
In practice, the guidelines say, a survey must legitimately measure public opinion, not try to shape it in any way.
Given that the practice of pre-trial research has not taken root in Europe in the same way, professional bodies closer to home, on the other hand, typically make no clear reference to this form of pre-trial research.
This suggests that while pre-trial surveys would not be strictly barred by law, there is also no clear framework in which they operate.
This ultimately suggests that their legality would hinge on them not falling foul of broader rules governing interference with the administration of justice.
What about research into jurors themselves?
While polling the general population may be allowed across both sides of the pond, any research which involves directly contacting jurors themselves is a far more delicate matter.
The American Bar Association bans lawyers from making any contact whatsoever with jurors or people identified as prospective jurors, although they are allowed to stake out their social media and online profiles for information.
Likewise, a 2013 Irish law reform committee recommended that laws should allow for some “empirical research into matters such as jury representativeness, juror comprehension, juror management and juror capacity and competence,” but only as long as this is “subject to appropriate safeguards to prevent disclosure of the deliberative process of a specific juror or jury”.
In any case, the Irish committee’s recommendations deal with academic research into jurors’ behaviour, rather than trial-oriented research commissioned by one of the parties.
Ultimately, while polling the general population is broadly permissible, rules typically bar directly polling jurors or prospective jurors.
Verdict
Pre-trial jury research, including surveys aimed at gauging public opinion on a case, is widely carried out in the US, with several research firms specialising in the field and professional bodies developing guidelines on how it is to be carried out.
The situation is different in Europe, where far fewer such studies have been documented, and where there exists virtually no standardised form of practice for such activity.
Where jury research is carried out in Europe, it is typically for academic purposes, rather than as a tool in litigation.
Nevertheless, this form of jury research is not prohibited, although pollsters must ensure that they do not fall foul of rules designed to protect a trial’s integrity and the fair administration of justice.
A survey into public opinion of the case, vetted by Yorgen Fenech’s defence lawyers, has raised questions. File photo: Chris Sant Fournier
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Originally published here.
