I have long been a fan of the website The Jury Expert: http://www.thejuryexpert.com/ One of the research papers it has published is: “The Ubiquitous Practice of ‘Prehabilitation’ Leads Prospective Jurors to Conceal Their Biases.” authored by Mykol Hamilton, Emily Lindon, Madeline Pitt, and Emily Robbins from Centre College. This article explores juror bias and focuses on the effect of efforts to emphasize the significance of lack of bias by the judge and attorneys. It primarily examines the effectiveness of the emphasis on being a fair juror as it impacts the jurors admitting they have a bias.
As to bias generally in jurors, it has been clearly demonstrated that where a strong bias exists, human efforts to not let it influence us are utterly impossible. Yet, many trial judges and appellate courts appear believe that it can be done. Hence,their unwavering confidence that they can rely upon a jurors affirmative response to their question: “Can you set that opinion aside if I instruct you on the law and consider the facts objectively?” Lawyers also would like to believe that they can “re-educate” the prospective juror to see the error of their bias and then can rely upon the jurors assurance they can now be fair. All of these beliefs are simply invalid.
According to the law the sole legal purpose of voir dire is to expose bias in prospective jurors which would prevent them from being a fair and impartial juror. The article cites research which showed that instructing jurors they must set aside any knowledge, experiences, attitudes, or beliefs that might bias them is asking them to do the impossible. The article notes: “humans are not robots. We are notoriously bad at preventing our biases from influencing us. Furthermore, we strongly, but erroneously believe that we can control our biases and are likely to tell judges and attorneys that we can be fair and open-minded even if we cannot.” Some of the other conclusions of the article are:
- Most people are totally unaware of how much their attitudes affect their behavior and have a bias line site
- People are unsuccessful in setting aside bias even if they are aware of the bias. The bias operates unconsciously to influence us.
- Even if the prospective juror is aware of their bias unless they confess it there is no basis for a challenge for cause. Humans don’t want to admit they are imperfect and research shows that attorneys and judges are not good lie detectors in being able to tell those who claim they are impartial when they are not.
- There is a factor of community pressure from the other jurors and the pre jury lecture on the need for fair jurors. It puts pressure upon the prospective jurors to give the answer that is expected from them about existing biases and to deny their existence.
- Pressures to give the expected answers about bias exist when the prospective juror is seated. They see the judge on the bench, the court reporter taking everything down, a room full of lawyers all focused upon the jurors in the box. This puts pressure upon the juror to give the “right” answer
The authors of the article made a content analysis of some 600 voir dire interviews in 11 high profile cases in different states. They studied transcripts. recordings and videos when available of the jury selection process. They looked for the discovery of bias. They reviewed the instructions given by judges to prospective jurors and comments by the attorneys about fairness and bias expected. Their conclusion was that efforts by the judges and and attorneys simply leads prospective jurors to temporarily suppress their bias into falsely claiming they had no bias. They found that prospective jurors rarely admitted to existing bias. Their conclusion was that the lectures and instructions to the jurors about the need for unbiased jurors actually resulted in the jurors being less likely to acknowledge known bias.
The authors suggest a change in how the judges instruct jurors about this matter emphasing the importance of honest disclosure. For example, “While you have been lectured to death on the importance of being objective, probably to the point where you fear admitting any negative feelings, let me assure you that the goal is to understand your true feelings and not to bully you into giving an answer you think we want to hear.” They suggest indirect inquiries to explore the bias issue. For example, in a high-profile case: “In talking to friends and family about the case, have you gotten the feeling that they have formed some opinions about the case?”
In a comment to the article Charli Morris, a juror consultant, noted that the laws’ idea of an ideal juror was one who had no knowledge of the facts and no interest, financial or otherwise, and the outcome of the case. What the parties are entitled to is a fair trial. They deserve fairness from the court, from counsel, and from the jury. The goal is to eliminate arbitrariness or randomness in a trial. To establish the bias for a challenge for cause, the author suggests this approach:
- Establish the extent of the jurors potential for partiality. This is done by exploring sufficiently the dimensions of the jurors bias or inability to be fair.
- Quantify it. It’s important to establish the extent of the bias. Words like “definitely” for “very” or “strongly” are words which jurors are reluctant to adopt because it makes them appear to extreme or close minded. Instead a 10 point scale is recommended to quantify the degree of the bias
- Get it all down. The author recommends a methodical slow process so that the essential words are recorded and aware by the judge.
- Add it all up. One then should deliver a narrative of the school of the inability of the juror to be fair and to make a good record on appeal.
I think this suggestion is technically correct and I would add that my personal view is that my goal was not to disqualify jurors for cause. I accepted that every juror would have strong bias agreement about tort reform attacks on cases just like this. I accepted the fact that they would all have a bias about trust me and my client since we were wanted a money verdict from them. I assumed most would have strong beliefs and values that might run counter to the concept of this kind of case. I assumed they would search their long term memory for personal experiences which they would try to apply to this case to assist them in arriving at a decision. I knew that it would be impossible to eliminate everyone with a genuine bias. I believed it conveyed the wrong message to be cross examining them for reasons to challenge them. I assumed that some would resent my challenge to a fellow prospective juror and if I failed in the challenge I would have to use a limited personal right of excusing them. “Don’t strike the emperor unless you kill him.” is a valid proverb.
Consequently, my viewpoint was it was better to first identify with their beliefs and values. Join their tribe as the first step. For example: “I’m not going to ask you how you feel about cases like this because I think we all agree – How many of you think their are too many frivilous lawsuits, brought by greedy lawyers asking for money damages? raise your hand” Before asking to raise their hand, I held my hand up first.
The second step is to distinquish your case. “Is it possible, do you think that their might be valid legitmate lawsuits filed by deserving people and represented by honest lawyers?” Each of these were followed by discussion. If their were the committed biased juror on the panel I was unable to gently talk out of serving my steps for setting up disqualification was:
- Fully identify the nature of the bias without arguing or attempting to educate. Full, nonjudgmental acceptance of the bias.
- Establish it was a reasoned out conclusion well grounded in their mind. “I suspect you’ve thought this out pretty thoroughly? This isn’t something that just came to you this morning but is something you have felt for some time?
- Establish that the juror isn’t going to change their mind. “I doubt I could talk you out of this even if we had the time to discuss it? You feel strongly enough about this and are honest enough about your feelings I expect that even if the judge were to ask you if you could set it aside and follow the law you would feel compelled to honestly say you couldn’t?” (Note the importance of innoculating the juror from the judge who will immediately try to talk the juror into saying in spite of the bias they would follow the law).
- Asking the juror to voluntarily step aside before making any challenge. “You know there are other cases going on here, I gather you would feel more comfortable serving on a case other than this one in light of your honest feelings we’ve discussed. Would you feel better asking the judge to be excused from this case?”
Bias is bias and it rests in the unconscious more than the conscious. That’s why the obvious racist can honestly say they have no bias against minorities because at a conscious level that’s really what they believe. Getting jurors to identify bias under court room conditions is even more difficult. This is a great challenge for judges and for us.