We’re in Arizona enjoying  the sun and I’ve been too lazy to write a blog. But because I’m late in publishing my regular blog, I’m going to share an article I wrote for our state trial judges. I was invited to speak at their convention last Fall and wrote this for the convention. It deals with the Washington State jury selection process and issues involved in it. Perhaps something of interest is in here and I promise to do a better job on my next entry Happy New Year to you all.

The right to a fair and impartial jury in civil and criminal cases is well established. Washington’s Constitution has adopted language of the sixth Amendment to the U.S. Constitution in Article 1 Section 22 reserving the right to a jury trial in civil. The right to an impartial jury is provided in RCW 4.40.010 – 070 and by CR 38 (a). It is well established that allowing a juror who has an actual bias to sit on a jury in a criminal or civil trial is reversible error. State v Gosser 33 WA App 428 (1982). How well do our present procedures in jury selection accomplish the constitutional right of trial by impartial jurors?

Our procedure for challenging perspective jurors involves a voir dire examination of the panel to be “… conducted for the purpose of discovering any basis for challenge for cause and to permit the intelligent exercise of peremptory challenges.” (RCW4.44.120) However, the courts have generally adopted a policy of fixing an arbitrary time limit allowed attorneys to question the prospective jurors. The time limitations force the attorneys to resort to group questions and group responses by raising hands. This group approach is far less accurate and meaningful than individual questioning and discussion. The lack of time to talk briefly to each person on the panel impairs the ability to determine people with pre- existing bias. One significant improvement in assuring an impartial jury would be to consider whether these time limits have more to do with judicial efficiency rather than assuring a jury of impartial members.

However, there is a more significant and fundamental flaw in our procedures for determining bias. It involves the method by which attorneys exercise challenges for cause. There are two kinds of challenges, challenges for cause and peremptory challenges. (RCW 4.44.130) A peremptory challenge is one for which no reason need be given (RCW 4.44.140) and generally each side is allowed three peremptory challenges (CR 47).
Challenges for cause are either general or particular.(RCW 4.44.150) General challenges relate to a failure to qualify as a juror and particular challenges for cause are of three kinds (RCW 4.44.170) ‘These are (1) For implied bias as outlined in RCW 4.40 4.180 (2) for defects in juror functions of organ or body which make the person incapable of being a juror and (3) “for the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.” How well does our present procedure in jury selection succeed in assuring that people with actual bias are not permitted on the jury? The evidence is that it doesn’t work very well.

Under our procedures regarding challenges for cause, the process of determining impartiality is a two-step one. First, the bias or opinion must be demonstrated or admitted. However, RCW 4.44.190 provides that showing actual bias is not enough to justify granting a challenge for cause. The second step is that “the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the case impartially”

We know from experience juror bias arises in every trial and, while the Constitution requires an impartial jury, under this procedure showing the existence of a bias is not enough to disqualify the perspective juror. In addition, the perspective juror is asked to search their mind and decide whether they can ignore their bias and be fair in spite of it. Relying upon their response, the judge then decides whether to let them serve in the face of the established bias. How reliable is this practice of essentially leaving it to the perspective juror to decide if they can be fair in spite of fixed opinions or bias?

In 2013 Dr. Christopher Robinson, David Yoakum and Matt Palmer answered this question in a research paper Can Jurors Self – Diagnose Bias? Two Randomized Controlled Trials. (Arizona Legal Studies Discussion Paper No. 12-35) Their study involved other research and their own controlled trials involving 248 mock jurors. They studied the practice of asking potential jurors whether they have any feelings or opinions about the litigants, attorneys, facts or law of the case. If the juror divulges a formed opinion or a bias the next step is to ask if they “can set aside that opinion and decide the case on the basis of evidence to be presented and the law as instructed.” The writers note that judges rely upon their personal evaluation of the panel member’s response to this inquiry in making a decision on a challenge for cause for bias.

One example of judges relying upon the answers received is the prosecution of Gerry Sandusky. Motions for change of venue were denied by the judge who held that: “the answer to whether a juror can be fair and impartial, despite the myriad of influences to which he or she may be exposed, cannot be known until the juror is actually asked.” Our procedure regarding actual bias of jurors relies upon perspective juror ability to make self-examination and then upon their responses to whether the bias will have any influence on their decisions in the case. Knowing human nature is that a reliable indicator? The authors conclude that it is not reliable.

The authors note that one of the reasons why the answers of prospective jurors may turn out to be unreliable deals with what is called “social desirability” bias. That is the juror, despite accurately assessing that he or she cannot overcome a bias, might nevertheless feel the need to publicly claiming that they can act impartially. This deals with conforming to the social norms of being a good and fair person. There is a pressure to respond consistent with this norm which can and does influence the truthfulness and accuracy of juror responses.

Another factor is that a large body of psychological research demonstrates evaluating personal bias can be surprisingly difficult. Too often we are certain we are not biased about a subject when we are in fact biased. Research shows people frequently believe they not biased on a matter, when subsequent testing demonstrates otherwise… This has been called suffering from an “illusion of objectivity.”

Not to be overlooked is the occasional juror who just doesn’t give honest answers. There may be people with a political agenda or people who believe in jury nullification whose answers are deliberately untruthful.

The authors offer a solution they suggest would satisfy obligation to seat an impartial jury. They note that federal laws require that a judge shall disqualify himself or herself from any proceeding in which his or her impartiality “might reasonably be questioned.” Under this standard, it is not whether the judge can be impartial, but whether his or her “impartiality might reasonably be questioned.” They argue applying the same standard to jurors whose bias is being questioned would provide a far superior solution than our present one. They recommend applying a fundamental question: Can a juror’s impartiality be reasonably being questioned for any reason? If so, the court should not allow that person to be on the jury irrespective of any assurances. Their recommendation, in that case, is to simply remove all prospective jurors whose partiality might reasonably be questioned applying the same test as that for judges.

This idea is generally compatible with our appearance of fairness doctrine requiring government decision makers to conduct non-court hearings and proceedings in a way that is fair and unbiased in both appearance and in fact. (RCW 42.36) Washington’s doctrine identifies areas which would indicate a non-appearance of fairness: (1) personal interests (2) financial gain (3) property ownership (4) employment by interested persons (5) prospective employment by interested persons (6) relationship and membership connections and (7) family or social relationships. These seem to be an appropriate outline for challenges as well. One of the criteria for determining whether the appearance of fairness doctrine has been appropriately evaluated is by asking whether a fair-minded person, observing the proceedings, be able to conclude the proceedings were fair and unbiased both in appearance and in fact. If that test were applied in jury selection the chances of an impartial jury are substantially increased over our present practice.
When we have prospective jurors whose circumstances obviously present a significant issue of bias why would we accept their personal assurances of the ability to be fair spite clear questions about the appearance of fairness. The safer and fair procedure would be to remove any question created by appearances of partiality.

This approach can be applied by trial judges under our present statute while exercising their subjective evaluation about whether an individual can disregard the opinion and try the case impartially. It’s reasonable for us to assume that trial judges would apply a standard in carrying out their responsibility to ensure an impartial jury which has a high likelihood of accomplishing this objective.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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