Those of you who  read this blog know my appreciation of the website The Jury Expert. Mykol Hamilton and Kate Zephyrhawke published an article at the website: “Revealing Juror Bias Without Biasing your Juror…” which is worth reading. Their research and that of others demonstrates that the form of the question lawyers ask jurors can, and often does, pressure people into underestimating their own bias. They point out that such questions can drive the juror bias mentally underground by exerting social desirability pressure or pressure to answer the question in a socially responsible manner. The result is answers which are not a true reflection of how the person really feels, but rather answers that are socially or politically correct.

They found that lawyers commonly used language which encourages the juror to answer the question the way in which the lawyer  wants it to be answered.  The authors refer to this as “prehabilitation.”  They also noted that both judges and lawyers rarely wait  until a perspective juror has conceded a possible bias before  they start asking leading questions and prodding the juror towards the answer they want to hear. They conclude that the message the perspective jurors received before they’ve even been given a chance to explore their own personal bias is:  “if you want to look good to the court, appear competent to your peers, and convince yourself that you are fair-minded,  answer all “I’ll be a good juror” questions in the affirmative. If you want to feel foolish , look like a bad American  and face more questioning and pressure  to say otherwise give them the wrong answer.

An example of such  questions  are:  “You seem like a reasonable person. Do you think you’ll be able to keep an open mind and base your opinion solely on evidence that’s presented in court?” It’s a leading question pointing to the answer you want to hear. Or  take  the question ” In your opinion  is the defendant innocent or guilty?” It resulted largely in answers that  were presumed to be socially correct by the juror,  i.e. “Innocent.”  After all, they have watched enough  TV court programs  to know that  the defendant is presumed innocent.  However, in one survey  a comparison was made with that question  and this change: “If you had to say you lean one way or another right now  about the defendant’s guilt or innocence , which way would you lean? ”  The change in the question  from the previous question resulted in a substantially higher  admission of bias on the part of the  person answering. How you frame the question influences the honesty of the jurors answers.

The authors  conclusion is that  the more comfortable the perspective juror feels  answering  honestly about  his or her own opinion,  the more likely it is an honest answer will be given. Their recommendation is to frame  questions  encouraging  honest  answers  by offering choices of  measurements  of the strength of feelings. Here are some examples  of these kinds of questions:

    •  How would you answer  your ability  to put aside your present  feelings about this  and base your  decision only on the evidence and law: (1) would be able to put it aside (2) could easily put aside or (3) might have  difficulty  putting it aside.
    • If you had to say you lean one way or another right now about the guilt or innocence of the defendant,  would you say you lean heavily towards guilt, somewhat towards guilt, somewhat towards innocence  or heavily towards innocence?
    •  Do you imagine it might be difficult for you to go into trial  with the belief  that the defendant is not guilty?
    •  How easy or hard do you feel it would be to assume the defendant is not guilty, on a scale of 1 to 10  with one being the  hardest and 10 being the easiest?
    •  How would you answer  the question  about  doctors being held accountable  for their negligence : (1)  strongly disagree (2)  disagree (3)  neither agree nor disagree (4)  agree or (5)  strongly agree?

The conclusion  is that the easier  it is for the juror to respond  comfortably the more likely  the honesty of the answer. making it comfortable for jurors to express doubts about their ability to be fair, or to ignore pretrial publicity, or to presume innocence  increases the likelihood that the justice system will get honest answers from potential jurors  according to the authors. That’s why I favor questions that are open ended like: How do you feel about…” and the like which encourage honest answers.

I think we all agree with these conclusions because most of us have experienced the frowning judge saying to the juror who has just admitted they have a bias something along the lines “Now, I’m sure you will be able to put that opinion aside and base your decision solely on the law I will give you and the evidence you hear, isn’t  that so?” Judges who use this improper approach do so with calculation they will get the answer they want because they are concerned about efficiency: “Let’s not waste  time. Let’s move this along and get going.”

But, we lawyers are often as guilty as the judges in trying to influence an answer we want. Why? Well, because we are afraid the wrong answer might prejudice the rest of the jurors and we won’t know how to deal with it. So, like children hurrying past the cemetery at night, we want to avoid the fright of having to hear what we don’t want to hear. What’s really sad about that idea is that we should have exactly the opposite goal. Get people to tell you now what they don’t like about your lawsuit and not wait until after the verdict when you ask them why they voted for the defendant. Furthermore, we need to encourage full discussion about the problems in our cases because it inoculates against stronger feelings in that regard later in the trial. We want to be first one to discuss the problems. We want to encourage and reward the jurors who express strong bias about our case. We need to frame questions that make them comfortable doing so.

I recommend David Ball’s excellent books on trial with suggested questions like the above. I also like Robert Hirschhorn recommendations in the book Conducting Voir Dire with Lisa Blue and published by Trial Guides. Of course, the workshops and courses taught by the Spence Trial College on voir dire are excellent.

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