Paul Luvera, The Daily Record Newswire
When it comes to bias among jurors, it has been demonstrated more than once that when strong prejudice exists, efforts to escape its influence are virtually impossible.
Yet many trial judges and appellate courts appear to believe that it can be done, hence their unwavering confidence that they can rely on a juror's affirmative response to the 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 his bias, then simply rely on the juror's assurance that he can now be fair.
I have long been a fan of the website The Jury Expert (thejuryexpert.com). One of the research papers it has published is "The Ubiquitous Practice of 'Prehabilitation' Leads Prospective Jurors to Conceal Their Biases" by Mykol Hamilton, Emily Lindon, Madeline Pitt and Emily Robbins from Centre College.
The article focuses on efforts by the judge and attorneys to highlight the significance of a lack of bias. It primarily examines the effectiveness of the emphasis on being a fair juror.
The sole legal purpose of voir dire is to expose bias in prospective jurors. 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:
1) Most people are totally unaware of how much their attitudes affect their behavior and have a bias line of sight.
2) People are unsuccessful in setting aside bias even if they are aware of it, as bias operates subconsciously to influence us.
3) Even if the prospective juror is aware of her bias, unless she confesses 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 when it comes to determining who is impartial and who merely claims to be.
4) There is significant community pressure from the other jurors and the pre-jury lecture on the need for fair jurors. These factors put pressure on jurors to give the "expected" answer about existing biases - even to deny their existence.
5) The jury box itself is a stressful setting. Jurors see the judge on the bench, the court reporter taking everything down, a room full of lawyers all focused on the jurors in the box.
The authors made a content analysis of some 600 voir dire interviews in 11 high-profile cases across different states. They studied transcripts, recordings and videos 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 expected bias.
Their conclusion was that efforts by the judges and attorneys simply led prospective jurors to temporarily suppress their bias by falsely claiming they had none. The lectures and instructions about the need for fair jurors actually resulted in the jurors being less likely to acknowledge bias.
The authors suggest a change in how the judges instruct jurors on the matter, emphasizing 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 on the article, juror consultant Charli Morris noted that the law's idea of an ideal juror is one who has no knowledge of the facts and no interest, financial or otherwise, in the outcome of the case. The goal is to eliminate arbitrariness or randomness in a trial.
To establish bias for a challenge for cause, Morris suggests this approach:
1) Establish the extent of the juror's potential for partiality by quantifying it. Words such as "definitely," "very" and "strongly" are words that jurors are reluctant to adopt because it makes them appear to be extreme or closed-minded. Instead, use a 10-point scale.
2) Get it all down. Employ a slow, methodical process so that the essential words are recorded and recognized by the judge.
3) Add it all up. Deliver a narrative of the school of the inability of the juror to be fair and to make a good record on appeal.
I would add from my own case experience that my goal was not to disqualify jurors for cause. I accepted that every juror would have strong bias agreement about tort reform attacks, for example. I accepted the fact that they would all have a bias about trusting me and my client, since we wanted a money verdict from them. I assumed most would have strong beliefs and values that might run counter to the concept of such a case.
I assumed they would search their long-term memory for personal experiences that they would try to apply to the 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 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 him or her. "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 there are too many frivolous lawsuits, brought by greedy lawyers asking for money damages? Raise your hand." (I held up my hand first).
The second step is to distinguish your case. "Is it possible, do you think, that there might be valid legitimate lawsuits filed by deserving people and represented by honest lawyers?" Each of these was followed by discussion. If there was a juror on the panel I was unable to talk out of serving, my steps for setting up disqualification were:
1) Fully identify the nature of the bias without arguing or attempting to educate; in other words, full, non-judgmental acceptance of the bias.
2) Establish it was a reasoned-out conclusion, well-grounded in the person's mind. "I suspect you've thought this out pretty thoroughly? This isn't something that just came to you this morning, but something you have felt for some time?"
3) Establish that the juror isn't going to change his 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 inoculating the juror from the judge, who will immediately try to talk the juror into saying that, in spite of the bias, he would follow the law).
4) Ask the juror to step aside voluntarily 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 subconscious more than the conscious. That's why the obvious racist can honestly say he has no bias against minorities - on a conscious level, that's really what he believes.
Getting jurors to identify bias under courtroom conditions is even more difficult. It's a great challenge for both judges and for attorneys.
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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
Published: Wed, Feb 11, 2015
