The rational legal model would say that jury selection should work something like this: The attorney asks if any of the potential jurors have any current knowledge or views on the case or the parties. The question is purely neutral and doesn't, in the process, give away any knowledge or suggest any views. One member of the venire, Mary, knows just what the attorney is getting at, and raises her hand without hesitation. Calling on Mary, the attorney follows up, asking if she would be able to set aside her knowledge and opinion and view the case just based on the law and the facts presented. She thinks about it, and finds that indeed she could set her views aside and evaluate the case as a true neutral. The judge and counsel see that the answer is sincere, accept it, and the process moves on.
Only it doesn’t work like that. At every step in that short vignette, the social science tells a different story. The belief that voir dire works so as to simply expose and remedy potential bias is a myth, and a persistent one. The differences between the assumptions underlying common practice and the results of research on voir dire bear on the practicalities of conducting voir dire and exercising your strikes. A provocative article (Kovera & Austin, 2016) appears as a chapter in a new book dedicated to the work of trial psychology pioneer Lawrence S. Wrightsman. In the chapter, Margaret Bull Kovera, psychologist from John Jay College of Criminal Justice at City University of New York, and Jacqueline Austin of the University of the Pacific focus on what the research has to say about whether America’s voir dire process fulfills its purpose in identifying and removing problematic jurors. The research, they believe, has stagnated due to an overemphasis on the question, “What traits or attitudes predict juror verdicts?” Instead, the authors argue that academics ought to move beyond this focus on general predictors and focus on the factors that mediate or activate biases based on the particularities of individuals, messages, and situations. In the process of making this argument, they also call out a number of myths about voir dire that practitioners, attorneys and jury consultants alike, ought to take to heart.
Myth 1: The Goal Is an Unbiased Jury
The whole point of voir dire is to avoid bias: It is right there in the text of the Sixth Amendment to the U.S. Constitution that, in criminal trials, the accused has the right to an "impartial jury." The Seventh Amendment, focusing on civil trials, omits the word "impartial," but we can assume that the same principle applies. While impartiality might be an important ideal, it isn't a practical reality. “One of the behavioral assumptions made by the legal system,” Kovera and Austin write, “is the assumption that jurors can make decisions that are free from bias.” As long as our perceptions and judgments are products of our experiences and existing mindsets, however, neutrality is an illusion. Weed out the extremes, but don't pretend that what is left is free from bias.
Myth 2: Selection is Mostly About Demographics
To this day, attorneys will sometimes ask me whether we should want women or men, young or old, white or black on the jury. Critics of the jury consulting field, in fact, often assume that is what consultants do, and those calling for restrictions on peremptory strikes often base that opposition on the belief that strikes are mostly used to stack juries based on demographics. Only they aren't, or at least shouldn't be. As I have written before, demographics are generally not predictive. Kovera and Austin cite research showing that taken individually, demographic traits account for less than two percent of variance in a verdict. Even simultaneously taking into the account a venire member's entire demographic profile, you can still explain less than five percent of the variance.
Myth 3: Selection is Mostly About Similarity
It is a simple rule of thumb, or "heuristic" in social-science speak: Attorneys will say, "I want people like my client because they’ll be more sympathetic to my client." The problem is that there is an equally simple heuristic that runs in the opposite direction: Other clients will say, "I don’t want people like my client because they’ll apply a higher standard, wanting to believe that they themselves wouldn’t have gotten into the same mess." While I tend to believe that the second version is a little more reliable than the first, I think the problem with both rules of thumb is that they're too simple. Kovera and Austin agree, finding that there is little in the social science literature that would support either as a general principle.
Myth 4: Selection is Mostly About General Attitudes
Now we are getting a little closer to accuracy, but with some important remaining limitations. Those looking at broad attitudes or personality traits have, for the most part, focused on the "big three:" locus of control (Does the individual tend to blame outside factors or emphasize personal responsibility?), just world hypothesis (Does the individual feel that things happen for a reason and victims generally could have avoided their fate?), and authoritarianism (Does the individual lean toward supporting rules, order, and authority?). There has been some success in tying these traits to verdict preferences, but at the same time, the roles played will differ in each case. For example, in a criminal context, Kovera and Austin report the finding that authoritarianism explains much more about sentencing than about conviction. The authors also chronicle the attempt to create a general “Juror Bias Scale” to combine these traits in order to measure a general predisposition to either innocence or guilt in a criminal context. The finding: It isn't generally reliable. Sometimes it works, sometimes it doesn’t.
Myth 5: Verdicts Are Mostly About Case-Specific Attitudes
Experienced consultants will tell you that what matters most are the case-specific attitudes held by your potential jurors. And, of all the myths discussed in this post, that one comes the closest to the truth. However, one point underscored by Kovera and Austin is that even these attitudes still account for only a small part of the variance in verdicts. “Even though case-specific attitudes, especially when they are case relevant, may provide the best prediction of jurors’ verdict preferences," the authors explain, "they rarely account for much variance in juror judgments, with some estimates suggesting they explain no more than about 4%.” That, of course, is as it should be, since a large part of the remaining variance is explained by an entirely proper consideration: the strength of the evidence.
Myth 6: Rehabilitation Remedies Bias
When a potential juror expresses a bias, the next step taken by counsel or by court is to test for possible rehabilitation. If jurors persistently stick with the bias, then they're due for a cause challenge, but if they say they can set it aside and be open, then they're back in business. The research, however, doesn't support that confidence. “Juror rehabilitation does not work as intended," they note, "rather than making biased jurors render verdicts that are similar to those rendered by unbiased jurors, rehabilitation causes all jurors, biased and unbiased, to shift their verdicts in the direction advocated by the rehabilitation process.”
Beyond the Myths: What Should Voir Dire Be About?
This is where Kovera and Austin aim their call to action. The next generation of research on jury selection, they say, should get beyond the simple fixation on what personal traits predict verdicts and instead examine “Whether there are certain types of people, certain situations, and particular measurement techniques that produce stronger attitude-behavior links.” In other words, researchers (and consultants and attorneys too) shouldn't focus on biases not as static qualities of the target audience, but should instead focus on those conditions which create, activate, strengthen, or weaken specific biases in the contexts of individual cases.
This is one of the reasons why it can be so useful to run a mock trial. When you have the participants' answers to the kinds of questions that will be asked in voir dire -- for example, via the first questionnaire, possibly aided by a larger community attitude survey -- you can see how those attitudes come into play as the mock jurors form a leaning and deliberate to a verdict. Rather than looking at the attitude or the experience in a vacuum, you are looking at the way it lives and breaths in the context of your case. You still probably won't have an "If yes, then strike" answer on jury selection. But you are bound to have an understanding that is more informed, more nuanced, and less beholden to myths.