In the context of voir dire, the tension between social science and court practice is becoming close to intolerable. On the court side, we continue under the assumptions that potential jurors are aware of their biases (despite mounting evidence of bias “blind spots” and unconscious bias), that potential jurors are willing to acknowledge these biases (despite strong evidence of “social desirability” causing them to want to be “good jurors” who aren’t biased), and that expressed biases can be rehabilitated through the use of the four magic words, “can you be fair?” The realities of social science are that people are generally unaware of biases, or think of their biases as rational and correct and, in either case, will readily agree when asked if they can be unbiased. New research keeps making that even more clear.
At the end of last year, an A-team of researchers from Arizona State University, University of Denver, Cornell, and Stanford (Salerno et al, 2020), conducted a large experiment in a civil trial context looking at the relative benefits of minimal or extensive voir dire, as well as the effects of judicial rehabilitation. They found that neither the use of demographic information nor minimal voir dire was helpful at all in predicting case judgments, but extended voir dire did predict both verdicts and damages. They also found that judicial rehabilitation did nothing to reduce actual bias, but only made potential jurors feel less biased. The implication for advocates is that they need to continue to press for the right to conduct extended voir dire in order to ask about the case-specific attitudes that might bias juror decisions. And, in the process, they should also set aside any remaining trust they might still have in the process of rehabilitation.
The Research: Extended Voir Dire Works, Rehabilitation Doesn’t
In a study involving 2,041 research participants, the team tested three civil case scenarios: two medical malpractice cases (a misdiagnosis and a wrongful birth) as well as an insurance bad faith case. Using questions administered either before or after case presentation, they Identified jurors who would be considered “excludable” (subject to challenge for cause or peremptory strike) based on the presence of extreme case-relevant attitudes, then they varied whether participants experienced no voir dire, minimal voir dire (open-ended questions on whether they had any case relevant biases) or extended voir dire (detailed questioning on relevant attitudes), and also varied whether they faced rehabilitation questions (i.e. “Could you set that aside?”) after expressing a bias.
They found that very few of the mock jurors (less than two percent) volunteered the information that they had potentially biasing views. But fully, 42 percent did actually have potentially excludable attitudes. The researchers also found that nearly all of the pre-existing views assessed — attitudes about plaintiffs, attorneys, doctors, insurance companies, burden of proof, and limitations on litigation — mattered to the ultimate verdicts and damages amounts. They also found no evidence that exploring these attitudes prior to case presentation “tainted” (or sensitized) the panel.
Finally, they found that rehabilitation did not work with mock jurors saying they could be fair at “stunningly high rates.” Jurors saying they could be fair seemed to have no influence on actual fairness. Ultimately, they concluded, “generic questions requiring jurors to spontaneously and explicitly acknowledge that they cannot be impartial are unlikely to aid attorneys or presiding judges. Worse than that, they found that the act of professing fairness can create the feeling in jurors that they’ve been “cured” of bias by the judge. “Judicial rehabilitation,” they write, “had an ironic backfire effect: Despite not actually reducing jurors’ biases, it did make them think they were less biased.”
The Implications: Rely on Extended Voir Dire, Not on Rehabilitation
Conditions for voir dire vary a great deal across the country: How much time is available, what kinds of questions are allowed, and whether it is conducted or tightly controlled by the judge, or whether leeway is afforded to the attorney. In those venues where attorneys are allowed to make full and strategic use of extended voir dire, and are able to ask potential jurors about their views and experiences, and not just about “bias” or “unfairness,” this research supports the idea that attorneys should take full advantage of that. The attitudes and experiences uncovered during a comprehensive voir dire examination do matter in identifying who will have the greatest amounts of bias in practice.
Where it is a matter of judicial discretion, the research strongly supports the idea that attorneys should ask for extended voir dire. The article adds to the body of social science that can and should be cited to the court in support of a motion.
The final implication is to see judicial rehabilitation for what it is: an artificial limit on the number of strikes and challenges you can exercise, and not a way to ensure, or even promote, fairness.
The researchers succinctly state the reason why both minimal voir dire and rehabilitation fail:
“Expecting naive jurors, most of whom have never been in a courtroom, to spontaneously realize and acknowledge biases arising from, for example, negative attitudes toward litigation or the awarding of noneconomic damages is not reasonable.”
We can hope that as the benefits of full voir dire, as well as the limitations of shortcuts, continue to be demonstrated in the research, the courts themselves will move toward what is more reasonable. But in the meantime, attorneys need to take full advantage of the tools they have, to press for what works, and to not rely on the placebo that is a “can you be fair” question.