A newly-published study about the effects of voir dire in capital cases suggests that social scientists and the courts may need to reconsider a long-held tenet. For at least the past 35 years, the belief has been that jurors exposed to the process of jury selection in capital cases, known as “death qualification” of the jury, are more prone to convict. This was based on research (Haney, 1984) showing that the focus on the penalty phase (unusual in criminal voir dire) led to a significant increase in research participants’ willingness to presume that the defendant is probably guilty. After all, if we are talking so much about the penalty, it must mean that everyone (the judge, the prosecutor, and the defense attorney) believes that is where we’ll end up.

But fast forward to 2018, and this relationship is tested again, a bit differently this time. Two researchers from John Jay College (Vitriol & Kovera, 2018) replicated the original finding: Exposure to capital voir dire does indeed increase the jurors’ presumptions of guilt. But they went on to see how that exposure influenced expectations about evidence and the ultimate verdict in the case, something the previous studies had not done. What they found was surprising to many (myself included) who had emphasized the ‘death-qualified juries are conviction prone’ message for years. What they found is the opposite. Those exposed to capital voir dire expected more extensive and indisputable evidence from the state, and as a result, they were significantly less likely to convict compared to those exposed to standard voir dire. And it wasn’t a small difference. Those who went through standard rather than capital voir dire, were twice as likely to convict. This distinction between presumptions and expectations carry some important implications for capital jury selection, as well as for any jury selection.

1. The Research Results Don’t Rehabilitate Death Qualification

At first read, one might see the current study as undermining the case against death qualification. After all, the American Psychological Association itself weighed in to the Supreme Court based on this research, arguing that death qualification undermines the goal of a fair trial for the defendant. If convictions are actually reduced by the process, then the objection based on social science might seem to be off-base. However, there are two biases at work: On the one hand, death qualification creates a presumption of guilt, and on the other, it leads to heightened expectations for the quality of evidence. There is no evidence that the two biases neatly offset each other. In any given case, one might be stronger than the other. So, if anything, the new study is a reason why both sides ought to be suspicious of death qualification of juries.

2. No, They Don’t Make up Their Mind at the Start

Another implication of the study is that there is a distinction between the initial presumption a juror might have and their verdict. Of course, this conclusion might seem obvious, but litigators will often act as if it isn’t true. For example, we’ve all heard the chestnut that “80 percent of jurors make up their minds in opening statement.” There isn’t, and has never been, research showing that is true. Instead, the research and the practical experience agree that, while initial leanings are important, jurors can and do change their minds. For example, in this case, the very same attitudes that leads jurors to believe the defendant is probably guilty, also leads them to believe that the state must have overwhelming evidence. If the actual evidence fails to meet that high bar, then acquittal becomes more likely. It is a process that jurors need to get through, and the initial leaning does not determine the end result.

3. So Consider the Message of Voir Dire

Capital jury selection is relatively well-researched, but the findings at this level are important for jury selection generally, including in civil cases. The finding, unsurprising when you think about it, is that the process of going through voir dire, of discussing attitudes and beliefs that bear on the case, changes the potential jurors. They pick up messages, make some presumptions about the case, and start to form expectations about what the evidence will show.

So one reminder from this research is that it helps to think about what messages your own voir dire is sending. If you spend most of your time talking about damages, does that lead jurors to presume that you’ll get to that point? Does it raise the expectation that the plaintiff probably has very strong liability and cause evidence? It pays to be careful about how you phrase and introduce your questions, keeping these presumptions and expectations in mind. One way to check on these effects is to hold a mock voir dire, and then talk to your panelists afterward about what they would assume regarding the case based on the questioning alone.