By: Dr. Ken Broda-Bahm –
Watching the Wizard of Oz recently with my three (and a half!)-year-old daughter, we came to the familiar scene of the fearless Toto interrupting the Wizard’s speech by pulling back the curtain on a man furiously working levers and wheels. When Dorothy and company ignore the instruction to “pay no attention to the man behind the curtain,” it becomes clear that what we see of the ‘wizard’ is an elaborate façade. There is a similar façade at work during jury selection, as well as every other personal interaction: we present a version of ourselves that comports with social expectations. To those who research human attitudes, this is known as “social desirability bias,” and it is probably the biggest barrier between you and honest answers in voir dire.
Social desirability bias (Crowne & Marlowe, 1960) refers to the tendency to edit answers in the direction of what is seen as more desirable. When surveyed for example, people will tell you that they eat healthier, vote more often, and spend more quality time with their children (watching and discussing the Wizard of Oz, for example) than they actually do. And it isn’t necessarily a process of consciously lying. Instead, they are providing you with their own self-image which is colored by a curtain of selective perception. Success in using voir dire to uncover the real attitudes and experiences that could turn a juror against your case requires strategies for revealing the woman or man behind that curtain.
One strategy for dealing with social desirability is to rely on jurors’ oath to tell the truth. But that isn’t a very good strategy. If jurors don’t feel that they are lying, but are instead selectively recalling behavior or interpreting attitudes based on an idealized filter, then an oath or a promise to tell the truth won’t necessarily help. Indeed, there are two important aspects of the voir dire setting that would tend to aggravate social desirability bias: 1) a tendency to address potentially threatening topics (voir dire is, after all, a quest to uncover ‘bias,’ which jurors understand to be improper), and 2) the perceived authority of the judge or the lawyer asking the questions. Both of these factors will make it more comfortable for jurors to present answers that lean toward acceptability rather than honesty.
So what can you do to minimize this bias in oral voir dire? Let me suggest four general strategies.
1. Get a written questionnaire if you can. When a survey is self-administered, as it is when potential jurors fill out a supplemental juror questionnaire on their own, respondents are less likely to rely on social desirability when providing answers. A recent study (Chang & Krosnick, 2010) compared oral interviews to self-administered questionnaires, and found less error in several categories, including social desirability, in the self-administered questionnaires. Even when the results are not anonymous, the act of self-administering the survey in a private setting leads to more honest answers. This is perhaps the best reason for requesting a written juror questionnaire in your case, and for using one that goes beyond the basics of work experience and prior jury duty to get at the critical experiences and attitudes that could lead to bias in your case — experiences and attitudes that potential jurors might be tempted to fudge if asked directly in open court.
2. Get attorney-conducted voir dire if you can. You might think that potential jurors would be less prone to lie when questioned by the judge. Some research, however, shows the opposite: when questioned by a judge rather than an attorney, people are more likely to provide the less accurate, but more socially desirable responses. An earlier study, (Jones, 1987) tested the accuracy of potential jurors when answering the same questions for attorneys and judges, and found that the jurors were less candid and more likely to conform to legally appropriate answers when responding to the judge. Even though both the judge and the attorneys are likely to be authority figures in the eyes of potential jurors, experienced litigators seem to be more able or willing to build rapport, develop a genuine exchange and frame questions that are crafted to elicit, rather than cover, the existence of bias.
3. Normalize the notion of ‘bias’ at the start of voir dire. When the attorney does have the opportunity to conduct oral voir dire, it is wise to begin with some expectations setting:
We all go through life forming some deeply held opinions based on our experiences. That is normal. But it means that not every juror is right for every case. For example, I wouldn’t be the right kind of juror for a lawsuit against the Green Bay Packers football team, because I believe the Packers can do no wrong. There isn’t anything right or wrong about that opinion, it is just my opinion, so that case just wouldn’t be the case for me.
This type of speech may sound a little trite to experienced lawyers, but the idea is a fresh and important one for new jurors. It is definitely worth the time to ensure that jurors know it is okay, from a social desirability standpoint, to express bias in one direction or another. And when a juror does express a bias, believe them, and avoid the temptation to talk them out of it.
4. Frame your questions to avoid telegraphing a correct or incorrect response. Probably the most important thing an attorney can do in their oral voir dire is to think hard about ways to structure a question so that it gives permission, in a sense, for jurors to provide the honest, rather than the socially desirable, response. For example, compare the following two questions:
1. How many of you would feel some bias against a plaintiff who is not a U.S. citizen?
2. If you had to choose, which of the following two views would you lean toward: one, U.S. courts should primarily be for U.S. citizens, or two, U.S. courts should be open to all?
Both questions get at the same thing: anti-immigrant bias. The first question, however, carries the strong implication that this bias is wrong, and as a result that question is likely to increase the pull of social desirability in the response. The second question, on the other hand, simply presents that opinion as one of two seemingly reasonable alternatives. That construction increases the chance that jurors will report their honest leaning instead of providing the legally ‘correct’ response.
You might recall from the Wizard of Oz, that once revealed, the Wizard has a change of heart and quickly gives everyone what they want: hearts, brains, courage, and the promise of an express trip back to Kansas. In contrast, you can’t expect honesty in voir dire by itself to create a better juror. You might feel that a juror who honestly reveals a bias is also reliable in their promise to set that bias aside. But trust the honesty more than the promise. The point of thorough and careful questioning is to inform the selection process. You pull back the curtain in order to decide whether that juror is a strike or not. If it is a question of whether the juror should ultimately come to court to hear your case or should stay home, then for at least some of these potential jurors, there’s no place like home.
Crowne, D., & Marlowe, D. (1960). A new scale of social desirability independent of psychopathology. Journal of Consulting Psychology, 24 (4), 349-354 DOI: 10.1037/h0047358
Jones, S. E. (1987). Judge- versus attorney-conducted voir dire: An empirical investigation of juror candor Law and Human Behavior, 11, 131-146
Image Credit: Robert Acevedo (ra41), Flickr Creative Commons