By Dr. Ken Broda-Bahm:
It’s always nice to announce a birth, to welcome something new into the world. In this case, weighing in at 15 letters and 6 syllables, it’s a new word: “prehabilitation!” And it’s a pretty useful word for those wanting to understand, teach, and most importantly, fix oral voir dire. The word is the focus of an article in the current issue of The Jury Expert, written by Centre College psychology professor Mykol Hamilton and three of her students (Hamilton et al., 2014). According to the authors, the contraction of “premature rehabilitation” occurs when panelists are talked out of biases in advance of those biases being expressed. “Before each prospective juror even had an opportunity to admit to bias,” the team observes, “the judge and attorneys began trying to remedy potential bias, signaling the legally and socially desirable, ‘correct’ responses to questions about a juror’s responsibility to be impartial, fair, open-minded, and to set aside biases.”
The researchers studied the prevalence of prehabilitation using a content analysis of 605 judge- and attorney-conducted voir dire interviews from 11 high-profile cases (all but one criminal) in 9 venues. All of the judges made prehabilitative introductions, preconditioning jurors by telling them that the purpose of the exercise is to determine “whether they could be fair,” “whether they’re right for the case,” or “whether they can look at all sides.” Most of the prosecutors (73 percent) also incorporated the same kinds of prehabilitating statements into their questions, as did a modest majority (55 percent) of defense attorneys. The article, along with comments by trial consultants Charli Morris and Diane Wiley, is worth the read, and available for free. The vocabulary and the examples helped to shape my thinking on some of the central reasons for the failure of voir dire when its premised on a number of bad assumptions. In this post, I apply some of that perspective and contribute a unique way of thinking about and organizing this advice into a set of considerations and principles that judges and trial lawyers should apply in voir dire.
The Juror Candor Toolkit
Drawing from the ideas and advice offered in the article and its associated comments, I think we can group the important psychological aspects of questioning into three dimensions, made more memorable by the use of ‘Three C’s’ – context, control, and complexity.
Avoiding the prehabilitation that stands between the questioner and honest answers requires paying attention to context (account for the setting and the expectations produced), control (don’t overestimate juror ability to know or regulate bias), and complexity (treat the relevant attitudes as nuanced and varied, not simple or black-and-white). Focusing on those three components helps the questioner know what to do and what to avoid.
Don’t Do This: Encourage Panelists to be Overawed by Legal Formalism
As the article notes, the courtroom environment by itself sends the panel the message that they are in a formal context. Don’t add to that by framing your questions along the lines of whether, as jurors, they could “fulfill their duties,” “follow the instructions,” or “uphold their oath.” True attitudes are what you’re after, and attitudes don’t adhere to any of those strictures.
Instead Do This: Change the Context
Instead of asking for professed statements here in court, ask panelists what they would think or say on the relevant issue if they were in a more informal discussion setting. Dr. Hamilton’s article reports on research showing that this “water-cooler approach” results in significantly more admission of bias. And as trite as it sounds, I also think that asking about what panelists think in “your heart of hearts” can also remind them to distinguish between their true attitudes and their statements in court.
Don’t Do This: Talk About Duty Before Asking About Attitudes
This is the one judges violate every single time. As the researchers note, when jurors express doubts about their fitness following an invocation of duty, then they're essentially saying, "No, I can't follow the law. I don't believe in the American justice system. I'm not willing to set aside my prejudices. I'm a bad citizen. In fact, I'm a rotten person." As long as jurors get the message that admitting to a bias means giving the wrong or nonpreferred answer, then there will be a strong gravitational pull away from the truth. Some will still admit it (because they want out of jury duty), but many more will not.
Instead Do This: Destigmatize Bias (And Don’t Use the Word “Bias”)
Refer to opinions, experiences, attitudes and beliefs (which are good), and not “bias," "prejudgment," or “prejudice” (which are bad). Instead of treating bias as the aberration, model it by referring to some of your own strongly-held beliefs or experiences which would hypothetically disqualify you if you were called in another case. “Jurors don’t really know what it is that constitutes an opinion or a prejudice," NJP consultant Diane Wiley notes in her comment, "they assume that their opinions and prejudgments are just ‘normal’ and shared by everyone.”
Don’t Do This: Expect Self-Diagnosis
Voir dire practice is premised on the unrealistic assumption that panelists know and understand their own biases. As I’ve written before, when you’re asking for self-assessment, you’re asking about people’s self-constructed identity – their ideal versions of what they think and do. When it comes time to watch the trial and then to deliberate, they won’t be relying on those idealized identities, they’ll be applying their true attitudes.
Instead Do This: Ask Questions That Project
Instead of asking what they think, try asking about their views of what their community or their friends and family would think. As Dr. Hamilton and the other authors observe in the article, “It is simply more comfortable to project a guilty bias onto others than to admit it oneself.” In a case involving high pretrial publicity, for example, asking whether a panelist thinks the community leans toward conviction can be a pretty good window into what the panelist thinks.
Don’t Do This: Ask If They Can Control Their Bias
In addition to overestimating candor, questioning attorneys, as well as the courts, tend to also overestimate control. It is safe to say that there is no known psychological process by which a meaningful experience or a strongly-held view is simply “set aside” for purposes of trial. When you ask panelists if they can control bias, then those who want to see themselves as “fair” will have a strong pull toward “yes.”
Instead Do This: Ask How
While it gets into the area of rehabilitation rather than prehabilitation, Diane Wiley provides some excellent advice at the end of her comment. Asking “how” a bias is controlled instead of “whether” it can be controlled encourages jurors to make a more honest appraisal. And the most honest answer to a question like, “How are you going to put aside your feelings?” is likely to be “I don’t know.” It’s also a good idea to apply that same “how” in other ways: “How easy or how hard would it be to look past that experience?” or “How is that belief likely to affect you?”
Don’t Do This: Frame Complex Attitudes As “Yes/No” Questions
In a high-stakes setting like voir dire, it is essential to respect the complexity of attitudes. The law’s preference for a “yes” or a “no” on bias conflicts with the more accurate spectrum of opinion that individuals are likely to hold. Ultimately, your judge is going to expect that “yes” or “no,” before granting a cause challenge, but in the walk-up to that question, the black and white version can often obscure the more complicated and more truthful views.
Instead Do This: Give a Range
As North Carolina consultant Charli Morris notes in her book, and her comment on the article, giving jurors a range of opinion (e.g., “On a scale of 1 to 10…”) can free the panelist to admit to some level of partiality without admitting, in their own mind at least, to being on the “unfair” end of the spectrum. Other ways of inviting a more nuanced answer would be to ask, “how close or how far” away from a particular view the panelist would be.
Don’t Do This: Feed Jurors Your Language
The other problem with a “yes/no” question is that it’s your language that jurors are saying “yes” or “no” to. It’s not their words. For the same reason that the leading question works well in cross-examination, it works poorly in voir dire. Instead of measuring the panelist’s true opinion, what you may instead be measuring is your own ability to control the ‘testimony.’
Instead Do This: Ask Open-Ended Questions and Pivot Off Of Answers.
Because you’re wanting to assess their honest opinions, it helps to find out how they would put it. As I’ve written before, the technique of asking an open-ended question, and then building that answer into the next question, allows the attorney to maintain some control while still learning how potential jurors would frame and describe the relevant attitude. Letting them set the terms seems less manipulative and communicates genuine interest. You’re also able to infer more about the panelist simply by listening to them talk.
I understand that some of this advice is at odds with the “magic words” perspective on voir dire. “Okay,” you might be thinking, “I understand why it is a bad idea to do that…but I have to do that if I’m going to meet the judge’s standards for a cause challenge.” That’s going to be true in some circumstances, but one important caveat: The search for genuine attitudes comes first , and there is only a reason to rehabilitate or to fight rehabilitation after they’ve revealed their true colors. So, sometimes careful rehabilitation is necessary. But prehabilitation? Never.
Other Posts on Oral Voir Dire:
- Lawyers, Set Aside Your Own Bias in Voir Dire
- Never Rely on Self-Diagnosis of Bias
- Beware the Herding Instinct in Opinion Formation
- Practice the Pivot in Oral Voir Dire (Part Three): The Demonstration
Hamilton, M.C., Lindon, E. Pitt, M., Robins, E.K. (2014). The Ubiquitous Practice of "Prehabilitation" Leads Prospective Jurors to Conceal Their Biases. The Jury Expert Vol. 26 No. 3 August 2014.
Image Credit: 123rf.com, used under license, edited by Nick Bouck