December 26, 2016

To Elicit Bias, Ask About Leaning

By Dr. Ken Broda-Bahm: 

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During voir dire, the traditional questions designed to expose bias tend to focus on the existence or nonexistence of a biasing attitude or experience. Have you formed any beliefs about the defendant’s guilt or innocence? Do you believe drug companies are more concerned with profits rather than people? In truth, these biases, as well as potential jurors’ self-knowledge of these biases, are more likely to be a matter of degree. A question that focuses on the level or extent of a potential bias, or on a degree of leaning for or against a particular belief is more likely to yield an expression of bias than is a question that focuses on just the presence or absence of a belief. That isn’t just an intuition, it is also a finding in recent research. The current issue of The Jury Expert includes a brief research article (Hamilton & Zephyrhawke, 2016) measuring the advantage in looking at bias as a leaning rather than as a firm stance. Continuing their long-term research program focused on the effects of language in revealing or concealing bias, professors Mykol Hamilton and Kate Zephyrhawke looked at whether less formal and rigid formulations could yield greater and more reliable expressions of bias. 

The short answer: They do. Testing what they call a “water cooler” version of the presumed guilt or innocence question often included in change of venue surveys, they used a formulation asking about leaning instead: “If you had to say you lean one way or the other right now about the guilt or innocence of [the defendant], which way would you lean?” Incorporating that question into nine telephone surveys on venue bias, they suspected that “the less official tone might reduce the likelihood of knee-jerk answers.” Ultimately, they found that the leaning-based question tended to add 10 to 15 percent to the proportion answering in the affirmative to a more traditionally phrased question. “Increases of these magnitudes,” they conclude, “could make the difference between a change of venue for your client being denied or granted.” While they didn’t test it directly, they also note the potential for leaning questions to serve the same purpose in oral voir dire and supplemental juror questionnaires as well. By making it a little easier and more socially desirable to say “Yes,” questions focused on degrees of leaning can increase the chances for successful cause challenges and provide a better foundation for the exercise of peremptory strikes. 

But it isn’t just a simple matter to switch to leaning based questions. They have to be asked with care, in a way that makes it relatively easy for jurors to answer, and they still need to keep an eye toward meeting the court’s standards on proper cause challenges. The benefits of a relativistic question outweigh the problems…but there are still problems. 

Problem One with Leaning: They Can Be Difficult to Ask

The classic way to measure a leaning is through a scale question. For example, the research article quotes a version that is included in an American Society of Trial Consultants practice guideline: “Based on what you have read or heard, do you think [name] is definitely not guilty, probably not guilty, probably guilty, or definitely guilty?” Even if the language is changed to “...lean toward,” that question construction can still be challenging in oral voir dire. In addition, Hamilton and Zephyrhawke frame their forced-choice leaning question with the phrase, If you had to say…” in settings where the questions are reviewed in advance, opposing counsel might predictably object that “They don’t have to say.” That phrasing has good social science justifications, but an adversary could argue that it presumes a bias or subtly leads potential jurors toward a bias. 

When using a questionnaire, you can omit that “If you had to say…” phrasing and, instead, create response options that simply omit the middle option. Respondents might still choose a “N/A” or avoid answering, but the forced-choice format will still work in eliciting greater expressions of potential bias. In oral voir dire, one good alternative to identifying multiple-response options (which jurors often cannot remember) is to frame the question as a simple forced choice between two scenarios: “Some people think drug companies are more likely to be driven by greed than other corporations. Others think they’re about the same as any large company. If you had to say which of the two views you are closer to, which would it be?”

Problem Two with Leaning: They Can Be Difficult to Convert to Challenges 

The other problem in asking about leaning has to do with the court’s response: A leaning does not generally capture the “magic words” that the court is looking for to justify a cause challenge. Just because a potential juror leans toward a given view, and just because it might be difficult for that person set aside that view for trial, does not mean that the juror would be unable to follow instructions. “No one said this was supposed to be easy,” the court might be expected to say. 

In order to get from leaning to a cause challenge, counsel needs a kind of “conversion strategy.” I see two possibilities for building on a leaning in order to nail down a cause. One is the basic “Foot in the Door” strategy, or the principle of persuasion that small commitments tend to lead to larger ones. Once a panelists has admitted to a bias in some fashion, they are more likely to remain consistent with that admission when the question changes. The other possibility is to focus on difficulty. Once a potential juror has admitted to a bias in the form of a leaning in one direction, ask how they would go about setting that aside. Note, this is different from — and better than — the more traditional question of whether the juror could set the attitude aside. How is a distinctly more difficult question, and if the panelist has trouble coming up with a way to escape that bias, then you’ve paved the way for their admission that perhaps they could not reliably set it aside. 

It requires some creativity but, even with the difficulties, trial lawyers are better off treating attitudes realistically as shades of gray rather than matters of black and white. 

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Other Posts on Voir Dire Wording: 

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Hamilton, M. C. & Zephryhawke, K. (2016). More Techniques for Uncovering Juror Bias Before It’s Too Late. The Jury Expert 28: 2 (December). URL: http://www.thejuryexpert.com/2016/12/more-techniques-for-uncovering-juror-bias-before-its-too-late/

Photo Credit: 123rf.com, used under license, edited. 

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