Category Archives: Voir Dire

September 11, 2017

Use ‘Free Speech’ to Disinhibit Expressions of Bias in Voir Dire

By Dr. Ken Broda-Bahm:

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One of the main goals of voir dire is to encourage jurors to express some of their actual biases so that you can use those expressions as a basis for cause or peremptory challenges. And there is one big obstacle to achieving that goal: Expressing bias is normally inhibited. This is due to the nature of bias, as well as the inclination toward ‘social desirability‘ that inhibits the expression of anything that could be considered inappropriate or unusual. There is also the formal courtroom setting that supercharges that inhibition by putting a spotlight on what the ‘right’ answer is in that setting (and the ‘right’ answer, venire members quickly deduce, is to say that you would be fair to all). Sometimes the style of questioning further magnifies this problem, with lawyers and judges often “prehabilitating,” or talking people out of their biases before they’ve even had a chance to express them.

As a result, what we often end up with in voir dire is insincere and unreliable promises to be unbiased, which is decidedly not the goal. So the practical issue is, how do we get people to feel more safe expressing bias? One answer, drawn from current events and recent research, focuses on what disinhibits expressions of bias, or to put it more simply, makes people feel more comfortable and justified in expressing what they actually feel. That solution is to frame it as “free speech.” In a recent piece on National Public Radio’s Hidden Brain program, social scientist Shankar Vedantam interviews University of Kansas psychology professor Chris Crandall, who discusses research showing that those highest on racial bias, for example, are more likely to latch on to “free speech” as a defense to expressions that might otherwise be considered racially biased. That suggests that one way to counteract the inhibiting formality of the courtroom might be to emphasize the disinhibiting frame of free speech. In this post, I’ll briefly describe that research and discuss how it can be put into practice in your next voir dire.   Continue reading

August 17, 2017

Sunshine: Support Open Records as One Part of the Answer to Discriminatory Jury Selection

By Dr. Ken Broda-Bahm:

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America is not yet post-racial, and the Nazis marching this week in Charlottesville, Virginia should be a reminder of that. Continuing tensions on race are played out in courtrooms as well. The as-yet unresolved issues of racial bias in jury selection provide one example. Race-based removals impact the criminal sphere more than civil sphere, and also matter more in some cases than others. Still the continued presence of strikes that seem to be based on race has led to some calls to eliminate the peremptory challenge altogether. For example, in a case earlier this year before the Washington State Supreme Court (City of Seattle  v. Erickson), two judges joined in calling for “the complete abolishment of peremptory challenges” as the only sure-fire way to eliminate the constitutional problem of jurors struck due to their race.

But perhaps it isn’t necessary to throw that peremptories baby out with the racial-strike bathwater. A recent paper proposes one alternative that has worked in other contexts: open records that, the authors hope, will lead to a little more disinfecting sunshine on the exercise of strikes. In the article (Wright, Chavis, Parks, 2017), Ronald Wright, Kami Chavis and Gregory Scott Parks of Wake Forest University School of Law write on their newly-formed “Jury Sunshine Project,” which started at the state level, assembling records from more than 100 North Carolina courthouses on 1,306 felony trials involving approximately 30,000 removed jurors in 2011. Prosecutors in the state, they found, removed nonwhite jurors about twice as often as white jurors, and defense attorneys excluded white jurors more than twice as often as nonwhite jurors. It varied widely by city as well, with prosecutors in Charlotte, Winston-Salem, and Durham accepting significantly fewer nonwhite jurors than prosecutors in the rest of the state. In this post, I will write a bit on the project and what it potentially offers as a way to retain peremptory strikes while addressing their abuses.  Continue reading

July 13, 2017

Be Prepared to Explain Your Strikes

By Dr. Ken Broda-Bahm:

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Once, as I sat in a courtroom getting prepared to assist in picking a jury, the lawyer I was working with leaned over to say, “Make sure you have some reasons for strikes written down that we would be able to show the court.” My reaction? “Of course. All of my reasons would be reasons that I would be willing to show the court.” Thankfully, the attorney’s response was, “Good.” Although I am sure it happens, in all the jury selections I’ve been involved in, I’ve never recommended or had someone recommend to me that a potential juror should receive a peremptory strike due to their race. And the law says, that’s how it should be. Not just the law, but social science as well: Demographic characteristics like race, age, or gender might be visible and obvious, but they aren’t terribly predictive of bias. Despite that, there has been a long-running concern over the use of racially-based strikes, particularly in criminal cases and particularly by prosecutors. The well-known compromise forged in the 1986 case of Batson v. Kentucky appears to be outliving its usefulness, at least in the eyes of many judges and legal commentators. Based on the Batson process, where one side is able to make a prima facie showing of a prima facie case that one or more peremptory strikes are based on racial bias, the other side has to show a race-neutral reason for their strike or strikes. The conventional wisdom, however, is that this process fails at two levels because judges often don’t see a prima facie case, and even when they do, it is easy for the striking party to come up with just about any neutral reason.

The result of the perceived popular failure of Batson is that the long-simmering distrust of peremptory challenges is now at risk of boiling over. In a recent case before the Supreme Court of Washington State, a majority concurred in lowering the standard for the prima facie case (to the point that striking the last member of any cognizable racial group now presumptive creates a prima facie case), and have called for a working group to create new rules for addressing bias outside of the Batson framework. Two judges, Mary Yu and Steven Gonzalez, went further, and joined in calling for “the complete abolishment of peremptory challenges.” Justice Gonzales said, “The use of peremptory challenges contributes to the historical and ongoing underrepresentation of minority groups on juries, imposes substantial administrative and litigation costs, results in less effective juries, and unfairly amplifies resource disparity among litigants — all without substantiated benefits. The peremptory challenge is an antiquated procedure that should no longer be used.” The criticisms and benefits of peremptory strikes can be addressed, and abolition (even in the many, many cases where race is not an issue) seems grossly overbroad. But in this post, I want to take aim at the assumption that Batson cannot work because it is too easy to come up with a pretextual race-neutral reason. It strikes as odd that within the field of law, a cathedral to the idea of persuasion through logical argument, we fear that the process simply cannot tell the difference between a reasonable basis and a wholly made-up rationale. I think it can. And further, I think that if that is what it takes to reduce the reality and the perception of biased use of peremptories, any lawyer and any consultant working with that lawyer should be prepared to defend the basis for their strikes when called upon. Continue reading

April 13, 2017

Ask About Others

By Dr. Ken Broda-Bahm: 

Other Point

In voir dire, the whole point is to find out information about the potential juror. When you’re seeking out experiences or attitudes that you might use to warrant a strike or to mount a challenge for cause, you care about what that individual thinks, not about what anyone outside the courtroom might think. But it can be a great strategy to ask those venire members what they think others think. Why? Because people will sometimes externalize their own opinions or experiences. For example, awhile back I wrote about the 2014 election for Scottish independence. The polls that asked individuals for their own votes were off by about 10 points, while the polls that asked what individuals thought others would do tended to be much more accurate reflections of what happened in reality. The reason for that is, when talking about others, we tend to mitigate some of the biases like “social desirability” that cause us to try to frame ourselves and our own views in a favorable light. So when it comes to an opinion that might not be comfortable or favorable, it is easier to talk about others than to talk about ourselves. 

And there is research to back that up. A recent study (Orvell, Kross & Gelman, 2017) for example, found that people make “you” statements when they’re actually sharing their own beliefs. For example, the old “You win some, you lose some” is generally said by the person who just failed at something. Psyblog quotes study author Ariana Orvell, “When people use ‘you’ to make meaning from negative experiences, it allows them to ‘normalize’ the experience and reflect on it from a distance.” Looking further back, there is also research (Wood et al., 2010) supporting a general relationship between our own views and what we project onto others. What we say about others is often what we see about ourselves: As Jeremy Dean notes, “The generous person sees others as generous and the selfish person sees others as selfish.” So for the litigator conducting voir dire, the ability to strategically shift focus from the self to others should be in your bag of tricks. In this post, I’ll focus on a few settings where that approach might be useful. 

Topics Where You Might Ask About Others

Of course, sometimes asking directly is the best course. But when perceived social desirability might interfere with an honest answer, or some other bias is potentially at work, then questions about others can be a useful proxy. Of course, the relevance and usefulness of each question will depend on the case, but here are a few kinds of questions that might reveal attitudes that you would not get with the direct and personally-focused question. 

Racial Bias

Do you think that the average person still harbors some racial bias, or do you think that we as a society have moved past that? 

Employment Practices

Tell me what typically happens at your company if someone sees signs of wrongdoing? Are they more likely to raise a complaint, or more likely to let it go? 

Corporate Attitudes

Do you think most of the people you know would tend to trust or tend to distrust a large corporation?

Products Liability

When the typical consumer gets a product like this, do you think they read and follow the warnings, or not? 

Criminal Cases

Do you believe people are more likely to believe a police officer because he or she is a police officer?

Energy Cases

Do you think most royalty owners would say they have a positive experience or a negative experience with energy companies? 

Intellectual Property

What do you think most people would support if they had the choice: protection for intellectual property, or competition and lower prices? 

Pretrial Publicity

Do you think most people who are exposed to this coverage have formed an opinion on the case? If so, what opinions do you think they’ve formed? 

Cause Challenges

Now, if there was someone else who had the same background and attitude that you’ve just described, do you think that person would have a tough time being open-minded on a case like this? 

The meaning and usefulness of answers to these questions will vary depending on the case and depending on the person. Of course, it is not as easy as saying it is always a case of projection.  The potential juror could legitimately think, “You didn’t ask what I thought, you asked about others,” and might even respond by distinguishing between what others think and what they think. That can also be useful. Ultimately, their perception of what is “normal,” is still going to have an influence on their own opinions. Like everything else in voir dire, it is one more piece of information.

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Other Posts on Voir Dire: 

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Orvell, A., Kross, E., & Gelman, S. A. (2017). How “you” makes meaning. Science, 355(6331), 1299-1302.

Wood, D., Harms, P., & Vazire, S. (2010). Perceiver effects as projective tests: what your perceptions of others say about you. Journal of personality and social psychology, 99(1), 174.

Image credit: 123rf.com, used under license, edited

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March 13, 2017

Redefine Race

By Dr. Ken Broda-Bahm: 

MultiraceThe racial composition is probably one of the first things we notice when venire members file in before jury selection. When recruiting for a mock trial, we will try to match the composition of the venue. Along with other demographics, race is not nearly as predictive as some might think. As a result, race is not used by trial consultants nearly as much as some critics of the field would think. Still race is part of the overall picture of knowing your trial venue, a salient aspect of one’s lived experience; and race is changing. That occurred to me at a recent mock trial when I noticed that nearly a third of our recruits were identifying as “Other” when asked to identify their race in the initial questionnaire. I had seen this before on other projects, and it gave me a sense that something was going on; many were broadly rejecting the categories we had given them. 

That rejection is not limited to my mock trial sample. News in the last few weeks indicates that the U.S. Census Bureau is looking at revising the race question. Apparently, “Other” has been the third largest racial group in America for the past 20 years. With the goal of reducing that proportion, the Census hopes to develop a sharper and more comprehensive understanding of the complexity of America’s racial background. Others who analyze groups of people for the purpose of research or persuasion should take notice. When we are picking jurors, sampling for mock trials, or finding participants for community attitude surveys, it helps to know what we should be looking for when it comes to race. This post will take a look at the changes being considered, along with implications for litigators and researchers. 

The Census Change

The current version is confusing. It appropriately treats “Hispanic” as an origin rather than a race, but that double layer has been confusing to many respondents and has resulted in some inconsistencies. In addition, there are also the subjectivities of skin color to contend with: Is a person from the Middle East “white,” for example?

Here is the current version. 

 U.S. Census 2010 (Current Version) 

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And here is the new version, released in February, that is being considered.  

U.S. Census (Proposed Change)

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This proposed change has met with generally positive reviews. A hashtag, #Notjustother, has even sprung up for many commenters celebrating that they will be “Not Just ‘Other'” in identifying their race. Of course, there will always be some controversies. For example, those with a Middle Eastern or North African heritage have long fought for the “MENA” category included above, but now with Donald Trump in the President’s office, some aren’t sure that Arab-Americans and others from the region will want to identify as such in a government census. 

Implications for Research and Practice in Trial Persuasion

Assuming that the proposed version goes into effect, researchers, including litigation consultants, should consider modeling their own measurement of race after the Census. Doing that will make it easier to match samples to venues. 

There are a few other general considerations worth noting about the new approach. 

It’s About Identification

Prior to 1960, the U.S. Census did not even allow respondents to choose their own race. That information was recorded, but was filled in by the census taker. Since then, we have hopefully learned that it is not a matter of just looking at someone and deciding their race. It is as much about group identification as it is about genetics. 

It’s About Multiples

The statistics are always going to be cleaner if you can get people to pick one category for race identification. Prior to 2000, citizens had to “pick one” for the Census. Even today, that desire for simplicity is probably behind researcher’s attempt to arrive at one race by asking, for example, “What race do you most closely identify yourself as?” But that is consciously leaving out information, and it creates a frustrating question for a biracial person; it is like asking, “Do you identify more closely with your mother’s or your father’s genes?” For the person who wants to say “Both,” racial identifiers should allow for multiple responses. 

It’s Open-Ended

What stands out the most about the revised version is that all of the categories are fill-in-the-blank questions. Even ‘White” follows up with an “origin” to include. It will be interesting to see how people use these open-ended categories, and to find out what that additional layer of data will tell us. 

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Other Posts on Demographics: 

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Image credit: 123rf.com, used under license

February 16, 2017

When You Want to Know, Ask Directly…Sometimes

By Dr. Ken Broda-Bahm: 

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In voir dire, sometimes you want to choose a strategic and indirect way of asking, and sometimes you just want to come straight out and ask the question directly. In an interesting illustration of the difference between the two, Jeremy Dean’s Psyblog recently shared the story of what must have been a “slap-my-head” moment for the social scientists involved. You see, there has been a long-running interest in the psychology of narcissism, defined as self-centeredness combined with feelings of high entitlement and low empathy for others. But here is the funny part: For almost four decades, the standard way to measure individual narcissism was through a psychometric scale known as the “Narcissistic Personality Inventory,” (Raskin & Hall, 1979). This scale is comprehensive, detailed, composed of seven factors (authority, superiority, exhibitionism, entitlement, vanity, exploitativeness, and self-sufficiency), and includes forty questions in total. More recently, however, a research team (Konrath, Meier, & Bushman, 2014) discovered that most of the value of that scale could be captured in a single question. And that question boils down to, “Are you a narcissist?” 

This perspicuous shift is captured in what the researchers, with probably a little bit of vanity, call the “Single Item Narcissism Scale,” SINS for short. The single item is, “To what extent do you agree with this statement: ‘I am a narcissist’ (Note: The word ‘narcissist’ means egotistical, self-focused, and vain).” Participants answered on a seven-point scale ranging from “not very true of me” to “very true of me.” In a total of 11 studies involving 2,250 research participants, the researchers found that the single item measure has a level of agreement (“convergent validity” to the wonks) that is at least as good as other measures of narcissism and carries similar correlation sizes. One implication for lawyers and trial consultants in voir dire is a reassuring one: You don’t always need the fancy scale, and can sometimes rely on a single-pointed question. But for me, the most interesting point is why the direct question works so well in this case, because that also points out the reasons why it does not work so well in other contexts. So in this post, I’ll directly look at the direct question: when and why it works and when and why it doesn’t.  

Ask Directly When Social Desirability Favors an Honest Answer

Here is an interesting question: Why, after all the development of a comprehensive narcissism scale, did it work as well to just ask someone, “Hey, are you a narcissist?” The reason it worked had to do with the perceived social desirability of the answer. Brad Bushman, one of the developers of the single-item scale explains, “People who are willing to admit they are more narcissistic than others probably actually are more narcissistic. People who are narcissists are almost proud of the fact. You can ask them directly because they don’t see narcissism as a negative quality — they believe they are superior to other people and are fine with saying that publicly.” So in other words, perceptions of social desirability work to push non-narcissists toward saying they aren’t narcissists, and to push actual narcissists toward admitting that they are narcissists. So social perceptions in this case tend to favor the honest answer. 

There are other situations where social desirability favors honesty. When asking about experiences or views that would make the potential juror a leader, then you are dealing with qualities that people, the leaders at any rate, will own up to. In addition, the questioning attorney can also create the conditions for greater perceived social desirability in the way the question is framed. For example, when asking about a specific opinion — too many lawsuits, for example — start by normalizing it, saying that many in society hold that opinion, maybe even you yourself. That helps to reduce or remove any stigma jurors might feel in admitting to the attitude. 

But Ask Indirectly When Social Desirability Favors the Dishonest Answer

Because the whole point of voir dire is to discover negative attitudes and experiences that would make it harder for jurors to give fair consideration of your case, the goal is often to uncover views that aren’t naturally going to seem socially desirable. Attitudes about race are probably the best example. Inside a courtroom, you are forced to use something much less direct than, “Do you harbor racial bias?” and outside of court, researchers are forced to use one of the most indirect measures of all: an Implicit Association Test that focuses on unconscious bias. 

The courtroom procedure itself probably makes disclosure harder rather than easier. By framing the reasons for challenges and strikes as “biases,” the in-court voir dire is telling panelists that these are attitudes that a good juror would not have, and views that a juror who can follow the instructions will be able to set aside. 

For that reason, the best practice is to distrust self-diagnosis, and, of course, to avoid labeling the attitudes as “biases,” and to instead discuss them as the kinds of normal attitudes that everyone has to varying degrees. Instead of asking about an attitude while telegraphing that this attitude would make things unfair to your side, save that language for the cause challenge. When you are just trying to learn more as a foundation for your strikes, target the negative attitude in a less direct way. For example, in exploring potential bias against large corporations, an indirect way would be to ask about work experience with large companies: Those who have little to none are significantly more likely to treat companies as faceless and evil. 

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Other Posts on Voir Dire: 

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Konrath, S., Meier, B. P., & Bushman, B. J. (2014). Development and validation of the single item narcissism scale (SINS). PLOS one, 9(8), e103469.

Raskin, R. N., & Hall, C. S. (1979). A narcissistic personality inventory. Psychological reports.

Image credit: 123rf.com, used under license, edited. 

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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November 28, 2016

Ask Open-Ended Questions to Select Your Jury

By Dr. Ken Broda-Bahm: 

19638404_sIn New Jersey, a Plaintiff recently brought an auto personal injury case to trial. It was one of those scenarios where the damage to the occupants was greater than the damage to the vehicle, so the attorney trying the case properly wanted to know if any prospective jurors on the panel would have a hard time with that idea. Could a crash with minimal property damage still be the cause of major injury, pain and suffering? The attorney wanted the court to explore this attitude through open-ended questions, and New Jersey law actually requires open-ended questions (at least three) as part of voir dire. The judge, however, denied the Plaintiff’s request, and instead relied on questions that boiled down to the binary, “Can you be fair?” After a four-day trial, the jury returned with a verdict that essentially paid the outstanding bills but included no damages for pain and suffering. The case, discussed in a recent New Jersey Bar Journal article, went up on appeal, and the New Jersey Bar Association weighed in with an Amicus Curiae brief supporting the Plaintiff and arguing that a denial of open-ended questioning in this case constituted reversible error. “The use of open-ended questions in jury voir dire,” the Association argued, “is critical to securing fair, unbiased and impartial decision makers who are fundamental to our system of justice.” The appeals court ultimately agreed with this argument and reversed and remanded for a new trial. 

In this case, the legal reasons were based in New Jersey law, but the logical reasons for wanting open-ended questioning as the route to uncovering bias apply in all cases, whether the law requires these questions or not. It often surprises me, for example, that even when attorneys are relatively unconstrained in their own oral voir dire, they will too often gravitate to a leading style of questions that only call for “Yes/No” responses. A lawyer’s professional orientation toward precision and control leads them to prefer their own language over anything the potential juror might say. But control and precision are tools for argument and for questioning. In voir dire, what is needed are tools to assess the panel’s attitudes, and not to test their willingness to go along with whatever formulations the judge or the attorneys have constructed. In my view, voir dire should be dominated by open-ended questioning, and when the potential jurors are doing most of the talking, that is one sign of success. In this post, I’ll look at some of the reasons why open-ended questioning ought to be the main tool, and I will share some thoughts on the best ways to ask open-ended questions.  

The Case for Open-Ended Questioning (and the Problem with “C.Y.B.F.”)

I use the shorthand of “C.Y.B.F.” to represent the common “Can You Be Fair?” style of questioning that most judges and many attorneys seem to gravitate toward. That style is more likely to yield agreement (based on the “social desirability” of what seems to be the right answer in a given context), and less likely to lead to accurate knowledge of a potential juror’s true attitudes. As stated in Directive #4-07 from the New Jersey Supreme Court, “The purpose of [requiring the judge to ask open-ended questions] is to ensure that jurors verbalize their answers, so the court, attorneys and litigants can assess the jurors’ attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial.” 

When you want the potential juror to agree, give them a closed-ended formulation to agree with. But when you want to know what they really think, ask them in an open-ended fashion what they think. In the case that led to the appeal discussed above, the Plaintiff’s attorney would have wanted to ask, “What do you think about a collision where the car might be only minimally damaged, but the occupant is still significantly injured? Hearing about that possibility, what thoughts come to mind?” Asking the closed-ended question of whether it is possible, or whether they could be open to expert testimony on the subject might lead to agreement, but asking in an open-ended fashion might lead jurors to share their more honest feelings about the plausibility or the implausibility of that scenario. 

Bottom line, closed-ended questions should be reserved for situations where you are trying to talk panelists into or out of a cause challenge. In all other situations where you want to actually learn more about what they think, ask an open-ended question. 

Common Styles of Open-Ended Questions

Naturally, the specific open-ended questions you’ll want to ask will vary by case. The New Jersey directive, for example, just mandates open-ended questions, with the particular questions being decided by the lawyers and the judges in each case. While your focus and goals will depend on the specific biases you’re trying to uncover, there are some common phrases which are useful in encouraging your panelists to share: 

  • What do you think about…?
  • What is your reaction to…?
  • What is your opinion of…?
  • What has your experience been with…?
  • How would you react to…?
  • Why do you think that…?
  • When you hear about…what is your reaction? 
  • What are the first words that come to mind when we talk about…?

Those are common sense formulations, of course. But my experience is that most judges should be more open to those forms of questions, and most attorneys conducting voir dire should use them more often. Ultimately, I think the secret to good voir dire does not come down to the cleverly-phrased question, but comes down to just getting the jurors talking on the deep themes of the case. 

That can sometimes be a challenge. If the jurors get the message that their role is just to sit there and say “Yes” or “No,” then you are going to learn a lot less than you will if jurors understand that their role is to share what they really think. So one time that attorneys should do a bit of their own talking when they can is in the introduction to attorney-conducted voir dire. Talk about the goals of the process, let them know that the exercise is focused on them and that there are no right or wrong answers. Consider sharing some self-disclosure of your own in order to cement the idea that this is a setting for sharing not just for agreeing. 

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Other Posts on Jury Selection: 

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Image Credit: 123rf.com, used under license (edited). 

October 27, 2016

Consider the Small Chance that “Big Data” Might Pick Your Jury

By Dr. Ken Broda-Bahm: 

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Have you ever had the same advertisement chase you around the internet? So you looked at that new suitcase once, and now it is popping up on every page you view. That effect is one part of our current world, where marketers and other persuaders seem to know more and more about our individual traits and preferences. Just had a life change? Graduation, new job, marriage, baby, or separation? That information is available and for sale, allowing salespeople to tailor their appeals to an unprecedented degree. It’s a part of “big data,” which refers to the complex, growing, and interlocking systems of recording consumer and citizen data for the purposes of assessing credit, targeting purchases, and persuading voters. While the person trying to sell you a suitcase knows the uses of big data, chances are your jury commissioner doesn’t. Jury pools are still assembled using lists that are often old, incomplete, and inaccurate. And juries are still generally assessed using the attorney’s perceptions and, to the extent it’s allowed, oral voir dire. University of the District of Columbia Law Professor Andrew Guthrie Ferguson suggests that it might be time for that to change. The article appears in the current Notre Dame Law Review, and is covered in a recent piece in The ABA Journaland can be downloaded (for free) from SSRN

Ferguson notes that despite its commercial ubiquity, big data has not meaningfully found its way into the courtroom yet, andthis institutional ignorance is purposeful, puzzling, and soon to be challenged by ever-expanding ‘big data’ technologies which are currently collecting billions of bits of personal data on American citizens.” After a thorough discussion of the opportunities and risks of incorporating big data into jury selection, professor Ferguson concludes that courts will have to take a balanced approach. The discussion, however, is more favorable than critical, with Ferguson believing that many of the threats (for example, privacy, court system legitimacy, real and perceived separation between government and corporations, and equal protection) can be addressed through careful implementation. He also shares the opinion that the more targeted information made possible by big data leads to less discriminatory selection: “A large-scale Batson workaround.”

There might be some role for Big Data in modernizing the jury pool management process. After all, if marketers know whether an individual has moved or died, the jury comissioner ought to know that as well. But I believe there is only a small role for actually assessing and picking that jury. In this post, I’ll take a look at Dr. Ferguson’s qualified argument for using big data in jury selection, noting where I agree and where I disagree. 

A Good Idea for Calling a Jury Pool

Dr. Ferguson criticizes the method courts use in order to pull venire panels as one that is a “purposely shrouded and opaque process.” Current federal law requires that such lists be drawn randomly from government lists, typically looking at age, race, gender and zip code only. To improve the show rate and to make the results more representative, big data companies could be paid by court administrators to compile lists that would be more accurate in meeting the “fair cross section” requirement of law and state and federal constitutions. Those lists could do better job of removing deceased jurors or those who due to age, disability, or language will be disqualified once they show up in court. Beyond that, the more specific data could also be used to allow administrators to send out batches of summonses that would proportionally match the demographic characteristics of the venue. That step that could hold potential as a remedy for districts that have faced successful “fair cross section” challenges.

A Bad, or at Least Incomplete, Idea for Assessing a Potential Juror

While big data may have clear value of improving the quality of the mix showing up at the courthouse, Ferguson takes the argument further arguing that big data could be “incredibly helpful for litigants trying to pick a favorable jury.” Ferguson’s main argument is that allowing access to big data evens the playing field, and promotes distributional equality. “Instead of knowing a juror is a 23-year-old, white woman who works as a nurse, litigants in a big data world might know that the juror also reads parenting magazines, but not news magazines, recently went bankrupt, votes Republican, owns a licensed gun, and gives to religious charities.”

Access to that kind of information, he argues, is currently denied to many because only wealthy parties can afford expensive jury-selection consultants. To balance the scales, court systems should provide court approved profiles to all litigants at public expense.

While the fact of selective access to jury consulting based on wealth is a fair criticism, I see a difference between big data and the kinds of social media research that consultants provide. What we do relies on either public records or conscious social sharing. Big data, in contrast, is dominated by commercial and financial information that is, by nature, proprietary. The scope and form of this data exists only because most of us now use cards rather than cash to make our way through the world. Somewhere buried in that credit card agreement, I can only assume, there is a permission to store, use, and transfer that information. But without an option to say “No thanks” and still use the card, it is not a real choice. In short, we don’t have the equivalent of Facebook’s privacy setting on our bank and credit card agreements. Big data’s collection of consumer data is automated and systematized, not situational. It is not a case where a business says, “we need something on Mr. Jones, let’s look and see what we can find.” Rather every time Mr. Jones does something that affects his electronic finances, it is recorded somewhere, and these systems talk to each other in order to form, at all given times, a pretty complete picture of Mr. Jones. That has the potential to make the information more of a shotgun, when what is needed for jury selection is more of a scalpel.

To share one timely example, I receive many advertisements, emails, and other funding appeals from Donald J. Trump. I’m not sure why, since long-term readers of this blog probably understand that I’m on the liberal end of the spectrum. My theory is that I show up in Trump’s data trawling probably because I read articles and follow links about Trump, perhaps because I’ve blogged about him. The big data can count the times I’ve used “Trump” online, but cannot (yet) really understand what I’ve said about him.

Ferguson offers big data, not as a supplement but as an alternative to oral voir dire. It shouldn’t be. Instead of spending the court resources on distributing big data profiles, courts should instead invest those same resources into written questionnaires that are particular to the forms of bias that are most likely to matter in this case. Of course, oral voir dire and survey responses aren’t perfect, but there are many ways of making that information much more reliable, and in any case, the potential jurors know what information they are providing, and that serves as a very reasonable check on what could otherwise be a wide-open fishing expedition.  

Dr. Ferguson’s most important point is that some role for big data is an inevitability, so courts and attorneys should start thinking about the intersections of the data that court systems use and the data the commercial world relies on. That point is well taken, and big data services might be worth checking out. There is at least one (Jury Mapping) that specializes in the litigation use of big data, and that might be good material for a future review in this blog.

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Other Posts on Juror Data: 

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Ferguson, A. G. (2015). Big Data Jury, The. Notre Dame L. Rev., 91, 935.

Image credit: luckey_sun, Flickr Creative Commons

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September 19, 2016

Don’t Expect Cause Challenges to Do the Work of Peremptories

By Dr. Ken Broda-Bahm: 

56719486_sThe peremptory challenge right now shares one problem with the two leading presidential contenders: high negatives. In the recent Foster v. Chatman case, the United States Supreme Court overturned a murder conviction due to the prosecutor’s use of peremptory strikes to eliminate African-Americans from the jury based on seemingly flimsy excuses such as a lack of eye contact when those race-based strikes were challenged. The simple solution, and the one proposed by Thurgood Marshall in his concurring opinion in the earlier Batson v. Kentucky case, is to eliminate the peremptory strike and put the full burden of checking bias on the cause challenge, accompanied by reasons and decided by judges. Marshall’s call has been echoed by many other commentators. For example, at the Civil Jury Project conference in the fall of 2015, Yale University’s well-known law professor Akhil Amar called the existence of peremptory strikes “a disgrace,” and without constitutional basis. In February, 2016, lawyers and judges from across California met to discuss a proposal to reduce the number of peremptories allowed in state courts.

The most recent example of this call comes from the Editorial Board of the Connecticut Law Tribune, who make the case for eliminating the peremptory challenge in Connecticut. “We agree with Justice Marshall’s concurring opinion,” they write, “that the best way to eliminate inappropriate use of peremptory challenges is to eliminate peremptory challenges.” By expanding the cause challenge, making the basis more liberal in including the perception or appearance of bias as a basis for removal, the Board feels that goals of the peremptory strike can be preserved while limiting the chances for discriminatory strikes based on questionable reasons. It sounds like a nice idea: finally a clean sweep to end the troubled legacy of Batson and its progeny. But I believe this recommendation proceeds from a fundamental misunderstanding of the role of the peremptory strike. In this post, I will make the argument that, as much as we should liberalize cause challenges, we shouldn’t expect that to do the job of the peremptory challenge, as originally intended and as still needed today. 

The Current Argument for Doing Away with Peremptory Strikes

The article has, curiously, been pulled down, but a cached version of the Connecticut Law Tribune editorial reveals a short but clear argument for replacing the peremptory with a liberalized cause challenge. In addition to calling out the recent Foster decision, the article generalizes that “Peremptory challenges have a long history more closely related to justice by combat than to justice by equal protection of the law.” The argument draws a dichotomy between reasons that would (or should) serve as the basis for a proper cause challenge on the one hand, and reasons that are based on nothing more than prejudice or a hunch on the other hand. In fact, the word “hunch” is used five times in a six-paragraph essay. “Once the case is in the courtroom,” they write, “a proper argument before a judge should not be based on ‘I have a hunch.'” Their argument is that if counsel’s reason for wanting a panelist off the jury is not based on demographic prejudice and is not simply an unsubstantiated “hunch,” then it should rise to a cause challenge, especially if the court applies a “liberal grant rule” in which the perception or appearance of bias can be enough to justify a cause removal, even if the potential juror is willing to proclaim their fairness to the judge. Expanding the basis for a cause challenge is a good idea, but the question is, does that really do the work of the peremptory? My answer: No, not if you take into account the full role of the peremptory.

The Peremptory’s Purpose and Pedigree

In his dissent in Batson v. KentuckyChief Justice Warren Burger makes some good points. His central argument, in my view, isn’t one of them: He approves of race-based challenges under cover of the peremptory strike because, “The expression required of a challenge is societally divisive.” Today, it is easy to say that race-based exclusion, and other exclusions based on demographic stereotypesshould be “societally divisive” because they are wrong. But one can feel that the Equal Protection Clause trumps a party’s interest in secrecy for its strikes, while still supporting the proper and nondiscriminatory use of the peremptory strike. 

As Justice Burger pointed out, peremptory strikes have been with us as long as juries have been with us. Their use in ancient Greece and Rome, and with the early English juries, has been based on a need for both party’s mutual satisfaction with the panel. “The function of the challenge,” according to Burger, “is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed for them, and not otherwise. In this way, the peremptory satisfies the rule that, ‘to perform its high function in the best way, justice must satisfy the appearance of justice.'” The rationale is not limited to individual, demonstrable, and judicially validated bias, but that doesn’t mean peremptories are limited to empty hunches either. The spectrum in between, and the fact that there are reasons to strike that are reasonable but not individually provable, means that there is still a role for a proper peremptory strike. 

The Reason Cause Challenges Will Never Do the Work of Peremptories

The best part of the Connecticut Law Tribute editorial is its call for application of a “liberal grant rule” on cause challenges. But expanding the basis for cause challenges solves the problem of over-restrictive cause challenges — that is, the lack of any reasons to trust panelists’ declarations of fairness in many cases — but does not solve the reasons for having peremptories in the first place. That purpose is to address factors that could reasonably cause discomfort to a party, but without necessarily meeting the standard for a cause challenge. For example, let’s say that based on good experience, a mock trial or a community survey, counsel knows that jurors with a given experience or attitude are more likely to find against her client. It’s not certain, but it is more likely. That could not be used as a basis for a cause challenge no matter the standard, first, because the past experience or the data couldn’t and shouldn’t be offered in court, and second, because it is a generalization – a reasonable and grounded generalization, but still a generalization and not a fact about the individual in particular. Applying strikes based on that kind of reliable but general information still helps to get both sides to a jury that is less likely to be guided by bias and more likely to be mutually satisfying. 

In comparison to cause challenges, factors motivating a peremptory strike are more likely to be: 

  • General rather than individual
  • Risks rather than certainties
  • Unacknowledged rather than admitted
  • Reasonable but not necessarily provable

What separates that from a hunch? Experience, social science, and often, applied (and proprietary) research on your own case. 

And how do we continue to allow peremptories without also allowing racially-based strikes based on thin pretexts? That is a fair question, and probably the subject for another post, but the answer likely lies in counsel being trained to appreciate the true weakness of demographics as a predictor and empowered to question on other better bases for strikes, such as case-relevant experiences and attitudes.  

So, like the presidential candidates, the peremptory does have some high negatives. But, also like the candidates, it has a strong base. That base is the historical purpose of peremptories in providing a mechanism for parties to be satisfied with the panel. Even without demographic strikes — which experienced and properly-trained attorneys should have no reason to use — the peremptory strike provides an indispensible tool for targeting case-specific experience and attitudes which are likely to reduce the fairness and the legitimacy of the trial process.

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Other Posts on Peremptories: 

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Image credit: 123rf.com, used under license

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