By Dr. Ken Broda-Bahm:
Think of the situations where self-diagnosis wouldn't work very well: A police officer asking, "Do you think you were speeding?" or a doctor inquiring, "Do you believe your cancer is in remission?" Yet we still rely on self-diagnosis when trying to discover and eliminate bias in civil and criminal cases by essentially asking prospective jurors, "Are you biased?" A new study (Robertson, Yokum & Palmer, 2013) takes a look at whether we can rely on jurors to identify their own attitudes and know the sources of their own judgments well enough to say whether they would be biased or not. The result confirms our intuition: They can't.
Of course, those of us with a background in social science have always known that a juror's self-appraisal isn't a perfect indicator of actual beliefs or behavior. But what this study shows is that the self-appraisal is not just imperfect, it's not even helpful. Joining a number of other studies pointing in the same direction, the three researchers from the University of Arizona have systematically demonstrated the basic unreliability of this central premise of voir dire. But rather than showing that the search for bias doesn't matter, the research tells litigators, judges, and trial consultants to become more savvy and more strategic when asking about bias. And they need to stop taking jurors at their word when it comes to the critical "Can you be fair" questions. This post will take a look at the study and share some thoughts on how legal practitioners should adapt.