By Dr. Ken Broda-Bahm:
Imagine this future scenario. Those called for jury duty arrive at the courthouse. First comes security, with purses and wallets scanned on the belt while the citizens step through the metal detector. Then comes the "Neuro-Voir Dire" as candidate jurors step into a functional Magnetic Resonance Imaging (fMRI) machine so their brain activity can be measured to see if strong emotional reactions or memories are being activated when they are shown various images or hear different names and facts. Those who are determined to have bias in that manner are excused from jury duty, while the remaining unbiased jurors are seated in the jury box and ready for trial. A recent article in Hastings Law Journal (Fox, 2014) offers this situation, not to endorse it or to argue that it is scientifically likely, but to illustrate a point about bias. The failure of that scenario, the author argues, shows that the goal of "impartiality" is harmful because it lumps all forms of bias into one category and "fails to distinguish the prejudices and affinities that infect jury decision making from the experiences and perspectives that enrich it."
In other words, some forms of bias are harmful while other forms of bias are good. Bad biases are those that stem from personal interest or case-specific knowledge and corrupt the process. Good bias, to the author, consists of general attitudes that, even or especially when they're case-relevant, benefit the trial by allowing the jury to serve as the voice of the community. Instead of condemning bias categorically (as many appellate opinions cited in the article appear to do), our legal process should work to eliminate the bad bias while preserving the good bias. Based on that starting point, there is much to commend in Professor Fox's article: A more sophisticated and selective view of bias is far better than a overarching and unrealistic condemnation of all bias. Beyond that, however, the piece recommends the elimination of attitudinal voir dire along with peremptory challenges which, I'll argue, is a solution that doesn't fit the problem. An appreciation of the nuance, inevitability, and (sometimes) benefits of bias actually provides a good reason for expanding attitudinal voir dire and for preserving attorney's ability to act on it through peremptory challenges.