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.