By Dr. Ken Broda-Bahm:
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.