By Dr. Ken Broda-Bahm:
Every juror with a strong and relevant belief or experience is asked it in oral voir dire: "Would you be able to set that aside and base your decision on just the facts?" Attorneys conducting oral voir dire would do well to ask themselves the same question: "Are you able to set aside your own preconceptions and base your strikes on just the facts you learn from potential jurors?" Of course, we are not used to thinking of the lawyers as the ones carrying the bias. But when engaged in that critical task of assessing the experiences and attitudes of their potential fact finders, lawyers can be unduly influenced by their own expectations, as well as by the choice and phrasing of questions. A new study appearing in Law and Human Behavior (Crocker Otis et al., 2014) supports the conclusion that even experienced attorneys make evaluations that are biased by the hypotheses they form about potential jurors, as well as by the ways they select questions to test those hypotheses.
Bias stands in the way of a fair evaluation, and that applies both inside and outside of the jury box. A good attorney's goal in voir dire is to discover that bias: to identify those who would have the greatest difficultly in setting aside their unfavorable attitudes and experiences. Still, lawyers, particularly as they gain experience, will tend to have strong views on the kinds of jurors they believe are most likely to fit those categories. Based on this new research, careful attorneys should also be sure they aren't bringing their own biases to that task. This post takes a look at the study, and also shares a few ideas on how attorneys can bring their own open mind to the task of jury selection.