5 Tips to Breaking Down the Barrier to Bias
Recognizing that the tendency to self-enhance stifles juror acknowledgement of bias, the question becomes how to elicit bias despite these countervailing psychological forces. Our experience and research teaches us that by applying the following five strategies you can surmount the self-enhancement phenomena:
- Build Conversational Rapport by Embracing the Concept of Bias. At the outset of voir dire, explain that “bias” is not a pejorative four-letter word. Reassure potential jurors that we all have biases, that such predispositions are completely normal, and that it is okay to admit them both to ourselves and to others. Additionally, acknowledge how difficult and invasive the voir dire process can sometimes feel. Explain that you regret having to impose on potential jurors, but the process is absolutely critical to ensuring that justice is served. Acknowledging the somewhat uncomfortable nature of the process will build rapport with jurors. This will increase the likelihood that they will feel more relaxed and let their guards down. When potential jurors feel comfortable with the questioning attorney during voir dire, they will be more likely to accurately assess and vocalize their beliefs and biases.
- Reward and Encourage Honesty. The first time that a prospective juror discloses a bias, take a moment to acknowledge it. Thank the juror for their honesty, and note that it takes courage to be willing to speak frankly in public. Repeat that process to a lesser extent each time jurors disclose bias, thanking them for their honesty and willingness to meaningfully participate in the jury selection process. This approach will neutralize jurors’ subconscious perceptions of what is “good” (i.e., being completely unbiased and fair) and “bad” (i.e., being biased), thereby increasing their willingness to acknowledge and admit bias.
- Change the Conversation. Due to juror tendency to self-enhance, loaded terms such as “fair” and “impartial” will signal to jurors what the “correct” answers are and fortify their barriers to bias. Rather than focusing the discussion on whether jurors believe they can be “fair,” “impartial,” and / or “unbiased,” center the discussion about open and honest beliefs and opinions. Jurors are far more likely to express bias when they can do so through a qualified statement of belief or opinion, rather than a confession they cannot be “fair,” “impartial,” or “unbiased” on a particular issue.
- Circumvent the Barrier. Frequently, an initial voir dire question that probes for bias will fall flat. For example, asking potential jurors, “Do you assume that because a defendant is on trial, he/she must have done something wrong?”, may not produce any affirmative responses. This does not necessarily mean, however, that jurors do not agree with the statement. Rather, jurors likely realize — whether consciously or subconsciously — that answering affirmatively will reveal that they are biased, something they are reluctant to admit to themselves and others.
Questions that more subtly explore potential biases are often more effective than leading with questions, such as the one above, that seek to elicit such a definitive expression of predisposition. For instance, before asking whether prospective jurors “assume that because a defendant is on trial, he/she must have done something wrong,” you might want to begin by asking questions along the lines of the following:
∙ What is the first thing that comes to your mind when you hear that someone has been arrested? Charged with a crime? Indicted? Why do you feel that way?
∙ How many of you feel that prosecutors usually get it right when they charge someone with a crime? Why do you feel that way?
∙ Some people feel that if someone is a criminal defendant, he/she must have done at least something wrong. How many of you agree with that? Why?
By broaching the topic in the foregoing manner, prospective jurors will be far more willing to discuss their biases than when confronted with the all-or-nothing question of whether they will assume that the defendant is guilty.
- Turn the Tide. An acknowledgment of bias from one potential juror can often be leveraged to elicit bias from other members of the panel. When an initial question designed to elicit bias fails to do so, do not assume that no bias exists. Continue probing by circumventing the barrier to bias, as discussed in the previous paragraph. Then, when a potential juror acknowledges bias, use that acknowledgment as an opportunity to elicit bias from other potential jurors. This can be as simple as asking: “Who agrees with [Juror X]?” Potential jurors will be more willing to align themselves with somebody else’s acknowledgment of impartiality than to risk singling themselves out as the only biased person with respect to a particular issue. With every new juror that acknowledges bias, it becomes easier for others to do the same. Capitalize on that momentum by revisiting other potential jurors after each new acknowledgment of bias.
Most people possess “self-related motives.” Those motives cause people to view themselves as more moral, open-minded and unbiased than the average person, and to want others to perceive them in exactly the same way. This tendency to “self-enhance” dramatically impacts jury selection by (1) interfering with jurors’ ability to identify their biases, and (2) discouraging them from disclosing bias during voir dire. Failing to identify and elicit these suppressed biases hinders practitioners’ ability de-select prospective jurors during jury selection. Employing the five strategies discussed above will help mitigate the effects of prospective jurors’ tendency to “self-enhance.”