Breaking Down The Barriers To Bias: How To Uncover Bias During Jury Selection

Application of five critical strategies will help you overcome prospective jurors’ tendency to 'self-enhance.'

All people — including potential jurors — are guided by “self-related motives,” meaning that a desire to maintain or promote favorable self-images influences their thoughts and actions.  These motives significantly impact an individual’s ability and willingness to both detect and disclose their bias. This should be extremely troubling to all litigators, as something we depend on during jury selection is prospective jurors’ honesty. What are we to do when faced with a group of complete strangers that have difficulty being honest with themselves? How can we confidently assess whether we should challenge a prospective juror if we cannot reliably gauge their biases? Application of five critical strategies set forth in this article will help you overcome prospective jurors’ tendency to “self-enhance,” thereby causing them to more freely admit their biases during voir dire.

Psychological Background

Researchers in various disciplines of social and behavioral sciences have long studied the motivation behind human behavior and actions. Specifically, theorists, psychologists, and neuroscientists have examined the phenomenon of “self-related” motives. These motives appear to have developed as a mechanism to protect a person’s social well-being, and are partially rooted in concerns about social approval and acceptance.

For instance, all people have a tendency to “self-enhance.” Two components comprise this tendency: (1) the desire to maintain or increase the positivity (or decrease the negativity) of one’s self-concept (a collection of beliefs about oneself); and (2) the desire to maintain, protect, and enhance one’s self-esteem. Simply put, people “self-enhance” to boost their positive traits or decrease their negative ones, and their motivation for doing so is to have others perceive them as more socially desirable.

Four phenomena have been attributed to self-enhancement.  These include:

  1. Self-Serving Attributions: the tendency for people to attribute positive events to their own personal characteristics, but attribute negative events to factors beyond their control;
  2. The Better-than-Average Effect: the tendency for people to evaluate themselves more positively than they rate the average person;
  3. Implicit Egotism: the tendency for people’s positive, self-enhancing evaluations of themselves to spill over into their evaluations of objects, places, and people that are associated with them; and
  4. The Bias Blind Spot: the tendency for people to think that they are less biased than others.

Real World Application

So what does this all mean? In essence, it means that people tend to view themselves as better than their peers, and want others to view them just as positively. A study conducted at the University of Southampton in England revealed the power and pervasiveness of the self-enhancement motive. Researchers in that study determined that the human tendency to consider ourselves better than our peers holds true even for convicted criminals.

In the Southampton study, 79 prisoners in south England completed a questionnaire that asked them to compare themselves to the average prisoner and the average member of the community based on nine attributes: morality, kindness to others, trustworthiness, honesty, dependability, compassion, generosity, self-control, and law-abidingness. With respect to all nine attributes, the prisoner participants rated themselves as superior to the average prisoner. More surprisingly, all 79 prisoners rated themselves superior to the average member of the non-prisoner community on each of the nine attributes as well, with only one exception. Although prisoners did not rate themselves as more law abiding than non-prisoners, they did rate themselves as equal. The results suggest that even those who are incarcerated — like the rest of us — are strongly influenced by the self-enhancement motive, such that they desire to see themselves in a positive light and for others to look upon them positively as well.

Application to Jury Selection

The self-enhancement motive that manifested in the Southampton study has dramatic significance in the context of jury selection. Even if we assume that potential jurors strive to answer questions asked in voir dire honestly and completely, their tendency to self-enhance suggests that for at least two reasons, they frequently will be neither honest nor open.  

First, because potential jurors perceive themselves positively, they will be poor judges of their own bias.  Prospective jurors view themselves as more open-minded, moral and unbiased than the average person.  Consequently, they are reticent to acknowledge that they possess bias, because doing so would contradict their favorable self-image.  For example, assume that potential jurors are asked during voir dire: “How many of you have a negative opinion of used car salesmen?”  Most jurors will recognize the fundamental question being asked: “Are you biased against used car salesmen?”  Believing themselves more open-minded, moral and unbiased than the average person, most prospective jurors will reject the possibility of bias and answer the question in the negative.

The tendency to self-enhance also impedes juror honesty and candor in another important way:  even if self-enhancement does not prevent a juror from accurately assessing his/her own bias, it might prevent the juror from accurately reporting such bias.  Although the tendency to view oneself positively is strong, the desire to be viewed positively by others may be even more powerful.  Therefore, even potential jurors who acknowledge that they are biased will hesitate to admit what they deem to be a socially undesirable characteristic due to concerns about how they will be viewed by the judge, the attorneys and their fellow jurors.  This hesitation will be particularly strong when no other prospective juror has acknowledged bias, such that an admission of bias would effectively constitute self-identification as the “least open-minded” of the group.

These barriers to bias pose a substantial threat to successfully ferreting out bias during jury selection.  Recognizing that the tendency to self-enhance stifles juror acknowledgement of bias, the question becomes how to elicit bias despite these countervailing forces.  Our experience and research establish that by applying the following five strategies you can surmount the self-enhancement phenomena.

Flip to the next page for tips on how to break down the barrier to bias.