By Dr. Ken Broda-Bahm:
In a recent jury selection — and, pretty much, in every jury selection — I have watched as several on the panel would share various connections, attitudes, or experiences that could quite reasonably point to that person holding a bias in the case, before confidently declaring that they could “set it aside,” and decide the case just based on the evidence. They have education or training on the subject of the case, they have a strong belief that cases like this are frivolous, or they have a family connection to the CEO of the defendant company. But, no worries, they say under oath they can follow the facts and the law and reach a verdict based only on what is presented in this courtroom. And, if you believe that, you might be in the bridge-buying market.
The common language of “setting it aside” has got to be one of the most unfortunate metaphors embraced by current practice in voir dire. It doesn’t just appeal to questionable beliefs, but it rests on assumptions that we know to be false based on current research (e.g., Salerno et al., 2020). It assumes that people know and understand their biases, when we know they are often implicit. It assumes that biases are under conscious control, when we know they’re quite resistant to attempts to suppress them. It, most oddly, assumes that biases are ‘portable’ in a way that allows us to put them in a different place, when we know that it isn’t in the nature of a bias that we can just choose to operate outside of them. Despite all of that, the “can you set it aside” question remains ubiquitous, not just from judges trying to limit the number being excused, but also from counsel who will often phrase the question that way against their own interests.
In my view, jurors should only be asked if they can “set aside” a meaningful experience or powerful attitude as part of the act of rehabilitating a favorable juror for your side, so that your adversary has to use one of their strikes rather than a cause challenge. When you are trying to lock in your own cause challenge for an unfavorable juror, don’t ask “can you set that aside?” because it is too easy to answer, particularly with social desirability bias, or the tendency to give what seems like the expected and beneficial answer, nudging potential jurors toward that “Yes, I believe I can.”
When you want to keep that potential juror as a candidate for a cause challenge, there is a better question to ask: “How would you go about setting that aside?” That question is quite a bit harder to answer, and it engages the juror in the act of thinking about their strong attitude or experience, while sending the message that it would take some effort or require a strategy of some kind in order to “set aside” that bias. When the potential juror answers, “I don’t know,” that is probably the most honest thing they can say in that situation, based on everything we know about the implicit nature and internalized resistance to control that humans have when it comes to cognitive biases.
Here are a few ways that “how” question might work.
Example 1
Juror: To be honest, I really hate large corporations these days. I think they’re just driven by greed, and you can’t trust them.
Judge: But understanding that you don’t know anything yet about the companies in this case, could you set that aside and just listen to the evidence?
Juror: Yes, I think I could.
Counsel: Could you tell us a little more about how you would set it aside? For example, if you get into deliberations, and you start recalling some of these views that you shared with us, and you start applying those views to this current case, how would you combat that?
Juror: …I don’t know. I guess I would just try to resist it.
Counsel: But as you sit here today, you’re not aware of any way you have of doing that, correct?
Juror: Yes, correct.
Example 2
Juror: So, I have family connections to some of the leaders in this company, and it would be pretty hard to just ignore that.
Judge: But if the law says, and I instruct you that ignoring that and just deciding on the evidence is your duty, could you do it?
Juror: If that’s the law, I guess I’d have to follow it.
Counsel: So talk us through how you would try to follow the law. Let’s say you have an opinion about one of the executives in this company, and you start to discover that this opinion bears on the controversy you’re hearing about during this case. What steps would you take to prevent those opinions from coming up in your mind? How would you dismiss those opinions from your mind if they do come up?
Juror: Well…I’m not sure. I don’t think that is something I can control.
Counsel: Thank you.
Example 3
Juror: This injury is very close to what I experienced, and it occupied a lot of my time and attention for years. This seems a little too close to home for me.
Judge: But you understand that this is a different company, a different situation, and a different person who has been injured. Would you be able to focus on just those facts without reference to your own experience?
Juror: It might be difficult, but I can try to do that.
Counsel: Thank you for sharing this with us, we appreciate your strength in this situation, I can see it is already causing you some stress.
Juror: It is.
Counsel: So, as you might expect, if you were selected as a juror in this case, you would hear much more about the injury, the effects, and the recovery. There is a lot of detail. As you hear that, if you start to feel the stress of recalling your own injury, how would you deal with that stress?
Juror: I’d have to wait and see if it happens.
Counsel: But if it does, once it does, how do you respond to that stress? How would you control it, or shut it off?
Juror: I’m not sure I could. It would be a distraction.
Counsel: So it is fair to say that focusing on just the facts would be a challenge for you?
Juror: Yes.
The point here is that you are luring potential jurors away from the easy answer (“Yes, I can be fair”) by asking a harder question (“how would you do that?”). Opposing counsel or the judge might push back against a question like that because it is hard to answer and it puts the potential juror on the spot. But that is precisely the point. If you’re allowed to ask it, then the how question works by shining a bright light on the fiction at the center of this situation: The idea that jurors can understand and control a bias just by deciding to do that.
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Other Posts on Addressing Bias in Jury Selection:
- Follow Five Steps to a Successful Cause Challenge
- Defendants, Look Out for Anti-Corporate Conspiracists on Your Jury
- Debias on Hindsight
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Salerno, J. M., Campbell, J., Phalen, H., Bean, S., Hans, V. P., Spivack, D., & Ross, L. D. (2020). The Impact of Minimal versus Extended Voir Dire and Judicial Rehabilitation in Civil Cases. U Denver Legal Studies Research Paper, (20-30).