By Dr. Ken Broda Bahm:
You join a research study, and after being randomly assigned to one of two groups, you hear a message focused on how common stereotypes are (the other group hears instead how rare stereotypes are). Then you, along with the other group, are asked to rate women and men in general on a number of traits, including the question of how “career-oriented” and how “family-oriented” men and women are. So, armed with your knowledge of how common these stereotypes are, would you be more or less likely to believe in them? The answer according to the study (Duguid & Thomas-Hunt, 2014) is “more.” Hearing about how common and normal these biases are has the boomerang effect of increasing the bias. Even when the research participants are told to “try to avoid thinking about others in such a manner,” the stereotype gets stronger based on knowledge of its commonality.
We expect awareness to be a cure, but so much for “sunlight being the best disinfectant.” Awareness just might backfire. The study, along with several others, is discussed in a current article in The New York Times’ by Wharton professor Adam Grant and Facebook CEO and LeanIn founder Sheryl Sandberg, the first in a four-part series on women at work. The discussion has obvious relevance to litigation. When it comes to a verdict, we don’t want to be doing anything that would enhance biases against us. But the findings give rise to a dilemma when it comes to voir dire. Making a bias seem normal makes it easier for potential jurors to reveal their biases, and we want that. But knowing that voir dire removes the worst but does not remove all, the research raises an important question: If voir dire discussion tells the eventual juror that these biases are common, then is there a chance that the bias is becoming even more entrenched? This post takes a look at the research, the voir dire dilemma, and a suggested fix.
The Research: A Normal Bias is a Stronger Bias
The Times piece is definitely worth a read and is focused on the broader point regarding attitudes toward women. But the article also carries some implications for the litigation context. After all, in trial we have parties who are interested in mitigating bias, as well as a process for doing that. But if the process of publicly discussing and uncovering the bias sends the tacit or even explicit message that a given bias is widely shared or normal, then it could be operating at cross-purposes in a way that has real consequences. In another experiment that Grant and Sandburg share (Duguid & Thomas-Hunt, 2014), business managers were asked to review a job interview transcript, with the applicant identified as a male or a female, after again being told that stereotyping was either common or rare. Those who were told that it was common considered the female candidate to be 27 percent less likable, and the managers were 28 percent less likely to say they would hire her.
Why would a perception of normalcy cause a stronger bias? Because we feel less guilty about engaging in commonly-practiced behavior. Grant and Sandburg point to a frequently-cited study (Cialdini, 2006) focusing on the efforts of a national park to reduce the theft of petrified wood from the park. When visitors received the message, “Your heritage is being vandalized every day by theft losses of petrified wood of 14 tons a year, mostly a small piece at a time,” the level of theft actually jumped by nearly half. As Grant and Sandburg explain, the message people received was not “Don’t steal petrified wood,” but was instead “Stealing petrified wood is a common and socially acceptable behavior.” The same, apparently, goes for bias: If many people feel that way, then it is socially more acceptable for us to feel that way as well.
So instead of stressing the scope of the problem, it is more effective to stress the commonality of attempts to address it. For example, in the Duguid and Thomas-Hunt studies, when managers were told that a “vast majority of people try to overcome their stereotypic preconceptions,” they were more likely to favorably evaluate the female candidate.
The Dilemma: Normalizing Bias is Great for Voir Dire, But Not for Trial
Making a bias seem normal tends to increase the likelihood the bias will be employed. That creates a dilemma for the jury selection stage of trial: The normalcy that helps you discover bias in voir dire could be making any remaining bias stronger during trial.
When it comes to discovering and striking those with the most bias, one of the central challenges is to make sure that jurors understand that it is okay in a context like this to admit to bias. So, to start with, you don’t call it “bias” — it is just an attitude or a feeling, the kind everyone has. You might also send a message to the effect that, “Many people have strong attitudes or experiences that would make it difficult for them to serve on this kind of case.” In addition, hearing others in a group voir dire admit to having that bias will also make it seem pretty normal.
So what becomes of the bias that is still with the panel after strikes and cause challenges are exhausted? We’ve written before that a kind of herding instinct also affects opinion formation. Could the voir dire process have made that bias more comfortable, expected, and “normal” to the seated jury?
The Solution: Different Messages for Different Moments
Ultimately, that is a question that should be answered with a more specific study focused on the question of whether conventional voir dire techniques tend to normalize bias or not.
But in the meantime, trial lawyers are well advised to adapt your messages so you’re normalizing when you need to in voir dire, but then dialing that message back in opening statement. For example:
In voir dire: These days, many people have trouble trusting big companies and the executives who work for them.
In opening: We know that when you as a jury take that oath, every one of you will make a strong effort to set aside any attitudes they brought with them and focus only on the case in front of you.
That isn’t to suggest that the normalized perception of bias is something that can be turned on and off like a light switch. But we do know from current studies, that those biases can be made more or less saliant or “available” to participants, and that this influences whether those biases will be subsequently used. The bottom line is that jurors need to understand that there is a time for openly admitting and expressing bias (during voir dire), and a time for working as hard as possible to set that aside and focus only on evidence (during trial).
The finding of a boomerang effect when bias is normalized is another example of trial being a complex messaging environment. For generations, it was the common practice to base voir dire on a “Don’t be biased” message. Since social scientists discovered that that encourages a hiding of biases that are still very much at work, lawyers are seeing their way out of that perspective. But the new message, “It’s okay to be biased,” still carries its own risks and calls for a more nuanced response.
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Other Posts on Bias:
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Cialdini, R. B., Demaine, L. J., Sagarin, B. J., Barrett, D. W., Rhoads, K., & Winter, P. L. (2006). Managing social norms for persuasive impact. Social influence, 1(1), 3-15.
Duguid, M. M., & Thomas-Hunt, M. C. (2014). Condoning Stereotyping?: How Awareness of Stereotyping Prevalence Impacts Expression of Stereotypes.
Photo Credit: 123rf.com, used under license.