Accept Some Bias

By Dr. Ken Broda Bahm:

Imagine this future scenario. Those called for jury duty arrive at the courthouse. First comes security, with purses and wallets scanned on the belt while the citizens step through the metal detector. Then comes the “Neuro-Voir Dire” as candidate jurors step into a functional Magnetic Resonance Imaging (fMRI) machine so their brain activity can be measured to see if strong emotional reactions or memories are being activated when they are shown various images or hear different names and facts. Those who are determined to have bias in that manner are excused from jury duty, while the remaining unbiased jurors are seated in the jury box and ready for trial. A recent article in Hastings Law Journal (Fox, 2014) offers this situation, not to endorse it or to argue that it is scientifically likely, but to illustrate a point about bias. The failure of that scenario, the author argues, shows that the goal of “impartiality” is harmful because it lumps all forms of bias into one category and “fails to distinguish the prejudices and affinities that infect jury decision making from the experiences and perspectives that enrich it.” 

In other words, some forms of bias are harmful while other forms of bias are good. Bad biases are those that stem from personal interest or case-specific knowledge and corrupt the process. Good bias, to the author, consists of general attitudes that, even or especially when they’re case-relevant, benefit the trial by allowing the jury to serve as the voice of the community. Instead of condemning bias categorically (as many appellate opinions cited in the article appear to do), our legal process should work to eliminate the bad bias while preserving the good bias. Based on that starting point, there is much to commend in Professor Fox’s article: A more sophisticated and selective view of bias is far better than a overarching and unrealistic condemnation of all bias. Beyond that, however, the piece recommends the elimination of attitudinal voir dire along with peremptory challenges which, I’ll argue, is a solution that doesn’t fit the problem. An appreciation of the nuance, inevitability, and (sometimes) benefits of bias actually provides a good reason for expanding attitudinal voir dire and for preserving attorney’s ability to act on it through peremptory challenges.

The Article: The Trouble With Bias(es)

Dov Fox is a University of San Diego Law School assistant professor (and also a Rhodes Scholar who came to the school by way of Yale, Harvard, and Oxford). He has written a comprehensive and thoroughly-researched article that is well worth the read, and available for free download as well.

The article begins with a recognition of two irreconcilable ideas: an objective view of jurors as detached decision makers free from outside influence and the subjective ideal of jurors as bringing a community’s common sense and judgment to the law. “Jury law,” Dr. Fox notes, “clutches to both of these ideals in schizophrenic fashion.” In trying to uphold the objective ideal, appellate courts have tended to apply a  rigid interpretation that demonizes all bias and “sweeps every source of outside influence under that vague concept” of “bias.” That fails to distinguish good influences from bad ones.

The thought experiment of the “neuro-voir dire” (a term he borrows from Greely, 2009) argues against the law’s present focus on eliminating all bias. “Neuro-voir dire is troubling,” he argues, “because it draws out the full implications of treating all outside sources of juror influence the same.”

Fox recommends four categories of bias:

Noting that bias is not all cut from the same cloth is a good idea. Not everything that influences a view of the case is a harmful influence, and that is true both for the individual parties (some influences help your side) and for the process as a whole (some influences bring common sense and community views to bear).

While the notion that bias comes in different flavors might seem obvious, there are many cases and situations where courts have tried to enforce a more uniform idea of bias. For example, the Fox article quotes one trial court judge who admonished jurors to “Take all of the experiences that…have contributed to how you think about everything…and lay those experiences aside.” Everything? Any psychologist, or indeed any average human, quickly realizes the impossibility of doing what the judge is asking. That is as effective as asking someone to set aside their personality for a couple of weeks.

Applying a nonmonolithic idea of bias would involve getting past the notion that jurors are either “biased” or “unbiased,” and recognize that they are all shades of grey in-between. Understanding your fact finders and intelligently exercising the control you have over the composition of your eventual jury, means investigating the forms and sources of these biases and exercising judgment over which are too harmful to be permitted in your panel. And that need leads to my response to what I see as the bad idea in Fox’s article.

The Bad Idea: But Don’t Dispense With Peremptories and Attitudinal Questions

If you accept Fox’s argument that the only troubling forms of bias are personal interest and case-specific knowledge, then it follows that both can be handled with expanded challenges for cause and peremptorories, and attitudinal voir dire would no longer be needed. “I would indeed limit voir dire” he writes, ” to those instances in which it is useful to clarify ambiguous written responses about personal interests or case-specific beliefs.”

The advice to “abolish peremptory challenges” is advocated by theorists and court watchers often enough (less often, it seems, by those who have regular in-court experience). Fox also supplements his argument with some of the more general complaints about peremptories: they lead to longer voir dire, justify intrusive questions, and create a need for litigation consultants (“a low-tech neuro-voir dire available only to the affluent — that exaggerates inequalities between the parties”).

He acknowledges that limiting the focus of jury selection to just the categories of personal interests and case-specific beliefs would clear the field for many harmful biases — even outright bigotry — to enter the jury unopposed. The panelists who believe that one race is simply less truthful or more prone to crime would have only a general attitude and not a case-specific belief. They would be cleared for service. Fox’s fix for allowing greater generalized racial bias into the jury is two-pronged: diversify the jury pool (by expanding the pool beyond voters and drivers), and provide “identity-affirming” instructions that acknowledge the ubiquity of bias and encourage jurors to reappraise their initial reactions. While there is some research to support the moderate benefits of both, these reforms hardly seem like an appropriate consolation prize for the party disadvantaged by having jurors seated after openly expressing a generalized bias against people like their client.

The main problem, however, is that Fox and others who critique peremptories and attitudinal voir dire may be falling victim to a monolith of their own. The professor argues that some generalized attitudes and community interests enrich the system by allowing the jury to apply common sense and the vox populi. But it doesn’t follow that if some are beneficial than there should be no barrier to any on a jury.

Biases — including general attitudinal bias — are not black and white, but come in all shades. As Fox notes, “Outside mental influences are as diverse as the jurors who harbor them and the conditions under which they arise.” So who is in a position to decide which are allowable and which place too great a limit on the parties’ chances for a fair and reasonable trial? The parties are. Of Fox’s list of 4 biases above, 1 and 3 are the proper subject for cause, and 2 and 4 are the proper subject for each side’s exercise of peremptory challenges after a full exploration of potentially relevant attitudes and experiences.

In the article, Fox seems to assume an appellate mindset of trying to decide whether a given family of bias is per se a proper legal basis for exclusion or not. But in the gray world of peremptories, each side is making their own judgment — informed by their own interests and case knowledge, and limited by Batson and its progeny from being its own form of bias — to determine which attitudes are ultimately allowable and helpful (those struck by neither side) and which hurt the subjective chances for a fair trial (those struck by either side).

Ultimately, if you acknowledge that general attitudes are important and often strongly influential on a juror’s views of a case, as Fox does, then you wouldn’t want to take away advocates’ best tool for exploring and protecting themselves against that generalized bias.

Beyond the article, I think the implication is that it is helpful to recognize the different forms of bias, and helpful to note those differences when trying to explore bias and build a foundation for reasonable and strategic challenges and strikes. No, that won’t lead to the ‘Neuro-voir dire’ described in the introduction, but yes, it will help both sides’ incremental efforts to reduce unfairness toward their clients.

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Other Posts on Bias: 

• Address Bias at its Roots
• Acknowledge the Bias Blind Spot
• Never Rely on Self-Diagnosis of Bias

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Fox, D. (2014). Neuro-Voir Dire and the Architecture of Bias. Hastings Law Journal, vol. 65. URL:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2416627

Image Credit: 123RF.com, Used Under License