By Dr. Ken Broda Bahm:
The word “contagious” these days likely evokes fears of the rapidly spreading coronavirus. The concept has long been applied to cognitive biases, as well. Influential attitudes and experiences can also, like a virus, be spread through exposure, and that is often a concern during open voir dire, when prospective jurors sit together in order to air their own biases. Some in my field will downplay the risk of contagion in that setting, and they are right to point out that it is better to get the biases out in the open where they can be the target of a cause challenge or peremptory strike, but they’re wrong if they say that the contagion isn’t a risk.
A recent study (Ruva & Coy, 2019) underscores the problem of bias contagion in a trial setting. Looking at the role of pretrial publicity in creating either anti-prosecution or anti-defense biases, the study also contrasted jurors with consistent and with mixed exposure to the publicity. Based on the responses of 495 research participants, they found that when a jury with mixed exposure (some had seen the biasing pretrial publicity and some had not) deliberated, the effects of the bias were spread from the exposed to the unexposed jurors. In other words, the contagion can be observed and measured. While we cannot control or necessarily know what happens in the deliberation room, we can see what happens during group voir dire. It stands to reason that if jurors inform and persuade each other on their biases during deliberations, then there is the risk that they will do the same on the venire during jury selection. In this post, I share some thoughts on addressing the risk that a bias is contagious.
Anytime you are asking a group of jurors, essentially, “Please tell me, in detail and with reasons, why you might have it in for my client,” there is the chance that you aren’t just discovering bias, you are spreading it. Here are a few ideas for minimizing that risk during attorney-conducted oral voir dire.
One, Don’t Ignore It.
It is true that attitudes are formed over time, and it certainly isn’t automatic that a bias will transfer itself just by being shared once. At the same time, don’t underestimate the effects of peer communication. When an individual gets pulled into jury duty, it is likely that those who are most similar will be those who were also pulled in: the other citizens called in for jury duty. That group is likely to have more in common with each other than with anyone else in the courtroom. For that reason, the views that they share among themselves can be influential in setting expectations about what is right or normal. For that reason, you should consider the context that questions and the overall discussion are likely to create.
Two, Structure Questions to Reveal Bias from a Minority of the Jurors
There is a good reason to avoid questions that open you up to the expression of bias from a large group on the panel. That is the reason why plaintiffs generally don’t want to ask, “So, who thinks there are too many lawsuits?” Instead of simply handing your potential critics a megaphone and creating the perception that the bias is normal, it is a better idea to structure the question so that you have a minority of the group expressing the view that would be unfavorable for you. That can sometimes be a matter of judgment and trial and error. For example, in my experience, a majority will agree with the “too many lawsuits” question, but only a minority would say that they are so opposed to lawsuits that they would not sue, even if injured due to someone else’s negligence. Once you have found that minority and divided the group, you have highlighted your strikes. You often don’t have to ask “Why wouldn’t you sue?” because you know enough to already consider that person for a strike.
Three, End by Inviting Comments Against the Bias
Once you have the group divided, so as to identify an unfavorable minority, you also have the flip-side of that: A more favorable majority. That is a group that you are free to question without fearing that you are showing the other side who to strike. Because they are in a safe majority, you can pivot to asking them open-ended questions about why they feel that way. For example, “Mr. Smith, I see you disagree with that. Can you tell me why you would consider suing if you were harmed through someone else’s fault?” By asking a few questions like that, you can respond to any negative views expressed while you were looking for strikes, while potentially priming jurors in the other direction. That can be a good idea: While the idea of “contagion” is borrowed from the context of illnesses, there is one other borrowed term from that same genre: “Innoculation.”
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Other Posts on Bias:
- Add “Debiasing” to Your Trial Communication Vocabulary
- Look Out for the Illusory Truth Effect
- Speak to the Personal Responsibility Divide
Ruva, C. L., & Coy, A. E. (2019). Your bias is rubbing off on me: The impact of pretrial publicity and jury type on guilt decisions, trial evidence interpretation, and impression formation. Psychology, Public Policy, and Law.
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