By Dr. Ken Broda-Bahm:
Here’s a welcome development: The state of Maryland has embarked on a pilot program to test out the effects of expanded voir dire. In many parts of the country (looking at you, Arizona) the ability of litigants to explore and deselect jurors based on bias is being reined in, with some states going so far as to look at eliminating peremptory strikes based on the view that they are used in an inescapably discriminatory fashion. The Maryland initiative holds the promise that, with some study and additional experience, court systems might find that the answer is not less selection, but better selection.
In Maryland, this ability has been more limited than it has been in most states, with attorneys generally restricted to proposing questions to be asked by the judge, as practiced most often in federal court. This method flies in the face of research showing that, when being examined by a judge, jurors are primed to provide the “right” answer based on the social desirability bias of wanting to appear “fair” and “able to follow instructions.” Research shows examination by attorneys leads to greater candor, so the Maryland pilot is moving in the right direction by allowing attorneys a greater role. It also moves in the direction that academics are suggesting, to allow for more time and to avoid the use of simplistic rehabilitation (the all-purpose “but can you be fair” as a clean-up). The benefits of expanded substantive voir dire have been well-studied, and there are already good reasons to believe that the Maryland experiment will be a success. For example, a large-scale experiment using several thousand mock jurors (Campbell et al., 2020), shows that limited voir dire as practiced in federal court and in Maryland, is often of no value when it comes to discovering or curing bias: “Information provided by generic, minimal voir dire questions,” the research team concludes, “did not prove useful in predicting jurors’ judgments, and thus is of no value in informing decisions about whether to exclude such individuals from a jury.” Before-and-after testing in a specific state should add to this case. While I am hopeful that academics are ready to study this reform in Maryland when it starts in the new year, let me suggest a few research questions to focus on.
Does expanded voir dire improve court efficiency?
Attorney questioning takes time, but time is not the only measure of efficiency. Discovering a source of juror bias before it can potentially lead to a mistrial is also efficient. In addition, attorneys can (and in my experience often do) rise to the level of being as or more efficient than the judge would have been. In addition, courts should explore making greater use of juror questionnaires, particularly online surveys that can be filled out in advance and out-of-court. Used appropriately, these questionnaires can also be used to massively reduce the amount of in-court time spent on issues like hardship, while also giving counsel an opportunity to focus their questioning.
Does expanded voir dire increase satisfaction for stakeholders?
Simple follow-up research should look at whether there is more satisfaction in the process. Ask civil plaintiffs and defendants as well as criminal prosecutors and defendants whether they feel the additional questions were worth it. But don’t stop there. Ask judges, court personnel, and the potential jurors as well. The more we are able to learn the relevant information about the panel that would support grounded decisions about service, the more satisfied all of these parties should be.
Is expanded voir dire more effective in identifying bias?
This one is vastly more important than the other two, since there is a solid Constitutional argument in favor of believing that the ability to develop a basis for peremptory strikes, and the ability to exercise those strikes, is part of what the founders meant by a fair “trial by jury” in the context of the Sixth and Seventh Amendments in the Bill of Rights. So the main question for any substantive reform to oral voir dire is the question of whether it helps to measure bias. Of course, that advantage can be difficult to measure. But one course of study that should be pursued is asking jurors once their service has concluded whether they, or any of their fellow jurors ended up having very strong attitudes or experiences which probably should have been known prior to them being selected for service on their given case. Given that many have barriers to identifying their own biases (hence the need for expanded voir dire) the tactic of asking about others in the group may be especially fruitful.
Ideally, based on the academic research thus far, a study of the practical experience in Maryland should show that expanded voir dire is reasonably efficient, more likely to satisfy the parties, and more likely to reveal the sources of bias that the process should guard itself against.
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Other Posts on Expanded Voir Dire:
- Treat Truncated Voir Dire as Useless
- Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories
- Never Rely on Self-Diagnosis of Bias
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