By Dr. Ken Broda Bahm:
Every juror with a strong and relevant belief or experience is asked it in oral voir dire: “Would you be able to set that aside and base your decision on just the facts?” Attorneys conducting oral voir dire would do well to ask themselves the same question: “Are you able to set aside your own preconceptions and base your strikes on just the facts you learn from potential jurors?” Of course, we are not used to thinking of the lawyers as the ones carrying the bias. But when engaged in that critical task of assessing the experiences and attitudes of their potential fact finders, lawyers can be unduly influenced by their own expectations, as well as by the choice and phrasing of questions. A new study appearing in Law and Human Behavior (Crocker Otis et al., 2014) supports the conclusion that even experienced attorneys make evaluations that are biased by the hypotheses they form about potential jurors, as well as by the ways they select questions to test those hypotheses.
Bias stands in the way of a fair evaluation, and that applies both inside and outside of the jury box. A good attorney’s goal in voir dire is to discover that bias: to identify those who would have the greatest difficultly in setting aside their unfavorable attitudes and experiences. Still, lawyers, particularly as they gain experience, will tend to have strong views on the kinds of jurors they believe are most likely to fit those categories. Based on this new research, careful attorneys should also be sure they aren’t bringing their own biases to that task. This post takes a look at the study, and also shares a few ideas on how attorneys can bring their own open mind to the task of jury selection.
The Research: The Bias in Asking
Attorneys in voir dire might see their questions as just a neutral way to gather information. But one doesn’t need to look very long at social science or public opinion polling to see the flaw in that. The flurry of competing surveys, on virtually any controversial issue, proves repeatedly that to get a different answer, all one needs to do is ask in a different way.
In the current study (Crocker Otis et al., 2014), a team of public and private researchers looked at this bias as it relates to questions asked by attorneys. Starting with the problem of research showing limits of oral voir dire in uncovering bias, the team theorized that part of the problem could be biased hypothesis testing on the attorneys’ part. By “hypothesis testing,” they mean that instead of simply asking a question to find out the answer, attorneys are likely to form a belief first, and then see if they can confirm that belief with a question — you know, the way they approach deposition and trial testimony. That approach can be a useful tool for controlling the record, but it is a less effective method when your goal is to simply discover the answer. By asking what are called “hypothesis consistent” questions (e.g., someone suspected of being an extrovert would be asked, “do you like parties?”), the questioning style builds in a confirmation bias, because a “yes” is generally a little more likely than a “no.”
In the first of two studies, the researchers tested the death penalty jury selection strategies employed by 131 prosecutors and defense attorneys from the D.C. area, a group very experienced in attorney-conducted oral voir dire. The method is a little complex, and interested readers should rely on the original article, but the short version is that the attorneys were given one of two profiles (a “death penalty opponent” — young, female, African American, Democrat, social worker — or a “death penalty supporter” — older, male, white, Republican, retired military), and were then asked to formulate closed-ended voir dire questions to assess that panelist’s views on the death penalty. Half were assigned to test the hypothesis that the individual supports the death penalty, while the other random half were asked to test the hypothesis that the individual opposes the death penalty. In addition, they also estimated the chances that the described individual would answer “yes” to the question.
The result? Attorneys did best when the design short-circuited their tendency to want to confirm expectations. “Attorneys asked more diagnostic questions,” the authors write, “when the profile of the venireperson was inconsistent with the hypothesis they were asked to test.” In other words, they counter-intuitively excelled when testing the hypothesis that the young female African American social worker supported the death penalty than they did when testing the more expected theories. The assigned hypothesis also influenced attorney’s estimates of likelihood: If they were asking about support for the death penalty, they were more likely to predict that their panelist supported the death penalty. That means that the questioner, and not just the respondent, can absorb bias from a question.
In a second study, the team applied a similar approach asking attorneys, as well as law students, to determine whether potential jurors were legal authoritarians or civil libertarians. They set an expectation this time, not by providing a demographic profile, but by sharing “survey results” from a litigation consultant indicating that the venue’s rate of legal authoritarianism was low, medium, or high. Playing the role of a defense attorney defending a police officer charged with negligent homicide, the attorneys and students were then asked to generate questions to find out where a given panelist would be on that spectrum.
The result in this second study was that the participants were more likely to suggest hypothesis-consistent questions, where a “yes” would confirm their hypothesis. They also tended to set aside base rate information and overestimate the attitudinal likelihoods in the favorable direction (authoritarianism). As in the first study, the assigned hypothesis also influenced their prediction: When asked to test whether the person was authoritarian, they put a higher probability on their target being authoritarian, and when asked to test whether the person was libertarian, they put a higher probability on that. As the authors noted, “The mere act of testing a hypothesis appears responsible for this hypothesis effect.”
The Recommendations: Be Open When You Question
Lawyers are about control, and that style serves them well in managing deposition or trial testimony. Voir dire, however, is a time to set that aside.
Set Aside Hypotheses
Once we know the demographics or occupation of a potential juror, that can exert a strong pull on our expectations. The implicit approach might be, “Here’s what I think, let me see if I’m right…” The problem is that these theories are probably far less diagnostic than we expect them to be. It is natural and inevitable to carry those expectations, and they can help guide your case assessment and trial preparation. But when you have attorney-conducted voir dire, the goal is to keep an open mind and listen to the panelist.
Don’t Lead
Lawyers who understand the power of a leading question in deposition or trial shouldn’t forget that power when it comes to oral voir dire; it can lead panelists away from accuracy. Any question that begins with “Wouldn’t you agree with me…” is suspect. If the goal is to rehabilitate by walking a favorable panelist away from a cause challenge by the other side, then it’s a fine technique. But if the goal is to actually find out the true answer, you’ll rarely get there by leading.
Ask Open-Ended Questions
Select a question that carries the least bias in the asking. For example, study one in the research article asked attorneys to propose closed-ended questions to try to determine whether a given individual was a supporter of the death penalty or not, but a more direct way to get at that in practical voir dire would be to simply ask, “What are your feelings about the death penalty?” The open-ended question gets beyond the yes/no and lets the respondent set their own terms.
Voir dire calls for a different mindset in asking questions than attorneys are used to. This new study carries the reminder for attorneys — even very experienced ones — to seek out help when creating questions or interpreting responses in voir dire. The assistance of another approach, as well as another pair of eyes and ears, particularly when accompanied by a social science orientation, can be a critical step in encouraging trial lawyers to see beyond their own bias.
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Other Posts on Voir Dire:
- Practice the Pivot in Oral Voir Dire (Part One): The Basic Model
- Don’t Select Your Jury Based on Demographics: A Skeptical Look at JuryQuest
- Don’t “Narrow Bracket” Your Choices in Jury Selection
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Crocker Otis, C., Greathouse, S. M., Busso Kennard, J., & Bull Kovera, B. (2014). Hypothesis testing in attorney-conducted voir dire. Law and human behavior,38(4), 392-404. doi: 10.1037/lhb0000092
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