More Techniques for Uncovering Juror Bias before It’s Too Late

The Sixth Amendment guarantees all Americans the right to an impartial jury. Yet typical methods for selecting jurors fall short of ensuring that constitutional right: the impartial jury remains an ideal rather than a reality.

While strikes for cause eliminate prospective jurors who express overt bias, the biggest problem—the real problem—is hidden bias. By design, human beings make rapid judgments about other people upon first sight; among them are trustworthiness and likeability. These judgments quickly transform into “gut feelings”, which lead people to unconsciously filter new information in a way that confirms their original, and often erroneous, impression. These processes come into play regardless of good intentions to be fair and open-minded. In voir dire, asking prospective jurors if they can be impartial, if they can ignore pretrial publicity and put aside their opinions about a case and their feelings about a defendant, is at best futile. At worst, it drives bias underground. Our goal is to find better ways to identify hidden bias before someone takes a seat in the jury box.

To this end, we have performed several studies to reveal underlying attitudes in prospective jurors by examining the effect of question wording in change of venue surveys and voir dire. (If you are not familiar with our previous research and would like to learn about other questioning techniques we have examined, short summaries of a few of our studies appear in Appendix 1. In addition, you can read our TJE articles on prehabilitation and question wording.

Our most recent experiment involves data from nine change of venue surveys performed by the first author over the last decade. Although these were all high publicity criminal cases, due to the nature of the wording and question variables, the lessons learned will surely apply equally well to civil cases.

The Study

In criminal cases, the single most important bias issue, the one around which all others orbit, is whether a prospective juror or survey respondent believes a defendant is guilty. In a civil case, the central bias question is whether a person favors one side over the other. Many voir dire and survey questions indirectly test the focal point of bias: “Do you think big corporations are out of control in this country?” “Are there too many trivial lawsuits these days?” “What evidence have you heard about this case?”

But of course there are direct ways to ask fundamental bias questions as well. In a change of venue survey for a criminal case, for example, the wording of the direct question has traditionally resembled the wording suggested in our ASTC Practice guidelines: “Based on what you have read or heard, do you think [name] is definitely not guilty, probably not guilty, probably guilty, or definitely guilty?”

After performing several change of venue surveys in criminal cases, the first author suspected that the traditionally worded guilt/innocence question led many people to automatically give the culturally expected answer—that a person is innocent until proven guilty beyond a reasonable doubt—rather than taking some time to reflect on their true feelings about the defendant’s guilt or innocence.

What led to this suspicion? First, of those who did not say they thought the defendant was probably or definitely guilty, virtually no one chose innocent as their answer. Instead, many volunteered a third option, the legally appropriate but perhaps disingenuous, “innocent until proven guilty.” Indeed, a large number of those respondents disclosed guilty bias in their responses to later survey items. For example, they affirmed statements such as he confessed, the community thinks he’s guilty, he will be convicted, the police found the murder weapon in his apartment, and so on.

Those observations led to my supplementing the traditional guilt/innocence question with a “water cooler” version, one that though it’s more casual, the less official tone might reduce the likelihood of knee-jerk answers. My variation of the water cooler question was: “If you had to say you lean one way or the other right now about the [ROTATE] guilt or innocence of _______, which way would you lean?”

In subsequent surveys I saw that whatever percentage had answered Guilty in response to the Traditional guilt/innocence question, another ten or fifteen percent answered guilty when the Lean question came up a little later.

The current experiment was a formal test of the question, “Across nine change of venue surveys, individually and collectively, does the water cooler/lean question tap into additional Guilty bias above and beyond that uncovered by the traditional guilty bias question?”

We tested an additional possibility with the most recent survey of the nine (performed in April and May of 2016). Callers asked roughly half the respondents the Lean question only, while the other half were asked both versions as usual—that is, they answered the Traditional question, then those who did not commit to either Innocent or Guilty were asked the Lean question. We wondered whether skipping the Traditional question and going straight to the more casual Lean question would result in just as many admissions of guilty bias as would asking the two questions sequentially. If that turned out to be true, simply asking the Lean question in surveys and voir dire could uncover a great deal of guilty bias rather efficiently. (Although it might still be necessary to retain both questions in COV surveys to adhere to traditional guidelines).

Method

From 2006 through 2016, in cooperation with polling companies, the first author conducted nine landline and cell phone change of venue surveys concerning high pretrial publicity murder cases. Each survey had a target of 400 respondents, for margins of error under 5%. In two counties with small populations we had to settle for substantially smaller numbers.

After a series of screening and familiarity-with-the-crime questions came the traditional Guilty Bias question. For those who answered either Guilty or Innocent, an open-ended “why” question followed. The Lean question was asked of respondents who had not committed to innocent or guilty (except, as mentioned above, for a subset of respondents in the most recent survey).

Results

For each case separately as well as for the nine cases together, the Lean question resulted in a statistically significant increase in Guilty opinions. The increases ranged from about 9% to 19%, for an average increase of about 14%. Case by case and overall results appear in Figure 1. (See Table 1 in Appendix for data and statistical tests.)

Figure 1. Percent increase in admissions of Guilty opinion from traditional Guilty question to Lean Guilty question.

Note: All increases are statistically significant.

The additional variable we tested in Case 9—to determine whether the Lean question alone would yield a similarly high rate of Guilty Bias compared with the Traditional question along with the Lean question—resulted in an affirmative finding. Of the 139 respondents who answered only the Lean question, 67.6% (94) said they believed the defendant was guilty. As can be seen in Figure 1, for those answering both questions, the cumulative rate was nearly identical to the rate for the Lean question alone (66.4%; 79/119).

Discussion

What does an increase in the percentage of people admitting guilty bias mean in practical terms? Translating numbers into words for a few of the cases makes the significance clear:

• 29% to 45% – from over a quarter to almost half (Case 5)
• 49% to 68% – from about half to over two thirds (Case 6)
• 42% to 57% – from less than half to more than half (Case 7)

Increases of these magnitudes in COV surveys could make the difference between a change of venue for your client being denied or granted. Furthermore, using the Lean question in jury questionnaires and voir dire — though not directly tested here — is also likely to reveal prospective jurors with a guilty bias, leading to dismissals for cause.

Asking biased jurors whether they can be impartial despite their opinions and gut feelings is not merely pointless, it puts your client in jeopardy. Revealing hidden bias in prospective jurors before seating them on a jury will help ensure your client’s right to a fair trial and strengthen the integrity of our justice system.

Mykol C. Hamilton, Centre College

Kate Zephyrhawke, Hillsborough Community College