“It’s ok, you just need to tell us.” “It doesn’t mean you aren’t a good juror, but maybe just not a good juror for this case.” “You’ve said you’ve suffered from the same kind of injury yourself, but would you be able to set those experiences aside and be fair and impartial in this case?” The first two statements are commonly heard from attorneys seeking to start plucking jurors out of the pool for cause, but it’s the last question, with the golden words “fair and impartial”, that are troubling jury consultants, attorneys, and this law student. When bias by a potential juror is indicated, is it really fair for judges to try to rehabilitate the juror with the “fair and impartial” question?
In a study conducted by researchers from Centre College, analysis revealed two types of practices at work. Rehabilitation, which attempts to remedy the bias a prospective juror has exposed, looks something like “You’ve said that certain information you heard on the TV news may make it difficult for you to be completely fair. Do you think you would be able to overcome those feelings if you were seated on the jury?” The second practice researchers refer to as "pre-habilitation", involves attempting to remedy potential bias up front, by signaling a socially desirable response, and then asking a subsequent bias question. “You seem like a reasonable person. Do you think you’ll be able to keep an open mind and base your opinion solely on evidence that’s presented in court?” The study found judges are more likely to engage in rehabilitation, while attorneys work up front with "pre-habilitation" questions.
Dr. Ken Broda-Bahm in his article “Getting Beyond ‘Can You Be Fair?’: Framing Your Cause Questions” asserts that the undeniable obstacle attorneys face in voir dire examination is the human tendency to portray themselves in the best possible light. This “social desirability bias” as he refers to it can be a direct product of the very courtroom and individuals we have questioning jurors. Dr. Broda-Bahm explains the bias serves as a motivation for jurors to answer questions with what they believe to be the “right” or “good” answer. “The courtroom itself, with its many trappings of official power and formality, can heighten for jurors a preference for an answer that they believe will satisfy the judge and the attorneys over an answer that honestly conveys a bias.” See, “Getting Beyond ‘Can You Be Fair?" for a more in depth look at Broda-Bahm’s view of "pre-habilitation" and rehabilitation techniques
Parties seeking to get a juror removed for cause are stuck between a rock and hard place when judges and opposing counsel set out on the rehabilitative and "pre-habilitative" route. They are forced to use preemptive strikes on jurors they arguably should have been able to dismiss for cause. Further, what a judge views as being “fair and impartial” is arbitrary, so there’s now way to have an equal assessment across the board.
We put on the rose colored glasses hoping that bias is as easy as an “on/off” switch jurors just sort of hit, but is it really plausible to believe that jurors facing a judge are going to always honestly indicate that they “can’t be fair and impartial?” It's unrealistic, and has empirically been shown to be so. In the long run attorneys on either side are hurting themselves in the voir dire process when they seek to cover up potential bias. Further, judges should err on the side of caution when it comes to potential strikes for cause. Close calls should be cause calls.
Trial consultant Charli Morris does offer hope for the frustrated attorney (or aspiring attorney). Morris believes educating judges on "pre-habilitation" and rehabilitation are one step to changing the traditional voir dire practice. Further, her article "If Impartial is Impossible: How Did We Get Here and What Are We To Do?" offers an extensive list of techniques attorneys can use to make their challenges rehabilitation resistant. As trial attorneys and jury consultants continue to look at the latest jury studies and innovative techniques, I can only hope this is one that continues to be developed.