Discovering Underlying Bias During Jury Selection

         During jury selection, attorneys want to discover the life experiences each juror brings with them into the courtroom. These life experiences transition into the formation of the lens with which each juror will view the evidence presented in the case. It has become problematic to get a glimpse through each lens because of the types of questions that attorneys ask to the potential jurors.

        Research shows that when asked questions containing the words "impartial" or "fair," the jurors are basically shown what the right answer is supposed to be. This prevents them from answering honestly and with the "lens" that they would be using to view evidence once selected. Their response may even hide their true feelings on the issue. However, by removing those two words from the questions, the jurors will answer more honestly and with their true feelings on the topic.

        Because people are self-motivated, research has also shown that when being asked questions during jury selection, potential jurors will often seek to answer questions in a way that maintains or increases the positivity of their self-concept or in a way that maintains their self-esteem. In application to jury selection, because people view themselves so highly, they often think that they are generally less biased then others because if they were biased that would be a direct contradiction to their positive self-image. Therefore, when an attorney asks a potential juror during voir dire, "are you biased against a fast-food worker?", they are more likely to attempt to hide their true feelings and openly express being "impartial" because that better supports their self-image. 

        It would be much easier if jurors would be honest with themselves so that they could be honest with the attorney asking the questions. Because our bias is determined by the journey we have walked through life, as legal professionals we should encourage potential jurors to be proud of their backgrounds because the diversity each potential juror brings to the courtroom is what we seek to maximize so that a true jury of our peers can be established. Therefore, the word bias is not naturally a negative term, society has given it that poor connotation. 

        To recreate the energy around the term bias and encourage openness in the voir dire process, research has shown that by focusing on life experiences and using scaled questions have helped break down barriers that people uphold through attempting to preserve self-image. The following five tips can help attorneys get past the barriers that prospective jurors use to shield their honest opinions.

1.  At the beginning of voir dire, explain that bias is natural for everyone and can be a strength rather than a downfall when used honestly and openly. 
2.  When a juror is honest and shares some of their experiences that show bias, acknowledge the strength that it takes to be open and reward them by thanking them for their honesty.
3. Ask jurors their beliefs and opinions directly rather than asking them if they are capable of being impartial or fair.
4. If a question is asked with the intent of eliciting bias and it does not work, don't give up. Keep probing the topic until one juror is open about their beliefs and opinions. Then use that to get past the barriers others are still upholding simply by asking, "who agrees with Juror X?"
5. When opinion questions seem to be taking a difficult turn or lack a fluid response from the potential jurors, asking jurors scaled questions can help begin a more fluid discussion. For example, asking jurors to "rate their view of the harm of cigarette smoking on human health from one to ten" with ten being the most harmful, can open the door to follow up questions such as, "juror x, why did you say seven?"

        In conclusion, attorneys may be able to change their approach to better accomplish their goal of forming the most diverse group of jurors. By focusing on removing the negative connotation surrounding the term bias, attorneys will be able to understand how each juror's background will effect their decision making. Selecting jurors that can use their biases in a positive manner that will view the evidence with their honest "lens" will be able to achieve the most just result.