Good in Small Doses – A New Way to Think about Bias

            The Sixth Amendment of the U.S. Constitution demands that criminal defendants in America “enjoy the right” to an impartial jury.   The Seventh Amendment “preserves” that right for civil trials.  Judges and attorneys conduct voir dire in an attempt to weed out jurors who cannot be impartial (whether or not the juror knows about his/her bias), and many have written on the critical importance of avoiding bias within our juries.  However, the way we currently discuss bias may not be in the best interest of justice, and the framers may not have intended for courts to reject all jurors who display a degree of bias during jury selection.

What does it mean to be “impartial”?

            The United States Supreme Court breaks down the term “impartial” into two components.  First, the group from which the parties de-select petit jurors (the venire) must represent a “cross section” of the defendant’s community.  The Court’s reasoning suggests that this first component seeks to avoid racially segregated juries.  Second, the jurors who eventually sit on the petit jury must be “unbiased,” which the means that the jurors must be “willing to decide the case on the basis of the evidence presented.”  This second component spawned the voir dire process, whereby judges and attorneys ask the venire questions that, in theory, should expose juror bias.  After the court uncovers bias, the court should grant a strike against that juror for cause.

            When deciding whether to strike a juror for cause, research indicates that courts rely most heavily on a potential juror’s self-assessment of his/her bias.  For example, during voir dire, judges sometimes directly ask jurors whether they can be fair.  Other times, the questioner will ask indirect questions to bate the potential juror into revealing a secret like/dislike for one party.  In both scenarios, the juror must be consciously aware of his/her predispositions.  In practice, the court searches for any glaring, obvious feelings within jurors that, should the juror be impaneled, would negate the possibility of an impartial jury.    

A more nuanced definition of “bias”

              Implicit in this process is the idea that some bias within jurors is inevitable (and possibly desired).  Our system often limits the form of voir dire so that questioners must generally speak to the venire as a whole, even though research shows that the direct questioning of jurors increases the likelihood of the court granting a strike for cause.  When courts rely on a potential juror’s self-assessments, the court knows that some bias will make it onto the jury.  Therefore, our system ensures that the Constitution’s impartiality requirement often remains unfulfilled. 

The framers could have defined “impartial” within the Amendments, but they chose not to.  Their vague language suggests that the framers intended for some level of biased thinking to exist within juries (or perhaps they understood the impossibility of rooting out all partiality).  Either way, our system plays out how the framers likely intended, with the court striking the extremely biased jurors for cause, but allowing the milder biases to remain. 

Our jurisprudence should adopt a description of “impartial” that considers how milder biases could be beneficial to the deliberation process.  For example, if all twelve jurors bring mild, conflicting biases to the discussion, that jury may reach a deeper level of truth than a jury that a more neutral-minded jury may overlook.  Mild biases in calmer jurors may help them resist the pressure imposed by type-A jurors.  Our system implicitly supports this idea when it demands a petit jury of a larger size.  Instead of describing jurors as “biased” or “unbiased,” we should discuss individual jurors’ feelings in terms of degree.  While a severely biased juror will likely destroy deliberations entirely, a mildly biased juror may provide beneficial insight into deliberations.  We should note the difference.