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Understanding Bias: Preserving Peremptory Challenges, Preventing their Discriminatory Use, and Providing Fairer and More Impartial Juries

Understanding Bias: Preserving Peremptory Challenges, Preventing their Discriminatory Use, and Providing Fairer and More Impartial Juries

by Richard Gabriel

In 1936, Clarence Darrow wrote an article for Esquire magazine called “How to Pick a
Jury,” containing sage advice on the art and skill of picking a jury. However, he also went on to
list the pros and cons of choosing Irishmen, Englishmen, Germans, Catholics, Presbyterians,
Jews, Methodists, Baptists, and women, among others to be on a jury. He echoed what most
lawyers over the years have done: used easy stereotypes to help them decide which jurors to
choose when they have very little information, time, or skill to decide whom will determine the
fate of their clients. No doubt, the use of these easy stereotypes has led to discrimination:
black, white, men, women, old, young, gay, straight, liberal, conservative, Jewish, Catholic, the
list goes on. Simple labels make us feel like we know and can trust our cases to citizens sitting
silently in the jury box, judging our cases, judging our clients, and judging us.

In 1965, our Supreme Court ruled that peremptory challenges didn’t need to be justified
(Swain v. Alabama), opening the door to the discriminatory use of strikes. This was modified
more than twenty years later in Batson v. Kentucky and J.E.B. v. Alabama ex rel T.B. where the
Supreme Court explicitly prohibited the use of peremptory challenges for excluding jurors
based on race or gender. If a judge finds a prima facie case of potential misuse of challenges,
counsel has to justify why they struck a particular juror.

The concept of peremptory challenges has been in place since Roman times when each
side would choose one hundred jurors and then eliminate fifty from their opposing side’s ranks,
leaving a panel of one hundred jurors. English common law originally allowed for thirty-five
peremptory challenges before Parliament finally eliminated the prosecutorial right to
challenges in 1305 and, centuries later, eventually eliminated peremptories for the defense in
1988. While there is no explicit Constitutional right to peremptory strikes in this country, we do
have a right to an impartial jury. These days, jurors have knowledge of (or at least access to via
the internet) a broad range of topics that directly relate to the cases we try. Opinion often
accompanies knowledge, which can affect impartiality.

Bias in jury selection is not a new problem. From the Batson case to the recent U.S.
Supreme Court Foster v. Chatman decision, in which the Justices found purposeful
discrimination on the part of Georgia prosecutors in their use of peremptory challenges, the
Courts have long sought to protect jurors from the discriminatory use of peremptory
challenges. Recently, in City of Seattle v. Erickson, 386 P.3d 1098 (Wash. 2017), the Washington
State Supreme Court codified an even more stringent process to judge whether attorneys are
using racial bias to select a jury. Two affirming judges stated in their opinions they would
eliminate peremptory challenges altogether. However well intentioned, it is ironic that by
attempting to prevent attorney bias the Courts may actually end up unintentionally concealing
jury bias, depriving parties of their right to fair and impartial juries. Instead of implementing
these reactionary measures, it would be more productive for the Courts to better understand
the nature of bias and to train judges and lawyers in more effective jury selection procedures.

In their opinion, the Washington State Supreme Court questioned the efficacy of Batson
v. Kentucky in preventing the discriminatory use of peremptory challenges in jury selection. In
ruling for Petitioner Matthew Alex Erickson against the City of Seattle (City of Seattle v.
Erickson, 386 P.3d 1098 (Wash. 2017), the Court stated, “Batson v. Kentucky, 476 U.S. 79, 106 S.
Ct. 1712, 90 L. Ed. 2d 69 (1986) guarantees a jury selection free from racial animus. Yet, we
have noted that our Batson protections are not robust enough to effectively combat racial
discrimination during jury selection.” The Court goes on to amend the Batson framework by
stating that “… the peremptory strike of a juror who is the only member of a cognizable racial
group constitutes a prima facie showing of racial discrimination requiring a full Batson analysis
by the trial court.” In adopting a bright line rule for a prima facie showing, the Court cites
another Washington judge in the Saintcalle case (State v. Saintcalle, 178 Wn.2d 34, 43-44, 309
P.3d 326 (2013), “Batson… appears to have created a ‘crippling burden,’ making it very difficult
for defendants to prove discrimination even when it most certainly exists. This underscores the
need to amend our procedures and ensure that jury selection is more secure from the threat of
racial prejudice.”

In concurring with the opinion and establishing this bright line test, Washington Justices
Stephens and Yu go further and call for the elimination of peremptory challenges altogether,
stating that race neutral reasons are often pre-textual explanations for discriminatory use of
challenges. They have convened a working group to come up with solutions to “eradicate racial
bias from our jury system….” That working group has recently come up with Proposed Rule 36,
which outlines a procedure for evaluating the “race neutral reasons” for a peremptory
challenge, which would have the judge evaluate the types of questions asked of both minority
and non-minority jurors, presumptively dismiss certain types of questions asked of minority
jurors as invalid and closely scrutinizes nonverbal reasons (lack of eye contact, attitude, etc.)
given for a strike.

There is no doubt that, over the years, criminal and civil attorneys on both sides have
occasionally and, in some cases, systematically used their peremptory strikes to eliminate
minorities, women, and jurors with specific religious affiliations. Eliminating racial or any other
bias from our jury system is an important and admirable goal, but as we have seen in recent
civil rights and excessive force cases as well our divisive politics, the issues of race and bias are
complex and not easily solved with a series of remedial procedures.

However well-intentioned the Courts are in establishing these procedures to prevent
racial bias, they seek to remedy the problem with rules rather than processes. If not done
carefully, these rules, whether revising Batson procedures or, more extremely, eliminating
peremptory challenges altogether, would almost certainly exacerbate the use of discriminatory
stereotypes in jury selection and harm the rights of litigants to obtain a fair and impartial jury
while overlooking the root causes of bias.

Discriminatory use of peremptory challenges is as much a product of our country’s
current court procedures as it is the intentions of the attorneys exercising such challenges. If
we are to truly address the issue of bias and look at meaningful ways to reform the use of
challenges, we need to study, analyze, and address the issue in a scientific and methodological
manner. From Frye through Daubert, the Courts have sought to establish tests to distinguish
demonstrable scientific knowledge from junk or pseudoscience. Why shouldn’t we do the same
when it comes to determining procedures that can profoundly affect our judicial outcomes?
Until we really understand the social and psychological science of bias, we cannot have a
meaningful discussion about jury selection and peremptory challenges.

The court system typically assumes juror bias operates in the following ways:
1. The juror knows they have a bias.
2. The juror knows the extent of their bias.
3. The juror has conscious control over that bias.
Bias does not work like that. The concept of cognitive bias was introduced in 1972 by
Amos Tversky and Daniel Kahneman when they and their colleagues demonstrated in their
research the ways in which people’s choices differ from the strictly rational or logical model of
decision making.

While the courts think of bias as prejudice or prejudgment, biases are actually habits of
thought or patterns of thinking that include preferences, inclinations, or just impressions. They
can be both positive and negative. You can have a bias for Italian over Thai food and a bias
against the New York Yankees. Our political preferences clearly show our biases. Biases can also
include cognitive shortcuts that can lead to systematic errors in judgment. These cognitive
shortcuts include hindsight bias (judging a past event using what you know today) or
confirmation bias (only seeking information to confirm a prejudgment.) Biases can be conscious
but are frequently unconscious. Some courts have recently recognized the role of unconscious
biases or “implicit associations” in the decision making of judges, attorneys, and jurors, and
some judges have even started to give jury instructions which make jurors aware of these
unconscious processes.

These more nuanced definitions of bias contradict the standard court definition of bias
as conscious and controllable. While jurors often know about their innocuous biases, they often
are not aware of biases related to the complex issues in a legal case such as attitudes toward
the police, crime, medical care, or employment. In 2013, The University of Arizona conducted a
study which demonstrated the difficulty jurors had in identifying their own biases (Robertson,
R., Yokum, D., & Palmer, M. – The Inability of Jurors to Self-Diagnose Bias, University of Arizona,
2013). Jurors rarely know the extent of their biases because these beliefs and unspoken values
are tied to how they are raised, how much a juror relates their experience to the case they are
hearing, and their emotional association with the subject matter. For example, in an
employment case, jurors often have their own work experiences that inform how they listen to
the case.

Research has also shown how difficult it is to control or correct for one’s own biases.
First, a juror must be aware of their particular bias, second, they have to be motivated to
correct the bias, and third, they must have the cognitive resources to correct for the bias. Racial
bias is a particularly challenging bias to overcome as most people are not aware of would not
acknowledge they have negative impressions or slight preferences for some ethnic groups over
others. Some jurors may have biases against some minority groups simply because they have
not interacted with these groups in day to day life, while others may have very strong feelings
against a particular group and blame them for the social and economic ills in this country. Bias
is perception with innumerable variables and colors.

This brings us to the root cause of discriminatory strikes. While the courts in these
opinions imply that attorneys have discriminatory intent in making these strikes, the use of
discriminatory strikes is due to three primary factors:
1. An antiquated concept of the purely rational juror.
2. Lack of attorney and judicial training in proper voir dire.
3. Procedural excuses for inadequate voir dire.

The idea of the perfectly rational juror is a myth. Every juror has preferences, beliefs,
opinions, life experiences, and biases that affect the way they listen to and interpret evidence.
While they may strive to keep an “open mind” and to “decide the case based only on the
evidence and the law,” a juror’s brain is not a computer hard drive with neat little file folders.
We count on the judgment of our citizen jurors, and that requires them to use their life
experiences, beliefs, and common sense to interpret the evidence and law that is presented.
While jurors are rational, there are numerous aspects of a jury trial that make it difficult to look
at evidence in a neutral and objective manner: the foreign nature and intimidation of the
courtroom environment, juror confusion about the role they are supposed to fulfill, the
complexity of the case, conflicting accounts of case facts, and interpersonal reactions to
attorneys, judges, and other jurors. All of these variables create cognitive load, or the effort a
juror uses to process the evidence and law presented during the trial. The greater the cognitive
effort, the more likely that jurors will get confused or overwhelmed, resorting to their own
familiar beliefs and biases to help them resolve the confusing, conflicting, or difficult issues in
the case.

Voir dire is the only time an attorney has to better understand the citizens that will be
judging his or her case and client, yet conducting this important procedure is covered only
briefly in law school and rarely practiced. When a law student graduates and passes the Bar
exam, it can be years before they see the inside of a courtroom unless they choose to go to the
District Attorney’s or Public Defender’s offices. Even then, most new attorneys are just given
tips and war stories from senior colleagues about what they should do rather than receiving any
actual training in how to conduct voir dire.

This problem is compounded by the dissimilarity of practices in different courtrooms
with different judges enforcing different rules and standards related to voir dire, some of which
are not given until the last minute. Some judges are generous and allow attorneys hours or days
to conduct voir dire. Other judges severely limit the amount of time attorneys to a matter of
minutes. In Federal Court, attorney-conducted voir dire is often not allowed at all. Some judges
allow mini-opening statements where attorneys tell jurors briefly about the case and question
them about their preliminary impressions and other judges do not allow attorneys to ask about
case related attitudes and limit questions to yes/no responses.

In addition, voir dire preparation is often low on the priority list when an attorney is
preparing for trial. Typically, they are focused on motions, opening statements, and their first
witnesses right before trial, often making jury selection an afterthought. As voir dire has been
curtailed in recent years, attorneys have extremely limited time to discern which jurors will give
them a fair listening. As a result, many attorneys view jury selection as a distraction from
preparing and presenting the case, making them want to get jury selection over as quickly as
possible. As a result of the lack of training, time, and control, many attorneys claim that voir
dire is their least favorite or least comfortable part of the trial.

The courts also have mixed feelings about the jury selection process. Judges do not get
extensive training in the process, relying on feedback from other sitting judges and their own
experience from their prior practices. Judges also have administrative and time pressures to get
a trial underway. Many judges see voir dire as a waste of time, believing that a fair and
impartial jury would be obtained by just putting the “first twelve jurors in the box.”

This view of the “first twelve” rational jurors has also created an inherent contradiction
in how the Courts view jury selection. For the most part, the Courts only recognize explicit bias,
a bias that the juror himself or herself recognizes and acknowledges. The Ninth Circuit has
stated that “[a]ctual bias is found where a prospective juror states that he cannot be impartial,
or expresses a view adverse to one party’s position and responds equivocally as to whether he
could be fair and impartial despite that view.” In one study of California cases (Hannaford-Agor,
P., Waters, N., Examining Voir Dire in California – Administrative Office of the Courts, Judicial
Council of California 2004), if a juror stated they could be fair, it made them 71% less likely to
be dismissed for cause.

Compounding this problem is the fact that attorneys and judges traditionally ask closedended
Yes/No questions about biases without giving jurors the opportunity to explain their
beliefs or opinions. On the rare occasions a juror does identify an experience or attitude that
may affect their ability to be fair and impartial, the courts simply ask the juror whether they can
“set it aside.” Most jurors dutifully answer in the affirmative. So, if a prospective juror identifies
a bad experience they had with a doctor when being selected for a medical malpractice case,
they are usually just asked whether they can “set that experience aside,” and are forced to only
answer yes or no. A juror, in a public setting in front of a group of strangers headed by an
authority figure, usually feels a great deal of pressure to declare a socially acceptable statement
of fairness despite their true feelings. While some judges may dismiss the juror for cause if they
express a particularly hostile attitude, many judges will seat the juror if they say they can “set it
aside,” no matter how bad their experience. From a scientific perspective, there is no biological
or psychological basis for the concept of “setting aside” strongly held beliefs, opinions, or
experiences.

Additionally, many attorneys still believe they should spend their time in voir dire
inculcating or priming the jury about the themes of their case. Judges typically hate this, and
this behavior is likely a primary reason that voir dire time has been so drastically reduced in
recent years. It creates a focus on the case rather than the juror, with attorneys and judges
exacting a series of promises from jurors about open-mindedness and ability to follow the law
that they don’t know if they can keep, rather than exploring potential issues and areas of bias.

What’s missing from this process is a frank and candid discussion with jurors during voir
dire about how their experiences and attitudes might affect their ability to listen to the case or
deliberate to a verdict. If the judge is inclined to even allow attorneys to inquire about bias
(which can be rare, particularly in Federal Court), the courts mistakenly believe that the main
job of jury selection is to identify and neutralize biases rather than take a serious look at how
biases affect a juror’s thought and decision-making process. It is not the presence and
acknowledgement of a bias that automatically creates an inability to be fair and impartial, it is
whether that bias is significant enough to impair the ability of a juror to fairly and impartially
judge the case. So in a personal injury case involving a car accident, it is not whether a juror
believes there are too many reckless drivers, but a juror’s own personal rules of the road when
they drive that will steer their collection of evidence. Do they always signal a lane change? Do
they drive at or above the speed limit? Do they use a cell phone in the car?

Without quality of information about a prospective juror’s attitudes and experiences,
attorneys are left with little or scant information about jurors. They then resort to stereotypes
and biases, implicit or explicit, when making their peremptory strikes, which can in fact result in
a Batson situation where strikes are being discriminatorily used based on demographic
information. With the lack of skill in asking questions that elicit a juror’s true feelings, the lack
of skill in identifying bias, and the limited time and questioning the courts now allow, attorneys
resort to their own demographic formulas in selecting juries. Do I want men or women on this
panel? Old or young? Educated or uneducated? Blue collar or white collar? Attorneys then
exhibit their own biases by forming rules about whom they do and don’t select. Civil defense
attorneys are often suspicious of teachers and union members. Plaintiff attorneys often don’t
like engineers, bankers, and executives. Criminal defense lawyers don’t like Republicans. And it
has been shown, that in some trials and even whole jurisdictions, prosecutors have used
peremptory challenges to systematically try and eliminate African-Americans from juries.

These are real problems facing our legal system, but the solution is not to limit voir dire,
to put attorneys on trial for discriminatory intent, or eliminate peremptory challenges. Instead,
we should reform the voir dire process and ensure peremptory challenges are being used
properly. Better procedures can be implemented that allow both judges and attorneys to a
have fuller understanding of a juror’s potential biases so they can make more informed choices
about cause and peremptory challenges.

The following five recommendations can be remarkably efficient and even time saving
as long as the judge and litigants agree that the purpose of jury selection is to get to understand
if and how a prospective juror’s experiences, attitudes, and temperament may affect how they
listen to and decide the case. Please note that some of the recommendations below run
counter to how attorneys and judges are trained and practice. While they may seem time
consuming, most cases have only a handful of key bias issues that need to be explored with
jurors. If planned correctly and conducted efficiently, these steps can actually save significant
time.

1. Before the trial starts, each side identifies and articulates all the issues in their case that
they believe may give rise to a bias or negative impression of their case or client. In a
pre-trial conference, the Judge and attorneys discuss how to best explore these issues,
whether through a supplemental jury questionnaire and/or voir dire. They then
establish a procedure around the agreed goal of identifying potential biases that may
affect a juror’s fairness or impartiality.
2. Attorneys formulate open-ended questions about these identified biases or
impressions. These include questions like, “How do you feel about…?” or “How do you
think about…?” or “What’s your opinion about…?” For example, which question would
yield better information about whether a juror could be fair and impartial in a criminal
case? “Will you agree to treat a police officer’s testimony the same as any other
witness?” or “How do you feel about law enforcement?” There is a world of difference
in the quality of responses to these questions, and only one of these questions may truly
reveal a potential bias. This is counterintuitive to attorney training as sometimes vague
or ambiguous questions are the best voir dire. They invite the jurors to impose their
interpretation of the question, giving the attorneys and the judge more of a juror’s
10
genuine feelings and beliefs. Please note that asking whether they have an opinion
provides an excuse for jurors who are reluctant in a social setting not to speak, even if
they have opinions on the subject matter.
3. Judges should then allow attorneys to ask follow-up questions. Given the foreign and
intimating environment of a courtroom, jurors are naturally reluctant to speak candidly
about their opinions on difficult subjects. Their first responses don’t always express their
true feelings. By making follow-up questions like “What else?” or “Tell me more about
that”, a juror is prompted to reveal deeper or more meaningful attitudes he or she may
have on specific case issues.
4. Attorneys need to be willing to ask hard questions. Cases involve tough issues and jurors
have to make tough decisions. Jurors don’t always have quick and ready responses to
questions about the death penalty or antitrust laws. While some jurors don’t believe in
the death penalty or in anticompetitive business conduct, many jurors do not know how
they themselves feel about these complex and difficult issues. So, in an employment
case, a question like, “How do you feel about race relations in this country?” may bring a
considered pause as the juror reaches inside to look at how he or she really feels and to
figure out the best (and most socially desirable) response. Leave room for their silence.
The struggle, by itself, can tell the attorneys and judge a great deal about the juror.
5. Judges and attorneys should be open-minded and curious. In the legal profession,
lawyers and judges are used to controlling and judging information. As soon as a juror
utters an opinion that may be detrimental to either side, the attorneys or the Judge
typically react negatively to the juror response. This can telegraph to the juror that they
just gave an undesirable response, prompting them to backtrack or shut down. It is
much more useful in jury selection to forego judging a juror’s response and just follow
their train of thought. In fact, if a juror discloses an impression, experience, opinion,
belief, or bias, it is important to actually encourage them to disclose more about their
feelings on the issue. This will tell you the full extent of their attitudes and whether their
response is a fleeting impression or a full-blown bias. If the attorney (and the judge) is
open minded, curious and non-judgmental, jurors will be more candid in their
responses. This non-judgmental attitude will also help to create an environment
conducive to disclosure. With good questioning, jurors should spend 80% of voir dire
speaking, while the attorneys or judge should only spend 20%.
Jurors are not naturally impartial. We all form impressions and opinions very quickly.

Sometimes those attitudes are deeply embedded below conscious awareness. The courts have
started recognizing the role of this “implicit bias” and how it drives decision-making, so it takes
real cognitive effort to achieve the neutral objectivity the courts expect of jurors. It is even
more difficult to do this when we already have preconceived beliefs or habits borne of years of
driving cars, working in various employment situations, or using products and now they are
sitting on a jury in a lawsuit with those same issues. Trials are decided by people with their own
individual experiences, sensibilities, and preferences. The courts instruct jurors not to abandon
their common sense, so during voir dire we should find out the composition of their common
sense.

In jury selection, the overall goal should be to improve the quality of information that
attorneys and judges use to exercise cause and peremptory challenges. Instead of
implementing punitive rule changes or eliminating peremptory challenges altogether, it would
be wiser to ensure this important procedure is used properly to secure a fair and impartial jury.
Education should always precede elimination or punishment.

As Clarence Darrow wrote at the end of his article in 1936, “When lawyers and courts,
and laymen, accept the scientific theory which the physicians forced upon the world long years
ago, then men will examine each so-called delinquency until they discover its cause, and then
learn how to remove the cause. This requires sympathy, humanity, love of one’s fellow-man,
and a strong faith in the power of knowledge and experience to conquer the maladies of men.
The forum of the lawyers may then grow smaller, the courthouse may lose its spell, but the
world will profit a thousandfold by a kindlier and more understanding relation toward all
humankind.”

 

This article is based on one published earlier in The Jury Expert. http://www.thejuryexpert.com/
Richard Gabriel is President of Decision Analysis, a former President of the American Society of
Trial Consultants and co-author of Jury Selection: Strategy and Science as well as author of
Acquittal: An Insider Reveals the Stories and Strategies Behind Today’s Most Infamous Verdicts.
He served as a committee member on the ABA Achieving an Impartial Jury Advisory Group and
currently serves as an advisor for the Civil Jury Project at NYU School of Law.