Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
The Massachusetts Supreme Judicial Court just heard oral arguments seeking to overturn a drug-possession conviction in the case of Commonwealth v. Quinton Williams. The Defense had appealed based on the judge’s dismissal of one potential juror who shared a belief that the criminal justice system is unfair towards young black men. The juror reported that she works with low-income youth, and told Judge Daniel Hourihan of Brockton District Court, “Frankly, I think the system is rigged against young African American males.” When asked if that would interfere with her ability to be fair and impartial, she initially said, “I don’t think so,” but later added, “I don’t think I can put it aside” and “I think that’s the lens that I view the world through.” Pressed for assurance, she said, “I think I can be unbiased” and “I think I can listen to the evidence” before answering “probably” to the question of whether she would look at the case differently as a result of that belief.
The judge dismissed her for cause, with the prosecution’s concurrence, and over the Defense objection. Ultimately, it seems safe to say that the excused juror was accurate — accurate not only about demonstrable bias in criminal justice system outcomes, but also accurate in speaking about the role of her beliefs and attitudes serving as a lens and not being something that could be “set aside.” In this example, it’s a belief that, as the Defense says, is “far closer to fact than opinion.” This is a particular concern when it becomes a commonly-held belief based on some commonly-known facts. As appellate justice Kimberly Budd asked during oral arguments, “Don’t you then have to worry about keeping off a cross-section of people who may believe the system isn’t fair to black people?”
This raises some fundamental questions for jury selection: Can jurors be excused for believing something that is true? When jurors say they can’t set aside some specific piece of knowledge or belief, but also feel that they can fairly evaluate the case in question, can they still be excused for cause? In this post, I want to take a look at that legal question, and particularly at the practical implications for attorneys and judges evaluating challenges for cause. The law’s view is that a belief becomes a bias when the person is unable to escape it effectively enough to focus on the facts and parties in the case in front of them. Most commonly, that is framed as a question of whether the belief can be bracketed or “set aside” in order to focus on the case at hand. The alternative is to accept the social-science reality that strong beliefs are never truly “set aside,” but can still be addressed based on the question of whether these beliefs are or are not exerting an “undue influence” over the decision in front of the juror.
Problems With the ‘Bracketing’ View
The problem is that the system for assessing cause strikes is often relying on the test of whether potential jurors are willing to deny reality. Are they willing to say that an important belief or experience can be “set aside,” or situationally removed from their consideration? In the Massachusetts appeal, for example, the prosecution claimed that the potential juror “gave contradictory and equivocal answers” because she said both, that she could be fair but couldn’t set aside her knowledge about the criminal justice system. But that is only a contradiction if one equates fairness with the unrealistic bracketing of personal knowledge.
Most social scientists would say that the juror in this case was speaking honestly and accurately about the criminal justice system as well as about the nature of human bias. Ultimately, the most important question is not whether the juror’s beliefs about the criminal justice system are accurate or not, but the larger question of whether it is fair to base the selection on whether people can divorce themselves from their own views. When it comes to strong attitudes, they aren’t like glasses we can simply take off. As Supreme Court Justice Frank Gaziano asked, “This judge was ultimately pushing her to say, ‘I can put aside what I believe.’ Isn’t that wrong?” I would say, “Yes, that is wrong.” In this case, the juror is being penalized for being realistic about the criminal justice system and honest about their own attitudes. Even when the juror does go along and say they have strong views but can set them aside, there is little reason to believe that self-diagnosis and that promise.
An Alternative: The ‘Undue Influence’ View
The alternative to the legal fiction of “setting aside” bias is to recognize that attitudes cannot be simply bracketed and ignored in that manner, and to instead focus on the likely degree of influence. Now some attorneys or judges might respond that, for a preexisting view, the appropriate amount of influence is “zero.” But that is not accurate. We expect jurors to bring their common sense, which is a sum total of their life experience, to the task, and one reason we prefer jurors as finders of fact is the belief that a jury serves as a “voice of the community” in a way that a professional judge never could. For that reason, the views that characterize a community shouldn’t be disqualifying, particularly, as in the Massachusetts case, when these views are not just correct, but also likely to be held by a substantial part of the population.
Instead, the question ought to focus on undue influence. Influence itself isn’t the problem, rather the problem is when the control exerted by a view becomes extreme and beyond what the court should allow. The legal precisionist might respond that the question of ‘What is undue’ is too vague. And, in truth, it is subjective and a judgment call…like human attitudes themselves. The influence of that preexisting view becomes undue when it interferes with ability to see the case individually. Peremptory challenges, of course, should still allow both sides to target the extremes, but when it comes to assessing a juror’s removal for cause, it is most realistic to avoid the language of “setting aside” a view or “not allowing it to influence you,” but instead focus on the degree of influence. In the case of a belief in a systemic bias in the criminal justice system, for example, the questions for the juror in this case might be:
- Do you believe the system is rigged against all young male African-American defendants? Or are there cases where young African-American males are treated fairly in the criminal justice system? If not “all,” would you say “nearly all?”
- Do you believe that someone can simultaneously hold the beliefs that the system is biased, and that an individual defendant is guilty?
- If you had to choose whether it is more important to fight against over-incarceration or to follow the facts in an individual case, which would you say is more important?
- Do you think your knowledge and views on the criminal justice system would be a distraction to you or to other jurors as you heard this case?
- Do you believe that you will be thinking about the more general problems in the system as you hear about the evidence in this case?
- On a scale of 1 to 10, how strongly do you think your knowledge and views would influence you in this case?
Other Posts on Cause Challenges:
- Don’t Expect Cause Challenges to Do the Work of Peremptories
- Get Beyond “Can You Be Fair?”
- Discovering Bias: Dig, Don’t Bury
- Don’t Ignore the Elephant: The Manafort Juror Questionnaire
Image credit: 123rf.com, used under license