Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

Locked head

It has been one of the most enduring myths of voir dire and jury service generally: the idea that biases are personally known, readily admitted, and fully controllable. In order to prevent a biased juror from serving, let’s just ask them in voir dire if they’re biased, and then rely on that admission or denial. And once that juror is seated for a trial, we will just tell them to “set aside” any remaining bias in order to just focus on the law and the evidence. It takes only a little understanding of social science to realize just how faulty these assumptions are. In reality, biases are complex: We don’t want to acknowledge them, we can’t simply bracket them out, and we don’t even necessarily know that we carry them. By and large, courts have been blind to these realities.  

However, one federal court district is finally taking a dramatic and overdue step in the right direction by using a video to instruct prospective jurors on unconscious bias. As detailed in a write-up in The Marshall Project site, the Western District of Washington is showing an 11-minute video shown to every prospective juror in U.S. District Court in Seattle and Tacoma. The goal of the video (embedded below) is to alert jurors to hidden biases that they may not be aware of. In this post, I will take a look at the video, note where it is a good step and where it does not go far enough, and offer a few follow-up voir dire questions for jurors who have viewed the video or been exposed to similar messages. 

The Video

The Marshall Project has made the instruction video available to the public via YouTube, and a connection to that site is embedded below. Depending on how you receive this post, you may need to navigate to the original address here.  

Where It Is a Step in the Right Direction

To some jurors, the overall message might seem to be baffling: “Be aware of the biases that you’re unaware of….” But awareness is actually the key, and I think the video does a pretty good job of laying it out. Even if jurors cannot know the particular form or extent of the bias, an awareness that it is common helps to pierce the illusion of pure neutrality that jurors might otherwise have. In addition, the messages encourage jurors to think twice about their quick top-of-the-head reactions and to look for more information. Of course, we can all imagine cases where we would say, “But, I want the jurors’ top-of-the-head reactions.” Broadly speaking, however, it is a good step that the courts are aligning themselves with social science and acknowledging the existence and power of unconscious bias. As Jeffrey Robinson, deputy legal director, ACLU, notes in the Marshall Project article, “You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?” he says. “If it goes unchecked, implicit bias will run rampant.”

Where It Does Not Go Far Enough

The bright spot here is that the video is one of the first examples of a court acknowledging that bias itself is a lot more complex than the jury selection process is willing to acknowledge. It isn’t just an “Ask them if they’re biased” project, it is a matter of accounting for the potential for unconscious bias as well. Unfortunately, there are two limits to the District Court reaching that potential, at least with the present video. 

The first problem is that it seems to suggest a very narrow target for “bias.” Around the midpoint of the video, Attorney Annette Hayes describes bias as “unfair distinctions among individuals,” mentioning only age, race, and gender as the relevant distinctions. In addition to implicit biases applying much more broadly (e.g., religion, nationality, immigration status, body size, disability, sexuality, etcetera), there are also strong implicit preferences that are focused on issues rather than people: the nature of personal responsibility, lawsuits, corporations, law enforcement, the environment, etcetera. Clearly someone could promise to be fair and try to be fair, yet still show an implicit preference on the basis of these and many other attitudes. The video restricts the notion of “bias” by seeming to limit it to just a matter of age- race- and gender-discrimination. 

The other problem with the video is that it provides the potential jurors with no clear implications for voir dire. While the descriptions are not clear about when the video is shown, it seems to be shown to all prospective jurors, which suggests that it is shown prior to voir dire. If that is the case, the video is curiously silent on the ways that implicit bias should or should not affect the selection process. It would have been helpful to include the messages that jurors should feel comfortable to talk about possible biases without fear of being judged, and if they believe or suspect that they could have a bias that would be unfair to one side or the other in this case, then they should acknowledge it during questioning and not just promise to “be fair” because that seems like the right thing to do. 

One additional problem is that, in the cases where it might be most necessary, judges could be afraid to use it. Last week, for example, Judge Barbara Rothstein barred the use of the video in the case of a black man who was shot and killed by a police officer. The Plaintiffs planned to argue that the officers may have had a racial bias and the judge considered it “simply too prejudicial” to show a video suggesting that such biases are common and sometimes unknown. The problem here is that jurors are not being told about their own biases due to the fact that those same biases might influence police officers as well. 

And What You Should Ask of Those Who Have Seen It

What should you do if your potential jurors have seen this video, either in the Western District of Washington, other venues if it catches on, or if they’ve heard other information about the idea of unconscious bias as part of the process? I’d say that it is a good idea to talk with them about it. I know, in federal court, we don’t often have the opportunity for attorney-conducted voir dire. Some judges, however, will allow at least a little time, particularly if you give them a good reason. Exposure to a video like this one, I’d argue, provides a great reason. 

Here are a few questions I’d recommend asking if you get the chance: 

  • What are your reactions to the video? Do you have any general reactions to this material? 
  • Where did you find yourself agreeing with the content of the video? 
  • Where did you find yourself disagreeing with the content of the video? 
  • Was there any part of it that you did not understand?
  • Do you think you are the kind of person who is susceptible to unconscious bias or not? 
  • As it applies to this particular case, do you believe this information tilts you one way or another, or do you think it leaves you in a neutral place? 

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Other Posts on Bias and Instructions:

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Image credit: 123rf.com, used under license, edited.