Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

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One of the main goals of voir dire is to encourage jurors to express some of their actual biases so that you can use those expressions as a basis for cause or peremptory challenges. And there is one big obstacle to achieving that goal: Expressing bias is normally inhibited. This is due to the nature of bias, as well as the inclination toward ‘social desirability‘ that inhibits the expression of anything that could be considered inappropriate or unusual. There is also the formal courtroom setting that supercharges that inhibition by putting a spotlight on what the ‘right’ answer is in that setting (and the ‘right’ answer, venire members quickly deduce, is to say that you would be fair to all). Sometimes the style of questioning further magnifies this problem, with lawyers and judges often “prehabilitating,” or talking people out of their biases before they’ve even had a chance to express them. 

As a result, what we often end up with in voir dire is insincere and unreliable promises to be unbiased, which is decidedly not the goal. So the practical issue is, how do we get people to feel more safe expressing bias? One answer, drawn from current events and recent research, focuses on what disinhibits expressions of bias, or to put it more simply, makes people feel more comfortable and justified in expressing what they actually feel. That solution is to frame it as “free speech.” In a recent piece on National Public Radio’s Hidden Brain program, social scientist Shankar Vedantam interviews University of Kansas psychology professor Chris Crandall, who discusses research showing that those highest on racial bias, for example, are more likely to latch on to “free speech” as a defense to expressions that might otherwise be considered racially biased. That suggests that one way to counteract the inhibiting formality of the courtroom might be to emphasize the disinhibiting frame of free speech. In this post, I’ll briefly describe that research and discuss how it can be put into practice in your next voir dire.  

Why Is Free Speech a Cover for Bias? 

Of course, in my view and in the view of most civil libertarians, free speech actually is a defense of speech that could be considered racist — a defense of the right to express it, and to critique it, not a defense of the content itself. But, even bearing that distinction in mind, there is an observed selectivity to the way that it has been applied. For example, noting the frequency of free-speech arguments in the context of the Charlottesville ‘alt-right’ demonstrations, Shankar Vedantam asks, “Are these arguments motivated by principle, or something less heroic?” The KU researcher answers that, based on the studies, it is the latter: “People pull out free speech as a defense when they’re defending racist speech, but not when they’re defending aggressive, or negative speech.” He reports on several experiments involving scenarios that are altered to either include a racial component or not, but are otherwise identical: A barista complaining about a customer’s behavior, for example. Experimental subjects were more likely to use free speech as a defense when a racial component was present, and in addition, the greater the subjects’ bias against African-Americans, the more likely they were to invoke free speech. And that emphasis on free speech isn’t just a commitment to civil liberties. As Professor Crandall notes, those who are objectively high in racial bias will use free speech to defend racist speech, but not to defend anti-police speech. 

That, of course, does not prove that the free-speech framework disinhibits bias in the courtroom, but it strongly suggests that, at least among those who are most likely to be biased, the category of free speech operates as kind of a permission slip that might make expression more acceptable. That means that it is worth a try to put that framework to use in voir dire as a way of encouraging greater expression, and potentially more cause challenges and more well-grounded strikes.  

How Can You Frame Voir Dire as an Exercise in Free Speech? 

If you can think back to the first time you walked into a courtroom, you probably remember, it feels kind of like a church. And not one of those churches with singing and dancing, but one of the quieter ones: hushed, formal, solemn, restrained. That atmosphere absolutely has an effect on what feels okay to express.

To reset that expectation, trial lawyers should consider explicitly invoking a “free-speech” setting in order to encourage expression, and to disinhibit the sharing of views that might otherwise be suppressed due to their perceived unpopularity. The objective of framing the voir dire as a free-speech exercise might  be accomplished as follows:  

We are in a courtroom, and this setting, with the flags and the bench, and of course the judge, reminds you that this is a government exercise. Even though it involves private parties, this trial is really the government’s way of resolving a dispute. And there is something that the government guarantees in the very first amendment in the Bill of Rights: free speech. This courtroom is a very special setting, where you can say anything as long as it is the truth. And this part of the trial, voir dire, is a very special moment. Because that is when those in the jury box, those who are expected to silently watch during the trial, are expected to share their thoughts, with complete candor and, yes, with complete freedom of speech. So in this special time and place, it is okay, and even expected, to say things that maybe you wouldn’t share in polite company, things you wouldn’t say in a normal conversation. We absolutely want to respect your privacy, so if there is anything you want to share that is personal, we can do that at the bench with the judge, just let us know. But for all other questions, it is important to share your true feelings without worrying about whether anyone else will consider them correct or appropriate. In this setting, it is important to remember that you have freedom of speech, and also important that you use that freedom to give full, honest, unguarded and free answers to these questions.  

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Other Posts on Voir Dire: 

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Photo Credit: John Morton, Flickr Creative Commons, edited.