Juror Bias, What Can You Do About It In A State Without Meaningful Voir Dire? by Ronald Matlon, PhD
Ronald Matlon holds a BA degree in Speech Communication from Indiana State University, a MS in Speech Communication from Purdue University and a PhD in Communications earned from Purdue University. He has taught at Purdue University, the University of Illinois at
Chicago, the University of Massachusetts, the University of Arizona and Towson University. Dr. Matlon has authored nine books and 35 chapters or scholarly articles in his areas of expertise, and he has presented over one hundred professional papers, lectures or seminars before educational and legal groups. Dr. Matlon has been a litigation consultant since 1978. He is Senior Trial Consultant and CEO of Matlon & Associates, a national trial consulting firm located in Phoenix,
Maryland (2324 Carroll Mill Road, Phoenix, MD 21131, 410-472-0693,
www.matlonlitigation.com). His areas of consulting include witness preparation, jury selection, mock trial and focus groups and case strategy sessions. Also, Dr. Matlon has been the Executive Director to the American Society of Trial Consultants for the past 23 years.
Lifetime Experiences, Attitude Formation and Juror Bias
All potential jurors have biases and
prejudices. National polls have shown sig- nificant bias against tobacco companies, asbestos manufacturers, health mainte- nance organizations and corporate management (Van Voris, Loomis). But, that is just the tip of the iceberg. Indi- vidual bias that stems from all we experience in life shapes the perceptions we, as jurors, have of evidence (Ellsworth), and these perceptions can certainly influ- ence final jury verdicts. One study found that ten percent of verdict preference dis- parities could be predicted based on juror
experiential backgrounds and subsequent attitudes (Hastie). Identifying juror bias is critical. Yet, “the detection of juror bias is a serious challenge in contemporary jury trials” (Hans & Jehle, 1179). Some potential jurors say they can set aside their biases and personal experiences to arrive at fair and impartial decisions. But, is this possible? Supported by nu- merous social scientists, this author says “no”. What this means for the Maryland trial lawyer then, is that juror experiences and attitudes must be thoroughly probed in voir dire in order to identify jurors with bias. Unfortunately, in Maryland, voir dire is often so limited, that attorneys are placed in the position of relying far too
much on demographic stereotyping when exercising their peremptory challenges. Demographic stereotyping consists of inferring bias from juror characteristics rather than juror experiences and atti- tudes.
The demographic indicators
method of evaluating jurors is widely used by Maryland trial lawyers because these characteristics are often the primary in- formation that lawyers receive about each juror. For example, this author has heard such claims as accountants are good for defendants on damages, heavy-set jovial people are nurturing and will want to help injured plaintiffs, and plaintiffs should be careful about taking Jewish jurors in medi- cal negligence cases because so many doctors are Jewish. The approach to jury selection that “re- lies on gross demographics,” has “significant drawbacks” and is “crude and inefficient” (Frederick, 44-45). Lifetime experiences and attitudes tend to be much more powerful predictors of verdict choices than demographic characteristics (Saks). One recent summary of research studies based on both mock and actual trials concluded that “demographics ex- plain relatively little in the way of jurorÖbehavior” (Baldus).
What this
means, then, is that, in order to get at ju- ror bias in the best possible way, the lifetime experiences and attitudes of all potential jurors must be found.
Juror Self-Disclosure about Their Attitudes and Biases
Most jurors feel quite uncomfortable being in court for a variety of reasons. This discomfort tends to inhibit their will- ingness to disclose their true feelings or opinions. Why does this inhibition on self-disclosure occur? First, the court setting is very formal,
both structurally and behaviorally, caus- ing jurors to feel intimidated and
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