Juror Bias (Continued from page 20)
jurors (Broeder). In another study done by the Na- tional Jury Project, a pre-trial survey showed that 71 percent of eligible jurors thought a certain defendant was guilty in a New Jersey murder prosecution. Yet, only 15 percent of the persons drawn for jury duty ad- mitted this disposition during voir dire.
A later
investigation of the actual jury in this case showed that many of them really had predispositions about the is- sue of guilt that they had not revealed during voir dire (Andrews). A third study was conducted studying 31 criminal trials in the District of Columbia Superior Court, recording the questions asked of jurors and their answers. Afterwards, post-trial interviews were con- ducted with these 190 people who had been seated. Voir dire responses were compared to the post-trial inter- view responses, and there were a number of discrepancies. For instance, 25 percent of the jurors who admitted later that they or members of their fami- lies had been crime victims did not disclose that fact on voir dire (Seltzer, Venuti & Lopes).
How Judges can Exacerbate the Problem of Not Uncovering Juror Bias
In addition to all of the elements preventing juror self-disclosure noted above, there are two additional factors connected to a judge-conducted voir dire that intensify the problem of not being able to uncover ju- ror bias. The first factor is the establishment of a limited rather than an expanded voir dire. The second factor has to do with question form and attempts at rehabili- tation.
The traditional limited voir dire has a minimal num- ber of questions that are very specific to the trial. Many of these questions are close-ended, permitting a show of hands or a yes/no response. Much of the question- ing is directed to the group rather than to individuals. A judge conducts most of the questioning. Generally, there is no follow-up with those jurors who do not raise their hands or try to get recognized in any other way. Pre-trial questionnaires are not used. The expansive voir dire contains a larger number of questions, a broader range of questions, a combination of close-ended and open-ended questions, individual (perhaps sequestered) follow-up questions asked by the attorneys and/or the judge, and, quite often, a pre-trial juror questionnaire. First, there is overwhelming evidence that a limited
voir dire is “not effective in identifying and vetting ju- rors with relevant experiences and attitudes” (Hans & Jehle, 1182). Studies done to date show that an expan- sive voir dire was “an indispensable way of ferreting out otherwise unknown juror qualities” (Mize, 12). Second, some judges exacerbate the problem of ju-
ror non-disclosure. Too many judges ask leading questions to the jurors. Furthermore, when a judge poses this kind of question often in an attempt to reha- bilitate a juror, “the answer for the good juror/good person is apparent” (Dillehay, 6). The juror wants to please the judge by saying: “Yes, I will be fair.” Hence, the ability to uncover possible bias is lost. Additionally,
22 Trial Reporter
(Continued on page 24) Fall 2005
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