“Prejudice is a great time saver. You can form opinions without having to get the facts.”~E.B. White
JURY SELECTION AND PREJUDICE
Selecting a jury requires litigation teams to understand human nature, decision making, and opinions in all its naked truth. This requires a willingness to admit that almost every potential juror has deep seeded prejudices, stereotypes, and predispositions to default to heuristic opinions. Sometimes this is due to raw ideas of in-group superiority or the inferiority of those different from the self; but all too often it is an amalgamation of unconscious ideas that have been formed by popular media, social influence, and a desire to uphold existing social structures. It is imperative for litigators to take this into consideration when selecting a jury and to actively include questions in voir dire, designed to uncover relevant prejudices that will help predict verdicts. This includes prejudices of gender, race, SES, nature of the case, nature of the businesses or persons involved, police involvement, etc. There is a long history within psychology and social psychology illustrating that uncovering these bias’s can dramatically reduce the impact of prejudice on the decision making process of jurors.
THE SLEEPING BIAS
Samuel Sommers, a notable social psychologist, conducted research into the effects of racially related voir dire questions on jurors. The 2006 study revealed jurors “were less likely to vote guilty before deliberating and gave lower estimates of the likelihood of the Black defendant’s guilt” when asked race-related questions in voir dire. Sommers results indicate that presenting a juror with questions about race reduces the effects of embedded individual bias on the trial process. This research shows that directly questioning jurors in this way forces them to make potential prejudices conscious and in turn reduce their influence, allowing the facts of the case and the instructions of the court to become the dominant influence on juror decision making.
Lance Hannon, a sociologist from Villanova University, analyzed data from the 2012 American National Election Study and revealed that Whites in The United States were prone to judge light-skinned Blacks and Hispanics were more intelligent than those with darker skins. Hannon had interviewers sit down in a face-to-face survey with respondents who had previously reported their income, education level, and taken a brief vocabulary test. He identified 223 Black or Hispanic respondents who were interviewed by white survey takers. This research revealed, the white interviewers were asked to list each individual respondent’s skin tone on a 10 point scale as well estimate the respondent’s intelligence on a 5-point scale ranging from “very low” to “very high”. Hannon consistently found “white observers will look at two identically qualified minorities and assess the lighter skinned one as more intelligent”. The other factors were not as salient or as important in assessing intelligence. In other words, despite the respondent’s age group, gender, income, or their vocabulary test score, those respondents the interviewer’s described as “lighter” in skin tone were seen as “more intelligent”. There are many implications of this research that can be applied to jury selection, including lawyers being aware of their own personal unconscious bias in selecting jurors based on the lightness or darkness of their skin. Specific applications of this research to jury selection and case presentation, including litigation graphics, can be revealed by a good trial consultant with a background in psychology and the social sciences.
In addition to the work of psychologists and social scientists, a growing number of legal scholars have identified “race-related voir dire” as a way to moderate a “juror(’s) own racial attitudes” by making race “salient”. Clearly, it is much harder for potential jurors to use race as a guiding factor in guilt or innocence when they are directly questioned about it and actually makes jurors more apt to look closely at the facts related to law in most cases. Many practitioners in the legal field are becoming aware of these inherent biases and actively finding ways to factor in this understanding into jury selection and case presentation.
YOUR BRAIN IS BIASED
Modern psychology and neurology research reveals the brain is wired to navigate the world in a way that maximizes efficiency, often relying on the use of heuristic stereotypes to reach rapid conclusions. Shankar Vedantam explored this idea in 2010 and found individuals distinguish differences in individual faces as a mechanism of survival. The human brain has developed an unconscious process that allows us to make quick judgments about the many very similar faces we witness as developing infants. Vedantam presents the idea that white Americans are some of the least skilled in cross-cultural and interracial identification because of the predilection of American media to focus primarily on white people. He states, “In criminal justice settings, interracial eyewitness identifications are far more prone to error than situations where witnesses and suspects belong to the same race.” Patrick Brayer, the Deputy District Defender of St. Louis County (Missouri State Public Defender System) and author states, “Unfortunately, the American legal system may be the first to deny the existence of a hidden bias, a denial ‘premised on the notion that deliberate and conscious thinking are all that matter.’ ”
In Vedantam’s research he discusses the developing “hidden brain” as being programmed to learn through repeated observations of our world and is prompted to make unconscious judgments based on associations and generalities. Clearly, this is a mechanism designed for efficient use of cognitive resources and the ability to reach decisions quickly, so as to be able to respond appropriately in the moment. According to this theory, our understanding of American culture is based on our life-long observations of interactions, marriages, and friendships defined and even perhaps separated by race. Vedantam concludes that even when conscious learning is utilized to balance the prejudicial effects of hidden bias; cultural messages still are robust in influencing the developing brain that people of color are different and a separation should be made about what kind of people to favor socially.
Researchers correlate this “hidden” bias to examples of inconsistent sentencing in the criminal justice system. In addition to what Lance Hennon found about people tending to find lighter skinned people more intelligent, psychologists at Stanford University have also found that an individual’s skin tone and other features play a role in the type and severity of sentencing. Researchers asked “a large group of independent people who knew nothing about the cases” to rank the faces of individuals convicted of circumstances “serious enough to warrant the death penalty” on the “degree to which they looked stereotypically black.” Individuals who appeared more “stereotypically black” were more than twice as likely to have received the death penalty. Researchers also summarized the same sentencing disparities did not exist when the defendant and victim were both members of the same race. Researchers also pointed out that “[s]omething about black-on-white crime activated unconscious stereotypes that linked criminality with race in the minds of jurors.”
LITIGATORS ALARM CLOCK
The awareness that prejudice, especially racial, plays a significant role in perception of intelligence, guilt, or deservedness of severe punishment is one that all litigators must have in selecting juries and presenting cases. Research and practice shows that directly addressing this in voir dire with carefully selected questions is an extremely effective method of controlling for hidden bias. A skillful trial consultant with expertise in this area can assist lawyers in uncovering conscious and unconscious bias in ways that are not offensive and contribute to laying a foundation for a winning case. Patrick Bayer, the Deputy District Defender of St. Louis County in Missouri writes,
“If openly discussing issues of race is an essential step in the self-identification of individual prejudice, why are legal professionals reluctant to engage in a jury selection process that considers the existence of hidden bias? The answer to this question may be rooted in the following premise: to find unconscious prejudice in others, we must accept the existence of our own individual hidden bias.When confronted with issues involving race, our ego selects a dominant racial identity status to interpret the event. The selection of a status protects our ‘sense of well-being and self-esteem.’ As legal professionals, we should be willing to mature in our own personal racial identity status by acknowledging that hidden bias exists in all individuals—including ourselves. We should not let our profession fail to evolve because of a system-wide reluctance to engage our jurors and ourselves in conversations about racism, bias, and prejudice.”
The most effective way to refine the jury selection process is to enlist the assistance of a professional trial consultant with expertise in psychology and social sciences like Jules Troyer PhD-Winning Psychology Persuasive Design ©
Brayer, P. (2015). Hidden racial bias: Why we need to talk to jurors about Fergusun. Northwestern University Law Review. Retrieved from: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1011&context=nulr_online.
Eberhardt, J., L. et al., (2006). Looking Deathworthy: Perceived Stereotypicality of black defendants predicts capital-sentencing outcomes, Psychological Sciences. (17) 383. Retrieved from: http://perma.cc/564W-QYTQ.
Hannon, L. (2015). White Colorism Social Currents, 2 (1), 13-21 DOI:10.1177/2329496514558628
Vedantam, S. (2010). The hidden brain: How our unconscious minds elect presidents, control markets, wage wars, and save our lives.
West, J. L. (2011). 12 racist men: Post-verdict evidence of juror bias, 27 HARV. J. ON RACIAL & ETHNIC JUST. 165, 191 (quoting Samuel R. Sommers & Phoebe C. Ellsworth, How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research, 78 CHI.-KENT L. REV. 997, 1011 (2003) [http://perma.cc/YTZ2-P2NE]).