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Jury Selection: Art? Science? Or just a ‘gut’ feeling?

Monday, November 29, 2010
posted by Douglas Keene

When it comes to jury selection, there are those who say it’s a science. There are those who say it’s an art. And there are those who say jury selection is neither art nor science—it’s more of a hunch or a ‘gut’ feeling. We would say it’s more of an art and an intuitive form of science, and that it requires access to your intuition, ‘gut’, and unconscious biases to a degree that is sometimes unexpected.

We do use background questionnaires (often referred to as SJQs—supplemental juror questionnaires) to attempt to identify attitudes, beliefs and values that are relevant to ultimate verdict choice. But is that scientifically predictive? Not in a statistically reliable way.  SJQ responses are an intuitive peek at who is good for us, who is bad for us, who is willing to consider alternative explanations to their initial assumptions and who is not. And that’s where it segues into art. The process of taking those findings, determining how ‘firm’ or ‘hard’ they are, and thereby translating them into a voir dire strategy is the ‘art’ of jury selection.

And that ‘art’ involves access to your ‘gut’. Some attitudes drive decision-making more powerfully than others.  While there are still some jurors who will espouse substantive biases aloud or in written questionnaires—for years now, we’ve seen racial biases become buried deeper and deeper.  We’ve written a lot about the idea of ‘buried biases’ on this blog.  So it’s intriguing for us when suddenly racism is in the news, front and center via Rick Sanchez and Juan Williams.  Their comments and the reactions of their employers (respectively CNN and NPR) have resulted in a lot of conversation around the country. But there are also recent reports of other prejudices that are instructive when it comes to jury selection or simply maintaining awareness about the nature of bias in the current time.

  • We actually learn to hide our prejudices.  Young kids and old folks are most likely to say biased things. Mean and nasty things. They are talking with their unconscious brains. Older kids and adults learn not to verbalize and even to deny their own prejudices. So those prejudices come out a la Mel Gibson when we are tired and rundown or otherwise allowing our uncensored insides to express themselves.
  • A recent analysis of government data in the UK found that black motorists are 26 times more likely than whites to face stop and search due to racial profiling by police officers. This is not only a UK problem. Here in the US, we see similar issues in New York City and  Arizona,  and other areas as well. Most of these police officers would say they don’t engage in racial profiling. That’s because bias happens below the surface for most of us.
  • A recent study asking about attitudes toward the proposed mosque near Ground Zero in NYC found that if respondents believed the rumors regarding the proposed mosque—they were also likely to have opposition to all mosques. This has direct relevance for assessing bias against Muslims and their role in US society. Interestingly enough, respondents who listened to Fox News were most likely to be aware of the rumors and to believe they were true while those who got their news from newspapers were least likely to believe the accuracy of those rumors.
  • And finally—a truly surprising study result. When economic times are tough, you would think the poor would want more help. But that is not true. As it turns out, when times are tough both the rich and the poor become more conservative in expressed beliefs about government assistance. In short, say the authors, economic inequality is self-reinforcing which makes the gap between the have’s and the have-not’s grow larger.

So while it may catch us off guard if we are not vigilant, bias is everywhere around us. We just try to keep it tamped down within us for the most part. But when we are not thinking or not self-aware/self-censoring, bias rises against others and even against ourselves. We have to stay vigilant and question our own biases—whether our outlook is liberal or conservative. Because bias lives within us all.

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