By R. Craig Smith, Dennis W. Brooks, and Craig C. New, Ph.D.

(First of two parts)

In a recent Washington trial, an all-white, well-educated and mostly female jury found for the defense -- a local community hospital and two white, female doctors -- in a case involving the horrific death of an Hispanic woman, a mother of two children fathered by an African-American man.

After separating from their father, she raised the two children on her own until she met and married her husband of 22 years. He was a Caucasian bartender/ mechanic who did not graduate from high school; but he was a caring father to the two children, as well as to a handicapped child who he and his wife adopted out of an abusive family situation and raised for 20 years.

Did the family’s evidence in the medical record get lost in the differences between the people in the box and the people in the well? Would a more diverse jury have returned a different verdict? We will never know, but the case caused the plaintiff’s lawyers to reflect at length about the day the jury was selected and sworn.

We live in an ever-evolving society with many diverse dimensions that are straining the fabric of our individual and collective lives. In any given city, a 12-member jury may include several different ethnic and racial groups, different demographic profiles and jurors with limited English or communications skills. It was reported in the late 1990s that, in Los Angeles County alone, there were more than 2,000 different languages and dialects spoken. Washington, particularly around the Puget Sound, is moving rapidly in the same direction.

No other aspect of trial work is clouded with more theories, speculation, mystery and anecdotal axioms than that of jury selection. Yet, in the face of the changing complexions of our communities and jury pools, the U.S. Supreme Court, in April of this year, made it clear that it would not waiver from Batson v. Kentucky, 476 U.S. 79 (1986). We also have seen in many jurisdictions across the country, interpretations and applications of Batson that extend its reach beyond race-based peremptory challenges.

In the face of ever-increasing differences in our jury pools, how does a lawyer discover and protect against damaging biases that are inherently built into every human being to some degree and yet follow the rule of law set forth in Batson and designed to take racial bias out of jury selection?

Catch 22? Not necessarily. Perhaps looking at the process from a slightly different angle will help.

In U.S. v. Wood, a landmark case in 1936, Chief Justice Hughes expressed the view that impartiality is not a technical concept, but rather a state of mind, i.e., “a mental attitude of appropriate indifference.” The concept of unbiased jurors suggests this “state of mind,” coupled with a behavioral disposition that will allow jurors to hear and evaluate evidence in an impartial way. The “behavioral disposition” element is of greatest interest because the behavior of the juror during the decision-making process is the manifestation of attitudes shaped by years of personal experience and learning/joining patterns.

While jurors may admit a conscious bias, they may just as likely leave it undiscovered by falling back to the safety of socially acceptable responses. Worse yet, there may be unconscious biases that even they may not recognize, let alone admit during the jury selection process, but which may surface behaviorally during deliberations.

People’s actions do not always reflect what they say in the abstract. Jurors have differing degrees of ability to recognize and willingness to admit bias within themselves. When asked about their biases, jurors will almost always stop short of an admission because the word “bias” itself connotes a less acceptable mentality. Even if a bias is acknowledged and a potential juror claims that it can be set aside and the evidence weighed impartially, he or she may not be able to appreciate the behavioral effects that bias will have when deliberations begin.

It is important, therefore, to educate jurors about the importance of candor and honesty during voir dire. One method is to disclose a personal bias or frame the question so jurors can talk about the bias in the third person. For example, you might say, “You know, I sometimes get frustrated when I have trouble getting my order understood in English at McDonald’s. Have any of you ever felt that way?” Or, you might ask, “Based on your own experience, do you think that discrimination in the workplace is very common or is it very unusual?” Or, “Have you ever seen or heard someone close to you express opinions about discrimination at work?” Questions such as these will allow the juror to open up and reveal much about his or her own feelings as they talk about others’ attitudes and opinions.

Other important points to recognize are: (1) the differing process from courtroom to courtroom; (2) the scope of and time for questioning the panel has been severely curtailed in many venues; (3) more local and state judges are moving toward the federal model of conducting voir dire from the bench; and (4) jury pools are becoming more diverse and multi-dimensional. Given where we are today, it becomes very clear that making the most of the time and the process available for jury selection is increasingly important.

Part II -- Jury Selection, Dealing With Differences, will deal with methodology and some of the key elements of effective voir dire and jury selection. n