May 2013 Bar Bulletin
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May 2013 Bar Bulletin

Court Remedies Can Address Bias and Misinformation

By Thomas M. O'Toole


Judicial practices for dealing with bias and misinformation at trial vary. However, after practicing as a jury consultant across the country for 10 years, I have noticed troubling trends in how trial judges deal with bias in the venire and misinformation at trial.

Courts continue to use remedies that have been shown through research to be largely ineffective in achieving the desired goal and, in some cases, actually perpetuate the problem. It is difficult to know why these trends continue. One possible explanation is that judges have to find a balance between the importance of managing bias and information and the risk of bringing the court docket to a grinding halt. In other words, there is little benefit to a system that liberally declares mistrials. Such a system is costly and inefficient, and would do little for achieving justice.

Another possible explanation is that judges are simply unaware of the vast amount of empirical research addressing the effectiveness of standard court remedies. This article will sidestep the first problem, leaving it for judicial philosophers, and focus instead on the existing research in the social sciences.

While courts will face continuing difficulty in crafting remedies that fully address bias and misinformation, the goal of this article is to better inform courts and trial participants of empirical research on court remedies with the aim of helping parties and the court move closer to effective remedies that balance the parties' needs with those of the court system.

There are two common areas in which courts are asked for remedies: 1) bias exhibited during jury selection; and 2) misinformation during trial. Jury selection can be frustrating when addressing the potential bias of a potential juror. Too often, it seems that all the court needs to hear are the magic words, "I can be fair," regardless of the degree of prejudice exhibited in the preceding comments of the venire member.

A wealth of research has addressed this issue, particularly as it relates to pretrial publicity. For example, research has shown that as many as 50% of juror-eligible participants who prejudged a defendant indicated they could be "fair and impartial."1

There are a variety of potential reasons for this. Venire members may simply misjudge the extent of their bias or fail to appreciate that what they perceive to be "facts" or "innocuous" experiences or attitudes may actually be "bias" or "prejudice." Research has shown that jurors have a tendency, in group, individual and even sequestered voir dire, to downplay or minimize their opinions and/or knowledge about a case.2 In a worst-case scenario, prospective jurors sometimes simply lie.

Alternatively, the indication that a biased juror could be "fair and impartial" may simply be the product of the "social desirability effect," which suggests that individuals are more likely to give the "socially desired" response rather than the truthful response in a public setting. After all, who wants to announce in public that he or she is not a fair person?

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