Here is a study asking Can Jurors Self Diagnose Bias? Two Randomized Controlled Trials.”
The study tries to determine whether the common practice of asking jurors who otherwise appear biased if they can be fair works to exclude biased jurors. The study concludes that it does not. If this is correct, then the common voir dire practice of rehabilitating jurors by asking them if they can be fair should be banned.
The study explains:
To implement the impartial jury guarantee in both criminal and civil trials, in both federal and state courts, potential jurors are selected through a certain colloquy. The judge or attorneys ask the potential jurors whether they have any feelings or opinions about the litigants, attorneys, facts, or law of the case. As Suggs and Sales explain, “if the juror admits that he has formed an opinion about the case, it is standard procedure to ask if he can set aside that opinion and decide the case on the basis of the evidence to be presented” and the law as instructed.
Courts, and litigants, appear to rely heavily upon the answer to that question. The Ninth Circuit has stated that “[a]ctual bias is found where a prospective juror states that he cannot be impartial, or expresses a view adverse to one party’s position and responds equivocally as to whether he could be fair and impartial despite that view.” Scholars explain that, “it is clear that the juror’s self-assessment about fairness is the strongest factor in judicial decision-making in challenges for cause.
The study used pre-trial publicity to test juror bias. It concludes:
In summary, the research has shown that exposure to pretrial publicity prejudices jury pools. However, the research also shows that the mechanisms in place to ensure a fair trial for defendants may be ineffective at eliminating, or even reducing, juror bias. As other scholars explain, “a review of the literature shows a paucity of recent, systematic scientific research on the mechanics of voir dire.” Nonetheless, judges are still relying heavily on juror self-assessments of bias when trying to construct impartial juries, apparently just assuming that the assessments have epistemic value. Indeed, the Supreme Court has simply ignored the foregoing scientific literature, and instead proceeded blithely, relying on jurors’ self-diagnoses to affirm convictions and the imposition of civil liabilities, without requiring evidence about whether those self-diagnoses are reliable.
The study concluded that bad pre-trial publicity more than doubled the odds of a verdict against a defendant. In addition, jurors exposed to bad pre-trial publicity awarded more in damages in civil cases.
Jurors’ answers regarding whether they can be impartial are unreliable:
The courts of appeal say that they will defer to trial court determinations as to whether a juror can be impartial, as long as those determinations are based on “substantial evidence.” This study has shown that the juror’s responses to the magic question are not substantial evidence as to their actual impartiality. These experiments show that jurors’ self-diagnoses simply do not provide the courts with a reliable basis for sorting biased jurors from unbiased jurors. Trial courts should not rely upon such unreliable answers.
The article offers a solution that courts should apply the same standard applied to judges in recusal issues: judge should disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Add this to the list of things that can be done to improve the jury system. This would be a pretty easy fix.