In Practice

When Jurors Can't be Impartial

Authors warn their study shows that prospective jurors often aren't aware of their biases

, Daily Report

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Photo of Trisha Renaud
Trisha Renaud is a principal in Trial Advantage Inc., an Atlanta trial and jury consulting service. She is a former staff writer for the Daily Report, where she covered state and federal courts for 15 years. She can be reached at trenaud@trial-advantage.com.

Juror bias is an issue in every trial, civil and criminal alike. Invariably, some jurors arrive in court holding opinions about the parties or the issues in the case. Whether those opinions arise from deeply held prejudices, from life experiences or from exposure to pretrial publicity, they are critical to explore in voir dire.

Unfortunately, courts use an ineffective technique to decide whether a particular panel member's bias is such that he or she cannot be "fair and impartial."

We just ask the juror.

When a juror expresses her opinion that corporations put profits ahead of product safety, or her feeling that police don't arrest people unless they are guilty, she will be asked the following, in some form or fashion:

• Can you put that aside and base your verdict solely on the evidence and the law the court will give you?

• Would any [opinion/feelings/knowledge] you have keep you from being a fair and impartial juror?

Judges rely on jurors' answers to these and similar questions to rule on challenges for cause. Typically, if a juror vows to try to put an opinion aside and be "fair and impartial" the judge considers the juror "rehabilitated" and will seat him or her.

Does this colloquy, used daily in voir dire and endorsed by appellate courts all the way up to the U.S. Supreme Court, provide the judge and the lawyers with any useful or reliable information?

None at all, according to the finding of a new study that every trial lawyer—and judge—should read.

Jurors' self-diagnoses provide no useful information for determining bias, the study's authors concluded. What's more, they warn that relying on this information may well be the source of wrongful convictions and wrongful civil verdicts.

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