Law of Jury Selection SPRING 2021 Understanding Bias

Law of Jury Selection SPRING 2021: Understanding Bias 1

“ We see a vast difference between belief and knowledge, a difference which the law has always recognized. Thus, for example, there is a difference between an affidavit made upon personal knowledge and one made upon information and belief, wellrecognized, and indeed, set forth in the very rules under which our courts operate. ” -State v. Ahlo, 2 Haw. App. 462, 469, 634 P. 2 d 421, 426 (1981) 2

Bias in Jury Selection 3

I. Bias in the Courts Actual, Implied, and Inferred Bias 4

How the Courts Define Bias From United States v. Torres, 128 F. 3 d 38, 47 (2 nd Cir. 1997) Actual Bias “Actual bias is based upon express proof, e. g. , by a voir dire admission by the prospective juror of a state of mind prejudicial to a party's interest. ” Implied Bias Inferred Bias “[T]he issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced. . And in determining whether a prospective juror is impliedly biased, his statements upon voir dire about his ability to be impartial are totally irrelevant. ” “Bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias. ” 5

II. Confirmation Bias 6

Tali Sharot 7

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We cannot let them divide us!” 9

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Steven Reiner 12

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III. Implicit Bias “Biased! All of them! Yeah, he just said it!” 14

Jerry Kang 15

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Excluding Women “it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male. To this extent we cannot follow the contrary implications of the prior cases, including Hoyt v. Florida. If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed. ” -Taylor v. Louisiana, 419 U. S. 522, 537 (1975) 19

Verna Myers 20

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“Attitudes self-reported under time pressure correspond more closely to automatic associations than attitudes reported without time pressure. ” -De. Paul Dean Jennifer Rosato, while at NIU College of Law, for a September 20, 2012 Presentation on “With Liberty and Justice for All: How to Acknowledge and Address Unconscious Perceptions in the Justice System” 22

The Rule in Washington “The Washington Supreme Court, on April 5 [2018], became the first court in the nation to adopt a court rule aimed at eliminating both implicit and intentional racial bias in jury selection. General Rule 37 will take effect at the end of April and will apply to all jury trials, civil and criminal, throughout the state. The rule will expand the prohibition against using race based peremptory challenges during jury selection. Not only is intentional race discrimination outlawed, but also challenges based on ‘implicit, institutional, and unconscious’ race and ethnic biases will now be rejected. ” -ACLU Press Release 23

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Paul Bloom 25

IV. Sources of Bias “Biased! All of them! Yeah, he just said it!” 26

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A. The CSI Effect 28

“ Although CSI viewers had higher expectations for scientific evidence than non-CSI viewers, these expectations had little, if any, bearing on the respondents' propensity to convict. This, we believe, is an important finding and seemingly very good news for our Nation's criminal justice system: that is, differences in expectations about evidence did not translate into important differences in the willingness to convict. ” - Donald E. Shelton, The CSI Effect: Does It Really Exist, National Institute of Justice (2008) 29

B. Cultural Bias 30

C. Expertise 31

D. Personal Experience With the Criminal Justice System 32

E. Personal Experience Passing Judgment 33

“ If conducted properly, voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race both unnecessary and unwise. Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently. ” -J. E. B. v. Alabama, 511 U. S. 127 (1994) 34

Law of Jury Selection SPRING 2021: Understanding Bias 35