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ARTICLE

Making the Case for Cause Strikes

Melissa Gomez, Aria Amrom, and Kari Inners

Summary

  • While there may not be a single magic question to definitively predict verdict outcomes, our data demonstrate that there are key voir dire questions that can help uncover biases and predict verdict inclination.
  • As jury consultants who have participated in both state and federal jury selections around the country, we can attest to the rarity of finding two courts that conduct their jury selection process identically. However, diversity in process does not necessarily inhibit or enhance the ability for parties to select a fair and impartial jury. After all, there is more than one road to the same destination.
  • This is an issue that both sides of the bar should be concerned about. It is a topic that deserves consideration with a united front.
Making the Case for Cause Strikes
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It’s not at all hard to understand a person; it’s only hard to listen without bias —Criss Jami

How many times have we been there? During voir dire, a juror with an obvious bias against our client clearly reveals herself. Either she states, “We are in such a litigious society and most plaintiffs are out to just make a quick buck,” or she states, “I feel that large corporations are detrimental to our society and should be eliminated.”

Clearly, each statement should warrant a cause strike, but instead of ending the inquiry there, the judge asks, “Will you be able to put those feelings aside and be a fair and impartial juror?”

Almost invariably, the juror replies, “Yes, I can be fair. I am a fair person.”

Cause strike denied.

Situations like this are all-too-common examples of the court benevolently making the jury selection process quicker and more efficient while, at the same time, believing it is preventing bias from influencing juror decisions. While we may agree this process is more efficient, we vehemently argue against its effectiveness at alleviating bias in a meaningful way.

In our experience over many hundreds of jury trials, few jurors deny they can put their biases aside. We cannot say whether they believe they can remove an ingrained bias from their decision-making process, if they simply want to please the court, or if they have reacted adversely to a perceived suggestion that they are not fair-minded people. What we can say is that, regardless of the reason jurors agree they are able to set aside bias, research illustrates they most likely cannot. N.L. Kerr, G.P. Kramer, J.S. Carroll & J.J. Alfini, “On the effectiveness of voir dire in criminal cases with prejudicial pretrial publicity: An empirical study.” 40 Am. U. L. Rev., No. 2, 665–701 (1991); N. Steblay, H.M. Hosch, S.E. Culhane & A. McWethy, “The Impact on Juror Verdicts of Judicial Instruction to Disregard Inadmissible Evidence: A Meta-Analysis,” 30 Law & Hum. Behav., No. 4, 469–92 (2006).

Instead, as Salerno et al. suggest, it is more likely that this kind of rehabilitation only affects whether jurors perceive that a bias influenced their ultimate verdict decisions, not whether the bias actually did so. J.M. Salerno, J.C. Campbell, H.J. Phalen, S.R. Bean, V.P. Hans, D. Spivack & L. Ross, “The Impact of Minimal Versus Extended Voir Dire and Judicial Rehabilitation on Mock Jurors’ Decisions in Civil Cases,” 45 Law & Hum. Behav., No. 4, 336–55 (2021).

Other researchers, including Lieberman and Arndt, addressed so-called “backfire effects” of when judges ask jurors to discard their biases for the purpose of a trial. J.D. Lieberman & J. Arndt, “Understanding the limits of limiting instructions: Social psychological explanations for the failures of instructions to disregard pretrial publicity and other inadmissible evidence,” 6 Psychol., Pub. Pol’y & L., No. 3, 677–711 (2000). Research finds that these practices may inadvertently cause a paradoxical effect. D.W. Broeder, “The University of Chicago Jury Project,” 38 Neb. L. Rev., No. 3, 744–60 (1959); C.N. Macrae, G.V. Bodenhausen, A.B. Milne & J. Jetten, “Out of Mind but Back in Sight: Stereotypes on the Rebound,” 67 J. Personality & Soc. Psychol., No. 5, 808–17 (1994); B.K. Payne, A.J. Lambert & L.L. Jacoby, “Best laid plans: Effects of goals on accessibility bias and cognitive control in race-based misperceptions of weapons,” 38 J. Experimental Soc. Psychol., No. 4, 384–96 (2002). That is, instead of keeping biases at bay, these suggestions give jurors undue confidence that their biased preconceptions did not influence their decisions when, in reality, their biases did so.

Of course, these efforts at bias rehabilitation are relevant only when jurors are given the opportunity to express those biases in the first place. Another way courts limit cause strikes is to restrict the manner in which questions designed to reveal biases are asked. Specifically, some courts provide counsel with limited demographic information, or they ask generic bias questions such as the following: Can you think of any reason you cannot be fair and impartial to either side of the case?

The research conducted by Salerno et al., supra, suggests that such generic questions are unlikely to yield an affirmative answer, even when a juror holds beliefs that would constitute a bias. The issue is not that jurors are unwilling to share their biases. Instead, it is that the question is not specific enough to allow jurors to know what to reveal.

In our experience, when discussing bias with mock jurors, we often hear them limiting their definition of “bias” to affecting perceptions of people of a particular race, gender, religious affiliation, or sexual orientation. Therefore, many may not consider opinions about lawsuits, corporations, or the medical profession, for example, as “bias.”

Moreover, because the word “bias” is typically associated with treating or considering other people in a negative light, the word itself is stigmatized. People often believe that admitting that one is biased is akin to calling oneself a bad person. Asking a juror to agree that he or she cannot be fair may yield a similar defensive response.

As a result, Salerno and her colleagues state, “Expecting naïve jurors, most of whom have never been in a courtroom, to spontaneously realize and acknowledge biases arising from, for example, negative attitudes toward litigation or the awarding of noneconomic damages is not reasonable.”

We agree.

Forcing jurors to call themselves biased or say they cannot be fair as a requirement to remove truly biased jurors from consideration is not only uncomfortable for those jurors, but it simply does not get the job done.

We would be remiss if we failed to note the difference between clarification and rehabilitation. While juror questions that may reveal a bias may need further clarification to determine whether an opinion or experience will influence their decisions, when the court gets to the point of rehabilitation—that is, asking a juror to put his or her opinions or experiences aside—it invites a person with a clearly expressed bias to remain on the panel.

Analyses

We performed analyses using a sample of 911 jurors, across 44 mock trials and 16 states in personal injury, medical malpractice, and product liability cases. This sample was selected from MMG Jury Consulting’s national research database, consisting of over 4,600 jurors from more than 30 states. This subsample was selected based on two factors: (1) temporal relevance (given evolving cultural and societal beliefs and norms, we chose to limit our data to more recent years (2017–2021) to ensure that our findings are relevant to jurors today) and (2) diversity of verdict orientation (due to the nature of some cases, individual verdicts were overwhelmingly or unanimously in favor of one party; cases in which individual verdicts were over 70 percent in favor of either party were removed from the analyses to ensure that there would be a diversity of opinion for statistical analysis).

Questions were selected based on content that suggests either a direct bias for or against a party or a strong perspective of the role of the jury. Questions included in the analyses were as follows:

  • Have you or someone close to you, ever sustained an injury you thought was someone’s fault? (1 = Yes, me; 2 = Yes, someone close to me; 3 = Yes, both; 4 = No)
  • Have you ever had an experience with a doctor that was extraordinarily positive? (1 = Yes, me; 2 = Yes, someone close to me; 3 = Yes, both; 4 = No)
  • It is wrong for a patient to sue a doctor if the doctor was trying to do their best. (Agree/Disagree)
  • Doctors, in general, care more about . . . (Patient wellbeing/Money)
  • Hospitals, in general care more about . . . (Patient wellbeing/Money)
  • There is no way a manufacturer can remove all potential hazards from their products (Agree/Disagree)

Statistical (chi-squared) analyses were performed to determine whether these questions were significantly associated with verdict orientation. Our results support the findings of the researchers discussed above. Specifically, bias-revealing voir dire questions were effective in predicting verdict orientations in a statistically significant manner.

Results

  • Question: Have you ever sustained an injury you thought was someone’s fault? (1 = Yes, me; 2 = Yes, someone close to me; 3 = Yes, both; 4 = No)
    • Jurors who believed they had personally been injured by another person were significantly more likely to find in favor of the plaintiff in personal injury cases (n = 478; p = .05).
  • Question: Have you or anyone close to you ever had an experience with a doctor that was extraordinarily positive? (1 = Yes, me; 2 = Yes, someone close to me; 3 = Yes, both; 4 = No)
    • Jurors who believed they had personally had an extraordinarily positive experience with a doctor were significantly more likely to find in favor of the defense in medical malpractice cases (n = 303; p = .05).
  • Question: It is wrong for a patient to sue a doctor if the doctor was trying to do their best. (Agree/Disagree)
    • Jurors who found it wrong to sue a doctor who was doing his or her best were significantly more likely to find in favor of the defense in medical malpractice cases (n = 254; p < .001).
  • Question: Doctors care more about . . . (1 = Money; 2 = Patient Wellbeing)
    • Jurors who believed doctors care more about money than patients were significantly more likely to find in favor of the plaintiff in medical malpractice cases (n = 239; p = .02).
  • Question: Hospitals care more about . . . (1 = Money; 2 = Patient Wellbeing)
    • Jurors who believed hospitals care more about money than patients were significantly more likely to find in favor of the plaintiff in medical malpractice cases (n = 210; p = .03).
  • Question: There is no way a manufacturer can remove all potential hazards from their products. (Agree/Disagree)
    • Jurors who denied the impossibility of removing all potential hazards from products were significantly more likely to favor the plaintiff in product liability cases (n = 132; p = .03).

Discussion

While there may not be a single magic question to definitively predict verdict outcomes, our data demonstrate that there are key voir dire questions that can help uncover biases and predict verdict inclination.

As jury consultants who have participated in both state and federal jury selections around the country, we can attest to the rarity of finding two courts that conduct their jury selection process identically. However, diversity in process does not necessarily inhibit or enhance the ability for parties to select a fair and impartial jury. After all, there is more than one road to the same destination.

That said, when a court procedure is devoid of proper and thorough vetting of cause strikes or thorough consideration of what constitutes a bias, both plaintiffs and defendants alike may be denied their right to an impartial jury. Therefore, we strongly advocate for court procedures that a make rigorous effort to uncover bias and less effort to rehabilitate bias once it is expressed. If the court needs to ask a juror to put a belief aside, then that juror should likely be stricken for cause.

This is an issue that both sides of the bar should be concerned about. It is a topic that deserves consideration with a united front.

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