We tend to think of “bias” as it applies to juries, but courts can have their own deep-seated practices. For example, judges will often prefer voir dire questions that focus on the juror’s own assessment of the influence of a given attitude or experience, not on the actual attitude or experience itself. In other words, they will ask, not about the content of jurors’ views, but about the effect of that content on their fairness. Judges may think that this is an efficient way to get to the heart of the matter, since the only relevant views are those that impair one’s ability to be fair. The problem, however, is that this emphasis on juror self-diagnosis deprives the parties of the information they would need in order to reasonably assess bias and to intelligently use their cause and peremptory strikes.

It may also be legal error. For example, this past week, the First Circuit U.S. Court of Appeals vacated the death penalty for the convicted Boston Marathon bomber, Dzhokhar Tsarnaev. The decision is worth a read, and provides a comprehensive explanation of the voir dire in that case, as well as an eloquent defense of the advantages of content-based questioning over the self-diagnosis of “can-you-be-fair?” questioning. The bottom line of the opinion is that the trial judge in the U.S. District Court in Boston promised that a searching voir dire was the cure to issues the Defense raised in a change of venue motion, but then did not meet the standards for thorough voir dire. In part, the court failed by not asking potential jurors about the content of exposure to pretrial publicity, instead contenting itself with questions on the effect of that publicity. The reasoning in the case is applicable beyond cases with high pretrial publicity and capital punishment. In every case, it is better to focus on relevant content, and not on jurors’ own assessments of the effect of that information. In this post, I will look at the jury selection in that case, why it led to the sentence being overturned, and what it means for voir dire in every case.

What Happened in the Tsarnaev Case?

Based on the loss of life from the 2013 Boston Marathon attack, as well as the ensuing manhunt that saw large parts of the city “sheltering in place” prior to Tsarnaev’s capture, the judge knew that jury selection would not be easy. The voir dire process lasted 21 days, winnowing a list of 1,373 potential jurors down to 12 seated jurors.

The Defense and Prosecution initially submitted a joint proposed questionnaire that included open-ended questions about exposure to pretrial publicity, such as, “What did you know about the facts of this case before coming to court today (if anything)?” The judge initially agreed that these questions “might get very interesting answers,” but also worried that there would be too much information to discuss. That concern from the bench led the prosecution to backtrack on the jointly-proposed question and argue that a question on content of exposure would create a need for parties to “follow up on every fact asserted,” and that this “would take forever.”

The Judge then agreed, and decided that the issue could be addressed by asking a summary question focused on the effect of media exposure, whatever it was: “As a result of what you have seen or read in the news media, have you formed an opinion?” If they answered “Yes,” they were asked, “Can you set aside your opinion and base your decision…solely on the evidence that will be presented to you in court?”

In individual voir dire, the Defense again asked the judge for questioning on the content of media exposure, like “what stands out in your mind from everything you have heard, read, or seen about the Boston Marathon coming and the events that followed it?” The judge, however, saw that as a “repeat question” due to the “can-you-be-fair” oriented question that was already contained in the questionnaire. While content came up in the discussions with some prospective jurors, the end result was that out of the 12 jurors seated for the case, there were 9 who never disclosed the specific content of the media they were exposed to prior to the case.

Why Did That Vacate the Death Penalty?

The appeals court ruled that the death sentences Tsarnaev received are vacated because the trial judge failed to voir dire prospective jurors on the nature and degree of exposure, and instead, just asked if they felt they could ignore that publicity and rule based on the facts admitted at trial. That self-assessment was insufficient in light of a line of cases based on the lead case, Patriarcha.

Citing this line of cases, the appeals court argues that “prospective jurors ‘may have an interest in concealing [their] own bias’ or ‘may be unaware of it.'” As a result, “asking them only ‘whether they had read anything that might influence their opinion’ does not suffice, for that question ‘in no way elicit[s] what, if anything’ they have ‘learned, but let[s] [them] decide for themselves the ultimate question of whether what they [have] learned had prejudiced them.”

Instead, based on precedent, “the judge had to ascertain not just the ‘degree’ but the ‘kind’ of ‘exposure to the case or the parties’ that the prospective jurors had experienced.” Not allowing these questions, the trial judge erred and abused his discretion according to the appellate court’s decision.

How Does It Apply to Other Cases?

The legal standards will differ, and capital cases appropriately receive higher protections than other criminal cases and, certainly, civil cases. But the reasons that the appellate decision gives for preferring content-based questions over effects-oriented questions are broadly applicable to any case.

Judges, and sometimes parties as well, will often want to focus or limit a question so that it only focuses on improper influence. So, instead of asking this question:

What are your views or experiences regarding the honesty or dishonesty of large corporations?

They will prefer this question:

Do you have any views or experiences regarding the honesty or dishonesty of large corporations that would prevent you from being able to base your decision on the facts of this case?

To the judicial ear, the second question might sound more precisely targeted and relevant. But in every case, that second question is going to be much less effective. Most of the time, the first version will yield relevant content, but the second version will lead to a simple “No” or “I don’t believe so.”

Tsarnaev’s trial judge also felt that “detailed questioning about what a juror thinks he or she knows about the events” could create the “wrong emphasis,” leading to bias that wasn’t there before. In my experience, though, the appeals court’s rejoinder to this makes much more sense. It is possible that asking potential jurors to recall bits of their knowledge or experience may bring some things to mind, but if the court and the parties are to make intelligent decisions, the information has to be out there: “Far from ‘reinforc[ing] potentially prejudicial information,’ content-specific questioning would have brought such material front and center. The parties and the judge could then assess the publicity’s effect on the prospective jurors’ ability to reach a fair verdict.”

Tsarnaev’s prosecutors could still appeal this decision to the Supreme Court, or could retry Tsarnaev with revised voir dire. But for now, the moral of the story is that effective voir dire means asking about relevant content, and not simply asking jurors to offer their own assessment of the effects of that content.

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