Stop Asking Potential Jurors About What They Can ‘Set Aside’

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At the start of the case, a trial judge somberly addressed the jury, letting them know what adjustments were expected of them. The instructions told them they, “must as jurors, take all the decisions you have made, all the opinions you have about how people act, how people behave, what kind of people behave in what way, what makes them do that, and you leave them in that box.” In other words, they must sacrifice their personhood to become a blank slate. An appeals court determined the instructions in that case (Taylor v. Sisto 606 F. 3d 622, 2010) to be harmless, but only because it is impossible to “completely discard life experiences.”

And it is impossible. But despite that, the same instructions, albeit in less absolute terms, are common. In nearly every court and nearly every jury selection, potential jurors are asked if they can “set aside” their experiences or attitudes, as if the cognition built up over their lives was just something the juror is carrying around in a backpack. That language is enshrined in the case law and the practice of most courts, with the general test being whether the juror is able to disregard their life experience and attitudes. As a caveat, I think there is just one time where an attorney should ask a potential juror during voir dire if they can set aside their attitudes or experiences. That is when the individual has a bias that annoys the other side, and you want to walk that juror back from the cliff of their cause challenge and force your opponent to use one of their strikes. When you’re actually interested in what the juror thinks and whether they can truly be fair, the “set aside” language doesn’t help you, isn’t realistic, and sets a false standard that might reduce the expression of honest opinions. In this post, I’ll briefly outline a better way.

Ask for a Positive Rather than a Negative Commitment

The underlying goal of the question is important, as are the probes about whether a given citizen could be reasonably fair as a juror. A trial is not a situation where we should take all comers as fact-finders. Bias is a real phenomenon, and a fairly large portion of the population have experiences or hardened views that would make their role as a fact-finder unfair to one side or the other. But bias ought not be addressed as something that jurors can simply commit to switching off, or something they can self-amputate from their minds.

Because of that, asking for a positive commitment is better than asking for a negative one. It is about what they can focus on (the evidence), and not about what they say they could blind themselves to (their views and experiences). A recent note in the John Marshall Law Review (Graff, 2021) is interesting in noting that jurors can and should draw on life experiences because it is human and inevitable, and in arguing for legal reforms that would hold jurors to essentially the same standards as judges when considering recusal. The article quotes the case of Commonwealth v. Williams (481 Mass. at 448, 2019):

A judge should not focus “on a prospective juror’s ability to put aside his or her beliefs formed as a result of life experiences, but rather on whether that juror, given his or her life experiences and resulting beliefs, is able to listen to the evidence and apply the law as provided by the judge.”

That is good advice for the attorney as well. When asking for relevant views and experiences, ask open-ended questions, and when someone tells you they already have a leaning, believe them. But when you’re asking for a genuine commitment, ask them if they can focus on what is presented in this case.

Ask as a Matter of Degree

Some judges in particular can treat bias as if it is a black or white condition. The juror either has it or doesn’t, and can either switch it off or can’t. But psychologically, it is a matter of degree. The question isn’t just the presence or absence of a relevant view or experience, but how much influence it would have.

Accordingly, good ways to ask it might be as follows:

How much effort would it take for you to focus on evidence in this case rather than your prior knowledge?

How much of a distraction might it be for you to know things that others on this jury might not know, and to not be able to share that? 

How difficult would it be for you to hold the kinds of views you’ve just expressed while still trying to focus on the evidence and the law just as it is presented here in the courtroom? 

There is always a bit of a compromise between the psychology and the law: The language that the judge would prefer is not always going to be accurate based on the psychology, and the language that the psychologists would prefer is not always going to be allowed by the judge. But in the overlap of those perspectives, there are ways of questioning about bias that are better than the oversimplified and unrealistic “can you set it aside?” question.

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Graff, K. (2021). To be “Impartial”, Must a Juror Reject His Own Life Experiences?, 54 UIC J. Marshall L. Rev. 627 (2021). UIC John Marshall Law Review, 54(2), 6.

Image credit: 123rf.com, used under license

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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