Overcoming Jury Bias
Overcoming jury bias is a problem that every trial lawyer confronts. Jury bias doesn’t mean that the members of the jury are necessarily biased specifically against the plaintiff. What it does mean is that every human being brings to the decision-making process their own specific biases or inclinations as to how they view things. How they view things in part is a function of how the human brain works.
Snapshot vs Video In Analyzing Jury Bias
There is a great deal of data that now indicates that at the time of any upsetting or calamitous event the human brain records events not as a video taping of the entire series of events but rather as individual snapshots that are separated both in space and time. What that means is that if a masked man comes into a convenience store holding a gun and attempts a robbery of the store clerk, the persons in the store at that time are all going to see slightly different things because their minds are probably working in snapshot mode. The mind is literally taking snapshots at different intervals of different events. As such when that person is then called upon to recollect what happened, what they see are the snapshots as opposed to seeing a video of the entire event.
In the general decision-making process the human brain works much the same way i.e., it will take snapshots of particular things or events if it is being stressed. If it is not being stressed then it may take more of a video panorama of the entire series of events and then be able to look at the entire event in a more comprehensive fashion as opposed to only seeing the snapshots.
The primary lesson to be learned from that by a trial lawyer is that the less stress in the decision-making process you put on the members of the jury panel then the more likely they are to operate in the latter fashion, both relying upon the video and being reflective as opposed to being more instinctive and simply relying upon the snapshots.
The defendant in many cases engages in the tactic of confusing the case as much as possible. By making the case as confusing and as complex as possible jurors are likely to revert to their instinctive mode and thereby take mental shortcuts in the decision-making process. Whereas if they feel as though they are not being confronted with a complex confusing picture then they are more likely to be reflective about the entire picture.
If the jury is in fact looking for shortcuts then what they may look for are things that define the character of one of the parties. That is, does that party appear to be highly self-interested, has that party been less than credible to the jury on any of the matters presented, does the jury have an overall negative impression of that party based on specific things seen in the courtroom. Any of those types of shortcuts may make it easy for the jury to not reflect on all of the evidence but rather to seize on specific bits of evidence that make the decision-making process easy.
The role of the lawyer in this regard is to convince the jury that the preferred method of decision-making is the second one which is reflective, thorough and based upon the facts as opposed to the first form of decision-making which tends to be the snapshot approach, somewhat instinctive and not very thorough.
If there is dissension within the jury room among the different jurors as to how the case is perceived then most jurors are going to revert to the reflective approach .
Overcoming Jury Bias or Judge Bias Is Not Easy
There is an interesting study that was conducted some years ago that involved trial judges. Researchers asked one group of judges to rule on the admissibility of a plaintiff’s criminal conviction which under the rules of evidence clearly was inadmissible. Another group of judges was not presented with this issue. All of the judges were then asked to evaluate the plaintiff’s personal injury case assuming that liability had been established. As such they were being asked simply to award damages. What the study showed was that judges who knew of the plaintiff’s criminal conviction (albeit inadmissible) awarded less to the plaintiff in the form of damages than did the judges who did not know of the criminal conviction. Although all of the judges were required as a matter of law to disregard the inadmissible evidence dealing with a criminal conviction, the fact is that having been exposed to that evidence, the judges were influenced by it.
Although we’re very lucky to have a judiciary that generally tries to do the right thing, the simple fact is that judges are human and they have biases and can be influenced by things that perhaps they shouldn’t be influenced by just like the rest of can.
Overcoming jury bias can be best accomplished by keeping your case focused and simple so that the decision-making process in terms of resolving the facts is as straightforward for the jury as possible. In that mode the jury is more likely to adopt the reflective comprehensive approach and look at all of the evidence as opposed to reverting to a simpler decision-making process.