Avoiding Stereotypes in Voir Dire
Most people use stereotypes as quick and easy ways of judging other people. Social psychological research on stereotypes has been conducted for almost 80 years and in general, has revealed that stereotypes often lead to bad decisions. Although, by definition, stereotypes contain a “kernel of truth,” they are conducive to producing judgmental errors because of their reliance on generalizations. Many attorneys rely on generalizations about certain types of people based on gender, race, occupation, and other demographic characteristics. These generalizations, in turn, lead to stereotypic decisions about the type of person who would or would not be a good juror for a particular case. Given that decades of social psychological research have revealed little predictability of jury verdicts based on juror demographics, it should come as no surprise that jury selection based on demographics and stereotypes is likely to be inaccurate. The dangers associated with demographically and stereotype based jury selection are due to: (1) reliance on information that has little basis for predicting verdict; (2) likelihood of failing to exercise a peremptory challenge on someone who should be excused because challenges have been used to strike other jurors based on stereotyping; (3) inability to ask probing questions that allow the attorney to get to know the prospective jurors’ personalities, attitudes, values, beliefs, and life experiences, all of which are more related to verdict than generalities based on stereotypes; and (4) a general tendency to prefer jury selection decisions that are “good enough” instead of accurate. Each prospective juror is a unique person who deserves the attorneys’ and court’s time in finding out whether he or she will be well suited for the case at trial. A “good enough” strategy in jury selection is likely to backfire when important voir dire questions, designed to obtain crucial information, are discounted in favor of finishing jury selection as quickly as possible.
Interestingly, there have been research studies that reveal lawyers’ experience in selecting juries does not necessarily lead to accuracy. In fact, lawyers are accurate in predicting which jurors are favorable to their side of the case 50% of the time, meaning they are performing this important task at chance level, much like the accuracy of predicting the outcome of a coin toss. In addition, research has shown lay persons are as accurate as lawyers when it comes to selecting juries. The primary reason lawyers perform poorly on jury selection decisions is their use of demographics and stereotypes. Avoiding stereotypes requires a major shift in thinking on the part of trial counsel. Asking though provoking questions, most important, open ended questions that require the venire members to do most of the talking, is a skill that must be fine tuned in order to lead to accurate decision making. Selecting the people who will decide the case demands accuracy over “good enough,” or “that one will do,” decisions. Overall, there is more to conducting an excellent voir dire than asking simple questions that demand socially desirable answers.
Contact Magnus for instruction in voir dire techniques that will enhance your accuracy in selecting juries.