Juror Bias

The Texas law is clear that one who has a bias or prejudice in favor of or against a party in the case is disqualified to serve as a juror. This seems only fair and comports with our sense of justice. However, the latest scientific research proves beyond any doubt that “all of us have biases that are subconscious, hidden even to ourselves.” This phenomena is discussed in an article by Emily Badger in the October 7, 2016 edition of The New York Times.

According to Ms. Badger’s article: “Implicit bias is the mind’s way of making uncontrolled and automatic associations between two concepts very quickly. In many forms, implicit bias is a healthy human adaption – it’s among the mental tools that help you mindlessly navigate…” In essence then, biases are mental shortcuts, but implicit bias can also lead us into grave error.

Having been involved in selecting juries for criminal and civil cases for over 40 years, I can assure you that it is unusual for a prospective juror to admit that he or she has a bias or prejudice of any kind. Most people will only admit a bias or prejudice if the bias or prejudice is of the type that is typically held by all members of the public. For example, everyone will say they have a bias and prejudice against stealing or driving at an unsafe speed, but almost no one will admit in a public setting to having, for example, racial prejudice or a bias against police officers or the military or anything else that is potentially controversial or embarrassing.

If we have all have biases and prejudices, and if we are reluctant to admit them even if we are aware of them, what can and should we do to ensure that jurors are selected who can be equally fair to all parties?

Jury selection is far from perfect and almost all juries are selected without the aid of professional jury consultants. Consequently, the best solution is for lawyers and trial judges to encourage prospective jurors to think about the potential issues in depth and speak their minds freely without fear of being embarrassed or humiliated. This takes skilled lawyers, a patient judge, and time. Unfortunately, too many lawyers are not skilled in asking jurors questions that are calculated to reveal bias and prejudice and far too many judges are more concerned with conserving time than in seating the best possible jury.

If you are called for jury service, please remember to search your heart and mind about the issues you will be called upon to decide. If you have questions about your ability to be completely fair, speak out, even if you have to ask to speak to the lawyers and trial judge in private. There is no shame in admitting bias or prejudice. There is a great deal of shame in sitting as a juror in a case that you should be disqualified from hearing.