The Inability to Self-Diagnose Bias

49 Pages Posted: 16 Jul 2012 Last revised: 24 Jul 2019

See all articles by David V. Yokum

David V. Yokum

University of Arizona - James E. Rogers College of Law; University of Arizona - College of Science

Christopher T. Robertson

University of Arizona - James E. Rogers College of Law; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

Matt Palmer

University of Arizona - James E. Rogers College of Law

Date Written: July 18, 2019

Abstract

The Constitution guarantees litigants an 'impartial' jury, one that bases its judgment on the evidence presented in the courtroom, untainted by affiliations with the parties, racial animus, or media coverage that may include inadmissible facts, a one-sided portrayal, and naked opinion. Problems of juror bias arise in almost every trial – state and federal, civil and criminal - and the problem is most severe in the highest profile cases, where the need for accuracy and legitimacy in outcomes is most salient.

The Supreme Court has instructed courts to use a simple method to determine whether jurors are biased: ask them. Studies have shown that the juror’s self-diagnosis is the most important factor for the court’s decision about whether to seat the juror.

To test the reliability of these self-diagnoses, we fielded a randomized controlled experiment, in which we exposed mock jurors to news articles that were either prejudicial to the defendant (in one condition) or irrelevant (in the other condition). We then gave jurors the admonitions and questions endorsed by the Supreme Court for the purpose of identifying biased jurors, prior to all of them watching a 32-minute condensed video of a civil trial, rendering binary judgments, and awarding damages

After we excluded jurors who said that they would be unable to be fair and impartial (or were unsure), the remaining jurors were significantly more likely to rule against the defendant and those that did so also awarded larger damages, than those in the control condition. Thus, juror self-assessments were not related to actual bias. We consider and test alternatives to the self-diagnosis protocol, but ultimately find that broader exclusion of all exposed jurors may be necessary to assure a fair trial.

Keywords: jury, bias, publicity, voir dire, jury selection, Skilling v. United States, change of venue, peremptory challenges, challenges for cause

Suggested Citation

Yokum, David V. and Robertson, Christopher T. and Palmer, Matt, The Inability to Self-Diagnose Bias (July 18, 2019). 96 Denver Law Review 869 (2019); Arizona Legal Studies Discussion Paper No. 12-35; 7th Annual Conference on Empirical Legal Studies Paper. Available at SSRN: https://ssrn.com/abstract=2109894 or http://dx.doi.org/10.2139/ssrn.2109894

David V. Yokum

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

University of Arizona - College of Science ( email )

1040 E. Fourth Street
Tucson, AZ 85721-0077
United States

Christopher T. Robertson (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

HOME PAGE: http://www.law.arizona.edu/faculty/getprofile.cfm?facultyid=714

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics ( email )

23 Everett Street
Cambridge, MA 02155
United States

Matt Palmer

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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