An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices

86 Pages Posted: 27 Apr 2020

See all articles by John Campbell

John Campbell

University of Denver Sturm College of Law

Jessica M. Salerno

Arizona State University

Hannah Phalen

Arizona State University (ASU)

Samantha Bean

Independent

Valerie P. Hans

Cornell University - School of Law

Less Ross

Stanford University

Daphna Spivack

Stanford University

Date Written: April 24, 2020

Abstract

In civil litigation voir dire (jury selection) has a fundamental impact on jury composition, and by extension, is inextricably entangled with constitutional, statutory, and precedential guarantees regarding an impartial jury of the parties' peers.

However, despite its deep influence on jury composition, and by extension trial outcomes, the rules for jury selection vary wildly by jurisdiction, ranging from almost no questioning of jurors at all to extensive questioning that dives into details of the underlying cases. Indeed, selection can take a week in some states and 20 minutes in others.

This article involves a first of its kind empirical study that analyzes results from a national sample of over 2,000 mock jurors. The study measures the impact of jury selection across three distinct civil case presentations based on actual cases. It measures existing jury biases, explores how those biases impact juror decisions, considers whether existing methods common to voir dire sufficiently identify those biases, and analyzes whether existing methods for "curing" such biases are effective.

It concludes that a) existing biases, many of which are prevalent in the existing jury population, fundamentally impact juror decision making - sometimes in ways that are inappropriate, b) these biases can harm both sides of civil litigation but they skew in favor of civil defendants, c) these biases will often go unidentified under existing rules so that an impartial jury is not assured, d) this problem is not cured by existing interventions, and e) jurors are largely blind to the role bias plays in their decision making.

The article concludes with best practices that could be useful to attorneys, legislators, and judges.

Suggested Citation

Campbell, John and Salerno, Jessica M. and Phalen, Hannah and Bean, Samantha and Hans, Valerie P. and Ross, Less and Spivack, Daphna, An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices (April 24, 2020). U Denver Legal Studies Research Paper No. 20-11, Available at SSRN: https://ssrn.com/abstract=3584582 or http://dx.doi.org/10.2139/ssrn.3584582

John Campbell (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Jessica M. Salerno

Arizona State University ( email )

4701 W Thunderbird Rd (MC 3051)
Glendale, AZ 85034
United States

Hannah Phalen

Arizona State University (ASU) ( email )

Farmer Building 440G PO Box 872011
Tempe, AZ 85287
United States

Samantha Bean

Independent

Valerie P. Hans

Cornell University - School of Law ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-0095 (Phone)

Less Ross

Stanford University

Stanford, CA 94305
United States

Daphna Spivack

Stanford University ( email )

Stanford, CA 94305
United States

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