The Impact of Minimal versus Extended Voir Dire and Judicial Rehabilitation in Civil Cases

71 Pages Posted: 18 Nov 2020

See all articles by Jessica M. Salerno

Jessica M. Salerno

Arizona State University

John Campbell

University of Denver Sturm College of Law

Hannah Phalen

Arizona State University (ASU)

Samantha Bean

Independent

Valerie P. Hans

Cornell University - School of Law

Daphna Spivack

Stanford University

Lee D. Ross

Stanford University - Psychology

Date Written: November 18, 2020

Abstract

Purpose: Three experiments tested the utility of minimal and extended voir dire questions in edicting mock jurors’ verdicts and damage awards in civil cases, and whether the biasing impact of mock jurors’ preexisting attitudes on case judgments could be reduced or eliminated if they undergo voir dire or judicial rehabilitation before judging the case.

Method: In three experiments, each focusing on a different case, online participants (total N = 2,041) were randomly assigned to experience (a) no voir dire, minimal voir dire focusing on 20 previous legal experience and self-identification of biases, or extended voir dire focusing on specific attitudes about civil litigation, parties, and laws, before judging the case and (b) judicial rehabilitation in which a judge asks them if they can set their biases aside and judge the case impartially or not. Participants reviewed a civil case, made case judgments, and completed bias
awareness measures.

Results: With the exception of widow status, demographic information and minimal voir dire questions did not predict case judgments, but many extended voir dire responses significantly 37 predicted both verdicts and damage awards. Neither responding to voir dire questions before (versus after) judging the case, nor experiencing judicial rehabilitation, reduced the biasing impact of mock jurors’ preexisting attitudes on their case judgments. Further, judicial rehabilitation led jurors to report that they were less biased in their judgments than those who did not experience rehabilitation—despite not actually reducing their bias.

Discussion: Attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases 54 has little utility. Further, neither calling awareness to these potential biases during voir dire, nor trying to motivate jurors to control their biases via judicial rehabilitation reduced the impact of mock jurors’ reexisting attitudes on their judgments.

Keywords: bias, civil jury, jury decision making, jury instructions, jury selection, voir dire

Public interest statement: Voir dire is much more effective in predicting verdicts and damage awards in civil cases when the questions assess specific attitudes toward civil litigation and 15 parties compared to a more minimal voir dire that relies on jurors reporting demographic characteristics or self-identifying their own biases in response to general, open-ended questions. Neither drawing participants’ awareness to their own biases during voir dire nor undergoing judicial rehabilitation reduced the impact of their preexisting biases on their decisions—although judicial rehabilitation made them think they were less biased.

Keywords: bias, civil jury, jury decision making, jury instructions, jury selection, voir dire

Suggested Citation

Salerno, Jessica M. and Campbell, John and Phalen, Hannah and Bean, Samantha and Hans, Valerie P. and Spivack, Daphna and Ross, Lee D., The Impact of Minimal versus Extended Voir Dire and Judicial Rehabilitation in Civil Cases (November 18, 2020). U Denver Legal Studies Research Paper No. 20-30, Available at SSRN: https://ssrn.com/abstract=3733136 or http://dx.doi.org/10.2139/ssrn.3733136

Jessica M. Salerno (Contact Author)

Arizona State University ( email )

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

John Campbell

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
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)

Daphna Spivack

Stanford University ( email )

Stanford, CA 94305
United States

Lee D. Ross

Stanford University - Psychology ( email )

BLDG 420-RM 380
Mail Code: 2130
Stanford, CA 94305
United States
(650) 725-2447 (Phone)

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