Based on the book Unfair: The New Science of Criminal Injustice by Adam Benforado.
For more detailed information, read the book.
Improving Jury Objectivity
Juries are a very fallible part of our justice system. They are not a group of randomly-chosen, objective, impartial decision makers. To begin with, a great many people try their best to get out of jury duty to the point of lying to a judge about personal factors they think are relevant.
A person’s background and life experiences are powerful factors in their judgments. Having diverse juries is crucial, but ensuring jury diversity is very difficult. We may need to consider paying jurors to ensure no loss of income, providing transportation and childcare to those who need it, and rethinking how we screen jurors.
We know that people can disagree with great confidence about a common experience. We tend to see those who disagree with us as wrong or flawed rather than ourselves as wrong. No one is a neutral observer. Minority opinions on a jury are most often persuaded to change. The best predictor of a jury decision is what the majority thought before deliberation.
Many biases are unconscious. Thin men are more likely than other people to see an overweight woman as guilty. They do not judge overweight men the same way, and women are not as biased about weight. It’s easy to imagine biases extending to race, poverty, and other characteristics. We may someday be able to detect unconscious biases with brain scans. Should that then be part of jury selection?
Video evidence is very persuasive but not as objective as most think. The point of view of the camera in an interrogation strongly affects whether or not a confession is considered coerced or the suspect considered guilty. Viewed from behind the investigator, confessions are more likely viewed as legitimate and suspects as guilty. Viewed from behind the suspect, confessions are more likely viewed as coerced and suspects as not guilty. A third-party perspective is best in interrogations.
Body cameras and dashboard cameras are almost always from the police perspective. Yet these cameras have been shown to reduce police use of force and to increase public civility. Cameras can correct faulty memory, but they must not be viewed as conclusively objective.
It is important to remember that juries are simply groups of ordinary, flawed individuals chosen in an unusual way. Different juries may come to different conclusions given the same trial. A verdict is not “the truth.” It is simply the outcome of the process we have decided to believe in. Because the consequences of our criminal justice process can be so consequential, even ruinous, to a defendant, we must do everything we can to make the process as infallible as we can. That includes improving how we select and use juries.
Jury selection and its effort to eliminate bias is a good example of pretending to be unbiased while ignoring implicit bias. We do not know most of our biases, but jurors are instructed by a judge to simply turn off any prejudice they might have. What a farce. Implicit biases are not subject to simple conscious choice. Procedural safeguards, such as judges’ questions to prospective jurors, peremptory juror challenges, judges’ instructions to ignore certain testimony, and Miranda warnings to anyone in custody, simply give us a false sense of protection. Police officers, lawyers and judges are barely constrained by these rules, but the procedures convince us we have eliminated our biases. Those most vulnerable to misuse of these procedures are the innocent, the young, the mentally disabled, and the poor. Rules that give a false sense of fairness may be worse than no rules at all.
And now we have professionals who misuse the rules of jury selection and sell their services for profit. Trial consultants use scientific data and sophisticated analytical procedures that are not available to most defendants. Trial consultants help choose favorable jurors, plan trial strategies, prepare depositions, prepare and rehearse witnesses, and even manage media relations. The main problem is that only the wealthy have access to these highly-paid professionals. Although trial consultation started as a way to defend poor, vulnerable people, it has become motivated almost entirely by money. The goal of increased fairness and justice has often been replaced with winning for those with money. As Justice Hugo Black said, “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
Trial consultation can be used to eliminate bias and pick a fair jury, or it can be used to stack a jury in one direction. Unbridled capitalism has distorted the use of science to further American injustice. Science and justice should not be commodities sold to the highest bidder.