Ronald Matlon holds a Bachelor of Arts degree in Speech Communication from Indiana State University earned in 1960, a Master of Science degree in Speech Communication from Purdue University in 1962 and a Doctor of Philosophy degree in Communications earned in 1966 from Purdue University. He has taught at Purdue University, the University of Illinois at Chicago, the University of Massachusetts, the University of Arizona and Towson University. While at Towson, he served as chairperson and full professor in the Department of Mass Communication and Communication Studies. His teaching areas have been legal communication (including a graduate certificate program in litigation consulting), argumentation, persuasion, rhetoric and public speaking. Dr. Matlon retired from Towson University in 2003. Dr. Matlon has authored nine books and 35 chapters or scholarly articles in his areas of expertise, and he has presented over one hundred professional papers, lectures or seminars before educational and legal groups.

Dr. Matlon has been a litigation consultant since 1978. He is Senior Trial Consultant and CEO of Matlon & Associates, a national trial consulting firm located in Phoenix, Maryland (2324 Carroll Mill Road, Phoenix, MD 21131, 410-472-0693, www.matlonlitigation.com). His areas of consulting include witness preparation, jury selection, mock trial and focus groups and case strategy sessions. Also, Dr. Matlon is one of the founders of the American Society of Trial Consultants and he served as its first President. He has been the Executive Director to the Society for the past 23 years.

This article has been derived from an affidavit Dr. Matlon prepared for the Maryland Defense Counsel, Inc. where he was asked to render an opinion concerning jury selection procedures in Maryland. The article covers (a) an analysis of lifetime experiences, attitude formation and juror bias, (b) juror self-disclosure about their attitudes and biases, (c) how judges can exacerbate the problems of not uncovering juror bias and (d) recommendations.

Lifetime Experiences, Attitude Formation and Juror Bias

All potential jurors have biases and prejudices. National polls have shown significant bias against tobacco companies, asbestos manufacturers, health maintenance organizations and corporate management (Van Voris, Loomis). But, that is just the tip of the iceberg. Individual bias that stems from all we experience in life shapes the perceptions we, as jurors, have of evidence (Ellsworth), and these perceptions can certainly influence final jury verdicts. One study found that ten percent of verdict preference disparities could be predicted based on juror experiential backgrounds and subsequent attitudes (Hastie). Identifying juror bias is critical. Yet, “the detection of juror bias is a serious challenge in contemporary jury trials” (Hans & Jehle, 1179).

Some potential jurors say they can set aside their biases and personal experiences to arrive at fair and impartial decisions. But, is this possible? Supported by numerous social scientists, this author must answer this question in the negative. Experience (accumulated lifetime information) directly influences our attitudes (predispositions to act in a positive or negative way toward an attitude object). Sometimes, these attitudes go on to produce biases (prejudice so strong that it actually causes one to act in a positive or negative way). These attitudes and biases deep within each and every one of us are extremely unyielding to even a very persuasive plea (Wu & Shaffer). It is almost impossible to think that anyone can disregard their experiences in life in any setting that taps into those experiences, including sitting on a jury. “Indeed, research indicates that jurors’ prior experiences and attitudes are more likely to influence their verdict than the arguments presented to them at trial” (Bono, 2).

What this means, then, is that juror experiences and attitudes must be thoroughly probed in voir dire in order to identify jurors with unfortunate bias. Unfortunately, in Maryland, voir dire is often so limited, that attorneys are placed in the position of relying far too much on demographic stereotyping when exercising their peremptory challenges. Demographic stereotyping consists of inferring bias from juror characteristics rather than juror experiences and attitudes. The demographic indicators method of evaluating jurors is widely used by Maryland trial lawyers because these characteristics are often the primary information that lawyers receive about each juror. So, to make their decisions about strikes, they use demographic myth and lore. For example, this author has heard such claims as accountants are good for defendants on damages, heavy-set jovial people are nurturing and will want to help injured plaintiffs, and plaintiffs should be careful about taking Jewish jurors in medical negligence cases because so many doctors are Jewish.

The approach to jury selection that “relies on gross demographics,” has “significant drawbacks” and is “crude and inefficient” (Frederick, 44-45). Lifetime experiences and attitudes tend to be much more powerful predictors of verdict choices than demographic characteristics (Saks). One recent summary of research studies based on both mock and actual trials concluded that “demographics explain relatively little in the way of juror…behavior” (Baldus). What this means, then, is that, in order to get at juror bias in the best possible way, the lifetime experiences and attitudes of all potential jurors must be found.

Juror Self-Disclosure about Their Attitudes and Biases

Most jurors feel quite uncomfortable being in court for a variety of reasons. This discomfort tends to inhibit their willingness to disclose their true feelings or opinions. Why does this inhibition on self-disclosure occur?

First, the court setting is very formal, both structurally and behaviorally, causing jurors to feel intimidated and restricted in what they do and say (Chaikin, Derlega and Miller, Jordan). Second, social science research has established that attitudes and behaviors are influenced by situational conditions (Sarbin). In a voir dire situation, jurors are hesitant to share personal information and beliefs in front of strangers, with the information being officially recorded (Diamond, Festinger). Third, “people in unfamiliar or uncomfortable environments such as the courtroom look for someone who has the answers as a guide for their own behavior” (Fargo). So, many jurors follow the crowd rather than expressing their own true feelings. This behavior is rooted in the social psychological theories of conformity and self-disclosure (Asch). Fourth, some potential jurors say what is expected of them because of the fear of rejection for jury duty (Starr & McCormick). Fifth, many jurors fear public speaking, and think that speaking up in court is actually a form of public speaking. Hence, they remain quiet (Mize).

But, there are two important additional reasons jurors do not fully self-disclose in court. These reasons need to be explained rather thoroughly because of their importance. First, potential jurors do not recognize or want to admit they are biased. Second, they are being questioned by and are trying to please a judge. These reasons, combined with those above, provide us with discouraging, counterproductive results in voir dire.

Even if prospective jurors are willing to reveal all that is on their minds, they may be unaware of or do not want to admit their own biases. They do not plan to deceive anyone in jury selection; they simply underestimate their own attitudes and biases (Diamond). Research shows that many people are not conscious of some of the significant factors that shape their behavior (Nisbett & Wilson, Pearson). Or, they think what they know and believe to be objective fact, and not bias. For instance, when consulting in Arizona, this author would hear jurors in voir dire refer to Native Americans as “lazy” and “alcoholics.” Yet, when asked if they might be prejudiced in some way against Native Americans they would frequently say: “Well, these are just facts; not my personal opinion.” These jurors did not view their knowledge as prejudice.

Exacerbating the lack of self-disclosure by jurors in voir dire is the fact that, in Maryland, a judge does most of the questioning. What follows is not a comment about the capability of judges in our state. Instead, it is an observation about anyone who serves in the role of judge anywhere. Role or status can be quite influential when it comes to the matter of self-disclosure. A review of the research in this area shows that a questioner’s status or role affects whether an individual will reveal information about himself or herself. Indeed, interviewers with very high status (like judges) produce limited self-disclosure (Suggs & Sales). Judges are physically separated from everyone else in the courtroom; they wear robes; and attorneys and court personnel address the judge as “Your Honor.”

Judge status fosters an increased sense of authority and detachment from the jurors (Fargo). Studies have shown that questioning from the bench minimizes juror candor, and that, in voir dire, jurors will actually alter their expressed attitudes when questioned by judges (Jones). “When the court asks all the questions, a prospective juror is often influenced by what he or she thinks the judge wants to hear” (Memorandum of Law in Support of Motions, 4). Such answers are called “socially acceptable” ones rather than truthful ones (Williams). One survey of jurors found that they look upon judges as important authority figures and are therefore reluctant to displease them (Padawer-Singer). Seeking approval from a judge, probable jurors portray themselves in the best possible or most socially desirable light, not wanting to admit they are biased (Christie, Rosenberg). “Fearing the court’s disapproval, jurors will usually respond to the court’s queries in a manner they believe is acceptable to the court without actually considering their own individual, personal and honest responses” (Motion to Permit Counsel, 11). Jurors are determined to appear honest and open-minded because that is what they believe the judge wants from them (Haney). “The message communicated by the judge is that impartiality or lack of bias is the desirable state of mind for a juror. … The end result is that jurors give the judge the answers they believe the judge wants to hear” (Bonora & Krauss, 37). In other words, judges inadvertently constrain jurors from engaging in full self-disclosure (Matlon & Facciola).

For several reasons, then, potential juror bias is not easily detected in jury selection. The seminal piece of research on this matter was a post-trial study of 225 actual jurors who had served in thirteen civil and ten criminal trials. In-depth interviews with them revealed a significant discrepancy between information about personal experiences and attitudes revealed to the out-of-court interviewers as compared to the same questions asked of those jurors in group voir dire. Many jurors withheld information during the group voir dire in an effort to appear “qualified” to perform their civic duty as jurors (Broeder). In another study done by the National Jury Project, a pre-trial survey showed that 71 percent of eligible jurors thought a certain defendant was guilty in a New Jersey murder prosecution. Yet, only 15 percent of the persons drawn for jury duty admitted this disposition during voir dire. A later investigation of the actual jury in this case showed that many of them really had predispositions about the issue of guilt that they had not revealed during voir dire (Andrews). A third study was conducted studying 31 criminal trials in the District of Columbia Superior Court, recording the questions asked of jurors andf their answers. Afterwards, post-trial interviews were conducted with these 190 people who had been seated. Voir dire responses were compared to the post-trial interview responses, and there were a number of discrepancies. For instance, 25 percent of the jurors who admitted later that they or members of their families had been crime victims did not disclose that fact on voir dire (Seltzer, Venuti & Lopes).

How Judges can Exacerbate the Problem of Not Uncovering Juror Bias

In addition to all of the elements preventing juror self-disclosure noted above, there are two additional factors connected to a judge-conducted voir dire that intensify the problem of not being able to uncover juror bias. The first factor is the establishment of a limited rather than an expanded voir dire. The second factor has to do with question form and attempts at rehabilitation.

What is the difference between a limited and an expanded voir dire? The traditional limited voir dire has a minimal number of questions that are very specific to the trial. Many of these questions are close-ended, permitting either a show of hands or a yes/no response. Much of the questioning is to the group rather than directed at individuals. A judge conducts most of the questioning. Generally, there is no follow-up with those jurors who do not raise their hands or try to get recognized in any other way. Pre-trial questionnaires are not used. The expansive voir dire contains a larger number of questions, a broader range of questions, a combination of close-ended and open-ended questions, individual (perhaps sequestered) follow-up questions asked by the attorneys and/or the judge, and, quite often, a pre-trial juror questionnaire.

First, there is overwhelming evidence that a limited voir dire is “not effective in identifying and vetting jurors with relevant experiences and attitudes” (Hans & Jehle, 1182). This is true because, in a limited voir dire, there is not much of an opportunity to get a full disclosure of relevant information (Bush, Catts, Hans, Iobst). In an experiment conducted in the District of Columbia Superior Court, a limited voir dire was compared to an expanded voir dire to see the results. In the limited voir dire, follow-up questions were asked only of those jurors who responded affirmatively. The rest of the group was not questioned. In the expanded voir dire, each juror who had not indicated a “yes” response to the questions was asked by the judge: “I noticed that you did not respond to any of my questions. I just wondered why. Could you explain?” While some jurors said the questions did not apply to them, others admitted that they really did have something to say. Some of the reactions were as follows: “I was frightened to raise my hand, but I do take blood pressure medication.” “I was on a hung jury before, and it dealt with a gun offense. I’m not sure I can be fair in this gun possession case.” “My grandson was killed with a gun.” “I’m the defendant’s fiancée – is that OK?” The conclusion to this study was that an expansive voir dire was “an indispensable way of ferreting out otherwise unknown juror qualities” (Mize, 12).

Second, some judges exacerbate the problem of juror non-disclosure is through their use of certain unfortunate question forms. Too many judges ask leading questions to the jurors. One of the most common question types goes something like this: “In spite of the fact that the defendant was admittedly intoxicated when the incident took place, would you make every effort to be fair and impartial to him?” “This leading question is weak because it does not allow any description of the juror’s experiences, impressions and opinions; it yields little information because no one likes to think he or she would intentionally be unfair to someone just because that person was intoxicated” (Matlon, 125). Furthermore, when a judge poses this kind of question often in an attempt to rehabilitate a juror, “the answer for the good juror/good person is apparent” (Dillehay, 6). The juror wants to please the judge by saying: “Yes, I will be fair.” Hence, the ability to uncover possible bias is lost. Similar judge questions are as follows: “If I direct you that you must follow the law and consider all legally available penalties, will you be able to do that?” Or, “Can you be fair to this hospital even though you had a close relative die there?” Following the law and being fair and impartial are “correct” responses for jurors. So, such leading questions are of minimal value in weeding out jury bias. Furthermore, these leading questions, by their nature, elicit only the prospective jurors’ own perceptions of their biases, and this is generally not accurate information. In fact, it has been held reversible error for trial courts to reply on the assessment by a venireperson of his or her own biases and preconceptions ( Silverthorn v. United States, United States v. Polizzi).

Recommendations

Two recommendations are supported wholeheartedly by this author in view of a substantial body of relevant jury research that has been conducted over several years. The two recommendations that should be widely adopted in Maryland trial courts are (a) the expanded voir dire and (b) the use of supplemental juror questionnaires. Judges in our state have been authorized to experiment with both of these recommendations ever since a report from the Council on Jury Use and Management (a creation of the Conference of Circuit Judges) was adopted in April 2000.

First, the expanded voir dire, as been defined above, should be implemented in all trials. There should be more questions asked over a broader scope of subject matter in order to better uncover juror bias. There should be follow-up questions asked by both judges and attorneys to create an environment that makes it easier to identify damaging juror prejudice.

The form of the questions asked in an expanded voir dire needs attention too. There should be a good blend of close-ended and open-ended questions. Here is how that blend might appear to ensure as much juror candor as possible. Close-ended questions can precede open-ended questions. Those are questions that can be easily answered with a “yes” or “no” answer, or by raised hands. Close-ended questions can identify juror experiences. For example, “Have you, or has anyone close to you, ever been on kidney dialysis?” Note that this is a lifetime experience question. For those who respond affirmatively, the open-ended request to ask of them is: “Please tell us about that experience.” Or, in another kind of case, one might ask: “How do you feel about the dissemination of sexually explicit videos to adults?” Even if the answer is: “I have no strong feelings,” an appropriate probe would be: “Well, then, what are your feelings even though they are not strong?”

Open-ended questions such as those above allow prospective jurors to do most of the talking, and this gives the court and counsel a good opportunity to learn what they need to know. “Open-ended questions require jurors to think about the issues involved in the question and to describe in their own words their thoughts on the topic” (Frederick, 128). Listening to the jurors reply to the open-ended request is the best way to detect juror bias in oral voir dire. As probable jurors are allowed to talk, their attitudes will be on display. Additional follow-up open-ended questions beginning with “how,” “why,” and “what” can go far in helping judges and attorneys identify bias (e.g., “Why did you find the services received by your mother’s home health care provider to be insufficient?”). Consider this list as a series of well-constructed close-ended (experience) and open-ended (attitude) questions:

• Have you or has anyone close to you ever been seriously injured or killed in a vehicle accident?
• If yes, please describe the circumstances. (Follow-up probes may be necessary.)
• Was a complaint, lawsuit, or claim of some sort made about this?
• If yes, please explain. (Follow-up probes may be necessary.)
• How was the complaint or claim resolved?
• How did you feel about this resolution?
• Is there any reason why any of you who remained silent during this last set of questions chose to do so? (Follow-up probes may be necessary.)

The reason this is a good series of questions is because it follows the experience-attitude-bias continuum identified at the beginning of this article.

Second, supplemental juror questionnaires should be widely adopted in Maryland courts. The use of such questionnaires allows prospective jurors to answer voir dire questions in writing. “Well-formulated juror questionnaires can provide counsel with a substantial amount of information about prospective jurors … especially in jurisdictions where the scope of attorney-conducted voir dire is limited or judge-conducted questioning is the mainstay” (Heany, 3). Sample supplemental juror questionnaires are available from this author upon request.

There are many advantages to questionnaires. First, lawyers can get an overview of possible bias from the entire venire, not just the people seated in the box. Second, because answers are provided in writing rather than orally, there is more candor and more assurance of identifying bias with questionnaires than having voir dire be entirely an open court oral experience. Third, questionnaires actually save court time inasmuch as judges and lawyers need not be present when this information is gathered. They need only be present for follow-up oral questions based on the questionnaire answers. Fourth, jurors appreciate the privacy of this activity. “Filling out the questionnaire is often less fraught with anxiety than answering questions out loud in front of an audience” (Heany, 3). Fifth, questionnaires “can quickly pinpoint for the court and attorneys the specific areas that require individual follow-up questioning” (Hans & Jehle, 1198).

To effectively use supplemental juror questionnaires, careful thought should be given to their preparation. A good blend of close-ended and open-ended questions should be developed by both sides, then to be presented in questionnaire form to the judge for review. Furthermore, prospective jurors should be given sufficient time to complete the questionnaires, counsel should arrange for duplication of the questionnaires, and time must be allowed for a thorough review and analysis of the data.

Supplemental juror questionnaires have recently received some ringing endorsements. The American Bar Association has asked that courts consider using a specialized questionnaire addressing particular issues and permitting the parties to submit proposed questionnaires (American Bar Association American Jury Project). Here in Maryland, the Council on Jury Use and Management concluded: “Advance written questionnaires for jury panels should be utilized. Questionnaires can provide information in a more efficient form and with less invasion of juror privacy. … Advance written questionnaires can be especially useful in protracted or complex cases where jury selection will require prospective jurors to answer many questions. They may also be useful in more routine cases where jurors are asked certain standard questions.” (Council on Jury Use and Management, 6).

While expanded voir dire and supplemental juror questionnaires do not solve all the problems inherent in the current method of voir dire in Maryland, they go a long way toward doing a better job of uncovering juror bias over the present system. Since the goal of voir dire is to help both judge and counsel identify bias that can taint jury deliberations, these two recommendations should be implemented as soon as possible statewide.

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