Who should decide the fate of Dzhokhar Tsarnaev, the 21-year-old behind the 2013 Boston Marathon bombing? The same question can be asked in Colorado, where James Holmes, the troubled gunman who opened fire on a crowded Colorado movie theater in 2012, awaits trial. In both cases, the search for jurors has begun.
The 6th Amendment guarantees these men the right to an impartial jury—one that is without pre-existing knowledge of the case or biases against the defendant, and will come to a decision based only on the information presented during trial. Both the Tsarnaev and Holmes cases are high-profile ones. They received widespread media attention, raising questions about court’s ability to deliver an impartial jury. But the truth is, mass media is just the latest challenge courts have faced in an ongoing quest for impartial jurors.
While jury selection is arguably the most important aspect of any trial, the process has never been scientific. Lawyers and judges have always relied on intuition to weed out jurors with explicit biases—the ones people readily admit to having—and implicit ones, the perceptions and stereotypes that reside in our subconscious.
To combat bias, courts rely on several techniques: change of venue, continuance, and detailed instructions for the jury. But the most important technique is the voir dire process, whereby judges and lawyers question potential jurors about both their knowledge of the case and their beliefs or experiences that might cause them to be biased. This system was doomed from the beginning, because lawyers themselves don’t really want impartial jurors; they want jurors that will find in favor of their client. A difficult case can, after all, be won with a sympathetic jury.
While jury selection is arguably the most important aspect of any trial, the process has never been scientific. Lawyers and judges have always relied on intuition to weed out jurors with explicit biases—the ones people readily admit to having—and implicit ones, the perceptions and stereotypes that reside in our subconscious.
To keep things fair, lawyers on each side can dismiss as many potential jurors as they want, as long as they have good reason for doing so. Even if lawyers lack a good reason, they can still dismiss a certain number of jurors that just rub them the wrong way with what are called peremptory challenges. The idea is that even if individual jurors are not impartial, the jury as a whole will be—jurors biased for and against the defendant will cancel each other out.
Some courts rely more on judges to question potential jurors, while others leave the process mostly to the lawyers. Either way, there’s not much consensus on the best practices to get impartial juries.
“Judge-dominated voir dire, with little or no attorney involvement, prevents attorneys from using informed strikes to eliminate biased jurors,” U.S. District Court Judge Mark W. Bennett wrote in a 2010 article in Harvard Law and Policy Review. “For a variety of reasons, judges are in a weaker position than lawyers to anticipate implicit biases in jurors and determine how those biases might affect the case.”
Still, most federal courts, the District of Columbia, and at least 10 states practice judge-dominated jury questioning. Despite the fact that judges are held to a higher standard by the rest of society, a 2009 study found that they are no less likely to harbor implicit biases than the rest of us, making the give and take between lawyers and judges during the jury selection process all the more important.
Lawyers can still use these peremptory challenges to stack the deck in favor of their clients, a practice the Supreme Court has limited in recent decades. In 1986, the Supreme Court decided peremptory strikes could not be racially motivated after a prosecutor in Kentucky used his peremptory challenges to ensure that an all white jury would hear his case against a black man charged with burglary. The man was convicted. The court prohibited peremptory challenges based on gender in 1993. There is still no law prohibiting lawyers from dismissing jurors based on their sexual orientation.
Even with these protections, some still see these challenges as a vehicle for discrimination. “Racial discrimination in jury selection, [is] perhaps the greatest embarrassment in the administration of our criminal justice system,” Judge Thurgood Marshall wrote in 1989. “Until peremptory challenges are eliminated altogether, these challenges will inevitably be used to discriminate against racial minorities.”
Mass media has made it nearly impossible to find jurors that are unfamiliar with high-profile cases, but being unaware is not the same as being impartial. Researchers behind the non-profit Project Implicit have been studying implicit biases for decades, and they’ve found that these subconscious stereotypes are disturbingly common. The implicit association test developed by the researchers has helped to uncover stereotypes based on race, sex, mental health status, and even age.
“Social scientists are convinced that we are, for the most part, unaware of [these biases],” Judge Bennett wrote. “As a result, we unconsciously act on such biases even though we may consciously abhor them.”
So how can courts combat biases that people might not even know they have?
Motivations in the form of judicial codes of conduct can be enough to help judges overcome their own implicit biases, according to the 2009 study. And research from Project Implicit has shown that simply informing people about their implicit biases can be enough to neutralize them. Other work has shown that courts can counteract implicit racial biases with more racially diverse juries.
Tsarnaev’s jury selection process began last week, and the selection process for Holmes starts today in Colorado. The long, sometimes painful procedure should last months as the court whittles down the pool of 9,000 potential jurors to 12 people, who must then decide if Holmes is sane and deserving of the death penalty. In the Colorado case, implicit biases about mental illness could have more of an effect on the trial than media coverage of the shooting—proving, once again, how hard it is for a jury to get out of its own head.
