Thursday, January 27, 2022


Article Index

The Great Jury Debate

Jurors currently receive pretrial instructions that include the duty to consider a case neutrally and without bias. Some wonder if this is enough, given that many jurors may not even understand what bias is, let alone what their individual biases may be.

The Korematsu Center has studied the issue in depth and presents several sides of the debate, ranging from whether jurors should also be required to watch an instructional video about bias before being seated, if voir dire should be depended upon to weed out biased jurors, and whether video cameras should be installed to monitor jurors' comments during deliberation.

Yet another potential option includes requiring jurors to take the IAT test for bias as part of the selection system. However, each option comes with plenty of potential to backfire. In the process of trying to prevent bias, there is the possibility that it may only encourage it. And, several of the options involve higher administrative costs that cash-strapped courts cannot afford to take on, the Korematsu Center found.

The regional debate is as robust as that taking place on the national level.

I think the safeguards we have right now are about as good as we can have in the 21st century, Lopez says. I think there is room for growth and improvement, but 1 can't see what that is right now.

Lee, who has served on a couple of juries herself, says many jurors most likely even feel bias against their fellow jurors as they try to determine what kind of people they will be deciding the case with and make judgments about situations in which they have little experience.

One of Lee's cases, for example, involved high school athletics. None of the jurors had ever played organized sports or had children or grandchildren who played sports in school. Yet some jurors had plenty of preconceived notions about the coach and the student athlete involved in the case.

Lee points out that the issue becomes increasingly complex when one considers the inherent conflict attorneys face in trying to seat unbiased jurors while also striving to retain jurors who are most likely to side with their client.

It's a case of blind justice versus convincing the jury to rule in your client's favor, she says. Maybe this issue goes back to law school instruction on working with juries and even some hands-on practice on being a jury member, a rehearsal if you will, because most people have never been taught how to read people either.

As the jury bias debate continues, additional issues under consideration include how to determine if jury bias directly impacts the verdict and whether opposing counsel has an obligation to report jury bias against their competitor, even if it means potentially jeopardizing the case against one's own client.



. Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin. For more information about the Implicit Association Test, please visit