When I am not working hard as a lawyer, I moonlight as a magician. That gives me a unique perspective on many issues in law. The magician’s ability to shape perception of what an audience sees happening is an application of all the problems judges and lawyers know (and some judges and lawyers refuse to acknowledge) about eyewitness identification.
Another thing that I have learned as a magician is that the more intelligent you are, the easier it is to fool you. I have often speculated as to why that is true. In my jaded moments I believe it is true because rather than encouraging curiosity and imaginative thinking, too often education is lowered to simple memorization of facts.
This thought was put another way by Samuel McNerney in his 2013 Scientific American article entitled, “The Bias within the Bias.” Biases and other mental mistakes, we might implicitly believe, are reserved for careless thinkers, while we ourselves are able to see and avoid those pitfalls. The problem with that is that it is just another bias: a “meta-bias” as science writer Samuel McNerney explains. It is a belief, a “bias within the bias,” McNerney writes, based on the belief “that everyone else is susceptible to thinking errors, but not you.” And in this case, “you” doesn’t just mean the scholars and students of social science, but includes anyone who considers themselves smart, careful, or reasonable…which is just about everyone. “We’re self-affirming spin doctors,” McNerney concludes, because we tend to trust our own cognitive processes. Even when we reflect on the existence and extent of bias, that isn’t a cure.
This has great implications for jury trials. The first phase of a trial is called voir dire or jury selection. This is when lawyers from each side of the case get to ask questions of potential jurors to eliminate people who may be biased from sitting on the case. Unfortunately the flaw in this process is lawyers (and impatient judges who want to speed up the process of “justice”) rely on self-diagnosis when trying to discover and eliminate bias in civil and criminal cases by essentially asking prospective jurors, “Are you biased?”
A study by Robertson, Yokum & Palmer (2013) (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2109894) takes a look at whether we can rely on jurors to identify their own attitudes and know the sources of their own judgments well enough to say whether they would be biased or not. The result confirms our intuition: They can’t. A juror’s self-appraisal isn’t a perfect indicator of actual beliefs or behavior. But what this study shows is that the self-appraisal is not just imperfect, it’s not even helpful. Joining a number of other studies pointing in the same direction, the three researchers from the University of Arizona have systematically demonstrated the basic unreliability of this central premise of voir dire. But rather than showing that the search for bias doesn’t matter, the research tells litigators, judges, to become savvier when asking about bias. And they need to stop taking jurors at their word when it comes to the critical “Can you be fair” questions. People are usually unaware of their own internal processes in rendering judgment. Given the choice between trusting what people say and trusting what they do, the preference in social science is to trust the latter. The law on voir dire, however, is another matter. “The Supreme Court has instructed courts,” the authors note, “to use a simple method to determine whether jurors are biased: Ask them.”
Judicial thinking that you will get a valid answer when you ask a juror if they are biased has simply ignored the scientific literature and instead proceeded blithely, relying on jurors’ self-diagnoses to affirm convictions and the imposition of civil liabilities, without requiring evidence about whether those self-diagnoses are reliable.” To paraphrase the authors of this study, courts’ reliance on such unreliable questions of self-diagnoses to seat biased jurors is the way to wrongful convictions and wrongful impositions of civil liability.