a Times are presented in hours:minutes:seconds. voir dire (2:12:18) was ..... negatively influenced their reported honesty during voir dire. In this regard, we ...
Law and Human Behavior, Vol. 18, No. 5, 1994
Felony Voir Dire An Exploratory Study of Its Content and Effect* Cathy Johnsont and Craig Haney~
The practice of voir dire has a venerable history in the United States. However, despite numerous historical and legal discussions of the topic, and the increased participation of social scientists in the process, few empirical studies have been conducted on what actually occurs during voir dire. The lack of normative data is especially troublesome in the face of recent attacks on the process itself and numerous proposals to drastically limit or even prohibit what many regard as an important criminal justice safeguard--attorney-conducted voir dire in felony trials. This exploratory study attempts to provide some insight into the nature and content of felony voir dire. Our results--based on direct observation as well as juror interview responses--suggest that much of the criticism and calls for drastic reform may be misplaced.
Voir dire is regarded by most lawyers as a crucial stage in virtually every jury trial. Legal commentators have argued that it is ,perhaps the most important stage of any trial" (Dayan, Mahler & Widenhouse, 1989, p. 191), "often central to the final outcome" of the case (Suggs & Sales, 1978, p. 629), and the United States Supreme Court has acknowledged that it "plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored" (Rosales-Lopez v. United States, 1981, p. 188). Despite its centrality to the trial process and the critical role it plays in guaranteeing a vital constitutional right, it has been little studied. In this article, we present data from an exploratory study of the jury selection process designed to contribute to the meager data base that currently exists about this important topic, and to begin to address empirically some of the criticisms that recently have been directed against it. * Requests for reprints should be sent to Professor Craig Haney, Stevenson College, University of California, Santa Cruz, CA 95064. t Santa Cruz County Superior Court. :~ University of California, Santa Cruz. 487 0147-7307/94/1000-0487507.00/0 9 1994 Plenum Publishing Corporation
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Although it has been little studied, the voir dire system is currently u n d e r critical attack. As Hans and Vidmar (1991) have suggested, " t h e 1970s and 1980s p r o v e d to be particularly contentious times for the institution of the j u r y " (p. 337). M u c h o f the controversy and most of the attempted legal reform has b e e n directed at the process of jury selection. Thus, when c o m m e n t a t o r s characterized the j u r y as the " m o s t b e l e a g u e r e d " of contemporary American legal institutions (Gurney, 1986, p. 227), it was typically the jury selection process to which they referred. The critical attack has been directed primarily at jury selection in c r i m i n a l cases, and it has c o m e at a time when the direct participation o f social scientists in the voir dire process reached its highest level (e.g., Cutler, 1990). The criticisms, and the reforms they have begun to spawn, threaten to r e d u c e the future role that social scientists will be permitted to play in voir dire and, for this and o t h e r reasons, are worth discussing in some detail. Recent changes in the political climate concerning issues of crime and punishment, coupled with increasing numbers o f criminal trials and scarce trial resources, has led many state jurisdictions to dramatically streamline the voir dire process (e.g., Fahringer, 1992). Specifically, in an attempt to hasten the pace of j u r y trials as well as reduce their overall cost, lawmakers and judges have begun to limit voir dire, usually by reducing the role o f attorneys during the process. ~ At least three reasons have been offered for limiting or curtailing attorney involvement. First, the backlog of cases set for jury trial is substantial in some jurisdictions and critics o f voir dire have argued that expenditures of time and m o n e y n e e d e d to conduct extensive voir dire for e v e r y case that goes to trial overtax scarce resources (e.g., Church, 1978; M a h o n e y & Sipes, 1988). Keeping attorneys out of the process is thought to dramatically reduce the total amount of time d e v o t e d to voir dire and, thus, shorten the length o f trials. Second, against these tangible costs in resources, critics argue that extensive voir dire is scarcely more effective than much-abbreviated, judge conducted versions (e.g., Mahoney, 1982; Hastie, 1991). Since attorneys cannot really learn any more about prospec-
i According to a report by the American Bar Association, in approximately 44% of state courts attorneys are permitted to conduct voir dire, in approximately 36% they split the duty with judges, and in the remaining 30% judges conduct the voir dire without attorney questioning. Testimony of Judah Best, Hearings of the Committee on the Judiciary on Senate Bill 953, July 16, 1987. A number of states have considered legislation to drastically limit the nature of voir dire. See, for example, California Senate Bill No. 709, March 2, 1987, which amended Penal Code Section 1078 concerning the examination of prospective jurors. In June, 1990, California voters passed a controversial ballot proposition termed the "Crime Victims Justice Reform Act," one provision of which was to drastically limit attorney-conducted voir dire and to narrow the scope of appellate review of voir dire practices in criminal cases. Courts upholding this provision against constitutional attack have cited putative reductions in "tedious and time.wasting questions," "purposes other than the legitimate objects of a reasonable voir dire," and "huge case backlogs" as rational purposes served by this limitation. (People v. Boulerice, 1992, p. 479, quoting People v. Adams, 1971, p. 979.) On the other hand, see discussions in People v. Wheeler (1978); Commonwealth v. Soares (1979); MeCray v. Abrams (1984);Batson v. Kentucky (1986). Other commentators have called for the elimination of the peremptory challenge, which would have the indirect effect of drastically curtailing voir dire questioning and, perforce, attorney participation in the jury selection (e.g., Broderick, 1992; Gurney, 1986; Hastie, 1991).
FELONY VOIR DIRE
489
tive jurors through lengthy, protracted questioning, why not simply save time and money with a drastically reduced voir dire format? Finally, critics argue that attorneys regularly abuse the voir dire process (e.g., Gaba, 1977). Specifically, i t is argued that attorneys (especially, criminal defense attorneys) routinely UServoir dire to ingratiate themselves with jurors, to extract improper behavioral commitments from jurors, and to begin arguing their cases even before the evidentiary phase of the trial has begun. To the extent that attorney-conducted voir dire allows lawyers to emphasize what has been called the "didactic" purpose of voir dire over its more traditional "probative" function (Bermant & Shapard, 1981; Vidmar & Melnitzer, 1984), critics have argued it should be curtailed or eliminated. There is little hard evidence either to substantiate or disprove these allegations. Despite its long history, as we have said, the actual process of voir dire has escaped careful empirical attention. Most of what has been written about the process of voir dire is legal or historical in nature (e.g., Babcock, 1975; Gaba, 1977; Gutman, 1972), and few empirical data exist to describe precisely what actually occurs during jury selection. Some of the social science research on jury selection has employed mock jury paradigms in which the voir dire itself is simulated (e.g., Dexter, Cutler, & Moran, 1992; Jones, 1987; Kerr, Kramer, Carroll, & Alfini, 1991; Padawer-Singer, Singer & Singer, 1974). Although valuable for other reasons, this research does not constitute the kind of normative data base that can be used to address existing criticisms. Nor does the large simulation literature on the effects of juror characteristics on simulated trial verdicts (e.g., Boehm, 1968; Siegel & Mitchell, 1979; Mills & Bohannon, 1980; Sealy, 1981; and Hastie, Penrod, & Pennington, 1983). Other research on actual (as opposed to simulated) voir dire has tended to focus on specific questions, such as whether alternative methods of jury selection provide for more "expedited" voir dire (Levit et al., 1971), whether voir dire provides attorneys with the kind of information they need to make intelligent use of peremptory challenges (Zeisel & Diamond, 1978), and whether jurors are candid during the voir dire process (Broeder, 1965). Although still useful, most of this research is now quite dated, and was conducted before the supposed excesses in voir dire were identified and complained of. 2 In addition, several of these studies focus on jury selection in 2 There is also a more recent literature on the voir dire process in capital cases that consists both of simulation research (e.g., Haney, 1984a), discussion of voir dire transcripts (e.g., Haney, 1984b), and studies of actual jury selection (e.g., Nietzel & Dillehay, 1982; Nietzel, Dillehay, & Himelein, 1987). Yet, jury selection in death penalty trials is so highly specialized as to be unrepresentative of voir dire in general and unsuitable as a normative data base. Thus, at least some of the conclusions from research on death penalty voir dire (particularly as they relate to attorney participation and length of voir dire) are inapplicable to more typical, routine cases like those examined in the present study. Similarly, there is a more recent literature on so-called "scientific" jury selection in which trial consultants (who often have social science training) attempt to use systematic assessments of juror characteristics to predict juror behavior (e.g., Cutler, 1990; Moran & Comfort, 1982). However, this type of voir dire is not only "most controversial" (Cutler, 1990, p 227) but also unrepresentative of typical or standard voir dire. Finally, several studies have conducted postverdict interviews with actual jurors (e.g., Bridgeman & Marlowe, 1979; Marshall & Smith, 1986). However, they did not address the characteristics of the voir dire process itself and did not include observations of the jury selections from which their respondents were selected.
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federal court (e.g., Bermant & Shapard, 1981, Zeisel & Diamond, 1978), where judge-conducted voir dire has been the norm. Yet, most current criticism focuses upon attorney-conducted voir dire as practiced in state trial courts. Thus, Hastie's (1991) sweeping condemnation of attorney-conducted voir dire procedures--that they "are ineffective at winnowing out prejudiced jurors, subject to abuse by attorneys, lower public regard for the justice system, and are expensive" (p. 725)--1ed him to propose that jury selection be restructured to limit attorney participation to "modest levels" and "reduce or eliminate the institution of peremptory challenges" (p. 726). Yet, he was forced to rely upon a data base for these conclusions that failed to include a single recent study of actual attorneyconducted voir dire in the state criminal court system. The present study attempts to provide a modest, initial contribution to the development of an updated, empirical database of what actually happens during voir dire by thoroughly examining the jury selection of four noncapital felony trials. In this exploratory research we have sought to determine whether detailed observations of voir dire made in a small number of actual criminal cases can nonetheless provide useful descriptive data about this little-studied topic. Our observations were made in state trial courts of California, the state from which the most egregious examples of voir dire excess are usually drawn. 3 In addition to providing descriptive data about the jury selections we observed, the present study also addressed the issue of whether standard attorney-conducted voir dire served its probative function. That is, we attempted to determine whether the process yielded enough information to allow attorneys to differentiate jurors who favored the defense from those who favored the prosecution. By comparing the criminal justice attitudes of the retained jurors in each case to those of (a) the first 12 prospective jurors called up for questioning, and (b) a randomly selected group of 12 prospective jurors, we were able to assess the impact of the attorneys' peremptory challenges on the criminal justice attitudes of the final juries. The third issue addressed by this study concerned the reactions of the prospective jurors themselves to the jury selection process. There have been few attempts to understand how voir dire is perceived by prospective jurors (e.g., Bridgeman & Marlowe, 1979; Broeder, 1965), although others have speculated that certain kinds of voir dire practices may create negative impressions among prospective jurors (e.g., Hastie, 1991). Since voir dire is the only portion of a trial most prospective jurors will experience firsthand--the majority are challenged and excused before ever actually sitting as jurors--it is important to examine the reactions, perceptions, and beliefs that excused as well as retained jurors hold following voir dire (e.g., Kasunic, 1983). 3 For example, Judge Ronald George (who now sits as a Justice of the California Supreme Court) described jury selection in California as "an exceedingly plodding process that enjoys nationwide notoriety" in a written statement submitted to the Judiciary Committee of the United States Senate in 1987. In oral testimony before that same body, he characterized jury selection in California as having "disastrous effects" on the legal system as a whole, and cited a series of "graphic illustrations" in whichjury selections in California took weeks or months to complete. Testimonyof Judge Ronald George, Hearingbefore the Committee on the Judiciary concerning Senate Bill 953, July 16, 1987.
FELONY VOIR DIRE
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Thus, the empirical focus of the present study can be summarized as follows: (1) What happens during voir dire (that is, how long does routine voir dire take, what is the content of the courtroom dialogue that occurs during voir dire, and how is time allocated between the respective trial participants)? (2) Do attorneys make effective decisions about whom to excuse (that is, does each side excuse persons who can independently be identified as hostile to their side, and is the overall process effective in eliminating prospective jurors who hold attitudes that should disqualify them from service)? (3) What are jurors' reactions to what is happening during voir dire, and do they feel able to carry out their duties as instructed?
METHOD Overview The voir dires associated with four felony trials were carefully observed over a two-month period. 4 During that time, a total of 443 Superior Court prospective jurors reported to the Santa Cruz County Courthouse for jury duty. We obtained the court's permission to distribute a 7-item demographic survey to all prospective jurors during this period. Of the 443 prospective jurors present for Superior Court jury duty, 336 chose to complete the survey (a 76% response rate). Prospective jurors were asked to provide their names and phone numbers so that we could "track" them through the jury selection process and contact them once their service had been completed. A sample of participants was contacted after completing their term of jury duty, and interviewed about their jury selection experiences. Of the 336 prospective jurors who completed the demographic survey, 184 (54%) also provided their names and phone numbers. Voir Dire Observation and Transcript Analysis For each of the voir dires in the four felony trials, two independent observers kept a precise record of the amount of time each portion of the voir dire consumed, including time spent presenting opening remarks and other general oratory, as well as the actual time spent questioning prospective jurors (with separate totals for each questioner). Transcripts were obtained for each of the voir dires, so that topics of discussion could be catalogued and tallied separately according to speaker. The present method of transcript analysis relied heavily upon earlier voir a We were given access to the jurors for a one-month period, to begin in whichever month we randomly selected. Of the four felonies tried in Santa Cruz County during March and continuing into April, 1988, none were capital crimes. As we noted earlier, the voir dire for capital trials differs substantially from that of noncapital cases, and would have undoubtedly skewed our results on a number of important dimensions. Although they were noncapital, the cases in question did not involve trivial felony charges; they included, specifically, trial for (1) kidnap sex offenses, (2) possession of controlled substance, (3) sale of cocaine and possession of a firearm, and (4) assault. Each of the four defendants was convicted at trial and sentenced to 89, 4, 8, and 7 years state prison time, respectively.
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dire research in which useful content categories were developed (Balch, Griffiths, Hall, & Winfree, 1976). Verbal statements (sentences) were coded for personalbiographical content (e.g., marital status, type of employment, prior jury duty, and place of residence), as well as several categories of "instructional communications." The latter included (1) general instruction about courtroom procedures, roles to be played during the trial, legal terminology, and procedural issues (e.g., " A t this point in the process, ladies and gentlemen, the Court and the lawyers will be asking questions of you concerning your qualifications"); (2) explicit instruction about what is expected of prospective jurors, and statements about what the juror should do to fulfill his or her obligations satisfactorily (e.g., "You are under specific instructions from me right now not to have any dialogue among yourselves or with others or form or express any opinions."); (3) communication about one's ability to fulfill obligations of the juror's role, and statements and questions about values, attitudes, beliefs, or experiences that could cause one to be less than fair and impartial in evaluating the evidence (e.g., "Yes, I know [the District Attorney] socially and I passed his petition during two elections to collect names."); and (4) communication about the importance of the jury system or the juror's role; statements emphasizing the high moral principles on which the jury system is based (e.g., "To each side, it's so important to have a fair trial.") Finally, all miscellaneous comments, including any statement or question that did not fall into any of the other categories, were coded separately. Finally, a "public commitment" category was also coded, whenever a question attempted to secure a commitment to a particular course of action from a juror. It has been argued that the very process of publicly declaring a willingness to vote or perform in a particular manner as a juror may result in a greater likelihood of doing exactly that (e.g., Haney, 1984a,b). As with other categories of communication, frequencies of attempts to secure public commitments were tallied separately according to who was speaking: a defense attorney, a prosecutor, or a judge. "Effectiveness" of Voir Dire Since attorneys have a variety of reasons for excusing a prospective juror from sitting on a given j u r y - - s o m e logical, some not so logical--it would appear at first to be nearly impossible to derive a general definition of "effective" that could be applied generally to criminal cases independent of their particular facts and circumstances. Since every case is different, and every case arises from a unique combination of events, the range of issues discussed with prospective jurors during voir dire will naturally vary from case to case. Consequently, the specific juror attributes considered by opposing attorneys to be desirable or undesirable should also vary accordingly. However, we reasoned that the importance of one set of attitudes overrode the particulars of any given case. General attitudes about the criminal justice system, when carefully measured and examined as a whole, should provide a useful means of estimating prospective jurors' underlying biases with respect to the government's treatment of criminal defendants. We attempted to measure these general criminal justice attitudes with items derived from Boehm's (1968) Legal Attitudes Questionnaire (LAQ), which has been shown to be " a reliable predictor of prospective jurors' relative biases for
FELONY VOIR DIRE
493
and against defendants in criminal trials" (Note, 1980, p. 1006). Although juror demographics have generally proven to be poor predictors of juror bias, the LAQ and other tests of juror bias (e.g., Kassin & Wrightsman, 1983) measure juror criminal justice attitudes directly. Prospective jurors in this study were surveyed using seven of Boehm's items; numeric values reflecting jurors' criminal justice attitudes were combined to yield an overall "criminal justice attitude (CJA) index" or score for each juror. Thus, we used the CJA index to provide a systematic means of estimating whether prospective jurors were, in very general terms, either pro-prosecution or pro-defense. By comparing CJA scores of persons who were retained as jurors with those who were excused by either prosecution or defense, we were able to estimate this kind of effectiveness. Reactions to Voir Dire We asked a sample of prospective jurors who went through the voir dire process (i.e., those who were actually questioned) a series of open-ended questions about their voir dire experiences that focused on several general topics: their reactions to the jury selection process, the purpose of voir dire, meaning o f " f a i r " and "impartial," and the ability to "set aside" their personal feelings in the course of trial and verdict. RESULTS Demographics The demographic information collected prior to voir dire indicated that the overall sample of prospective jurors was composed of (a) approximately half women; (b) no one under the age of 24; (c) almost half between the ages of 35 and 54; (d) nearly all White; (e) extremely well educated, with three-quarters having completed at least some college; (f) virtually no full-time students; (g) two-thirds working full-time outside the home, and all employed at least part-time; (h) half middle-class, with incomes between $15,000 and $49,999 annually, while about a third made $12,000 or less. The demographic characteristics of retained jurors were not significantly different from those of the overall sample, with two exceptions (see Table l). First, although 17% of all prospective jurors were 60 years old or older, not one retained juror was over 59 (z = 1.82, p = .03). Instead, prospective jurors between the ages of 25 and 29 (10% of the jury panel) were overrepresented among jurors who were selected (35% of the retained jurors) (z = 3.02, p = . 001). One other demographic group was underrepresented among retained jurors: While 34% of the overall jury panel reported annual incomes of $14,999 or less, only 18% of retained jurors had incomes in that range (z = 1.28, p = . 10). Thus, the effect of voir dire appears to have been to exclude prospective jurors at the upper end of the age distribution and the lower end of the income distribution from participation. It also eliminated all of the small number of minority group members present in the initial panel. Of the 443 Superior Court prospective jurors we tracked, 129 (29%) were called to the jury box for voir dire questioning, and 52 (12%) were retained as
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494
T a b l e 1. D e m o g r a p h i c Composition of R e t a i n e d J u r o r s C o m p a r e d with J u r y Panel* Jurors retained (N = 41)b
Sex Male Female Age 24-29 30-34 35-44 45 - 5 4 55-59 60 years or older Race White Education 10th grade High school graduate 1 to 3 years college 4 or more years of college Student status Yes (full-time) No (not full-time) Occupation Full-time, outside the home Part-time, outside the home Work in the home (business) Income Less than $12,000 $12,000-$14,000 $15,000- $24,999 $25,000-$49,000 $50,000 or more
Jury panel (N = 336)
41 59
48 52
35 6 24 24 12 0
10 11 24 21 11 17
100
92
12 12 29 47
20 32 44
0 100
5 95
76 12 12
63 13 15
12 6 29 35 18
22 10 21 30 15
.5
Data are presented as percentages. Percentages for jury panel may not sum to 100, as only those categories represented within the group of retained jurors are included (with the exception of the age group "60 years or older"). b Of the 48 retained jurors, 41 included their names on the demographic survey.
jurors (48 as actual jurors, 4 as alternates). Use of the excusal process appeared to be relatively evenly distributed: Of those who were excused, 24 were excused for cause, 29 were excused peremptorily by the defense, and 24 were excused peremptorily by the prosecution.
Length of Voir Dire Topics On average, across the four cases, it took 4 hours, 55 minutes, and 25 seconds (4:55:25) to select a jury. The longest voir dire (8:03:58) was, appropriately enough, associated with the most serious felony charges. Conversely, the shortest
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495
Table 2. M e a n s , S t a n d a r d Deviations, a n d R a n g e s for T i m e S p e n t in Voir Dire per S p e a k e r ~
Time spent in General Total: Mean Standard deviation Range
Judge
Prosecution
Defense
Total
1:46:43 0:27:00 0:31:23 0:08:301:11:00
0:10:50 0:02:42 0:02:35 0:00:200:05:20
0:12:05 0:03:01 0:03:26 0:00:000:08:00
2:09:38 0:30:56 0:37:24 0:00:001:1 ! :00
2:36:42 0:01:21 0:01:10 0:00:050:06:00 4:23:25 n = 116
4:21:18 0:02:39 0:01:29 0:00:150:08:40 4:32:08 n = 101
7:33:17 0:03:58 0:02:00 0:00:100:16:00 7:45:22 n = 109
14:31:17 00:07:58 00:04:39 00:00:0500:16:00 16:40:55 N = 120
n = 29
n = 25
n = 27
N = 30
Oratory
Time spent Questioning jurors Total: Mean per juror Standard deviation Range Total time Total no. o f j u r o r s questioned Mean no. of jurors questioned per case
a Times are presented in hours:minutes:seconds.
voir dire (2:12:18) was associated with the least serious felony. Table 2 provides the descriptive statistics for voir dire time spent per speaker. During the 4 cases, 3 different judges spent the shortest average time (1:21) questioning each prospective juror. Prosecutors averaged somewhat longer (2:39) in questioning each prospective juror, while defense attorneys took somewhat longer still (3:58). Although the average difference between the prosecution and defense was not large in real time (an average of less than 1 minute and a half longer per juror for the defense attorneys), a one-tailed z-test for related measures shows a significant difference between the prosecutors' and the defense attorneys for "time spent questioning jurors" (z = 5.367, p < .005). However, although its avowed purpose is to elicit information through questioning, not all of the time consumed during voir dire is devoted to questions and answers. As shown in Table 2, the average amount of time judges spent presenting opening and closing remarks and other general oratory was 27 minutes per judge per case. Defense attorneys averaged considerably less (3:01) in opening remarks and general oratory, while prosecutors averaged the least time (2:42). The bottom row of Table 2 lists the average number of jurors questioned per case by questioner. In each case, the judge questioned the most jurors (n = 29), followed by the defense attorney (n = 27) and prosecutor (n = 25). Transcript Analyses To be sure, because the decisions to challenge for cause or peremptorily are founded on what is learned during voir dire, the process should focus on information provided by prospective jurors. Yet, most of the talking during voir dire is done by court personnel. (See Table 3). The judges and attorneys accounted for
496
JOHNSON AND H A N E Y T a b l e 3. Frequency a n d M e a n N u m b e r o f Sentences per Case by S p e a k e r Total across
Mean per
Case 1
Case 2
Case 3
Case 4
cases
case
1586 810 1119 3515 1172
423 636 947 2006 669
588 638 1095 2321 774
813 402 687 1902 634
3410 2486 3848 9744 812
853 622 962 812 m
2165 54 40
1563 52 30
1308 42 31
!164 42 28
6200 48 129
48 -32
Defense Prosecution Judge Total across speakers Mean per speaker Jurors Total forjurors only Mean p e r j u r o r N per c a s e 0 u r o r s )
61% of the verbal interaction (24% by judges, 21% by defense attorneys, and 16% by prosecutors), while jurors collectively accounted for 39%. Perhaps more to the point, while each judge and attorney spoke hundreds of sentences per case, individual prospective jurors averaged only 48 sentences per case. We were concerned about whether or not the nature of voir dire communications varied widely as a function of the nature of the case. Table 4 contains the percentage of sentences by speaker for each of the four cases. Notice that although there are some variations, the percentages do not vary dramatically between cases. Of course, the substance of the communications between court personnel and prospective jurors matter as much or more than the time they consume. Thus, we analyzed the content of the sentences spoken by each of the participants in the voir dire process. (See Table 5). The bottom row of Table 5 lists the percentage of sentences that pertain to each category of communication. Although half (46%) of the dialogue discussed jurors' ability to fulfill obligations of the their role (Category B3), only 2% of the dialogue instructed them about exactly what those obligations were (Category B2). One-fourth of the dialogue focused on prospective jurors' personalbiographical information (Category A), while one-tenth comprised general instructions about courtroom procedures and legal terminology (Category B 1), 69%
T a b l e 4.
Judge Percent per Juror Percent per Prosecution Percent per Defense Percent per
Percentage of Sentences per Case by Speaker Case 1
Case 2
Case 3
Case 4
case
20
26
30
22
case
38
44
36
38
case
14
18
18
16
case
28
12
16
27
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Table 5. T r a n s c r i p t Analysis Percentages by C a t e g o r y ~ a n d Speaker Category A Defense Percent category Percent defense Percent total Prosecution Percent category Percent DA Percent total Juror Percent category Percent juror Percent total Judge Percent category Percent judge Percent total Total
B1
B2
B3
B4
C
Total
.01 .003
32 25 5
b I00 21
.004 .0006
20 21 3
b 100 16
.003 .001
15 6 3
b 100 39
.03 .008 .01
33 23 5 17
b 100 24 100
21 25 5
11 6 1
10 1 .02
20 44 9
20
8 13 2
18 12 2
1! 1 .02
18 53 8
5
54 35 13
2
2
49 58 23
10
16 17 4 25
69 30 7 10
13 24 6 46
65
.06 .02
.01 .004 77 6 1 2
~ A, Personal/biographical/background information; BI, how voir dire and the trial proceed; B2, explanation of jurors' duties; B3, jurors' capacity to perform duties fairly; B4, ideals underlying/ importance of jury system; C, miscellaneous comments. b Row totals for "Percent category" cut across all six categories, and therefore do not sum to 100.
of which was spoken by the judge. The four combined voir dires produced only 20 sentences (one-tenth of one percent) concerning communication about the importance of the jury system and juror's role (Category B4). The remaining 17% of all the voir dire dialogue was miscellaneous or transitional in nature (Category C). Of all comments defining the juror's role (Category B2), 77% were made by the judge (as shown in Table 3), while dialogue about jurors' ability to fulfill that role (Category B3) was split between the prospective jurors (49%), defense (20%), prosecution (18%), and the judge (13%). Judges and attorneys made a total of 236 attempts to elicit public commitments from jurors. Prosecutors were responsible for nearly half (46%) of the attempts, with defense attorneys accounting for one-third (34%) of them. Judges made the fewest attempts (20%), and met with the most resistance from the prospective jurors--15% of their attempts were unsuccessful--perhaps they often entered the dialogue only after a prospective juror expressed reluctance to conform. Defense attorneys were somewhat more successful in securing the commitments they solicited (only 4% of their attempts were unsuccessful), while prosecutors ranked in between (12% of their attempts failed). Despite these minor differences in success rates between trial participants, it is worth noting that the overwhelming majority of attempts to elicit public commitments succeeded. Although we have no direct way of measuring the subsequent effects of these numerous commitments, as a technique for differentiating among prospective jurors, public commitments seemed to provide little meaningful information.
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"Effectiveness" and C J A Scores Overall, the seven attorneys comprising our sample were relatively effective in making decisions about whom to excuse. We coded the CJA index in such a way that higher scores indicated a more pro-defense set of criminal justice attitudes. We found that CJA scores were significantly higher for jurors peremptorily excused by the prosecutor than for jurors peremptorily excused by the defense, F (1,20 = 5.397, p = .03. In other words, jurors excused by the prosecutor were more pro-defense (M = 20) than jurors excused by the defense, while jurors excused by the defense were more pro-prosecution (M = 15) than jurors excused by the prosecution. While the attorneys in this study exercised their peremptory challenges to their advantage in many instances, some jurors with very high or very low CJA scores were nonetheless retained, The fact that jurors with extreme CJA scores were retained cannot be explained by attorneys' expending all their peremptory challenges, which would have forced them to retain jurors they would rather have excused. In each of the four cases, both attorneys accepted the final jury although they had peremptory challenges remaining. As a result, contrary to our expectations, peremptorily excused jurors as a group did not have more extreme CJA scores overall than did retained j u r o r s : In addition, we found that the average CJA score for retained jurors (M = 18.1, n = 17) was not significantly different from the average CJA score for the first 12jurors questioned during each of the four voir dires (M = 18.01, n = 46), 6 t(61) = 0.0596, n.s., nor was it significantly different from the CJA mean for a randomly selected group of prospective jurors with an N equal to that of retained jurors in the present study (M = 17.9, n = 17), t(32) = 0.1189, n.s. Thus, although voir dire was "effective" in the sense that each side eliminated persons likely to be biased against their position or point of view, the overall result was a jury that did not differ much from one that would have been selected randomly or by accepting the first 12 names called to the box. One item from the Criminal Justice Attitudes questionnaire deserves special comment. The third item in this questionnaire read: "Regardless of what the law says, a defendant in a criminal trial should be required to prove his or her innocence." Anyone who agreed with this statement should not legally have served as a juror since it directly contradicts the presumption of innocence. Of the four felony juries examined in this stu~ly, two had one member each who "agreed strongly" that a defendant should prove his or her innocence; one jury had one individual who "agreed somewhat" with the statement. Four retained jurors (one from each case) "disagreed [only] somewhat" that a defendant must prove his or
5 By converting the CJA scores from retained and peremptorily excused jurors to z-scores, then summing the absolute values of the z-scores, the average distance from the "grand CJA m e a n " (M -~ 18, N = 100) could be determined. For peremptorily excused jurors, the average distance from the grand mean was close to one standard deviation (.93). For retained jurors, the average distance from the CJA mean was exactly the same. 6 For the fourth case, we have CJA scores from the first l0 prospective jurors only, reducing the total N by 2 (from 48 to 46).
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her innocence, for a total of seven retained jurors out of 17 (41%) who either disagreed with, ignored, or felt ambivalent about the presumption of innocence. Post-Voir Dire Interviews A total of 29 prospective jurors excused during voir dire (either for cause or peremptory challenges) and 15 retained jurors were located and agreed to answer a series of questions about their voir dire experiences. To minimize concerns that their responses might be reported to court personnel, they were reminded that our research was being conducted entirely independently of the court itself and they were assured of anonymity. We content-analyzed their responses to the series of open-ended questions. None of the respondents reported negative experiences or were critical of the voir dire process. However, despite frequent reassurances by all trial participants that they were seeking a "fair" jury, many (n = 18) actual and prospective jurors perceived attorneys as trying to find (and retain) only jurors who sympathized with their client's position. In addition, although our respondents were split on exactly how they defined the judge's role (e.g., as an active referee or a passive source of information), none suggested that the judge functioned in any way as a partisan. Perhaps not surprisingly, when we asked respondents about the terms "fair and impartial," they failed to distinguish any real difference between the terms (much as the trial participants had used the terms interchangeably). However, there was some residual confusion about the meaning of the terms. For example, with respect to what the judge meant by "impartial," ten respondents gave equivocal or incorrect opinions ranging from "don't know" (n = 4) to "don't remember" (n = 4) to "not a concern of the judge's" (n = l) to "nothing at all" (n = 1), and four respondents said they had no idea what the attorneys meant by "impartial," while two said that "in this case [#4], it had to do with the defendant being Black." When we addressed the issue of the jurors' ability to set aside their personal feelings, we prefaced the issue by reminding the jurors that they had been instructed to "set aside their personal beliefs, feelings, and life experiences for the duration of the trial." Retained jurors were asked whether or not they had been able to do that. Of the 15 retained jurors asked this question, seven said they had been able to do this, but an equal number said that they had not. One juror said she "did not recall being asked to do that." Everyone who said that they had been unable to set aside their personal feelings or biases felt it necessary to add an explanation of some sort (e.g., " N o person alive could do that," "I felt them creeping in" or "It's a worthwhile goal, but cannot be achieved"), whereas everyone who answered affirmatively said nothing else. On the other hand, of the 29 excused jurors who were asked this question, 19 said they could n o t have set aside their feelings, while the remaining I0 said they thought they could. DISCUSSION On the basis of this exploratory study, we are able to make a number of preliminary observations about felony voir dire. The first is that the process seems
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tO h o m o g e n i z e the composition o f the j u r y that results. T h a t is, the voir dires we studied eliminated persons at the e x t r e m e s o f at least s o m e of the d e m o g r a p h i c dimensions we were able to measure in this j u r y panel. I f true generally, then this would result in a further narrowing of the representativeness of actual juries b e y o n d the limitations already identified in the jury venires from which final juries are d r a w n (e.g., Alker, Hosticka, & Mitchell, 1976; Fukari, 1990; K a i r y s et al., 1977). This o u t c o m e is likely the inevitable c o n s e q u e n c e o f an adversarial s y s t e m in which one or the other side perceives e x t r e m e s at either end of any potentially case-related s p e c t r u m as too great a risk. And, because there is often c o m p a r a tively little diversity in the initial j u r y panels, such homogenization can be acc o m p l i s h e d through use o f relatively few p e r e m p t o r y challenges. As we h a v e mentioned, most of the recent criticism of a t t o r n e y - c o n d u c t e d criminal voir dire has b e e n directed at the a m o u n t of time spent to conduct it. O u r results suggest that the p r o c e s s - - e v e n as it is practiced in C a l i f o r n i a - - n e e d not be e x c e s s i v e l y time-consuming. Although the voir dire for the m o r e c o m p l e x c a s e s in our small sample took (appropriately) longer, the amounts of time did not begin to a p p r o a c h the " h o r r o r s t o r i e s " that have b e e n reported by the critics o f voir dire.7 In addition, we found that roughly equal a m o u n t s of time were s p e n t by a t t o r n e y s for both sides and that, e v e n though the voir dire we o b s e r v e d was " a t t o r n e y - c o n d u c t e d , " it was the judge who actually spent the m o s t time talking. P r o s p e c t i v e j u r o r s n t h e supposed targets o f voir dire i n q u i r y - - s p o k e c o m p a r a tively little. Although defense attorneys c o n s u m e d slightly m o r e time questioning p r o s p e c t i v e j u r o r s , and exercised s o m e w h a t m o r e p e r e m p t o r y challenges, there was certainly no evidence of abuse in either the a m o u n t of time or m a n n e r of questioning on the part o f defense a t t o r n e y s we o b s e r v e d . Moreover, notwithstanding the claims that attorneys misuse voir dire to educate jurors, judges spent considerably m o r e time than either side in instructing j u r o r s during the voir dire process. With r e s p e c t to e x p r e s s e d c o n c e r n s a b o u t the inefficiency of the voir dire 7 We note, for example, that most of the critical commentary about the undue amounts of time consumed by voir dire relies upon data (actually, anecdotal impressions) from death penalty trials. For example, Van Kessel's (1992) observation that "[i]n this country, voir dire and the exercise of peremptory challenges often compose a significant part of the trial of criminal cases," even lasting "longer than the trial itself" (p. 430), used only capital cases from California as illustrations. Yet, because of the magnitude of the interests involved and the additional set of time-consuming topics that must be addressed, capital jury selection is unrepresentative of other kinds of cases. Mahoney and Sipe's (1988) study of the aggregate amounts of time consumed by the major segments of criminal jury trials (voir dire, prosecution case, defense case, jury deliberation) in three states that employed very different models of jury selection (New Jersey, Colorado, and California) raises an additional point. They found significant differences in the average amounts of time consumed by voir dire across the states, and argued that these differences identified one area where criminal trials might be made more efficient. Yet, we note that there were not large differences in the proportions of time devoted to jury selection as a function of the total amount of time the average trial consumed. Put somewhat differently, all aspects of criminal trials took proportionately longer to complete in California, including the presentation of the prosecution's case and the jury's deliberation. This suggests to us that the length of voir dire may not be a simple function of the method by which it is conducted but also may be related to other aspects of the overall legal context in which a criminal trial occurs (such as courtroom pace and atmosphere, nature and complexity of the procedural rules, substantive laws, evidentiary issues, and so on).
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process, we found that one quarter of the dialogue in voir dire was devoted to acquiring demographic and biographical information about prospective jurors that perhaps could have been gotten more easily by administering a juror questionnaire before the in-court voir dire ever began. We believe that the use of such questionnaires could be standardized and used routinely in order to familiarize attorneys and judges with prospective jurors before they question them (e.g., Bilecki, 1989; Hastie, 1991; Hittner, 1989). So, too, could the use of jury commissioner or other administrative personnel to provide standardized instruction on the basic tenets of the j u r y system (like presumption of innocence and burdens of proof) to prospective jurors before they ever enter the courtroom, thus obviating the need for judges and attorneys to engage in this sometimes repetitive process, s In addition, we found that court personnel (judges and attorneys) spent more than half their time in voir dire trying to ascertain whether prospective jurors felt that they were fit to serve in the case at hand. Yet the jurors were told virtually nothing about what it meant to be a juror, or how best to determine their own capacity to be a " g o o d " juror. Thus, it appeared that jurors were neither elaborately nor effectively socialized into their roles. Rather, they were summoned into an unusual and intimidating situation where little time was spent explaining the process that was about to unfold. Although we agree with Mahoney (1982) that while " t h e socialization of jurors has been one of the least researched aspects of the jury s y s t e m . . , it may be one of the most important (and least expensive) means of minimizing the expression of jury bias" (p. 491), we found little evidence that it was being handled expeditiously in these felony trials. As we have noted, however, there was certainly some evidence that the voir dires we observed were "effective," at least in terms of each side correctly eliminating jurors who were generally biased against them, as estimated by scores on the Legal Attitudes Questionnaire. Unlike Broeder (1965), then, we were unable to conclude that voir dire was "grossly ineffective" in distinguishing favorable from unfavorable jurors (p. 528). It is perhaps important to underscore that none of the four cases whose voir dires we studied were characterized by the sort of pretrial publicity that Kerr et al. (1991) and others have suggested may taint prospective jurors in ways that cannot be cured in jury selection. Moreover, subsequent research might well employ more psychometrically sophisticated measures of juror bias than the 7-item adaptation of the LAQ employed here (e.g., Kassin & Wrightsman, 1983). Two additional caveats seem important to consider. The issue of whether or not voir dire is effective seems to us to turn largely upon one's understanding of its goals or purposes. As Babcock (1975) has described the voir dire process, "neither litigant is trying to choose 'impartial' jurors, but rather to eliminate those who are sympathetic to the other side, hopefully leaving only
s We note one other often-ignoredissue in discussionsof"expedited" and efficientvoir dire: of the 443 persons who showed up forjury duty in our study, fully 314 (71%) were never actually called for voir dire questioning. Kasunic (1983) has suggested a "one day/one trial" system of reform in which jurors not selected to sit on a case on the first day for which they are summonedare excused and" jurors who are selected serve only for the duration of one trial. In addition to savingtime, this method would increase community representation on juries by reducing the number of hardship excusals requested.
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those biased for him." Yet, she noted that "the interplay of the efforts of both sides to accomplish the same ends should leave surviving jurors who are, as Lord Coke described them, 'indifferent as they stand unsworn' " (p. 551). If Babcock's characterization of the goal of the process is accurate, then we have collected some evidence that it works as it is designed to work. Second, we wonder if the widespread tendency of social scientists to evaluate the effectiveness of jury selection exclusively in terms of verdicts or trial outcomes not only sets the threshold too high, but also misconstrues the legal purpose of the process itself. That is, it converts the measure of fairness into an "actual prejudice" standard of the sort that has never been required in evaluating the adequacy of pretrial procedures. Because the outcome of any case depends upon a myriad of factors, the pretrial elimination of prospective jurors at either extreme of a spectrum of criminal justice attitudes seems to us to provide an equally plausible and pertinent measure of effectiveness. However, it is also important to note that there were still jurors who survived the voir dire process and sat on these felony juries who held opinions that were at odds with basic tenets of American jurisprudence. In examining the voir dire transcripts of the seven retained jurors who did not believe fully in the presumption of innocence, we learned that three of these jurors were never asked a single question about the topic during their actual voir dire, while the four who were asked responded affirmatively to what amounted to no more than perfunctory questioning on the issue. In addition, nearly half of the retained jurors who were questioned after jury service admitted that they could n o t "set aside" their personal opinions and beliefs in reaching a verdict, despite having agreed to do so. Constricting voir dire and further reducing attorney involvement would almost certainly result in an increase of such persons (e.g., Jones, 1987; Suggs & Sales, 1981), 9 and proposals to shift responsibility for actual voir dire questioning entirely to the judge seem destined to exacerbate this problem. ~~ Finally, neither actual jurors nor those who were excused from service through cause and peremptory challenges reported any dissatisfaction with the process. We did not uncover participants who expressed concern over embarrassing or offensive questioning by attorneys or the court. However, some did 9 One study that comparedjudge- and attorney-conducted voir dire concluded that the former was far more "expedient" in saving judge and even juror time. However, Levit, Nelson, Ball, and Chernick's (1971) study of alternative methods of jury selection in Los Angeles civil juries in 1969 and 1970 did not directly assess the issue of the quality or adequacy of the voir dire under these alternative schemes. Zeisel and Diamond (1978) studied federal jury selection (in which the judge plays a dominant if not exclusive role in the voir dire) in 12 criminal trials by comparing the verdicts of jurors who actually sat in the trials with those who were peremptorily excused from service. Although attorneys in some of the cases were effective in using peremptory challenges to affect the outcome of the trial, they concluded that, on the whole, "the voir dire, as conducted in these trials, did not provide sutticient information for attorneys to identify prejudiced jurors" (p. 528). ~o See, also, Marshall and Smith's (1986) conclusion that jurors' evaluation apprehension or anxiety negatively influenced their reported honesty during voir dire. In this regard, we wonder whether at least some of the anticipated cost savings in expedited judge-only voir dire will be compromised by increased litigation over alleged juror misconduct (and the costly retrials that sometimes result) that might have been voided through greater candor in jury selection (eL Thorton & Mastrucci, 1983).
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express a certain amount of confusion over the concepts of "fair" and "impartial. ''ll It should be noted that the subjective mental states of "fairness" and "impartiality" with regard to a particular case will depend upon the nature of the case and the relevance of case-related issues to each juror's life experiences and preexisting biases. From a social-psychological standpoint, it is inevitable that certain persons will not make "good" jurors in certain cases. Yet this message was not clearly communicated to prospective jurors in the cases we observed. On the contrary, if prospective jurors were bold enough to admit that they had doubts about their own ability to be impartial, the judge usually instructed them simply to "set aside" their biases or predispositions for the duration of the trial. Perhaps because judges are under increasing pressure to expedite the trial process, they are put in the untenable position of feeling that they cannot "indulge" jurors who purport to be biased by patiently and sensitively questioning them.12 Instead, as occurred several times during the course of the voir dires under study here, the judge typically insists that a hesitant juror "take (his or her) biases and set them on a shelf" during the trial. 13 In part because the instruction (sometimes misleadingly delivered in the form of a query) is so often used as a curative to potential bias, and short-circuits inquiry into the most probative issue in the entire voir dire process, we see the questions of whether or not prospective jurors can actually "set aside" personal biases and feelings, whether they (the prospective jurors) can ever accurately predict this during voir dire, and whether 1, B roeder's (1965) often-cited study of 10 criminal and 13 civil voir dires provided similar evidence for the contention that jurors find it difficult to " a d m i t " that they could not be fair. He interviewed 225 prospective jurors about their voir dire experiences and concluded: "On its face, probably no question commonly asked on voir dire seems as innocuous as 'Can you be fair and impartial?' And it w a s - - w h e n addressed to the panel generally. Where particular jurors only were addressed, however, the situation was quite different. The jurors particularly addressed were almost uniformly resentful and felt that their integrity had been brought into question" (p. 527). ~2 The scope and manner of questions directed (either by attorneys or the judge) to prospective jurors concerning the issue of bias has been left largely to the discretion of the trial courts. Although the United States Supreme Court has said that in certain kinds of cases certain questions must be permitted [e.g., inquiries into racial prejudice must be permitted in cases where the defendant was accused of a violent crime and the defendant and the victim are members of a different racial or ethnic group (Aldridge v. United States, 1931; Rosales-Lopez v. United States, 1981; Turner v. Murray, 1986), in capital cases, death-qualifying voir dire must include inquiry into whether prospectivejurors would automatically impose the death penalty (Morgan v. Illinois, 1992)], the Court has kept the scope of constitutionally mandated questions narrow and been "careful not to specify the particulars" by which such questioning should be done (Mu'Min v. Virginia, 1991, p. 1908). ~3 Thus, one judge we observed delivered these introductory comments to the entire panel of prospective jurors: You all come from different backgrounds and (have) strong feelings about a lot of things. What I'm going to ask you to do is to bring whatever biases you have to the consciousness of your mind. The duty is for you to set those biases and prejudices, those feelings that you have aside, listen to the evidence that's presented, make a determination from that evidence and no other source what the facts are, and apply those facts to the law that I will instruct you. It's called pure, good thinking. Do you understand how important it is? You all do. Of course, I'm stating the obvious. Of course, no juror wants to admit that he or she cannot engage in "pure, good thinking," especially when the judge has emphasized that this is "'the duty" they must discharge and has underscored its "importance," an importance that should be " o b v i o u s " to them all.
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and how attorneys and judges can accurately distinguish those who can from those who cannot, as extremely fruitful topics for subsequent research.
CONCLUSION Despite the enormous amount of research and scholarly attention focused upon the j u r y - - f r o m juror characteristics and verdicts to jury dynamics and deliberations (e.g., Constable, 1991; Hans & Vidmar, 1991; Kalven & Zeisel, 1966)--comparatively little attention has been given to the process by which juries are actually selected in typical (as opposed to capital or highly publicized) cases. Although ours was an exploratory study designed to determine whether or not direct observational study of the voir dire process could yield useful data pertinent to current discussions of voir dire reform, we believe it has demonstrated the preliminary feasibility of such a method and identified some important legal and empirical issues that merit further study. While the process is labor intensive, the data are relatively straightforward to collect. Yet, the lack of any normative data base with respect to the voir dire process has rendered it especially vulnerable to criticism and, perhaps, misguided reform. Indeed, we believe that this may be one area where recent policy discussions have been founded more on rhetoric than data. While our observations and conclusions are tempered by the small sample of cases that we have studied, our preliminary analysis of routine jury selection in unremarkable yet nontrivial cases contradicts some of the most damning allegations that have been made against attorney-conducted voir dire.
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Church, X. (1978). Justice delayed: The pace of litigation in urban trial courts. Williamsburg, VA: National Center for State Courts. Constable, M. (1991). What books about juries reveal about social science and law. Law and Social lnquiry, 16, 353-372. Cutler, B. (1990). Introduction: The status of scientific jury selection in psychology and law. Forensic Reports, 3, 227-232. Dayan, M. Mahler, R., & Widenhouse, M. (1989). Searching for an impartial sentencer through jury selection in capital trials. Loyola (L.A.) Law Review, 23, 151-191. Dexter, H., Cutler, B., & Moran G. (1990). A test of voir dire as a remedy for the prejudicial effects of pretrial publicity. Journal of Applied Social Psychology, 22, 819-832 Doyle, R. (1985). In search of a remedy for the racially discriminatory use of peremptory challenges. Oklahoma Law Review, 38, 385-446. Fahringer, H. (1992). "Mirror, mirror on the w a l l . . . " New York State Bar Journal, 64, 22-29. Gaba, J. (1977). Voir dire of jurors: Constitutional limits to the right of inquiry of prejudice. University of Colorado Law Review, 48, 525-545. Green, T (1985). Verdict according to conscience: Perspectives on the English criminal trial jury, 1200-1800. Chicago, IL: University of Chicago Press. Gurney, B. (1986). The case for abolishing peremptory challenges in criminal trials. Harvard Civil Rights-Civil Liberties Law Review, 21,227-260. Gutman, S. (1972). The attorney-conducted voir dire of jurors: A constitutional right. Brooklyn Law Review, 39, 290-329. Haney, C. (1984a) On the selection of capital juries: The biasing effects of the death-qualification process. Law and Human Behavior, 8, 121-132. Haney, C. (1984b) Examining death qualification: Further analysis of the process effect. Law and Human Behavior, 8, 133-151. Hans, V. (1982). Jury selection in two countries: A psychological perspective. Current Psychological Reviews, 2, 283-300. Hans, V., & Vidmar, N. (1986). Judging the jury. New York, Plenum Press. Hans, V., & Vidmar, N. (1991). The American jury at twenty-five years. Law and Social Inquiry, 16, 323-351. Hastie, R. (1991). Is attorney-conducted voir dire an effective procedure for the selection of impartial juries? American University Law Review, 40, 703-726. Hastie, R., Penrod, S., & Pennington, N. (1983). Inside the jury. Cambridge, MA: Harvard University Press. Hittner, D. (1989). Federal voir dire and jury selection. Trial, 25, 85-87. Jones, S. (1987). Judge-versus attorney-conducted voir dire: An empirical investigation of juror candor. Law and Human Behavior, 11, 131-146. Jordan, W. (1981). A trial judge's observations about voir dire examination. Defense Law Journal, 30, 222-247. Kairys, D., Kadane, .L, & Lehoczky, J. (1977). Jury representativeness: A mandate for multiple source lists. California Law Review, 65, 776-827. Kalven, H., & Zeisel, H. (1966). The American jury. Boston, MA: Little, Brown. Kassin, S., & Wrightsman, L. (1983). The construction and validation of a juror bias scale. Journal of Research in Personality, 17, 423-442. Kasunic, D. (1983). One day/one trial: A major improvement in the jury system. Judicature, 67, 78-86. Kerr, N., Kramer, G., Carroll, J., & Alfini, J. (1991). On the effectiveness of voir dire in criminal cases with prejudicial pretrial publicity: An empirical study. American University Law Review, 40, 665-701. Levit, W., Nelson, D., Ball, V., & Chernick, R. (1971). Expediting voir dire: An empirical study. Southern California Law Review, 44, 916-995. Mahoney, A. (1982). American voir dire and the ideal of equal justice. Journal of Applied Behavioral Science, 18, 481-494. Mahoney, B., & Sipes, D. (1988) Toward better management of criminal litigation. Judicature, 72, 29-37.
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Marshall, L., & Smith, A. (1986). The effects of demand characteristics, evaluation anxiety, and expectancy on juror honesty during voir dire. Journal of Psychology, 120, 205-217. McCray v. Abrams, 750 E2d 1113 (2d Cir. 1984). Mills, C., & Bohannon, W. (1980). Juror characteristics: To what extent are they related to jury verdicts? Judicature, 64, 23-31. Moran, G., & Comfort, J. (1982). Scientific juror selection: Sex as a moderator of demographic and personality predictors of impaneled felony juror behavior. Journal of Personality and Social Psychology 43, 1052-1063. Morgan v. Illinois, 112 S.Ct. 2222 (1992). Mu'Min v. Virginia, 111 S.Ct. 1899 (1991). Neitzel, M., & Dillehay, R. (1982). The effects of variations in voir dire procedures in capital murder trials. Law and Human Behavior, 6, 1-13. Neitzel, M., Dillehay, R., & Mimelein, M. (1987). Effects of voir dire variations in capital trials: A replication and extension. Behavioral Sciences & the Law, 5, 467-477. Note, (1977). Limiting the peremptory challenge: Representation of groups on petit juries. Yale Law Journal, 86, 1715-1741. Note, (1980). Juror bias: A practical screening device and the case for permitting its use. Minnesota Law Review, 64, 987-1020. Note (1990). Ross v. Oklahoma: A strike against peremptory challenges. Wisconsin Law Review, 1990, 219-235. Padawer-Singer, A., Singer, A., & Singer, R. (1974). Voir dire by two lawyers: An essential safeguard. Judicature, 57, 386-391. People v. Adams, 99 Cal. Rptr. 122 (1971). People v. Boulerice, 7 Cal. Rptr. 2d 279 (1992). People v. Wheeler, 148 Cal. Rptr. 890 (1978). Rosales-Lopez v. United States, 451 U.S. 182 (1981). Ross v. Oklahoma, 487 U.S. 81 (1988). Scaly, P. (1981). Another look at social psychological .aspects of juror bias. Law and Human Behavior, 5, 187-200. Siegel, J., & Mitchell, H. (1979). The influence of expectancy violations, sex, and authoritarianism on simulated trial outcomes. Representative Research in Social Psychology, 10, 37-47. Suggs, D., & Sales, B. (1978). Using communication cues to evaluate prospective jurors during the voir dire. Arizona Law Review, 20, 629-642. Suggs, D., & Sales, B. (1981). Juror self-disclosure in the voir dire: A social science analysis. Indiana Law Journal, 56, 243-271. Thorton, J., & Mastrucci, J. (1983). The jury selection process and post-verdict juror interviews as a basis for error. Insurance Counsel Journal, 428-454. Turner v. Murray, 476 U.S. 28 (1986). Van Kessel, G. (1992). Adversary excesses in the American criminal trial. Notre Dame Law Review, 67, 402-503. Vidmar, N., & Melnitzer, J. (1984). Juror prejudice: An empirical study of a challenge for cause. Osgoode Hall Law Journal, 22, 487-511. Zeisel, H., & Diamond, S. (1978). The effect of peremptory challenges on jury and verdict: An experiment in federal district court. Stanford Law Review, 30, 491-531.
