February 24, 2025

Addressing Bias in Jury Selection: Insights from Legal Experts

At the most recent Diversity Conference Annual Forum, a panel of distinguished legal professionals convened to discuss the critical issue of cognitive and implicit bias in voir dire and jury selection. The panel, featuring judges, attorneys, and legal experts, provided valuable insights into recognizing and combating bias in the courtroom.

Bryan Kennedy, who moderated the panel, defined implicit bias in the context of voir dire as "attitudes and beliefs that influence behavior or decisions." He emphasized the importance of being aware of bias, practicing mindfulness, exposing oneself to diverse groups, taking different perspectives, and cultivating empathy. These strategies, outlined in an ABA report, form a foundation for combating implicit bias in the legal profession.

Judicial Strategies

Arlington Circuit Court Judge Judith Wheat shared her approach to minimizing bias, stressing the importance of entering each case with an open mind. She emphasized active listening without preconceived notions about the case's outcome. This practice helps judges avoid filling in gaps in evidence based on personal biases.

U.S. District Court Judge Rossie Alston provided insight into federal court practices, where judges typically conduct voir dire. He described his method of using jury questionnaires and allowing lawyers to participate in excusal decisions. Importantly, Judge Alston retains potential jurors for interviews throughout the day, avoiding early dismissals that might stem from hasty judgments.

Attorney Perspectives

Alicia Johnson of Ogletree Deakins, speaking from an investigative standpoint, highlighted the importance of setting aside preconceptions when first speaking to a witness. She advocated for open-ended questions to allow witnesses to tell their stories without the attorney's biases shaping the narrative.

Candace Blydenburgh of McGuireWoods pointed out that while everyone has biases, the goal in voir dire is to identify jurors whose biases might prevent them from fairly considering both sides of a case. She stressed the importance of bringing these biases to light during the selection process.

Balancing Efficiency and Thoroughness

The panel addressed the tension between the need for efficient jury selection and the time required to uncover potential biases. Judge Alston suggested having someone observe juror body language during voir dire, as non-verbal cues can provide valuable insights. Judge Wheat emphasized the importance of tailoring voir dire questions to the specific case at hand, urging lawyers to prepare thoroughly for this crucial phase.

Addressing Race and Bias Explicitly

The panelists discussed strategies for broaching the topic of implicit bias with potential jurors. Judge Alston advocated for directness, stating that it's appropriate to refer to racial dynamics when relevant to a case. Johnson shared her practice of asking potential jurors about their experiences with violent crime, which can reveal potential biases.

Blydenburgh noted an increase in explicit biases in recent years, partly due to social media's influence. She suggested asking questions to determine whether potential jurors are open to hearing different viewpoints.

Batson Challenges and Diversity

The panel devoted significant attention to Batson challenges, which allow attorneys to contest jury strikes based on race or gender. Kennedy referenced the Flowers v. Mississippi case, which highlighted the importance of examining patterns in jury questioning and strikes across racial lines.

Judge Alston emphasized the rarity of Batson challenges in his courtroom due to his control over the process and commitment to fairness. However, he acknowledged the potential power of successful Batson challenges in seating diverse juries.

The Role of Bar Associations

The discussion touched on the American Bar Association's Model Rule 8.4, comment (g), which would make it a violation for lawyers to discriminate based on race, gender, and other protected characteristics. While not currently in effect in Virginia, the panelists debated its potential impact.

Judge Alston expressed concern about "legislating morality," while Blydenburgh suggested existing rules might already cover such conduct. Judge Wheat saw potential value in codifying anti-discrimination obligations, while Johnson worried it could increase tension in the adversarial process.

Moving Forward

The panel concluded by emphasizing the ongoing need for conversations about bias in the legal profession. Judge Alston noted that while most people treat him respectfully, it's crucial to address poor behavior when it occurs, including through judicial evaluations.

As the legal profession continues to grapple with issues of diversity, equity, and inclusion, discussions like this panel provide valuable insights and strategies for recognizing and mitigating bias. By implementing these approaches in voir dire and throughout legal proceedings, attorneys and judges can work towards ensuring fairer, more equitable outcomes for all parties involved in the justice system.