Working toward better juries and fuller justice
Last week, I attended a continuing education seminar by Zoom. Before COVID, I obtained most of my educational requirements by attending the annual meeting of the Missouri Association of Trial Attorneys at the Lake of the Ozarks each June.
We are required to have 15 hours each year, and three of the 15 hours must be devoted to ethics and of that three hours, one must be devoted to explicit or implicit bias, diversity, inclusion or cultural competency. This requirement preceded the Black Lives Matter movement and was not a reaction to the events of 2020. The Missouri Bar and local bar associations have been focusing on diversity issues for several years, but the requirement of devoting one hour of education to these issues is only two years old.
Last year, I attended my annual meeting of MATA by Zoom and will probably do so again although the organization is planning limited in-person seminars. I miss the camaraderie of the convention as I have developed friendships from all parts of Missouri, and it is always great to spend time with my friends in the law. The seminar last year devoted an hour to implicit bias, which is an interesting concept. Implicit bias is a phenomenon in which we have attitudes toward people or associate stereotypes with them without our conscious knowledge.
There are many kinds of implicit or unconscious bias. Affinity bias is the tendency people have to connect with others who share similar experiences, interest and backgrounds. Confirmation bias is the inclination to draw conclusions about a situation or person based on your personal desires, beliefs and prejudices rather than on unbiased merit. Conformity bias is essentially peer pressure, the tendency people have to act similar to the people around them regardless of their own personal beliefs or idiosyncrasies.
The horns effect is the tendency people have to view another person negatively after learning something unpleasant or negative about them. The halo effect is the tendency people have to place another person on a pedestal after learning something impressive about them. Ageism is the tendency to have negative feelings about another person based on their age. Gender bias is the tendency to prefer one gender over another. Beauty bias is a social behavior where people believe that attractive people are more successful, competent and qualified. Anchor bias is when someone holds onto an initial, singular piece of information to make decisions. Nonverbal bias is analyzing nonverbal communication attributes such as body language and letting it affect a decision or opinion. Authority bias refers to when an idea or opinion is given more attention or thought to be more accurate because it was provided by an authority figure. My personal favorite is the overconfidence bias, which refers to a person’s tendency to be more confident in their capabilities than they should be.
The seminar I attended last week was sponsored by the Eastern Jackson County Bar Association, and the speaker was a friend who is one of the best lawyers in St. Louis, Gretchen Myers. Gretchen is a former president of MATA. She is also on the Missouri Supreme Court Committee on Jury Instructions. That committee is charged with drafting jury instructions in civil cases that instruct juries on how to consider evidence and render verdicts.
Gretchen’s talk about jury instruction did not teach me much I did not already know until she began talking about a new instruction on juror bias. This instruction is now read in all civil cases and is mandatory. This instruction reminds jurors that justice depends on careful and fair decisions based on conscious and unbiased analysis of evidence in the case.
It cautions jurors that automatic or reflexive responses influenced by conscious or unconscious preconceptions or stereotypes should not enter into that determination. It reminds jurors that bias based on race, sex, gender identity, religion, national origin, ethnicity, disability age, sexual orientation or marital status has no role in the pursuit of justice. Conclusions in the case should be based on fair and unbiased considerations of the evidence and respect for the views of other jurors whose backgrounds and perspectives may be different from yours.
I have conducted jury selection in approximately 50 cases and participated in over 100 jury selections. Our most important function as trial lawyers is to determine if prospective jurors have a bias of some kind. Few will candidly admit that they are biased if asked that question, but the challenge is to ask questions that would aid in determining bias without a confession. This new jury instruction will be a huge benefit in this jury selection process. Increased knowledge about implicit bias will also aid us in the process.
The goal is to choose 12 people who will render careful and fair decisions that are based on conscious and unbiased analysis of evidence. Our biggest fear has always been what we call “stealth jurors”, those who never respond to questions, but still have opinions and biases. I doubt anyone would want a stealth juror who has multiple prejudices deciding their case.
Thus, it is important that prospective jurors open their minds and hearts to the possibility of bias. We all have implicit bias, and usually it is nothing to be ashamed of. Implicit bias is acquired through life experiences and relationships. Fair administration of justice will be aided by this new instruction, if people selected for jury duty will be candid and honest.
Bob Buckley is an attorney in Independence. Email him at firstname.lastname@example.org.