Dateline: April, 2021, Issue 2

Does judicial rehabilitation in voir dire debias jurors in civil cases?

In civil cases, potential jurors often express concerns about plaintiffs' motives, corporate defendants, non-economic damages, the burden of proof, lawsuits, and the like. Judges often ask rehabilitative questions to jurors expressing these concerns about their ability to set aside their opinions and base their decision on only the evidence and the law in the case.

Salerno and colleagues (2020) tested the effectiveness of judicial rehabilitation in debiasing potential jurors in three separate mock trial experiments based on actual civil cases litigated in an American court involving insurance bad faith, medical malpractice for an aortic rupture misdiagnosis, and medical malpractice for failure to identify cystic fibrosis during pregnancy.

Mock jurors completed juror questionnaires asking about (1) the difficulty each side would have convincing them, (2) their trust in doctors, (3) their trust in lawyers, (4) their trust in insurance companies, (5) their trust in plaintiffs, (6) if plaintiff attorneys are liars, (7) if defense attorneys are liars, (8) their views about non-economic damages, (9) skepticism toward litigants, (10) concerns about the burden of proof, (11) attitudes toward litigation and lawsuits, and (12) political attitudes.

Half of the jurors in each mock trial then viewed a judicial rehabilitation video in which the Judge asked them whether they could set aside their views and apply the law as it is given, to which jurors replied either "yes" or "no". Only .4% of jurors said "no". All jurors then read a detailed summary of evidence and arguments, were instructed in the law, and reached individual verdicts on liability and damages.

All of jurors' attitudes but two -- except trust in lawyers and the belief that defense attorneys are liars -- significantly predicted their liability verdicts. Jurors' attitudes as a group explained 31% of the variance in their liability verdicts, with four attitudes being particularly predictive: difficulty convincing them, their views about non-economic damages, skepticism toward litigants, and attitudes toward litigation and lawsuits.

All of jurors' attitudes but four -- except trust in lawyers, trust in insurance companies, the belief defense attorneys are liars and political attitudes -- significantly predicted their damages awards. Jurors' attitudes as a group explained 14% of the variance in damages awards, with six attitudes being particularly predictive: difficulty in convincing them, trust in insurance companies, trust in plaintiffs, views about noneconomic damages, belief that plaintiff attorneys are liars, and attitudes toward litigation and lawsuits. Notably, jurors believed and reported the exact opposite of the findings of the research, stating instead their belief that their attitudes had "no impact at all" or only "a tiny impact" on their decisions.

Judicial rehabilitation did not reduce the impact of jurors' pre-existing attitudes on their verdicts or damages awards. Agreeing to be impartial did not reduce the strength of the relationship between any of the jurors' pre-existing attitudes on their verdicts or damages awards. Jurors erroneously thought and said they could be fair at a stunningly high, and completely inaccurate, rate (99.6%).

Despite judicial rehabilitation not actually reducing the impact of jurors' pre-existing views on their verdicts and damages awards, jurors who heard and said "yes" to the judicial rehabilitative questioning nevertheless reported being significantly less impacted by these biasing factors than did jurors who did not experience the rehabilitative questioning. Judicial rehabilitation gave jurors the illusion they were putting their biases aside when the impact of those biases remained undiminished.

Salerno and colleagues conclude that judicial rehabilitation is not an effective means of reducing the biasing impact of jurors' pre-existing attitudes on their judgments in civil cases.

Source Salerno, J.M., Campbell, J., Phalen, H., Bean, S., Hans, V.P., Spivack, D. & Ross, L.E. (2020). The impact of minimal versus extended voir dire and judicial rehabilitation in civil cases. University of Denver Sturm College of Law Legal Research Paper Series, Working Paper No. 20-30.