By Dr. Ken Broda-Bahm:
Every persuader, and legal persuaders in particular, understand that bias is both pervasive and powerful. The idea that potential jurors will be carrying attitudes and experiences that could influence their decision is the norm and not the exception. As a trial attorney, your goal is to eliminate it. In practice, however, it is more likely that you'll be minimizing it. There aren't enough strikes in the world. But is it enough if the biased jurors on your panel are numerically outweighed and outvoted by the other relatively unbiased jurors on your panel? Will deliberation take care of the problem when the biased jurors discover that most on the panel have different views and experiences? According to some recent research, the answer is "No."
Using the example of bias based on pretrial publicity, the researchers from the University of South Florida (Ruva & Guenther, 2017) found that it is more likely that the bias will be contagious rather than being contained. The article entitled, "Keep your bias to yourself: How deliberating with differently biased others affects mock-jurors' guilt decisions, perceptions of the defendant, memories, and evidence interpretation," looks at the results from 648 mock jurors, half of whom were exposed to various forms of pretrial publicity on a criminal case. They looked at the influence of those exposed jurors when they were placed in groups with non-exposed jurors. The results suggest that, "during deliberations, pretrial publicity bias can spread to jurors not previously exposed to pretrial publicity." These results serve to underscore the priority that litigators already place on rooting out bias, and remind us that we cannot count on bias being easily checked. And the findings also suggest that we devote further thought to ways to discover bias without furthering the spread of it.