ON THE EFFECTIVENESS OF VOIR DIRE IN CRIMINAL CASES WITH PREJUDICIAL PRETRIAL PUBLICITY: AN EMPIRICAL STUDY*

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1 ON THE EFFECTIVENESS OF VOIR DIRE IN CRIMINAL CASES WITH PREJUDICIAL PRETRIAL PUBLICITY: AN EMPIRICAL STUDY* NORBERT L. KERR** GEOFFREY P. KRAMER*** JOHN S. CARROLL**** JAMES J. ALFINI***** TABLE OF CONTENTS I. Introduction to the Empirical Study II. M ethod A. General Plan B. Phase One Experiment Objectives and methods Primary results C. Phase Two Study: Methods III. Results A. Adequacy of the Simulation B. Challenges and Juror Behavior * Support for this project was provided by Grant SES # from the National Science Foundation. We are greatly indebted to the Thirtieth Judicial Circuit Court of Michigan and particularly to David Young, Court Administrator; Pat Mathews,Jury Clerk, and Connie Robinson, secretary, for their assistance in helping us obtain the juror screening questionnaires. Direct correspondence to Norbert L. Kerr, Department of Psychology, Psychology Research Building, Michigan State University, East Lansing, MI ** Professor of Psychology, Department of Psychology, Michigan State University; A.B., Washington University in St. Louis, 1970; Ph.D., University of Illinois, Champaign, *** Instructor, Department of Social and Behavior Sciences, University of Indiana, Kokomo; B.A., Central Michigan University, 1975; Ph.D., Michigan State University, 1991 (expected). **** Professor of Behavioral and Policy Sciences, Sloan School of Management, Massachusetts Institute of Technology; B.S., Massachusetts Institute of Technology, 1970; Ph.D., Harvard University, ***** Professor of Law, School of Law, Florida State University; A.B., Columbia University, 1965;J.D., Northwestern University,

2 666 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40: Judges' challenges for cause Defense attorneys' peremptory challenges Prosecutors' peremptory challenges Net effect of accumulated voir dire judgments Perceived versus actual accuracy in attorney's evaluation of jurors Bases for challenges a. Self-excusal judgments b. Actual juror characteristics and peremptory challenges c. Attorneys' explanations for peremptory challenges IV. Discussion V. Conclusion I. INTRODUCTION TO THE EMPIRICAL STUDY Voir dire serves several purposes in criminal trials. Judges and attorneys explain important points of law to jurors, often by questioning prospective jurors on their knowledge of and willingness to follow such points. Attorneys place value on publicly obtaining jurors' pledges to follow these points of law. Opposing counsel may use voir dire to preview their own theories of the case. Attorneys also attempt to build rapport with jurors during voir dire. The primary goal of voir dire, of course, is to select a jury.' Judges are responsible for evaluating the causal challenges by the prosecution and defense of any juror who cannot fulfill the responsibilities of a juror, for instance, because of a conflict of interest or a fixed opinion. 2 Defense and prosecuting attorneys are permitted to peremptorily excuse a number of additional jurors. 3 In principle, this procedure gives opposing parties a chance to eliminate jurors who may still not be impartial, but whose answers do not so clearly reveal enough bias to exclude those individuals through a causal challenge. Ultimately, each side uses its peremptory challenges to obtain the most favorable jury. Our analysis is concerned with the use of voir dire in criminal cases that receive extensive prejudicial pretrial publicity. Appellate courts have conceded that exposure to such publicity can threaten a defendant's right to an impartial jury. 4 The empirical literature on 1. W. LAFAVE &J. ISRAEL, CRIMINAL PROCEDURE 21.3, at 840 (1985). 2. Id at Id at See Irwin v. Dowd, 366 U.S. 717, (1972) (setting aside conviction and order-

3 1991] THE EFFECTIVENESS OF VOIR DIRE 667 this question, although inconclusive, does indicate that many types of prejudicial publicity can affect public opinion and juror sentiment. 5 Nevertheless, the appellate courts have avoided restraints on press access and freedom to report. 6 While standards of practice for journalists and court personnel exist which, if scrupulously followed, would alleviate some of the problems associated with pretrial publicity, indications are that such standards are vague and rarely enforced. 7 Defendants must, therefore, rely almost exclusively upon the remedies available to trial courts for dealing with jury bias. Interviews with judges and trial attorneys suggest that they rely strongly on voir dire to minimize jury bias in high-publicity cases. 8 Courts rarely employ such an extraordinary and expensive measure as a change of venue or change of venire. 9 Furthermore, there is widespread confidence that a careful and extensive voir dire is highly effective in eliminating bias created by pre-trial publicity. 10 The primary goal of this paper is to test this thesis empirically. A small but suggestive body of research literature has examined the effectiveness of attorney use of peremptory challenges in cases where publicity is not an issue. 1 Reviews of this literature suggest several patterns. First, attorneys appear to rely upon a variety of cues in determining whether a peremptory challenge is necessary, including factors such as age, sex, race, national origin, education, occupation, juror demeanor, and attorneys' intuitive impressions of ing new trial because jury was not impartial); Sheppard v. Maxwell, 384 U.S. 333, 351 (1966) (finding that publicity prevented defendant from receiving fair trial). 5. See Carroll, Kerr, Alfini, Weaver, MacCoun & Feldman, Free Press and Fair Trial The Role of Behavioral Research, 10 LAW & HUM. BEHAV. 187, (1986). 6. See Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510 (1984) (holding public access to voir dire enhances both fairness and appearance of fairness in rape and murder trial and outweighs prospective jurors' privacy interest); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980) (holding that absent overriding interest, first and fourteenth amendments guarantee public access to trials); Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979) (emphasizing that accused's right to public trial acts as safeguard to prevent usage of courts for persecution). 7. See Standards Relating to the Administration of Criminal Justice, Fairness and Free Press, in A.B.A. TASK FORCE ON FAIR TRIAL & FREE PRESS REPORT 9 (2d ed. 1978). 8. See F. SIEBERT, FREE PRESS AND FAIR TRIAL: SOME DIMENSIONS OF THE PROBLEM 11 (Bush ed. 1970) (finding that while jury bias is most commonly addressed through judicial admonition, 92% of judges rely on voir dire as well). 9. See id at 4-6 (conducting sample survey of state and federal judges And finding only 9% ofjudges had granted motions for change of venue and 127 ofjudges had ever received change of venire motions). 10. See V. HANS & N. VmDMAR, JUDGING THE JURY (1986) (reviewing legal professionals' attitudes toward voir dire practice). 11. See Fulero & Penrod, AttoneyJury Selection Folklore: What Do They Think and How Can Psychology Help?, 3 FORENSIC REP. 233 (1990) (reviewing research literature on scientific jury selection techniques).

4 668 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 jurors' receptiveness to their client's or their adversary's positions.1 2 Second, although particular juror characteristics have shown predictive value in certain types of cases, e.g., a juror's gender in cases involving rape, none of the typically used juror characteristics correlate consistently or powerfully to juror verdicts across a wide spectrum of cases.1 3 Some juror personality traits, political ideologies, and social ideologies have been found to relate to verdict preferences with some generality, such as authoritarianism. Direct correlations of juror attitudes have also been observed within particular classes of cases, such as death penalty cases and rape trials. 14 Such personality characteristics or attitudes, however, are typically not accessible to attorneys in a standard voir dire. 15 Third, only a small handful of studies have directly examined the efficacy of attorneys' standard peremptory challenges. 16 While it may appear that the final verdict is affected by such challenges, there is little evidence that attorneys' peremptory challenges are reliably related to jurors' verdict preferences.' 7 The lack of correlation between jury verdicts and voir dire challenges does not mean that voir dire is also ineffective in dealing with the specific problem of pretrial publicity. The task of eliciting specific knowledge of specific publicity is narrowly focused and may be easier to accomplish than eliciting more general biases for or against the defendant. Voir dire may also be more effective when pretrial publicity is at issue because courts will often permit more extensive questioning of jurors and grant a larger number of peremptory challenges. 18 To our knowledge, only three prior empirical studies have examined the effectiveness of voir dire in high publicity cases. The first study, by Sue, Smith, and Pedroza exposed student mock jurors 12. Id at Id. at Id. at Fulero & Penrod concluded: [S]tudies on the efficacy of attempts to link demographic and personality variables directly to verdict appear to find modest relations, with the variance explained in verdict preferences appearing to range from approximately 5% to 15%o... [G]asespecific relations found in scientific jury selection analyses may not generalize across cases... Id. at See generally Zeisel & Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 STAN. L. REv. 491 (1978) (testing effectiveness of peremptory challenges by having excused jurors witness trial and reveal how they would have voted). 17. Id. at 508 (stating that study of peremptory challenges provided no firm basis with which to determine success rate of peremptory challenges). 18. See United States v. Meredith, 824 F.2d 1418, 1423 (4th Cir. 1987) (holding that trial court had discretionary power in denying or granting additional peremptory challenges)

5 1991] THE EFFECTIVENESS OF VOIR DIRE 669 to either highly prejudicial publicity or to less prejudicial publicity. 19 Prior to rendering a verdict, the mock jurors were asked the question which is routinely used in voir dire to identify and disqualify jurors biased by publicity: "Can you, in view of the publicity you have seen, judge the defendant in a fair and unbiased manner?" Subjects exposed to the more prejudicial publicity were more likely to indicate that they might not be able to be impartial than those exposed to the less prejudicial publicity. Furthermore, those who admitted such bias (hereafter termed "self-excusals," since persisting in such a response nearly guarantees dismissal for cause) were more likely to find the defendant guilty after reading a summary of trial evidence. The most important finding, however, was that even after omitting all the self-excusals, those jurors exposed to the highly prejudicial publicity were significantly more likely to convict (fifty-three percent guilty) than those not exposed (twenty-three percent guilty). It was unclear whether the jurors were not aware of the biasing effect of the publicity or were simply not admitting a bias of which they were aware. In either case, these results call into question exclusive reliance upon juror's assertions of impartiality during voir dire to eliminate bias due to pretrial publicity. 20 A recent, unpublished study by Dexter and Cutler 2 ' focused not on the efficacy of attorney challenges, per se, but on the relative effectiveness of extended, attorney-led voir dire as opposed to judge-led voir dire for remedying the effects of exposure to pretrial publicity. 22 Mock jurors in a murder case were divided into two groups, those who were exposed to highly prejudicial pretrial publicity and those who were not. 23 Using either the federal court model 24 or an "extended-attorney" model, an experienced judge or experienced attorneys conducted a simulated voir dire. 25 After 19. Sue, Smith & Pedroza, Authoritarianism, Pretrial Publicity, and Awareness of Bias in SimulatedJurors, 37 PSYCHOLOGICAL REP. 1299, 1300 (1975) (exposing, in one instance, mock jurors to inadmissible evidence that murder weapon had been found in defendant's apartment; and in another, exposing mock jurors to prejudicial publicity that defendant's gun was not murder weapon). 20. See id. at 1302 (finding that some jurors should have disqualified themselves, yet failed to do so). 21. Dexter & Cutler, In Search of the Fair Jury: Does Extended Voir Dire Remedy the Prejudicial Effects of Pretrial Publicity? (1990) (unpublished manuscript) (available through Florida International University) [hereinafter Dexter & Cutler] (examining effects of expanding juror instruction by defense counsel during voir dire in high publicity cases). 22. Id. 23. Id. The publicity consisted of newspaper stories reporting the defendant's prior criminal record and drug use, a retracted confession, and other damaging information. 24. The federal court model consists of thejudge asking a small number of leading questions to the panel of potential jurors. See J. GARBERT & W. JORDAN, JURY SELECTION 325 (1990) (stating thatjudges generally exercise their discretionary authority to question jurors). 25. The extended attorney model involved individual questioning of prospective jurors

6 670 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 viewing a videotaped reenactment of the trial, mock jurors rendered verdicts. Jurors exposed to the pretrial publicity were more likely to convict, as were jurors who had experienced the federal-court model. The important result, however, was that more active participation by the attorneys in voir dire did not attenuate the biasing effects of pretrial publicity. The third study by Padawer-Singer, Singer, and Singer took unusual pains to achieve realism-mock jurors were drawn from actual juror panels, the experiment was conducted in a courtroom, deliberation time was ample, and an actual murder trial was the basis of the stimulus trial. Besides varying mock jurors' exposure to prejudicial pretrial publicity, which consisted of newspaper reports of the defendant's prior criminal record and a retracted confession, the study also manipulated the nature of the voir dire. 26 Approximately half of the juries were selected by a district attorney and Legal Aid attorney in a simulated voir dire; the other juries were randomly composed, without examination or challenge. Pretrial publicity appeared to have a stronger effect on juries selected without the benefit of voir dire than on juries selected with voir dire. 27 The post-deliberation conviction rate of randomly selected juries exposed to high publicity was fifty-six percent higher than those not exposed to prejudicial publicity, whereas juries selected with voir dire only exhibited a ten percent difference. 28 From these results, the Padawer-Singer study concluded that "... voir dire examinations by counsel diminish the effects of prejudicial information The study credited the voir dire process with eliminating biased jurors, encouraging jurors to set aside preconceptions about the defendant, and committing jurors to legal principles. 30 A number of problems with this study, however, wholly undermine its conclusions. For example, voir dire did not reduce the conviction rate by juries exposed to the prejudicial publicity to the level of those that were not exposed; rather, the opposite occurred. The voir dire procedure raised the conviction rate of those never exposed to publicity to the level of those who had seen it. by the attorneys, during which defense counsel elaborated on the relevant points of law and solicited commitments from jurors to rely only on the evidence presented in court. See Dexter & Cutler, supra note A. Padawer-Singer, Singer & Singer, Voir Dire by Two Lawyers: An Essential Safeguard, 57 JUDICATURE 386 (1974). 27. Id. at 391 (finding that voir dire lowered conviction rates injuries exposed to prejudicial information). 28. Id. at Id. at Id.

7 1991] THE EFFECTIVENESS OF VOIR DIRE Even this non-remedial effect could be plausibly attributed to factors completely unrelated to voir dire. 31 In short, no confident inference about the effectiveness of voir dire as a remedy for pretrial publicity can be drawn from this study. Thus, there is essentially no direct empirical evidence on the absolute or relative effectiveness of judges' and attorneys' voir dire challenges as a remedy for prejudicial pretrial publicity. The primary objective of the research reported here was to provide such evidence. Within a number of practical limitations, our goal was to simulate as accurately as possible that portion of voir dire concerned with prospective jurors' exposure and reaction to pretrial publicity in a case where exposure was widespread and the content of the publicity was highly prejudicial. We then solicited the voir dire judgments from as large, diverse, and representative a sample of experienced criminal defense attorneys, prosecutors, and trial judges as possible. Examples of judgments made by the actors include peremptory challenges by attorneys and causal challenges and change of venue rulings by judges. We sought to simulate a trial for which the level of prejudicial pretrial publicity had been extremely high, such that few, if any, prospective jurors could be expected to have seen no relevant publicity. 3 2 Our research question was not whether voir dire could work effectively when few prospective jurors had been exposed to prejudicial publicity; we would expect that jurors never exposed to publicity could not be biased by it and that juror impartiality could be achieved by simply retaining those who had never heard or read anything about the case. Rather, our research question was whether voir dire could work effectively when the need for a remedy was most pressing, when nearly everyone in the community had seen pretrial publicity. Judges and attorneys, therefore, were asked to consider a panel of jurors for which exposure to publicity was uniformly high. The key question, of course, was how effectively bias due to this exposure could be eliminated through voir dire judgments. 31. All of the juries in the Voir Dire-No publicity condition were run after a national wave of anti-vietnam war demonstrations, including the demonstrations at Kent State University at which four students were shot and killed. The juries in all other conditions were run before these events occurred. For a detailed critique of the Padawer-Singer study, see Kerr & McCoun, Pretrial Publicity and JurorJudgment: A Review of Empirical Research (1983) (unpublished manuscript) (available from N. Kerr). 32. Examples of the level of publicity we tried to reproduce include the recent cases of Oliver North and Manuel Noriega.

8 672 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 II. METHOD A. General Plan Our project had two distinct phases. In Phase One, simulated jurors (hereinafter jurors) were first exposed to various types and amounts of prejudicial pretrial publicity. In a simulated voir dire, they were questioned about what they had seen and what, if any, effect it might have on their ability to serve as impartial jurors. This questioning was videotaped. Thesejurors went on to deliberate and to reach a verdict in a simulated criminal trial. In Phase Two, volunteer attorneys and judges viewed selected samples of the videotapes from Phase One and made several judgments typical of actual voir dire. Although this paper reports the results of the analysis of these Phase Two judgments, understanding this analysis requires a basic understanding of the methodology and results at Phase One. Therefore, a brief summary of the procedures and findings of the Phase One study follows Objectives and methods B. Phase One Experiment The objective of this experiment was to study the effectiveness of three standard remedies for two distinct types of prejudicial pretrial publicity. The first remedy was a continuance. Approximately half of the jurors were exposed to the publicity immediately before the trial began. 3 4 The remaining jurors saw the publicity several days (on average, twelve days) before the trial began, experimentally simulating the delay between exposure to publicity and jury service which a continuance is designed to achieve. The second remedy was a judicial admonition to disregard the content of all publicity. Half of the jurors received such a charge from the trial judge in final jury instructions; the other half did not. The third remedy was jury deliberation itself. 35 This remedy was examined by comparing pre-deliberation juror verdicts with post-deliberation verdicts and analyzing the actual content of the jury deliberations. 33. See generally Kramer, Kerr & Carroll, Pretrial Publicity, Judicial Remedies, andjury Bias, 14 LAw & Husi. BEHAV. 409 (1990) (providing complete and detailed report of Phase One). 34. Over three-quarters (78y) of the jurors in this study were volunteers who had been recruited at a local court to serve as simulated jurors after their current term ofjury duty was completed. These jurors were paid $20 for the approximately three-hour experimental session. The remainder of the jurors were university students who participated 'or course credit. None of the results of this study differed between the student and non-student jurors. 35. For instance, jury deliberation may include the jurors' own explicit refusal to mention and to consider the pretrial publicity.

9 1991] THE EFFECTIVENESS OF VOIR DIRE 673 The defendant was charged with an armed robbery of a grocery store. The trial was a videotaped, realistic reenactment of an actual armed robbery trial. An experienced judge and experienced attorneys played their respective roles in this reenactment. As noted above, two types of prejudicial pretrial publicity were considered. The first was termed "factual" publicity. This was information which might be used by jurors as relevant evidence even though it would be excluded in the trial as irrelevant under the rules of evidence. Approximately half of the jurors were never exposed to this prejudicial "factual" publicity; the other half were shown broadcast and print media which contained this information. 3 6 The factual publicity consisted of two pieces of information: a) the defendant had been convicted of armed robbery on two previous occasions; and b) incriminating physical evidence had been found in the defendant's girlfriend's apartment. The defendant's prior record was never mentioned in the trial because the defendant did not testify. The news reports indicated that the police had not obtained a proper search warrant and so the incriminating physical evidence was also inadmissible. The second type of prejudicial pretrial publicity was termed "emotional" publicity. This was information which had no evidentiary value, but which might well affect jurors' emotions. Approximately half of the jurors were exposed to this prejudicial "emotional" publicity; the other half were not exposed. The "emotional" publicity consisted of information implicating the defendant in a second crime, a hit-and-run later that day in the same vehicle used in the armed robbery. The victim of the hit-and-run was a small child who had been introduced, and thereby personalized, to the jurors through some prior, unrelated television news stories. News reports suggested that the driver of the car had made no effort to avoid hitting the child, who died of her injuries a few days later. 3 7 The report did not dearly establish whether the robber, his accom- 36. Jurors were told that they would be shown all the publicity that appeared in the local press before the actual trial so that all the information which had been available to the actual jurors would also be available to them. Although the publicity they were given was ostensibly real, it had, in fact, been carefully constructed by the experimenters, with the aid ofjournalists, to be as realistic as possible. Again, it is important to note that the intent was not to produce publicity whose level of exposure and potential for bias was typical of criminal cases, which from every indication is relatively low. See generally Hough, Felonies, Jury Trials and News Reports, in FREE PRESS AND FAIR TRIAL: SOME DIMENSIONS OF THE PROBLEM 36 (Bush ed. 1970) (analyzing disposition in all felony arrests in one criminal court and all pertinent newspaper reporting). Rather, the intent was to produce publicity that was strongly and atypically biasing; strong tests of the effectiveness of remedies clearly require considering a "worst" rather than a "typical" case. 37. At the start of the trial, it was confirmed that those jurors who had been exposed to this "emotional" publicity were, in fact, more angry or upset than those not exposed to it. On

10 674 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 plice, or either drove the car. Further, care was taken to make sure that none of the facts surrounding the hit-and-run bore in any way on the identity of the robber. Jurors only considered the robbery charge at the trial; the hit-and-run incident was never mentioned. Thus, there were four levels of exposure to pretrial publicity in the Phase One experiment: exposure to both the emotional and the factual publicity, exposure to the emotional but not the factual publicity, exposure to the factual but not the emotional publicity, and exposure to neither form of publicity. All standard elements of a courtroom criminal trial were included in the trial simulation: voir dire, pretrial instructions, opening statements, presentation of the prosecution case (based primarily on eyewitness testimony) and defense case (based primarily on impugning the eyewitness testimony), judicial instructions, and jury deliberation. All jurors were asked to answer 38 (in writing) a number of standard questions 39 and a number of additional questions concerning publicity. 4 0 In addition, in each group of six to twenty jurors, four to six of those were randomly selected and set aside. These jurors were taken to nearby rooms and privately asked the most important of the publicity questions by undergraduate experimental assistants. These questions were as follows: 1) "This case involves the robbery of a Top Mark Supermarket in Cambridge, Massachusetts, in July of The defendant in this case is named Ernest Bryant. Do you recall seeing or hearing anything from television or radio news or from newspapers concerning this case or this defendant?" If the jurors answered affirmatively, they were asked, "Please describe what you saw or heard." Experimenters continued to prompt the juror with the inquiry "Is there anything else that you can remember seeing or hearing?" until the juror could recall nothing more. 2) "Has any of the publicity you've seen or any other information caused you to form an opinion or judgment as to the guilt or innocence of the defendant?" An affirmative answer was followed by a request to describe the opinion formed. 3) "Have you discussed this case or this defendant with anyone, such as friends, relatives or other prospective jurors, or have you overheard any such discussions?" the other hand, those exposed to the "factual" publicity were no more emotionally upset than those not so exposed. 38. The responses were sought in writing because of time and staff limitations. 39. The standard questions included, for example, asking the juror if she or he had a relationship or acquaintance with any of the parties. 40. These questions were chosen with the help of a number of experienced trial attorneys and judges to be brief yet representative of the kind of information that would normally be sought in a criminal case receiving extensive pretrial publicity.

11 1991] THE EFFECTIVENESS OF VOIR DIRE 675 4) "Can you put out of your mind any information you might have received from the newspapers or television and decide this case solely upon the evidence to be presented in court?" Ifjurors expressed any doubts, they were asked to elaborate. Based primarily on answers to this last question, experimenters were trained to classify jurors as fitting one of three categories: Definite self-excusals, those who had formed an opinion and strongly doubted whether they could set it aside and act as impartial jurors; Possible self-excusals, those jurors who had formed strong opinions or jurors who formed any opinion and expressed some reservation about their ability to set that opinion aside; and Non self-excused, those jurors who had formed no opinion or who admitted to having formed a weak opinion but felt confident that they could set it aside Primary results Surprisingly, neither type of prejudicial pretrial publicity significantly altered jurors' pre-deliberation verdict preferences. 42 Both types of publicity did, however, affect jury verdicts and jurors' postdeliberation verdict preferences. Thus, rather than serving as an effective remedy to publicity-induced bias, jury deliberation actually served to magnify such bias. Juries exposed to the factual publicity were significantly more likely to convict the defendant than those not exposed, but only when there had been no delay between exposure and trial. When there had been a delay, factual publicity had no significant effect. Thus, there was some support for the effectiveness of a continuance as a means for ameliorating the influence of factual publicity; however, the strong effect of emotional publicity on jury verdicts was not attenuated at all by the delay, suggesting that continuances may be less effective for certain types of prejudicial publicity. 43 Finally, judicial admonitions had no effect on individual jurors or on jury verdicts. The Phase One experiment, 41. In the whole sample of 779 jurors, 4% were Definite self-excusals, 14% were Possible selfexcusals, and 82% were Non-self-excused. No juror from the definite group was allowed to serve on any jury because they would almost certainly be successfully challenged for cause. Wherever possible, the jurors in the possible category were also excluded from the deliberating juries. 42. A statistically significant effect or difference is one which is very unlikely to have occurred simply by chance. That is, if the two samples being compared, jurors exposed or not-exposed to emotional publicity, had been drawn from a single, unbiased population, a statistically significant difference is one very unlikely to have occurred simply as a result of chance. How unlikely is "very unlikely?" Conventionally, an observed difference has to be among the least likely 5% that could occur by chance to be designated as a significant effect. The lower this probability level, the less likely it is that the observed difference could have occurred by chance; hence, the more likely it is that the difference is a genuine one. 43. Excluding hung juries, there was a 62% conviction rate in the group exposed to the

12 676 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 therefore, provided clear evidence that instructions, deliberations, and continuances would not fully remove the biasing effects of certain types of pretrial publicity. In Phase Two, we examined the effectiveness of voir dire as an additional remedy. C. Phase Two Study: Methods A random national sample of names and addresses of members of Divisions One, Eight, and Twenty-two of the American Bar Association was obtained from the ABA. In an initial mailing, a random sample of 940 letters was mailed out. These letters briefly described the project and asked recipients to mail back a postcard on which they indicated their willingness to participate and their experience in the roles of trial judge, criminal defense attorney, and prosecuting attorney. Of the original sample, 216 people (22.9%) agreed to participate, nearly all of whom (214) were mailed a study package. This package contained a cover letter, consent form, questionnaire, return envelope, and videocassette containing instructions and the voir dire interviews. Whenever possible, participants were asked to role play the professional role, i.e., judge, prosecutor, or defense attorney, that they occupied at the time of the study. Occasionally, participants were asked to play a role which they did not currently occupy, but which they had occupied in the past and for which they had considerable experience. In this way, approximately one-third of the participants were assigned to each of the three roles. In addition to instructions, each videocassette contained the voir dire interviews of eight prospective jurors who had been exposed to one or both types of pretrial publicity. Twenty tape blocks contained eight randomly selected and ordered interviews. Separate tapes were prepared for each of the three roles. Thus, sixty unique cassettes, twenty blocks for each of three roles, were constructed, providing 160 potential jurors for evaluation. 44 All instructions were contained on the videocassette and delivered by the first author. After some introductory remarks, the participants' task was described. They were asked to imagine that they were the trial judge, defense attorney, or prosecuting attorney in the armed robbery trial of Ernest Bryant. Because the actual judge and "emotional" publicity, and a 21% conviction rate in the group not exposed to "emotional" publicity. 44. By accident, the interviews of four jurors exposed to neither form of publicity were also included in one or another of the tape blocks. In addition, a couple ofjurors were accidentally included on more than one tape block. These problems, plus occasional failures by participants to evaluate all the jurors on their tapes, reduced the number ofjurors evaluated to 156.

13 1991] 677 THE EFFECTIVENESS OF VOIR DIRE counsel would be familiar with the basic facts of the case and would know, or could probably guess, the basic approach each side would take at the trial, all participants were given a brief synopsis of the state's and the defense's cases that were used at the trial. This overview also included video clips of the defendant, a young black male, and all witnesses. Further, because the actual role holders would also be familiar with the publicity that preceded a very high publicity trial such as we were attempting to simulate, all participants were given a brief synopsis of the most damaging version of the emotional and factual publicity. This synopsis took the form of a voiceover summary while excerpted images of the television and newspaper reports appeared on video. Participants were told that jurors may have seen some or all of these news reports and that the general level of familiarity with this news was high. Finally, the locality from which the Phase One jurors had been drawn was described by analyzing such elements as its ethnic distribution and major employers. Participants were then told that they would evaluate eight prospectivejurors. All participants anticipated that the voir dire would be conducted by ajudge who would pose predetermined questions. Attorneys were told to assume that they could peremptorily challenge up to fourjurors. The evaluations of each juror were made in writing on a questionnaire and followed a set sequence. At the top of the questionnaire was a photocopy of the screening questionnaire the juror had actually filled out for the court. 45 Participants were instructed to pause the tape, if they liked, to examine this questionnaire before seeing the videotaped voir dire interview segment. They then viewed the interview containing the juror's responses to the four questions described above. At this point, they were to pause the tape and make a number ofjudgments. Judges rated how likely they were to grant a challenge for cause for each particular juror. 46 Attorneys made three ratings: how likely they were to seek a causal challenge of the juror, 47 how likely they were to use a peremptory challenge on the juror, 48 and an estimate of which way the 45. In a few instances, copies of these questionnaires were not available from the court. Student participants at Phase One filled out the identical screening questionnaire at the beginning of the Phase One experimental session. 46. The exact wording of the question was, "Would you grant a challenge of this prospective juror for cause?" Judges responded by checking a seven-point scale anchored by "definitely not" and "definitely." 47. The exact wording of the question was, "Would you challenge this prospective juror for cause?" Again, responses were made on a seven-point scale of "definitely not" to "definitely." 48. The exact wording of the question was, "At this point in voir dire, would you use a peremptory on this prospective juror?" The same seven-point scale was used.

14 678 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 juror would lean in the trial. 49 All participants were then asked to write down any reasons why they might want or not want to challenge the juror. 50 After completing the evaluations of the eight jurors, participants made a number of additional judgments on the final page of the questionnaire. Attorneys indicated whether they would seek, and whether they thought the trial judge would grant, motions: a) to receive extra peremptory challenges; b) for a change of venue; c) for a continuance (assuming that several months had already passed since the robbery occurred); and d) for an admonition to thejury to disregard publicity in jury instructions. Judges simply indicated whether they would grant these four motions. 51 Attorneys also estimated how often they had correctly predicted which way each of the eight prospective jurors would vote after the trial. 52 All participants also rated the realism of the simulation and indicated, in an open-ended format, what other actions they might have taken to deal with pretrial publicity, what other questions they may have asked, what, if any, important information was unavailable to them, what aspects of the study seemed unrealistic, and what other comments they cared to make. The consent form, videocassette, and questionnaire were then to be mailed back to us. Our original target was to obtain three participants in each role for each of the twenty tape blocks, or 180 respondents. Because the number of videocassette copies was limited, packages were sent out in three waves, with mailed follow-up letters being sent after two and four months and telephone follow-ups after five to six months to encourage return of the videocassettes and completed questionnaires. Not surprisingly, we did not achieve our target level of participation. Besides the common problems of changed addresses, careless secretaries, and vacations, many potential participants reported that they were simply unable to find the time to take part. The final sample consisted of eighty-seven respondents, a return rate of just over forty percent. There were twenty-seven defense 49. The exact wording of the question was "Which way do you think this juror will lean in this trial?" Attorneys responded by checking a six-point scale anchored by "leans toward conviction" and "leans toward acquittal." 50. Forjudges, this open-ended question referred to causal challenges. For attorneys, it referred to peremptory challenges. 51. These judgments were made on a seven-point rating scale anchored by "definitely not" and "definitely." 52. The exact wording of this question was, "Earlier, you indicated which way you thought each juror would lean in this case. Of the eight jurors you saw, how many actual verdict preferences do you think you predicted correctly?" Attorneys responded by checking a number between zero and eight.

15 1991] THE EFFECTIVENESS OF VOIR DIRE 679 attorneys, twenty-nine prosecutors, and thirty-onejudges. 5 3 For the majority of tapes, eleven of twenty, there was at least one representative of each of the three roles; for a few, three of twenty, only one role was represented. Overall, 156 jurors were seen and evaluated by at least one respondent. Of these, 132 served on one of 107 deliberating juries in Phase One; the remaining twenty-four had been either self-excused or were left over after juries had been composed. Undergraduate research assistants coded participants' ratings and open-ended responses. The second author constructed a preliminary coding scheme for the latter items author after sampling a number of early questionnaires. Coders were instructed to use these codes and to add new categories if a response could not be fit within the original scheme. Where multiple reasons, arguments, or the like could be provided, coders were instructed to code the first, if all appeared to be equally important, or the most important, if one was clearly emphasized. III. RESULTS A. Adequacy of the Simulation In order for this study to be at all informative of the ability of judges and attorneys to recognize and eliminate jurors biased by prejudicial pretrial publicity, it is important that the simulation of voir dire, or at least, the portion of voir dire concerned with pretrial publicity, was reasonably accurate. Poor performance by judges or attorneys would mean little if they had been deprived of information routinely available to them during voir dire. All participants were asked to rate the relative degree of realism of the publicity portion of the voir dire simulation they had seen. On average, the simulation was rated as fairly realistic, 54 and equally so by representatives of all the roles, defense attorneys, prosecutors, and judges. 55 Participants were also invited to indicate what, if any, features of the study struck them as unrealistic. The most common complaint related to the length and detail of the questioning depicted on the videotaped interviews. 56 This is hardly surprising be- 53. Three of the defense attorneys and six of the prosecutors were currently serving as judges, but all had extensive prior experience in the assigned role. 54. The overall mean was 3.81 on a seven point scale ranging from one, "very realistic," to seven, "very unrealistic." This mean was not significantly below the scale midpoint of The main effect for Role in an analysis of variance of these ratings was not significant, F(2,69) < In all, 28 of the 42 comments referred to the length and detail of questioning. The second most frequent criticism (11 of 42 instances) was that the case was not typical of the

16 680 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 cause voir dire questioning is never restricted exclusively to issues of publicity as was the case here. The majority of participants responded affirmatively to the question, "Are there any other questions you would have asked or urged the judge to ask?" 57 Participants suggested a variety of additional questions; these were mostly either elaborations on questions already asked or tactical questions designed to reveal or to conceal possible juror bias. 58 The most crucial question bearing on the simulation's verisimilitude was, "In making judgments about possible publicity-induced juror bias, was there any important information you would normally have in court that was unavailable to you here?" The majority of participants, overall and within each role, answered "No." 59 Thus, although the questioning was rather brief and highly focused, most participants thought that the most essential information needed for identifying publicity-produced bias had been provided. We also believed it important to determine whether the attorneys and judges felt that the content of publicity present in this case was potentially prejudicial. Not surprisingly, defense attorneys were more concerned with this risk than were prosecutors. After seeing the publicity and evaluating a number of jurors, defense attorneys were significantly more likely than prosecutors to seek additional peremptory challenges, 60 to request a continuance, 61 to request a usual case involving publicity. For example, commenters suggested that jurors remembered too much, jurors discussed the case too little with others, and jurors were too cooperative. 57. Overall, 66% of the participants who responded to this question answered "Yes." This rate did not differ significantly across roles, F(2,73) < The most common type of additional question advocated by defense attorneys (11 of 19 instances) focused specifically on exposure to publicity. For example, they wanted more detailed questioning of what prospective jurors recalled or assessments ofjurors' trust of the press. In contrast, prosecutors were more likely (3 of 11 instances) to want to ask jurors questions about their background, such as, "Have you ever been convicted of a felony?" Prosecutors were also more likely (5 of I 1 instances) to want to ask leading questions, such as, "You could try this case fairly, based only on the evidence, couldn't you?". 59. Overall, 65%o (49 of 75) participants answered "No," which was significantly above the rate one would expect ifparticipants were completely ambivalent or unsure. Again, there was no Role effect on responses to this question, F(2,72) < 1.01 Among those who answered "Yes," a potpourri of additional factors were mentioned. Some participants wished there had been more opportunity to question a larger pool of potential jurors. Other participants mentioned a need for some opportunity to observe the jurors' reactions to others' answers, and for access to a public opinion survey to bolster a change of venue motion. It is noteworthy that fully half (11 of 22) of the types of information mentioned by participants were actually available to them. Juror screening questionnaires, the content of the publicity, and knowledge of the delay between crime and trial, for example, were provided. Perhaps participants were used to receiving such information in another form. 60. Attorneys responded to this and all other questions concerning their possible actions on a seven point scale anchored by "definitely not" and "definitely." Mean ratings for the question "Would you request extra peremptory challenges?" were 4.87 and 1.30 for defense attorneys and prosecutors, respectively, which differed significantly, F(1,48)=67.8, p< Mean ratings for defense attorney: 5.29, prosecuting attorney: 1.89, F(1,48)=47.75, p<

17 19911 THE EFFECTIVENESS OF VOIR DIRE 681 change of venue, 62 or to request a direct admonition in the judge's charge to the jury to disregard all publicity. 6 Participants in all three roles were also asked whether they thought that such requests would be granted by the court for this case. Judges were, on average, inclined to admonish the jury, 64 disinclined to grant a continuance, 65 and somewhat undecided about whether a change of venue 66 or granting extra peremptory challenges 67 would be necessary. 68 These facts suggest that the pretrial publicity in this case was sufficiently prejudicial to prompt defense counsel to urge, and prosecutors to oppose, special remedies, but that the judges felt that juror bias could be avoided using the standard remedies of peremptory challenges and judicial instructions. B. Challenges and Juror Behavior Effective use of challenges has a somewhat different meaning for judges than for attorneys. In principle, the ultimate goal of peremptory challenges is to achieve an impartial jury, although the immediate objective of attorneys is to eliminate jurors likely to oppose their side. 6 9 If, for example, a defense attorney is able to recognize antidefendant bias in potential jurors, then jurors challenged by the defense should be more conviction prone than unchallenged jurors. Effective use of peremptory challenges by the prosecutor would tend to eliminate relatively acquittal-prone jurors. On the other hand, the judge's objective in exercising causal challenges is to eliminate jurors who might not be able to fulfill the responsibilities of a juror. 7 0 We next examine the effectiveness of voir dire judgments both in the local, role-specific sense and in terms of the net effect of the 62. Mean ratings for defense attorney: 5.67, prosecuting attorney: 1.15, F(1,49) =103.56, p<.o Mean ratings for defense attorney: 5.25, prosecuting attorney: 3.48, F(1,47)=6.81, p< Judges' mean rating, again on the seven-point scale of "definitely not" to "definitely" was 5.24, significantly (p<.05) above the scale midpoint of Judges' mean rating was 3.10, significantly (p<.05) below the scale midpoint. 66. Judges' mean rating was 3.52, not significantly different than the scale midpoint. 67. Judges' mean rating was 4.17, not significantly different than the scale midpoint. 68. The attorneys' expectations about the trial judges' likely behavior did not differ significantly (p <.05) from the judges' behavior except in one instance in which prosecutors thought it was less likely that additional peremptory challenges would be granted than did the judges. 69. See W.JORDAN,JURY SELECTION 24 (1980) (stating trial attorney's objective is to select best possible jurors from standpoint of particular case). 70. See J. VAN DYKE, JURY SELECTION PROCEDURES: OUR UNCERTAIN COMMITMENT TO REPRESENTATIVE JURY PANELS (1977) (stating judge must seek to identify juror bias).

18 682 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 challenges of all three legal actors in eliminating publicity-induced bias. 1. Judges' challenges for cause For each legal role, two types of analysis were undertaken: one for which the juror was the unit of analysis and another for which the individual role holder, e.g., judge, was the unit of analysis. In the latter analysis, each legal actor made several judgments for up to eight prospective jurors, including the relevant voir dire judgments. In the case of the judge, the voir dire judgment was in response to the question, "Would you grant a challenge of this prospective juror for cause?" The judge responded on a sevenpoint scale ranging from one, representing "definitely not" to seven, representing "definitely." These ratings were correlated with four separate measures of the jurors' inclination to convict: a) the jurors' predeliberation verdict preference; b) the jurors' pre-deliberation "guilt rating," which reflected both a juror's verdict preference and the confidence with which that verdict was favored; 71 c) the jurors' post-deliberation verdict preferences; 72 and d) the ju- 71. After stating both a pre- and post-deliberation verdict preference, each juror in the Phase One trial also indicated how confident they were of that verdict by rating confidence on a ten-point scale. The guilt ratings were created by combining verdict and confidence-inverdict ratings and ranged from one, complete confidence in a guilty verdict, to ten, a guilty verdict favored with minimum confidence, to 11, a not guilty verdict favored with minimum confidence, to 20, a not guilty verdict favored with complete confidence. It was felt that this measure might provide a somewhat more sensitive measure of ajuror's conviction proneness than simple dichotomous verdicts, because there is evidence that jurors who are more confident in their position are more difficult to sway during deliberation. See Stasser & Davis, Group Decision Making and Social Influence: A Social Interaction Sequence Mode, 88 PSYCHOLOGICAL REV (1981) (examining function of individual certainty as element in models of decision making). Of course, the virtue of the dichotomous verdict is that this is the judgment most actual jurors are called upon to make. 72. We did not correlate legal actors' judgments with jury verdicts for several reasons. First and foremost, no legal actor ever evaluated all the jurors who comprised a single jury, so it was not possible to assess how well some overall assessment of the guilt-acquittal proneness of all the members of the jury correlated with the jury's actual verdict. Second, a relatively large proportion of the juries at Phase One failed to reach a unanimous verdict in the one hour available to them; therefore, it was not feasible to assign to each juror the verdict of the jury to which that juror belonged. Third, jurors' post-trial verdict preferences and guilt ratings represent the best available data on the conviction proneness of each juror after having taken part injury deliberation. Furthermore, even in hung juries, there is evidence that the popularity of a verdict alternative at the end of available time is highly predictive of the jury verdict that would have been reached 'had deliberation not been limited in time. See Kerr, Social Transition Schemes: Charting the Group's Road to Agreement, 41 J. PERSONAIrv & SOC. Psy- CHOLOGY 684, 695 (1981) (finding time limit has no effect on mock jury's speed of verdict or direction taken toward verdict). To maximize our sample sizes, the few jurors (24) who did not actually participate in a Phase One jury deliberation were included in the present analysis of post-deliberation judgments. These subjects were asked to privately consider the types of arguments likely to be raised in a deliberating jury. In any case, including these jurors in the analysis is statistically conservative, since any differences between pre- and post-deliberation judgments created by participation in face-to-face deliberation would be attenuated because

19 1991] THE EFFECTIVENESS OF VOIR DIRE 683 rors' post-deliberation guilt ratings. Recall that the effects of exposure to pretrial publicity in Phase One verdicts only emerged after jury deliberation. The average of these correlations across judges served as an indication of the degree to which judges' causal challenge ratings could predict how conviction prone jurors were. These mean correlations were quite small and never significantly different from zero. 73 One mean correlation was marginally significant, p <.10, the correlation between causal challenge ratings and post-deliberation verdicts. 7 4 It was possible that effective performance by some or most judges could have been undermined by very ineffective performance by some other judges. The only real basis available to us for distinguishing among judges was their self-reported level of experience as a trial judge. We correlated the number of trials in which the judge had presided with the judges' correlations between causal challenge ratings and juror behavior. Significant negative correlations would indicate that as judges' experience increased, their ability to identify and dismiss jurors biased through exposure to pretrial publicity also increased. These correlations were all negative, and significantly so for pre-deliberationjuror behavior. 7 5 More experienced judges were somewhat more effective than their less experienced brethren in identifying, through causal challenges, those jurors who were most inclined to convict the defendant, but the overall performance of the judges was quite near the level of chance. The general lack of relationship between judicial causal challenge such "left-overs" tend not to alter their pre-deliberation verdicts. See MacCoun & Kerr, Assymetric Influence in Mock Jury Deliberation: Jurors' Bias for Leniency, 54 J. PERSONALrrY & Soc. PSYCHOLOGY 21, 23 (1988) (illustrating that simply being allowed to ponder one's verdict rarely results in change of heart). Direct analysis of post-deliberation judgments can also raise problems of the statistical independence of observations. This was rarely a problem in the analyses where the role holder was the unit of analysis, only infrequently did any of the eight jurors they considered serve on the samejury. The problem was slightly more troublesome in the other basic analysis in which jurors were the unit of analysis. Rarely were more than one or two persons from the same jury included in the sample of jurors evaluated at Phase Two, that is, only 18% of the 70 juries which had any of their members evaluated had more than two jurors evaluated. This was because the majority ofjurors at Phase One were never interviewed nor videotaped. 73. For notational purposes, we shall signify the judge's causal challenge ratings with the letter "C;" pre-deliberation verdicts with "Vl;" pre-deliberation guilt ratings with "Rl;" and post-deliberation verdicts and guilt ratings with "V2" and "R2," respectively. Using these designations, rcjvl represents the correlation between causal challenge ratings and pre-deliberation verdicts for the jurors considered by judge i. The mean correlations across all judges were Fc/vl-= , FcR1 =-.02 8, Pc/Vs=-.10 9, and icr2= None of these means were statistically different than zero (z> 1.69, two-tailed). Transforming the judges' (or the defense attorneys' or prosecutors') mean correlations with Fisher's r-to-z transformation did not alter the pattern of results. 74. F/ev2=-.ll, z=-1.68, p<.10, two tailed. 75. If E signifies level of experience, ff/(cvl)= , n=26, p<.04; fs,(c/r)= , n=26, p<.025; Fi/ccmw=-.300, n=26, p<.14; and rfe(c,2)=-.37 6, n=26, p<.06.

20 684 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:665 and juror verdicts was corroborated by the second analytic approach in which jurors were the unit of analysis. In that analysis, where more than one judge evaluated a given juror (more than one judge received the same tape and provided judgments), ratings were averaged across judges. If the mean, across judges but within jurors, was greater than the midpoint of the rating response scale, 4.0, then the juror was considered successfully challenged for cause; if the mean was equal to or less than 4.0, the juror was not challenged for cause. Of the 107 jurors for whom judges made causal challenge ratings, twenty-four (22.4 percent) were challenged for cause through this procedure. This confirmed that the publicity to which jurors were exposed in Phase One was potentially biasing, thereby justifying the causal challenging of about one in five prospective jurors by these experienced trial judges. As suggested by the preceding correlational analysis, no significant association existed between these dichotomous causal challenge judgments and the dichotomous verdicts these 107 jurors reached Defense attorneys' peremptory challenges The same basic analyses were carried out for those taking on the defense attorney role. The key rating made by role occupants was their response to the question, "Would you use a peremptory on this prospective juror?" Again, we used a seven point scale. The correlational analysis where the defense attorney was the unit of analysis indicated that these ratings did not correlate with juror behavior. 77 There was no significant mean correlation between defense attorney experience and this correlational index of effective peremptory use. A similar correlational analysis was performed looking at the defense attorneys' responses to the question, "Which way do you think this juror will lean in this trial?" This judgment was made on a six point scale varying from one, "leans toward conviction," to six, "leans toward acquittal." Again, the mean correlation between this defense attorney judgment and the various jury behaviors was never significantly different from zero. 78 In the alternative analysis with juror as unit of analysis, there were 76. There was literally no association between consensual causal challenges and V1, predeliberation verdicts, X 2 (df= 1) =0.0, and practically none for V2, post-deliberation verdicts, X 2 (df= 1) = Signifying the defense attorney's peremptory challenge ratings with the letters DP, the mean correlations across all defense attorneys were rdp/vl=.086, rdp/j'=.006, fdp/v2=-.069, and fp/p 52 = None of these means were statistically different than zero. 78. If we denote the defense attorney's "leaning" judgments by DL, then Fnuvl =.096, FDR1,=.09 7, il/v2=.014, and FDuR 2 =.0l0. None of these means was statistically different than zero.