The Impact of Juror Bias in Sexual Assault Cases and Ways to Mitigate Generic Prejudice During the Voir Dire Process
Juror bias is defined as the conscious or unconscious preconceived notions held by a juror that can cause them to unfairly favor or oppose the facts of a case during a trial. Seating a potentially biased jury member conflicts with the Sixth Amendment of the United States Constitution—where in criminal prosecutions, defendants are given the right to an impartial jury (Wiener, 145)— and can have harmful implications for the fairness of a trial. The biased jury member is more likely to focus on external factors associated with their bias, rather than the facts presented before them, undermining the very principles of an adversarial system of law. In fact, social psychologists have found that jurors will persevere in their initial beliefs and attitudes even when faced with competing, contradictory evidence (Neufer & Patterson, 98). Although judges are aware that jury bias exists and attempt to mitigate it by striking potentially biased jurors during the voir dire process, one may argue that the American legal system does not adequately assess bias during this process. Voir dire remains consistent across all types of cases by having jurors state to the court that they can be impartial (Neufer & Patterson, 100); however, this does not control for unconscious biases or widely accepted societal view that are often associated with stigmatized cases, such as sexual assault, including rape and child sexual assault.
Biases in these cases are largely driven by westernised sexual assault or rape myths, a term defined as stereotyped and false beliefs concerning individuals associated with sexual assault (Jacquin & Stewart, 854). The United States is a society that subscribes to these myths. In some instances, courts place the survivor of sexual assault more on trial than the perpetrator by blaming her for the incident because of her general demeanour, clothing, or other factors that go against perceptions of what a rape victim is supposed to look like and how they should behave (Boeschen et al.). For example, one study found that participants of a mock jury significantly rated the victim as less credible and the perpetrator as less guilty in a fictional rape case when the victim was known to have willingly consumed alcohol before the sexual assault (Jacquin & Stewart, 855). Jurors who believed the myth that women who drink alcohol are seen as more rebellious and, thus, are more interested in having sex than women who do not drink, overlooked laws regarding consent and applied their external perceptions to the case instead.
Additionally, one mock trial study found that the attractiveness of the defendant and victim influenced the severity level of the sentence. If the defendant was unattractive, they received a much harsher sentence—almost double the sentence time of the attractive defendants— even when there was weak evidence against them (Erian et al., 35). Participants granted lighter punishments to attractive defendants because they viewed them as less accountable. Media typically portrays rapists as hideous monsters. When a defendant looks like “normal,” even attractive, people find it hard to believe they could be a monster (O’Hara, 248). During an actual trial, perhaps these erroneous beliefs would be uncovered during voir dire; however, the current methods to remove jurors do not account for all potential, specific myths or unconscious biases that have been implicitly ingrained in people from the media and may only emerge during deliberation or sentencing. Therefore, this creates a jury that is not impartial, one that has members applying exogenous factors, such as rape myths, to the case.
The aforementioned studies are two examples of how the presence of pervasive rape myths or information unrelated to the case can bias jury members, impact how fairly or unfairly cases are handled, and can lead to lower conviction rates (Hildebrand & Najdowski, 1060). With the goal to suggest ways that courts can build a jury for sexual assault cases with as little bias as possible, this essay will also use psychological studies to explain what aspects in society, including sexual assault myths, contribute to juror bias.
How Juror Bias Operates in Sexual Assault Cases
The reason why judicial bias in sexual assault cases is difficult to identify and mitigate during voir dire is because this bias exists as generic prejudice. This form of bias is when the nature of the crime instinctively causes the juror to classify the case as having particular characteristics, thereby applying their stereotyped beliefs and attitudes onto anybody involved with the crime in such a way that may disregard the facts of the case (Vidmar, 6). For example, by simply listening to the type of crime of which the defendant is being accused, a juror with generic prejudice will instantly form an opinion and stick with that judgement regardless of the facts of the case (Applied Social Psychology). Jurors may not realize they have this prejudice and the questions during voir dire have been thought of as being too general in order to reveal it (Neufer & Patterson, 100).
In fact, most jurors who are struck from cases, state that they cannot be impartial because of a direct experience with sexual assault, such as having been physically abused as a child or having a friend who is a victim of sexual assault (Vidmar, 17). These experiences would cause them to unfairly oppose the perpetrator. In an early generic prejudice study, 36% of venire members across 25 trials were labelled as being biased, and research into the reasons these people offered for being partial leans towards them favouring the victim (Wiener, 145). Conversely, the jurors who unconsciously believe and reinforce sexual assault myths, which tend to unfairly disfavour the victim, are not struck from the jury as often because, once again, the general voir dire questions do not provoke the jurors to reveal that bias. Consequently, the court creates a seemingly impartial jury, which, in actuality, includes members who are susceptible to agreeing with harmful stereotypes about rape victims and will make decisions or influence others under this generic prejudiced mindset.
Additionally, it is less likely for generic prejudice to exist in, for instance, homicide cases. In a study where participants rated factors about defendants’ guilt and the responsibility of the victim in both sexual assault and homicide cases under time constraints, results showed that people cited and applied facts from the briefing more often to the homicide cases. When overwhelmed with information and pressured to make a sentencing decision or inference about somebody’s culpability, the participants focused their limited attention on facts and topics that were less stigmatized; namely those in the homicide cases. For something considered taboo, such as sexual assault, generic prejudice factored in so that participants applied their biases as a blanket judgement, often how psychologists do with external validity, in order to avoid the facts of the case from conflicting with their preconceived beliefs about sexual assault myths (Wiener, 155).
How Biases Form Generic Prejudice in Psychological Studies
Perpetuated by media, such as TV shows, movies, and music, these sexual assault myths help to shape a juror’s generic prejudice. In a content analysis study of prime-time television dramas, the documented overuse of rape myths significantly reinforced the belief in participants that women are the ones responsible for rape, not the male perpetrators (Brinson, 373). More recently, Netflix produced Unbelievable, a miniseries that follows the story of a woman who is accused of lying about a rape, shedding light onto the fact that people in society still subscribe to these myths. Even children’s comic books promote rape culture by, for example, showing that over 76% of the rapist characters in the study never received any form of criminal punishment. By not being held responsible for their actions, it implies that the perpetrator did not do anything wrong (Branch et al., 57).
In more conservative societies, like the United States, the abovementioned media examples tend to paint victims of sexual assault in a negative light, whereas girls and women are seen as objects who are looking for sexual attention (Hildebrand & Najdowski, 1065). Potential jury members will likely be exposed to this media at some point in their life and may be influenced by it, which can impact how they perceive future rape cases, victims, and perpetrators. The blaming of sexual assault victims results in lower conviction rates and appears to cause a lower report rate— rape is, in fact, the most underreported crime in the United States (Kilpatrick) and out of 1000 sexual assaults, only 5 cases will lead to a conviction (RAINN)— because victims feel as though they would not be believed. For example, males are found to believe more strongly than females that accusations of sexual assault are often false (Klettke et al., 95). Fear of being blamed, lying, and the common police practice of dismissing and underreporting rape cases, helps one understand why a woman chooses not to report her sexual assault (Yung).
Another study found that the age of the juror influences the credibility of sexual abuse victims specifically because of a shared understanding of gender norms between different generational cohorts. Experimenters measured factors, such as believability and trustworthiness of the testimony provided by the victim, across younger (“Generation Y” and “Generation X”) and older (“Baby Boomers” and “Builders”) cohorts to consistently find that the latter group attributed less overall credibility to the victim. (Klettke et al., 91). Generational cohorts tend to hold similar views about gender, and this stereotyped, potentially misogynistic, type of thinking can influence the entire group’s understanding of women and of sexual victims, which manifests in the courtroom as a reflection of the credibility of the female victim (Klettke et al., 92). This study also found that older and male participants believed that if a woman is not visibly distressed while delivering her testimony of the sexual assault, it implies that her account is false. (Klettke et al., 95). Similar to the male participants that believe more strongly that reported sexual assaults are fabricated, adopting these beliefs as fact and applying it to all sexual assault causes is the way generic prejudice arises. Courts recognised there was a lack of physical evidence to dispel these beliefs, and in 1988, introduced a form of expert testimony called Rape Trauma Syndrome (RTS) to challenge the notion that women must be visibly distressed to be telling the truth about their assault.
Ways to Confront Bias During a Trial
RTS operates as scientific testimony in a courtroom to demonstrate that women who have been sexually assaulted may act in an unexpected manner, perceived as illogical by others. The psychological aftermath of a rape is different for each person and sometimes, the victim will act calm and will not be overly distressed, even when recounting the incident in court (Fischer, 704). When a defendant appeals that the sexual assault was actually consensual, the prosecuting side can introduce RTS to signify that people who engage in consensual sex do not always act in ways outlined in the syndrome (Frazier & Borgida, 102). Unless physical, forensic evidence of the rape can be collected, RTS serves as the next best thing to question bias. While it has been found that prejudgments persevere, even in the face of contradictory evidence (Neufer & Patterson, 98), and there is an ongoing debate about the scientific validity of syndrome testimony and its admissibility, RTS is an accessible form of evidence that can spark deliberation within the jury, which could cause some members to re-evaluate their preconceived believes in accordance with the data presented.
Pretrial publicity, which is specific facts and evidence disclosed prior to a specific trial, has been found to alter mock jurors’ sentencing decisions, regardless of their prior beliefs. For example, exposing jurors to pretrial publicity that painted the defendant in a negative light increased the chance that he would be found guilty in sentencing (Fein et al., 1220), and these results are supported by a meta-analysis of forty-four empirical studies (Wiener, 146). This demonstrates that some form of clearer evidence helps jurors put into perspective more ambiguous “he-said-she-said” arguments (Jacquin & Stewart, 854). Recognizably, this evidence cannot be biased to favour or disfavour the defendant or prosecutor, but courts should introduce debate-oriented evidence, or, if evidence does not exist, motivate and remind jury members to analyse the testimony with this critical thinking mindset. For example, to assist mock jurors in sentencing child sexual assault cases, Australian psychologists introduced uncharged acts of defendant sexual misconduct in the middle of trial study.
In this simulation, the judge admitted previously uncharged, prejudicial evidence against the defendant to see how the likelihood of culpability would change. Another goal of the study was to qualitatively document the ways jurors engage in deliberation since this has not been widely researched before (Goodman-Delahunty & Martschuk, 201). Results showed that, on average, in the presence of uncharged acts, jurors were more likely than not to convict the defendant; however, paired with the deliberation data and the fact that there were no ceiling effects, the psychologists concluded that jurors were not unfairly biased against the abuser in a significant way. Instead, the evidence enabled thoughtful and varied discussion: some jurors said the uncharged evidence showed a compelling pattern that the defendant was an abuser and other jurors labelled it as a coincidence and were reluctant to convict them until there was more evidence (Goodman-Delahunty & Martschuk, 205). The coded observations of the mock jury discussions signify that jurors—whether they had implicit prejudices remains unknown for this particular trial—did not solely rest on their assumptions about sexual assault.
However, a limitation of these trial simulation studies is that they are, of course, not real trials and do not actually simulate the voir dire process. They manipulate an independent variable, whether it be the defendant’s attractiveness or the presence of alcohol, and measure the impact of these as biases, but there is little research on detecting generic prejudice before the trial starts. Similarly, if psychologists are able to create a sample of truly impartial participants by striking members who favour and disfavour the victim, one could see whether biases such as age, gender, or culture are mediating or moderating variables. The latter portion of this essay focuses on the ways that courts can mitigate juror bias in sexual assault cases before and during the voir dire process, in a way that also educates the American public by dispelling rape myths.
Building an Impartial Jury
Having recognised that many potential jurors may subscribe to rape myths and lack a general understanding of the components of a sexual assault case, courts should more rigorously educate their jurors before voir dire to mitigate any generic prejudice. Thus, psychologists can be employed to provide sexual assault education in order to develop potential jurors’ knowledge in this subject. One of the most common rape myths is that women falsely accuse their rapists and fabricate the events of the incident. For male and older jurors, this is emphasized when victims giving testimony do not act in accordance to how one might perceive them to behave after an assault: visibly distressed, such as crying (Klettke et al., 95). This counterintuitive victim behaviour (CIVB) is what RTS aims to scientifically explain, and thus, could be a central focus of the education. The educators could show a series of images of women, pronounced as having been assaulted, reacting to their attacks, with these reactions taking a variety of forms, including, but not limited to, crying, remaining calm, showing anger, acting optimistic and upbeat. In experiments that aim to mitigate racial biases, it has been proven that exposing participants to counter-stereotypical images will reduce implicit biases against a specific racial group (Wilkins, 332). For example, it is common for some to associate black males with poverty and aggression (Wilkins, 330). The image shown could be a black male doctor or businessman. Consequently, the diverse images of the female victims could challenge the myth that women must be distressed and clarify the use of RTS in a courtroom. This implicit bias check could also be used to address how a “typical” perpetrator of rape looks.
In order to test whether this education challenges rape myths, the educators would have the potential jurors complete a Sexual Assault Questionnaire (SAQ), developed by psychologists and rape crisis centres (Frazier & Borgida, 107), before and after the training. Therefore, courts can measure whether the session significantly mitigates bias and the jurors who do not receive an appropriate score, perhaps upwards of 75%, will be struck before or will be questioned more intently during voir dire. Since it is understood that that charged pretrial publicity influences jurors sentencing decisions (Fein et al, 1220), it is imperative for a non-biased training to focus solely on scientific evidence and statistics to confront rape myths. However, due to time and budget constraints, it is challenging to develop a curriculum that thoroughly addresses rape myths, biases discovered during trial simulations, the background of RTS, CIVB, and other related topics. One might argue that unless all of these matters are addressed, an impartial jury does not exist. That is, unless the jury panel is it made up of expert sexual assault psychiatrics and psychologists who understand how biases are formed, condemn rape myths, and can comprehend RTS as evidence. Although an ideal impartial jury, this may be considered impractical and violates the Sixth Amendment that a jury should consist of a representative cross-sample of the community (Wiener, 145). Therefore, the actual voir dire process will be useful in addressing what the SAQ could not, as well as identifying cases of generic prejudice.
Voir dire differs across cases and is often dependent on the attorney asking the questions. Some psychologists have critiqued the process, asserting that it is not enough for a potential juror to “simply” state that they can be fair and impartial in response to the related question (Neufer & Patterson, 100). Similar self-report experiments have shown that people do not always tell the entire truth when assessing their own thoughts and opinions (Neufer & Patterson, 102). One way to more carefully detect generic prejudice is by having the attorneys frame the sexual assault biases as questions during voir dire. For example, in the experiment where there was a bias towards attractive and unattractive perpetrators, attorneys might inform the jurors that some people let physical appearance obstruct their ability to objectively make sentencing decisions (Erian et al., 38). They would then ask if the juror before them would fit into that category. The researchers of this study concluded that these “enlightenment questions,” ones that teach jurors about their biases, would help them focus more on the facts of the case because they are consciously aware of not falling victim to this bias. Attorneys can ask the enlightenment questions about topics such as attractiveness or generational beliefs, as well as about areas on the SAQ. For a juror who scored 75%, the voir dire process can be used to uncover whether they actually believe in a particular myth or not, or made a mistake on the test. The question, referring to the second one on the SAQ (Frazier & Borgida, 107), could be phrased as “some people believe that the percentage of false rape reports is more than false reports of other crimes, but this has been refuted by these sources and is, thus, a myth… knowing this, do you believe that you fall victim to this myth?” This framing technique is what psychologists have found to best predict future behaviour and also incites more introspection from a juror about their own prejudices (Vidmar, 11).
American courts may also learn how to improve the voir dire process by looking at other countries. In Canada, it is not the members of the court who decide to strike the jurors or not, but the other members of that jury (Vidmar, 9). Although this seems to be a contentious system, it does inspire an idea about how to reform the structure of voir dire. That is, transforming the question-and-answer process into a pre-trial deliberation room involving all members of the jury and observed by the judge and attorneys. The Australian study, where uncharged sexual assault evidence was introduced into the courtroom, indicated that additional information, whether it be evidence or discussion points, stimulated debate and a variety of opinions (Goodman-Delahunty & Martschuk). Questions related to the sexual assault education or questions similar to the enlightenment ones could form the basis of discussion and social psychologists would monitor the room from a camera. Although the Hawthorne effect—the phenomenon that people behave differently when being watched—may need to be controlled for, this enables a court to tangibly see how the sexual assault education impacted the jurors and how their assortment of biases are checked by their peers, which is important when rape culture is stigmatized. For example, one juror might share that he does not understand how RTS is useful. Other members could recall information from the training and explain that RTS explains why the victim could behave in an illogical manner. If the first juror accepts this knowledge, the observing psychologist could interpret this as him trying to overcome his bias; if he does not and continues to state that RTS is not useful under any circumstances, this provides a reason to strike him from the jury.
The nature of generic prejudice is that it unconsciously clouds jurors’ judgements at different points during a trial and the juror can be unaware of its impact on themselves. Media constantly reinforces rape myths—such as that women are lying about their sexual assaults or that they are looking for male attention—which become ingrained in the minds of potential future jurors, altering their attitudes, often unfairly, towards rape victims. Although negative pretrial publicity has been found to bias jurors against the defendants, demonstrated across multiple empirical studies in the past, the psychological studies included in this essay and research into who is typically struck from a jury during voir dire, indicate that it is most likely to be the persecutors to experience an unfair trial. This partiality of the jury could be due to sexual assault being a challenging and stigmatized topic to think about. In an effort to avoid these thoughts, jurors allow for their instincts, their generic prejudice, to make decisions about the case and those involved, rather than rely on the facts of the case.
Nevertheless, courts can take actions to counteract jurors’ instinctual processes of thinking. By establishing a culture of critical deliberation and continual bias testing before and during a trial, judges will encourage jurors to think about how their beliefs apply to the case and what they may have taken or mistaken to be fact in the past. Therefore, this essay suggests that courts implement education sessions that address common rape myths and encourage the voir dire process to uncover potential juror biases by having members complete the Sexual Assault Questionnaire. Past research has focused heavily on the biases that seem to appear in mock jurors during the actual trial simulation, but it is now important to explore if these biases would still exist given additional education sessions, the SAQ, and ideas on rebuilding an impartial jury through enlightenment questions and pre-trial deliberation. Perhaps the better question is how society can refute and repair the sexual assault myths that pervade American media, creating a harmful rape culture. However, until psychological experiments reveal significant results that imply, for example, a woman is not blamed for coming forward about her rape, the United States must implement structures into its voir dire and court system to mitigate all forms of bias pervading sexual assault cases.
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Report written by Mimi Thompson in Fall 2020 for coursework as part of "Forensic Psychology".