Wednesday, October 13, 2010

Thin slicing and jury selection

Chocolate covered bacon.

Grilled cow's brains.


Be honest. What was your first reaction when you read the words? Chances are that's how you feel about them. Now, upon further reflection you might change your mind. You might modify your opinion so as not to offend someone.

But nothing can change that initial reaction - your gut reaction. In his book Blink, Malcolm Gladwell talks of "thin-slicing." That's the process of jumping to a conclusion based on a small sample size - but, remarkably, that gut reaction is oftentimes correct. It works because we are able to take the pattern of what we saw or heard and compare it with other patterns we've experienced during our lives.

Ask a young child a question and you will get an honest answer - because the child hasn't learned to filter his or her opinions. I have a three year-old daughter and there are situations that my wife and I dread because we have no idea what's going to come out of her mouth.

I believe that jurors are the same. I always ask jurors a series of scaled questions designed to identify their attitudes (and to ensure I speak to everyone). When I ask a juror to rank on a scale of 0-10 whether they think my client is guilty, I get answers all over the board. The same thing happens when I ask the panel to rate their feelings on whether my client testifies or not. I use those answers to strike jurors for cause.

When the juror is brought before the bench I stand and listen while the prosecutor, and even the judge, attempt to rehabilitate him. At that point the juror has had time to think over his or her answer and is now standing face to face with an authority figure sitting on high with a black robe. Of course that juror is going to say "yes" when the judge asks him if he can follow the law - despite the honest answer he gave during voir dire.

That answer doesn't mean that the bias or prejudice is gone - it just means that the juror felt pressured by the situation to rethink his or her initial reaction in order to please an authority figure.

See also:

"'Thin slices' of life" Monitor, March 2005, vol. 36, no. 3
"Very first impressions" Emotions, 2006, vol. 6, no. 2
"First impressions surprisingly accurate" WebMD, Nov. 6, 2009


Cyn said...

So I ask the juror while s/he is sitting out in the audience and having just made a comment that can get them struck, whether they will change their answer because someone in a black robe tells them that's not the law. I usually follow that up with how I tell judges every day I disagree with them, then I duck. (This usually brings laughter.) Then we talk about how our feelings are engrained in us, how we are in the U.S. and have the right to our opinions, and how they would want truthful answers if it were their trial. There's more to it than that, but you can stop a judge or prosecutor from rehabilitating before they get started.

Houston DWI Attorney Paul B. Kennedy, said...

Thanks for the comment, Cyn.

I had a judge who disallowed every one of my motions for cause because I asked for the juror's opinion and not whether or not they could follow the law. And of course they all said they could follow the law -- how else are they going to answer that question in front of a judge?