Document Category: Voir Dire

This draft motion relies on social science about the effectiveness of mental imagery techniques at combatting implicit biases to argue for a proposed criminal jury instruction that employs a “cloaking” or “perspective-switching” exercise in which jurors are asked to consider if their impressions of the defendant (or a witness) would change if they were a different race. The draft motion collects research showing how pervasive implicit racial bias is, how voir dire alone is ineffective at ensuring defendants get fair trials, and how effective mental imagery exercises can be.  It also explains how other jurisdictions already have mental imagery instructions.

This document summarizes specific findings from a 2023 Cornell study showing that prosecutors tend to lead Black venire members to preferred answers (p. 2); use different parts of speech, syntactic complexity, and sentiment when questioning Black venire members (pp. 3-5); and are more likely to ask Black and female venire members questions about graphic or gruesome topics (such as the death penalty) (p. 5-6). The document also discusses specific intersectional findings about Black female potential jurors (p. 6). In each section, the document gives guidance to defense attorneys on how to use these findings to strengthen Batson/JEB arguments when prosecutors attempt to remove Black and/or female venire members after using these racially-motivated tactics.

Studies demonstrate that pre-trial publicity impacts decision-making and individual questioning about content exposure is necessary in cases involving substantial, prejudicial pre-trial publicity

Incorporates studies on implicit bias generally, as well as specifically within jury panels

Advocates that showing prospective jurors a video about implicit bias will help ensure a fair and impartial jury.

p. 17 – 25 explain why attorney-conducted voir dire leads to increased self-disclosure and better assessment of juror bias.