The first stepin selecting a fair jury is to have a jury pool or venire, which is acollection of potential jurors assembled together for jury duty.
(Criminal.lawyers.com,n.d.)1Members of the venire are then questioned in a process called voir dire, alsoknown as the jury selection process, which is one of the safeguards the legalsystem has for bias in jurors. (Markman,2017)2During the voir dire, the judges andattorneys question potential jurors and remove the ones who may have some typeof bias. (Legal Dictionary, n.d)3 and this process thus helps them toensure the juror’s ability to remain impartial during the trial.
(Findlaw, n.d) 4Attorneys and the judge mustidentify explicit or implicit bias in potential jurors.The examination of potential jurors during the voir dire can be carriedout by the judge or the attorneys in open courtroom or privately in the judge’schambers, and is used to identify the existence of personal relationshipsbetween potential jurors and any other parties involved in the trial, and theirability to understand legal instructions and trial evidence in an impartialmanner (Lehmannand Smith, 2013)5 The ideal juror is thus onewho can dispassionately and objectively listen to the trial evidence, and is thusable to render a verdict based on rational and bias free thought processes. (Winterand Greene, n.d.
)6Certainmeasures have been taken in order to reduce the effects of explicit andimplicit bias in jurors in order to form a fair and impartial jury. This beginsby removing jurors displaying explicit or implicit bias. Explicit bias iseasier to detect due to its obvious nature, and so remove. For example, during the El-Gammal case7, prospective jurors expressedviews that his (El Gammal’s) faith (Islam) condones terrorism and that heshould be tried by the military (Zavadski,2017)8and thus were easily removed by the judge and the attorneys as they knewabout the bias these potential jurors had against Muslims.
However, potentialjurors may be able to hide their biased beliefs. According to the NAACP9, the safeguardsestablished throughout the justice process, such as voir dire, are ineffectivein revealing racial bias as potential jurors rarely admit any biases due to thefear of being socially stigmatized (Ojeda and Halliburton, 2017)10 This issue was brought upafter the trial of Peña Rodriguez, after two jurors reported that a juror knownas “H.C.” had expressed racially chargedaccusations against Rodriguez during jury deliberations.
The defense arguedthat asking potential jurors about racial bias is not effective because jurorswith prejudiced beliefs might lie when asked directly due to the criticism and stigmaassociated with expressing prejudiced beliefs. (Ojeda and Halliburton, 2017)11 In such cases,where a potential juror might be lying about their beliefs, the methods used todetect implicit bias are more useful as it allows attorneys to find subconsciousbeliefs and prejudices of potential jurors. They can then be removed from thejury pool and prevented from serving.Implicit bias is usuallymore challenging to detect and remove than explicit bias.
This is due to theunconscious nature of implicit bias, which makes it difficult to detect it. Somemeasures have been taken in order to detect this bias. These include: