To say that America has a complicated relationship with “foreignness” would no doubt be an understatement. After all, the vast majority of us have relatives or ancestors who immigrated to the United States at some point in time (I, myself, am a first-generation citizen). Yet, there remains a great deal of political controversy and social tension between Americans and the foreign born (or even those who merely appear to be foreign born).
It’s no surprise that our clients wonder whether jurors’ attitudes on these issues might influence their ability to fairly and impartially consider the testimony of foreign witnesses, or whether potential bias in favor of or against any given race, nationality, or religion may impact the ultimate verdict.
Indeed, foreign witnesses in all types of legal matters have increasingly become more common given the expanding diversity of the workforce, so the concern regarding a potential bias is well-founded. When dealing with foreign witnesses, clients need to be concerned about the potential impacts of the witness’ race, nationality, and apparent religion, as well as differences in language or accents. However, before we discuss techniques for identifying and minimizing the effect of an “anti-foreign bias,” we must learn how jurors think about these issues.
In an effort to study just that, a sample of jury eligibles (surrogate jurors from mock trials) were surveyed regarding their attitudes toward foreign witnesses. Of course, learning about biases directly from the source can be tricky, as self-report measures often underestimate the strength and incidence of the bias. That is, an interesting problem tends to occur when surveying a group’s responses to any sensitive subject: getting respondents to answer honestly and accurately. From a psychological perspective, the problem is two-fold. For one, most responses are influenced by a social desirability bias, which is the tendency of survey respondents to answer questions in a manner that will be viewed favorably by others. Essentially, jurors are likely to over-report “good,” socially acceptable behaviors and attitudes, and under-report “bad,” or undesirable ones. Second, respondents also may not even be aware of the extent to which their underlying beliefs and attitudes affect their decisions; they might not even know these beliefs exist at all – a psychological phenomenon known as implicit bias.
For these reasons, social scientists must find ways to formulate questions, or ask follow-up questions, to gain a deeper understanding and more reliable responses. In the survey, questions about a jurors’ attitudes toward foreign witnesses were later followed with a similar question, but phrased in a way that did not directly ask for the respondent’s personal views, but rather their expectations of the views of other jurors. The goal of this methodology is to assess a jurors’ personal views via their projection of those views onto the larger populace. Indeed, this effect has been well demonstrated in the psychological literature over the years; that is, people will project their personal views when assessing a third-person statement/attitude while being reticent to admit the same belief when the statement is framed as a personal attitude (See, e.g., Maner, et al., Functional Projection: How Fundamental Social Motives Can Bias Interpersonal Perception, Journal of Personality and Social Psychology, Vol. 88(1), Jan. 2005, 63-78).
Keeping in mind that juror attitudes are likely to vary by jurisdiction, assessing jurors’ attitudes toward foreign witnesses using this methodology, on a national scale, revealed the following findings:
A Few Survey Results: Jurors’ Perceptions of Foreign Witnesses
1. The influence of race, nationality, or religion on Jurors
To achieve a broader sense of how jurors might evaluate those different than themselves, jurors were asked:
Would you be influenced by the race, nationality, or religion of a witness in a lawsuit?
But, jurors were also asked to note the extent to which they agreed or disagreed with the following statement:
A juror will be influenced by the race, ethnicity, or religion of a witness in a lawsuit.
Figure 1: Are jurors influenced by race, nationality, or religion?
As evident in Figure 1, responses to the first question (on the top) were one-sided; only 2% of jurors said that they, themselves, would be influenced by someone’s racial, national, or religious background. With the second question, however, the story gets murkier. When worded in this manner, 43% of jurors agreed that “a juror” would be influenced by a witness’ race, nationality, or religion. There are two possibilities for the discrepancies in the responses: 1) jurors overestimate the biases of their peers, or 2) jurors underestimate their own biases. In all likelihood, both trends are at play, and the differences are due to a combination of social desirability bias in providing one’s own personal attitudes, as well as implicit bias and projection of those attitudes onto others.
2. The influence of a witness’ speaking language to a Jury
Whether we recognize it or not, our judgement of any individual person is influenced by our general attitudes toward groups that the individual is a member of. For instance, your view of your 20-something-year old niece is influenced by your views of millennials in general. This is not to say that you necessarily have a negative opinion of your niece because you view millennials negatively. Rather, your judgment of your niece will be based on a comparison between what you know to be true about her and your opinion of the group, generally. For example, if you have a general attitude that millennials are lazy and self-entitled, you will either believe that your self-absorbed niece is “just like the others,” or you will believe that your hard-working niece is “the exception.” The problem that arises in trial is that jurors will know very little – if anything – about the personal characteristics of your witness, and thus cannot make an accurate “comparison” to their belief of the group in general. Instead, jurors (like all people) use mental shortcuts – or in Psych 101 terms, heuristics – to make assumptions about your witness based on their attitudes about the group generally. Bringing it back to the issue at hand, jurors may deny that they would judge a foreign witness any differently (because they recognize that individual factors are what matter most), but their attitudes in general about issues involving foreigners or foreign policy can shed light on how they would view that witness on first impression and in the absence of sufficient individualized knowledge.
With this phenomenon in mind, another method to assess implicit bias and the effects of social desirability bias is to ask about beliefs regarding less controversial – but related – topics. In Figure 2, we see that 15% of jurors admitted they would trust an English-speaking witness more than a non-English speaking witness. Yet, over 80% believe that immigrants to America should learn to read, write, and speak English. The people who agree strongly with this stance are more likely to hold some degree of bias – whether they realize it or not – against non-English speaking witnesses who are either living, working, or have some type of business dealings in the United States.
What Does This Mean for Jury Selection?
The substantial discrepancies noted between self-reported personal bias and projected bias or views on related issues would suggest that biases against foreign witnesses are likely to be more common, and to have a greater impact on jurors’ opinions of a witness and his or her testimony, than jurors will admit outright. This raises significant questions about how to get at these deep-seated opinions in voir dire to identify potential bias, and either challenge the juror for cause or exercise a peremptory strike.
At least one of the psychological phenomenon at play – social desirability bias – can be minimized through the practice of anonymity. That is, people are more likely to provide a truthful answer, rather than the socially acceptable response, when they feel they are unlikely to be identified as the source of the response. Given this principle, we can expect jurors to be more forthright in a written questionnaire as opposed to speaking in open court during oral voir dire. Thus, in a trial involving foreign witnesses or potential racial bias, we strongly recommend the use of a written juror questionnaire. Although the juror may still have some concerns about offending the attorneys or judge, at least they do not have to worry about invoking the ire of other jurors. As an added measure, jurors may be more willing to provide candid responses if they feel that their responses will remain confidential or are pseudo-anonymous. One simple measure to implement this would be to include a cover page on the questionnaire informing jurors that their responses contained within will remain confidential. Another measure is to ask jurors to only write their assigned juror number on their questionnaires, as opposed to providing their name or other identifying information such as birthdate or address. While the court would be able to tie the jurors’ questionnaires to their identifying information, the anonymous “feel” of the questionnaire is likely to decrease jurors’ inhibitions.
Identifying implicit biases – of which the juror is unaware – can be much more challenging. However, there are some techniques for asking questions that identify “red flags” or strong indications of a potential bias. For example, we know that a persons’ experiences will influence their beliefs, as this is how heuristics are developed in the first place. So, if jurors are less likely to admit a certain belief, we can ask about experiences that are likely to impact that belief. In our case, in addition to asking jurors about their beliefs or biases against a particular race, nationality, or religion (a response that should be an easy cause challenge), we also suggest asking jurors about their experiences with these groups (e.g., “Have you ever had a dispute or argument with a person of X nationality?”). Responses to these experiential questions can be the building blocks to a cause challenge, or at least may provide information to help you intelligently exercise your peremptory strikes. Like the survey questions above, other techniques for identifying potential bias would be to ask jurors how they think other jurors would be likely to respond, which may identify jurors who are projecting their biases, and asking jurors about their beliefs on certain, related issues. For example, in a recent case in which our client was a Medical Doctor of Turkish descent being accused of malpractice, we asked jurors, “How many of you believe that the Middle Eastern culture is disrespectful toward women?” While we couldn’t say for certain that people who raised their hand would judge our client more harshly due to his nationality, it provided some insight as to which jurors may have a propensity to do so. And in the realm of jury selection where there are very few certainties in predicting juror behavior, propensities are often the best we have to go on.
Race, nationality, and religion are tough subjects to broach during jury selection. While the examples offered here may be helpful in some instances, it is always important to consider the jurisdiction, the facts of the case, and the jury pool when formulating the questions that can help you maximize your ability to identify foreign bias, while also being careful not to offend your jurors. For that reason, we recommend getting case-specific voir dire guidance when handling cases involving foreign witnesses.
By: Christina Marinakis, J.D., Psy.D. – Director – Jury Research