The jury box may well be the last place in our system of government where racists, sexists, ageists, those with religious prejudices, and other similar predispositions and biases still thrive.
These folks are generally socially aware enough not to volunteer their deeply held prejudices. Many of them actually do try to set aside their biases, as required, to judge a defendant as objectively as is humanly possible.
But don’t be fooled. Personal experiences, biases and bigotry will sway how jurors view the evidence and testimony, and, ultimately, whether they vote to convict or acquit.
It is our job, as lawyers, to do our best to detect concealed emotion or discrimination. Whether in witnesses or prospective jurors, we seek to neutralize these adverse factors.
Sometimes this can be achieved during carefully constructed voir dire interviews; other times only a seasoned courtroom Intuitive can effectively mine the inner thoughts and motivations of those who are viscerally, even subconsciously, intolerant.
Earlier this week on our Whispers blog, we reported on a study published recently in the journal, Gender Issues, that concluded female jurors will treat male defendants differently, depending on how attractive the jurors find the male defendant. The research involved 170 college women.
The upshot of the Gender Issues article is that female jurors are more likely to dole out harsher sentences to unattractive defendants than to good-looking ones, even if both men committed the same crime.
WOMEN JURORS ARE NOT UNIQUE
Lest you think that based on the study, which was conducted at Eastern Kentucky University, women are shallow, note that the researchers didn’t similarly study how male jurors would respond to attractive versus unattractive female defendants. So let’s say EKU has a bit more work to be done, at least on that issue.
We suspect, based on our professional experience and other similar studies we’ve read, that jurors use attractiveness as a yardstick, regardless of their gender. Justice should be blind to such superficialities, but we all know it isn’t.
Working extensively in criminal law, The Jury Whisperer’s Shelley Albert has witnessed the practical import of attractiveness and gender bias many times. Prepping for cases, especially those involving sex crimes, Shelley always factors into her strategy how young and cute girls will be perceived by members of the jury.
“Men seem to believe women victims more often than women do,” Shelley observes, adding that such reflexive biases can result in an otherwise innocent defendant being convicted by male jurors.
Shelley notes that attractiveness-bias is prevalent throughout society. Studies have demonstrated that better-looking people earn more money; have better job prospects; and are more likely to get elected to public office. For example, one person-on-the-street research project showed two photos to passersby and asked – based solely on the pictures – which of the two they’d elect to Congress. The good-looking murderer easily beat the innocent, unattractive candidate.
Knowing these biases arise, Shelley’s approach is to be aware of likely prejudices, prepare carefully for them, and advise her clients on how to offset them. In the case of appearances, that always includes putting her client’s best face forward, literally and figuratively.
Carole Gold, who co-founded The Jury Whisperer, is the complement to Shelley’s skillsets. Carole’s approach is to use her well-honed skills as a Courtroom Intuitive to detect potential jurors whose ingrained prejudices would augur poorly for her client, thereby helping to prevent problematic jury candidates from being empaneled in the first place. If a biased juror is seated, Carole and Shelley’s combined talents can help counsel develop trial strategies to reduce the potential damage.
ALWAYS BE CLASSY
Likewise, trial witnesses may recall the events they witnessed through the eyes of a closeted bigot. Carole’s skills at detecting such biases – which are often unconscious – can shift the entire tenor of cross-examination to the enormous benefit of her clients.
Shelley notes that prejudiced jurors sit in judgment not only of plaintiffs and defendants, but of their attorneys as well. “We always want to look our best and lawyer-like,” she advises. Shelley subscribes to the ABC’s of lawyerly dress: Always Be Classy.
In a perfect world, jurors wouldn’t be swayed by appearances, prejudice, or extraneous belief systems. They would weigh each case strictly on the merits.
Absent such enlightenment, it’s advisable to anticipate that jurors and witnesses will be fallible to their own intolerance, and hence, adequately prepare to detect and defuse it.