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The juror who admits to being biased may be less concerning than the one convinced they are not, writes Rebecca Ward, MBA.
Finding an impartial jury is difficult enough when nobody knows the defendant. Martin Shkreli made the task considerably harder. During jury selection for his 2017 fraud trial, prospective jurors reportedly described him as “greedy”, compared him to a snake, admitted that they “hated” him and, in one memorable exchange, raised his treatment of the Wu-Tang Clan as another reason he should not expect much sympathy. One prospective juror was admirably candid: they would not want themselves on the jury (Rushe, 2017).
At first glance, these sound like examples of jury selection going badly. In one sense, however, the system was working beautifully. Those prospective jurors recognised that they had already formed an opinion and said so. The more difficult juror is not necessarily the person who says, “I hate him”. It may be the person who has read the same stories, formed the same impressions and sincerely says, “None of that will affect me.”
The myth of the blank slate
A fair and impartial jury is fundamental to the criminal justice system, but the language can create an unrealistic picture of what impartiality means. Jurors do not enter court as 12 freshly formatted hard drives. They arrive carrying decades of experience, values, prejudices, relationships, political beliefs, attitudes towards police and authority, perceptions of wealth and poverty, and assumptions about how guilty and innocent people are supposed to behave.
Some of those influences are obvious. Others are almost invisible. An accused who appears arrogant may be perceived differently from one who appears frightened. A complainant who cries may be interpreted as traumatised by one juror and manipulative by another. A police officer’s uniform, a defendant’s tattoos, an accent, an expensive suit, or an inability to make eye contact can all trigger associations before the first substantive piece of evidence is even heard.
The problem is not merely that humans are biased. It is that we are particularly poor at recognising bias in ourselves. Pronin, Lin, and Ross (2002) described the bias blind spot, finding that people readily identify cognitive biases in others while regarding their own judgments as comparatively objective. In other words, asking someone whether they can put their biases aside may tell us a great deal about their intentions, but considerably less about whether those biases will actually affect them.
What happens when everybody already knows the story?
This becomes particularly difficult in high-profile cases. Pre-trial publicity means prospective jurors may arrive knowing not merely the defendant’s name but allegations, prior conduct, commentary, photographs and opinions that would never be admissible as evidence at trial.
The psychological evidence suggests this matters. A 2022 meta-analysis examining more than 11,000 participants found that negative pre-trial publicity increased guilty verdicts at both individual-juror and jury levels, while favourable publicity shifted decisions in the opposite direction (Hoetger et al., 2022). The effects were not enormous, nor does exposure to publicity make a fair trial impossible, but the central point is uncomfortable: information encountered before a trial can continue influencing judgment after jurors are instructed to decide the case on the evidence.
This creates an awkward question. If a prospective juror says, “Yes, I have read about the case, but I can ignore it”, how exactly do they know?
Voir dire, Australian style
American television has made voir dire look like psychological speed dating, with lawyers probing prospective jurors’ beliefs, backgrounds, and attitudes before deciding whom they want. Australian practice is considerably more restrained, and the Queensland framework illustrates the difference particularly well.
Under the Jury Act 1995 (Qld), people generally cannot question prospective jurors simply to discover how they might react to issues arising in the trial. A party may challenge a prospective juror for cause on the basis that the person is not impartial, and a judge can permit questioning where proper grounds exist. Importantly, the act also provides a special procedure where there are particular reasons for inquiry, expressly identifying prejudicial pre-trial publicity as an example. The questions, however, remain under judicial control rather than becoming a licence for free-range personality testing.
That restraint makes sense. Jury selection should not become an exercise in choosing the 12 people most psychologically convenient to one side. Yet it also exposes the limits of asking people to report on cognitive processes they themselves may not recognise.
Can a direction really make us forget?
Australian law necessarily places substantial confidence in jurors’ ability to follow judicial directions. In Dupas v The Queen (2010) 241 CLR 237, extensive adverse publicity included knowledge of Dupas’ previous murder convictions. The High Court nevertheless held that the apprehended prejudice was capable of being addressed through the conduct of the trial, including thorough and appropriate directions to the jury.
That is an important legal principle, but psychology raises a slightly different question. A direction can tell a juror what information must not be used. It cannot necessarily erase the information or make its unconscious influence disappear.
This is not an argument that judicial directions are useless or that notorious defendants cannot receive fair trials. It is an argument for intellectual humility about what human beings can actually quarantine inside their own heads. Knowing something and deliberately relying upon it are not the same thing, but neither are knowing something and being completely unaffected by it.
What does this mean for Australian lawyers?
For practitioners, perhaps the useful shift is to stop thinking of impartiality as the complete absence of bias. If that were the standard, finding 12 eligible Australians could become an exceptionally long afternoon.
A more realistic conception is the capacity to recognise predispositions, submit them to scrutiny and decide the case according to admissible evidence despite them. That makes careful jury directions, appropriate challenges, targeted questioning where legislation permits it and rigorous control of prejudicial publicity more important, not less.
It also means that candour from prospective jurors should not necessarily be viewed as a problem. The person who admits, “I have already formed a view, and I cannot put it aside”, has provided the court with valuable information. The juror who sincerely considers themselves completely objective may, psychologically, be much harder to assess.
Fairness does not depend on finding jurors who arrive without bias; that search is impossible. It depends on building a system that assumes jurors bring biases with them, limits the opportunities for irrelevant information to influence them, and treats a juror’s assurance of impartiality as a starting point for inquiry rather than proof that the problem has disappeared.
The prospective juror who says, “I hate him”, is relatively easy to deal with. The harder problem is the juror who has formed an equally powerful impression and is completely convinced that it will not affect them. If our test of impartiality ultimately comes down to asking, “Can you be fair?” and accepting “yes” as evidence that they can, then we are not really testing bias at all. We are testing confidence, and confidence has never been the same thing as truth.
Rebecca Ward is an MBA-qualified management consultant with a focus on mental health. She is the managing director of Barrister’s Health, which supports the legal profession through management consulting and psychotherapy. Barrister’s Health was founded in memory of her brother, Steven Ward, LLB.
