Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, March 12, 2024

Can AI Help with Jury Selection?

A couple of months ago, I had my first experience sitting on a panel for voir dire.  It was a criminal case for the class E felony of fourth-degree domestic assault, which carries a maximum of four years’ imprisonment in Missouri.[i]  Having worked on behalf of the state in criminal cases for six years (and seeing a former colleague sitting at the bench when we walked into the courtroom), I knew I would not make the final cut.  But I did my best to respond truthfully and keep my outside legal knowledge to myself.

As an appellate attorney, I’ve read hundreds of voir dires but participated as counsel in only one, and even then, I was a distant second-chair.  Yet I can probably rattle off dozens of questions likely to be asked by both the prosecution and the defense, so I was thinking about how I would respond to those questions I knew were going to be asked—questions about my knowledge, interactions, and feelings about the criminal justice system, the nature of the crime, the burden of proof, and the presumption of innocence. 

But many of the questions I expected did not come.  We were asked many questions about the burden of proof and presumption of innocence, a few vague and awkwardly worded questions I suspect were directed at specific facts underlying the offense, and some about interactions with law enforcement.  But neither side asked if anyone on the panel had ever been the victim of, accused of, or knew anyone who had been the victim or accused in a domestic violence situation.  Before voir dire concluded, however, a panelist raised her hand and asked counsel if they wanted to know that kind of information, which of course they did.  And roughly five panelists then explained their connections with domestic violence, most of which appeared to be disqualifying connections that never would have come to light but for that one panelist’s question.

And this experience made me wonder if AI could help attorneys ensure that their voir dire questions adequately ferret out any potential bias in the panelists (or at least make a good record to preserve any issues later for appeal).[ii] 

To adequately ferret out bias, we must first understand what leads to bias, so I asked ChatGPT to create a list of potential biases any juror might have in a criminal case, and it identified the following:

  1. Confirmation Bias:
    • Tendency to interpret new evidence as confirmation of one's existing beliefs or theories.
  2. Pretrial Publicity Bias:
    • Opinions formed based on media coverage or public opinion about the case prior to the trial.
  3. Experience-Based Bias:
    • Personal or vicarious experiences with crime, law enforcement, or the legal system that may color perceptions of the case.
  4. Occupational Bias:
    • Work experience in law enforcement, legal, or other related fields that might influence views on evidence or testimony.
  5. Community Bias:
    • Pressure to decide in a certain way because of perceived community opinions or values.
  6. Sympathy Bias:
    • Decisions influenced by feelings of sympathy for the victim, defendant, or their families rather than the evidence.
  7. Prejudice:
    • Biases based on race, ethnicity, religion, gender, sexuality, or socioeconomic status of the defendant, victim, or witnesses.
  8. Authoritarian Bias:
    • A tendency to believe and defer to authorities or officials without sufficient scrutiny.
  9. Moral or Religious Beliefs:
    • Strong moral or religious convictions that might interfere with the juror's ability to consider certain types of evidence or testimony objectively.
  10. Punishment Bias:
    • Fixed beliefs about the criminal justice system, punishment, or specific crimes that might influence the juror's decision-making.
  11. Victim Blaming:
    • A tendency to blame victims for their own victimization, which might affect the juror's interpretation of the evidence or testimony.
  12. Overconfidence Bias:
    • Overestimation of one's own reasoning abilities or underestimation of the complexity of the case.
  13. Halo Effect:
    • The tendency to have an overall impression of a person, witness, or defendant and allow that impression to influence judgments about their specific traits or behaviors.
  14. Groupthink:
    • A tendency to conform to the majority opinion in the deliberation room, rather than independently evaluating the evidence.
  15. Anchoring Bias:
    • The reliance on the first piece of information encountered (initial impressions or evidence) when making decisions.
  16. Selective Memory:
    • Remembering things in a way that confirms one's preconceptions, often while forgetting evidence that contradicts those preconceptions.

I then asked it to identify general topics that should be addressed in voir dire for any criminal matter, and it responded:

  1. Juror Background Information:
    • Basic personal information (e.g., occupation, education).
    • Any connections to the legal or law enforcement communities.
  2. Knowledge of the Case:
    • Exposure to pre-trial publicity and media coverage.
    • Pre-existing knowledge or opinions about the case or parties involved.
  3. Experience with the Legal System:
    • Prior jury service and the nature of the case(s).
    • Personal or family experience with the legal system, whether civil or criminal.
    • Experience with being a victim, witness, or defendant in a legal proceeding.
  4. Views on Law and Order:
    • Beliefs about the criminal justice system's fairness and effectiveness.
    • Opinions on law enforcement and the legal process.
  5. Potential Biases and Prejudices:
    • Any biases or prejudices that could affect impartiality.
    • Attitudes towards race, ethnicity, religion, gender, or socioeconomic status that may be relevant to the case.
  6. Moral, Ethical, and Philosophical Beliefs:
    • Beliefs that might affect perceptions of guilt, innocence, or the nature of justice.
    • Opinions on controversial issues that might relate to the case (e.g., drug use, corporal punishment).
  7. Ability and Willingness to Serve:
    • Availability for the entire duration of the trial.
    • Any personal or professional conflicts that may affect the ability to serve.
  8. Understanding and Acceptance of Legal Principles:
    • Acceptance of the presumption of innocence.
    • Willingness to make decisions based solely on evidence presented in court.
    • Understanding of the standard of proof required in a criminal case (beyond a reasonable doubt).
  9. Decision-making and Deliberation:
    • Ability to deliberate fairly and openly with fellow jurors.
    • Willingness to change one's opinion if evidence warrants.
    • Comfort with discussing potentially distressing or sensitive topics.
  10. Case-specific Issues:
    • Attitudes towards specific aspects of the case (e.g., views on mental health issues if relevant to the case).
    • Opinions or knowledge about specific types of evidence (e.g., DNA evidence, eyewitness testimony).

While many of these questions were covered in the original juror questionnaire, it’s still a great list to consult to ensure full coverage.

Finally, I asked it to “draft a list of questions for voir dire in a state criminal case where the defendant is charged with two counts of fourth degree domestic assault and the victims are his wife and child.”  And the AI gave me this:

Background Questions

  1. General Information:
    • Can you please state your name, age, and occupation?
    • Have you or anyone close to you ever served in law enforcement or the legal profession?
  2. Case Awareness:
    • Have you heard about this case prior to today? If yes, what have you heard?
    • Have you formed any opinions about this case based on what you might have heard or read?
  3. Legal System Beliefs:
    • What are your general impressions of the criminal justice system?
    • Do you believe that the system is fair to defendants? Why or why not?
  4. Media Consumption:
    • Do you regularly follow news stories about criminal cases, either in the news, on television, or via social media?
    • Have you watched or read any true crime shows, podcasts, or books? Do you think these have influenced your views on criminal cases?

Experience with Domestic Violence

  1. Personal Experience:
    • Without providing specifics, have you or someone close to you ever been involved in an incident of domestic violence?
    • If yes, was the incident reported to law enforcement, and were you satisfied with the outcome?
  2. Perceptions and Beliefs:
    • What comes to mind when you hear the term 'domestic violence' or 'domestic assault'?
    • Do you believe that domestic violence is a private matter or a public concern? Please explain.
  3. Legal Perspective:
    • Do you believe that people accused of domestic violence should be considered innocent until proven guilty beyond a reasonable doubt?
    • In your opinion, are there ever situations where domestic violence is justified or excusable?

Attitudes Towards Defendants and Victims

  1. General Sentiments:
    • How do you generally view individuals who have been accused of a crime?
    • Do you feel that you can listen to testimony about alleged domestic violence and assault without forming a judgment until all evidence is presented?
  2. Child Involvement:
    • The alleged victims in this case include a child. Does this information affect your ability to remain impartial?
    • In cases where a child is involved as a victim, do you believe your emotions could interfere with your ability to weigh the evidence objectively?
  3. Defendant-Victim Relationship:
    • Do you believe that a spouse or a child is more or less likely to be truthful about accusations of domestic violence against a family member?
    • How do you feel about cases where family members are involved in legal disputes with each other?

Ability to Serve

  1. Time and Attention:
    • This trial may last several weeks. Do you have any personal or professional commitments that would prevent you from serving for the entire trial?
    • Are you willing and able to give your full attention to the evidence presented during this time?
  2. Decision Making:
    • Are you comfortable with the concept of deliberating in a group and coming to a unanimous decision?
    • Can you think of any reason why you would not be able to deliver a verdict based solely on the evidence presented and the judge's instructions on the law?

I understand that there’s a lot of “horse sense”[iii] involved in the actual strikes, but new or inexperienced attorneys may not yet have fully developed or honed this sense, and their clients also deserve a fair and impartial jury.  AI tools can be very helpful to not only discern what leads to bias but also provide potential questions to help draw it out.

 

[i] Mo. Rev. Stat. § 558.011.1(5) (Cum. Supp. 2023).

[ii]Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu'Min v. Virginia, 500 U.S. 415, 431 (1991). And the importance of ferreting out bias pretrial lies not only in the right to a jury trial itself but also in the “no-impeachment rule,” which generally precludes jurors from later impeaching their own verdict through either affidavit or live testimony. Pena-Rodriguez v. Colorado, 580 U.S. 206, 209 (2017); see also Fed. R. Evid. 606 (Juror’s Competency as a Witness).

[iii] “Horse sense” is a term apparently coined by Karl Llewellyn in The Common Law Tradition: Deciding Appeals (1960), and it means “the balanced shrewdness of the expert in the art.”  Charles L. Barzun, Justice Souter's Common Law, 104 Va. L. Rev. 655, 726 n.238 (2018).

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