If you don’t like B.F. Skinner, stop reading now.  If you don’t like me, you should have stopped reading when you saw the “From” line.

Anyway . . .

For those of you still reading, B.F. was unknowingly good at finding bias in jurors.  He did this by teaching us where biases originate.  He clearly showed us that “bias” is not a personality characteristic or a DNA-condition; it is a learned behavior.

In a little experimental chamber, a hungry rat, faced with a red button and a green button, soon learns that pressing the red one, which is on the left, pops open a food tray.  The green button, on the right, never opens the food tray.  The rat learns to discriminate between the two, eventually only pressing the left button.  You might say, the rat has a “left” bias.  The reward helped the rat learn what to do when faced with a decision.

The next day, the same rat is in a totally new chamber, unlike the prior one, but there is still a red and a green button.  This day, though, the red button is on the right.  After a few experimental pushes on the green, “left bias” button from yesterday, the rat challenges his own bias and switches over to the red button and the food tray opens.  Quicker than yesterday, the rat learns that the critical variable is not position, it is color.  His bias switches from “left” to “red.”

On the third day, a completely different chamber is used with green and red buttons all over the place.  Allowing his bias to dictate his decisions, the rat immediately finds red buttons and begins to feed himself at will.  With the “left” and “right” biases gone, the rat makes his decision based on the tried-and-true bias, confirming that “red” is the bias that pays.  [Some psychologists call this the “confirmation bias,” but that is just a fancy term for “I learned that red works.”]

We can put him in all sorts of environments now and he will seek out red buttons because the bias has generalized.  “’Red’ means food no matter where you put me.”

[Wait, is Dan telling us that if we don’t want rats on our jury, don’t bring any red buttons?]

All of us, including prospective jurors, learn our biases.  We tend to go toward things where we received rewards in the past and tend to avoid those things that had negative or punishing consequences.  Our reinforcement history is our bias. 

In English, the word “bias” tends to connote something bad or wrong.  But if jurors can learn that their biases are really just products of their accumulated learning experiences and not a character flaw, not an embarrassing condition, not a genetically based proclivity, then maybe they can discuss them more openly in voir dire.

Judges tend to view bias in jurors in three categories [Richard Gabriel, American Society of Trial Consultants Listserve Communication, July 8, 2024]:

1. Actual bias (where the juror expresses the bias explicitly)
2. Implied bias (usually a relationship with one of the parties)
3. Inferred bias (experiences or beliefs that affect impartiality)

Judges want to know if a juror HAS a bias that disqualifies them, like it is an allergy or a virus or a genetic condition that may or may not be treatable.  But if “bias” is viewed from a learning perspective, jury selection might go differently.

#1 is similar to our rat friend–  if the rat were on the jury panel, he’d say, “I only like to eat food from red origins.  That’s just how I am.  I can’t really vote for any kind of food that isn’t involved with red.”  A juror tells us that they cannot vote one way because of X, which really is their learning history on this topic.  Pretty straightforward.

But #2 and #3 are not statements of the juror’s learning history.  Those two categories are really assumptions that the judge or the lawyers are making about a juror’s learning history.  For instance, if one party was a soccer coach in the same league as the juror’s child plays, the assumption is that such a relationship biases the juror somehow.  #3 is an assumption that a juror’s belief biases their decisions, like a juror saying, “I believe that kids should share in the family funds and not have to do chores to earn an allowance,” leading to a lawyer assumption about how the juror will vote in a personal injury case no matter what the evidence shows.

My challenge to you is to not just unearth a bias, but to unearth the effect that learning history might have in how they make decisions about OUR case.

How about this?  To examine a bias deeply, let’s go through some stages:

• Stage 1:  teach jurors about bias as a product of a learning history, not as a character factor or a flaw.  Tell them the rat story [but make the animal a bunny or a puppy or a parakeet so they don’t think it is icky] and ask for their comments;
• Stage 2:  if they reveal a bias, decide yourself if you want them on the panel [you’ll need to rehabilitate them] or if you want them off [challenge for-cause].
• Stage 3:  To keep or challenge?
  • To rehab them after the other side has made a for-cause challenge, you might ask the juror:
    • When do you think you learned that?
    • Where or when do you notice that it pops up in your life now?
    • How strong or powerful was that learning experience for you?
      • Answers to these questions may show that their stated bias is not “serious” or does not influence them a lot of the time.  Answers to these questions may show the “mild side” of the bias, allowing you to move to keep them on the panel;
    • To build a challenge for cause:
      • Ask those same questions as above, but add
        • How strongly does that learning affect you?
        • How much do you identify with that experience?
        • How much does that experience define how you see yourself?
          • These additional answers may get you to a for-cause challenge that works
• Stage 4:  the judge will then usually ask if the juror can “set aside” this bias—a psychologically impossible task.  Or the other side will say “they said they could be fair when I questioned them.”  You can now point to their answers to the deeper questions which will show that nothing, like pesky evidence, will alter their decisions—the bias is “part of them.”  You can’t “set aside” something that is part of yourself.  The rat thought that red buttons were linked to his very survival, and you will never get him to stop red button-pushing when he gets a chance.

Sorry for the length of this Persuasion Tip.

My main lesson was to show that “bias” isn’t evil, it’s not in your DNA, it is not a “condition.”  Learning history is a more comfortable way for a juror [and the judge] to view bias.  Bias is a product of rewards and punishments and becomes a “shortcut” to decision-making in our own minds.  Jurors might be more open to discussing their learning histories than having to defend or down-play a bias.

The psychological literature documents around 108 different biases, but those tend to be just labels for various rewards and punishments [i.e., Confirmation Bias, Familiarity Bias, Restraint Bias].  When you learn from rats, though, the world gets a lot simpler.

I told you Skinner knew stuff.

 

[PS:  this email is dedicated to McMurphy, my Gold Medal winner in the TCU Rat Olympics of 1977.  He was a stalwart runner and maze genius.]