I am often asked whether jurors keep an open mind throughout the course of an entire trial or if they make up their minds at an early juncture and stick with their viewpoint. I wrote an article in For the Defense titled, “A Study in Juror Psychology: Making Up Minds Early,” where I addressed such questions; see link page 14 http://forthedefense.org/ftd/2012-03F.pdf

In a study of mock jurors I found that roughly 38% of jurors make up their minds early in a case and cling to their perspective without considering opposing viewpoints, even though they are told early on to keep an open mind. Although most jurors do not intentionally flout a Judge’s instruction to keep an open mind until all of the evidence is in, a large part of what is going on is what is known as Confirmation Bias. This bias happens in jury rooms, board rooms, lab rooms and living rooms all the time.

Confirmation Bias is the tendency to seek out information in a way that confirms one’s preexisting beliefs, ideas or hypotheses. This bias suggests that minimal psychological energy is used to seek out and process alternative possibilities. Put simply, people interpret information in ways that support their existing beliefs. If, after opening statements, a juror feels a defendant is likely guilty of committing a crime, then subsequent information will be interpreted in ways consistent with that general outlook. Evidence that points to innocence is marginalized at best and flat out ignored at worst.

Look no further than to politics. If someone likes a certain candidate, they will seek out news stories that are flattering to that particular candidate. If that candidate says something seemingly neutral, such as having good vibes at the Iowa State Fair, that candidate’s supporters will assimilate such statements into a narrative that reinforces the initial conclusion of their likeability of that candidate (i.e., real person, genuine, cares for everyone, etc.). Conversely, if someone does not like the candidate, such neutral statements will be used to reinforce how much that candidate is to be disliked (i.e., a phony, pandering, saying anything to get elected), even if they liked hearing those neutral statements from the candidate they liked.

Is there any way to keep Confirmation Bias from entering the courtroom? To convince jurors that they should keep an open mind, remind them that they are not under any pressure to make any decision in the case until deliberations. Some say Conformation Bias is just Psychology lingo for jumping to conclusions. If so viewed, it is important to remind prospective jurors that they have time before making a decision. Delaying a decision and being reminded of the need not to make a quick decision will help guard against Confirmation Bias. Also, reminding jurors that they are merely one of 6, 12, or however many jurors there are, serves as a reminder that there are other valuable sources of information that should be considered down the road. Being made aware of the tendency to jump to conclusions is a good guard against doing so but that does not entirely guard against such bias.

As a lawyer, especially a defense lawyer who opens and presents evidence after the plaintiff or prosecution, it is imperative to try to seat jurors who are not dogmatic but willing to remain truly neutral until the complete picture emerges. If on void dire a prospective juror seems dogmatic, appears to feel certain about all answers, does not seem to listen to questions carefully and avoids eye contact with the lawyer, unless there is something else about the jury that suggests a leaning to the defense, this is the kind juror whom the defense should strike.