Every attorney who has conducted voir dire has likely lived through this scenario: After carefully and comprehensively developing a clear reason why a potential juror cannot be fair to you, the other side or the judge just steps in with a casual, “But you can follow the instructions and base your decision only on the law, can't you?” Then the obviously biased juror responds with a “Sure” as your stomach sinks with the realization that this now “rehabilitated” juror could require one of your precious strikes to stay off the panel.
It is nice when you can do that to the other side, but for your goals—and for the overall goal of seating an impartial jury, for that matter—a shallow commitment to follow the rules should not overcome a clear indication of bias. The question, when you have a chance to re-examine, is how to “counter-rehabilitate” that juror to preserve your valid cause issue.
I see six principles:
Lead.
They were likely talked out of a bias through a leading question, so it makes sense to lead to put them back in. Rather than giving them an open-ended question, which they—now knowing the drill— might use as an opportunity to dig in deeper on their ability to be fair, frame it for them: “You earlier talked about how this was a core belief for you [use their words]. It's safe to say, as much as you will want to keep it out of your mind, that would be a challenge for you, wouldn't it?”
Emphasize Difficulty More than Inability
Of course, every judge will have their own view of the “magic words” that they expect, but attorneys often make it easier than it needs to be for jurors by talking about what they would be “able” to do. The question ought to be how hard it would be to be fully neutral, not whether it is theoretically possible. If one side faces a difficulty on the juror's part that the other side does not face, that is a bias.
Normalize the Bias
What we don't want jurors to pick up—and what your juror may have absorbed during the rehabilitation process— is that bias is an extreme outlier, and the correct and common response is an ability to set aside any concerns and stay neutral. We know from social science that bias is pretty normal, and your potential juror should understand that. Build that into the question, “We know that many people have been through a traumatic situation like yours, and that most of these people will say the experience doesn't just have an ‘off’ switch, but is always with you. Is that your situation?”
Contrast to Others
Judges will often frame the jury's need to step up and surpass their bias as if they are the only soldier who can fight that battle. In reality, the room is often full of other people who could carry that burden without that juror's specific issue. Invoke these other possible jurors in your framing of the question: “Is it safe to say that, while you would try to set that aside, compared to someone else who doesn't have that strong core belief, you would probably have a harder time focusing on the facts alone than they would? Is that true?”
Presume the Effort
Often, the rehabilitating question taps into “social desirability” bias by framing it as an issue of whether the juror can “try” to set it aside. Of course jurors generally say they can try, because that is what you're supposed to do. Build that into the question: “Knowing that you would try to be a good juror and put that experience out of your mind, am I correct in perceiving that this would be quite a difficult thing for you to do"?
Reframe the Duty
One consequence of the rehabilitation process is that jurors see it as their duty to get past their bias and evaluate the case solely on its merits. Often, this is because the judge tells them that is their duty. The broader perspective is that their most fundamental duty is to be honest. They need to understand that confidently promising to be fair when one isn't sure undermines the process, not serves it. It helps to counter any contrary messages by emphasizing the duty to be honest, but also to liberally use phrases that invoke that duty as part of your question of whether the juror can be fair: “Knowing yourself, as you do…” “In your heart of hearts…” “Being as truthful and realistic as you can possibly be…”
Now, a cynical person or a critic of the voir dire process might perceive this effort to talk a juror back into a bias as a bit of gamesmanship, and indeed many potential jurors see it exactly that way. However, this is one manipulation that is more likely to bring jurors back to reality. Based on the social science (e.g., see Salerno et al., 2020), it is the rehabilitation that is the illusion, and a juror who has expressed a clear reason for being biased does not “get better” by saying that they can set that aside and be fair. Viewed from that perspective, counter-rehabilitation is more likely to serve the interests of a better and less biased jury.
Salerno, J. M., Campbell, J., Phalen, H., Bean, S., Hans, V. P., Spivack, D., & Ross, L. D. (2020). The Impact of Minimal versus Extended Voir Dire and Judicial Rehabilitation in Civil Cases. U Denver Legal Studies Research Paper, (20-30).
