Mark B. Baer, Esq.

Empathy and Relationships

Empathy and the Jury Selection Process

Jurors with empathy and an "in-depth understanding" aren't sufficiently biased.

Posted Apr 07, 2017

On April 6, 2017, I was called in for jury service and was sent to a courtroom along with approximately sixty other potential jurors for jury selection on a case involving the death of a thirteen month old child resulting from corporal punishment at the hands of his father.

The experience was surreal for a great many reasons, including the fact that every potential juror with whom I spoke was incredibly unimpressed with both the prosecutor and defense attorney, particularly the prosecutor.

In any event, before questioning the potential jurors in the voir dire process, the judge and both counsel explained enough about case from which to eliminate those potential jurors who felt they could not perform their role in an unbiased manner because of the nature of the case.  

The judge gave an example of a case in which a parent was charged with murdering their young child by scalding him to death in the bathtub. He explained that during the trial in that case, it was established that the water was excessively hot on that particular occasion as a result of plumbing issues of which the parent wasn't aware until it was too late. The judge then advised us that the jury acquitted the parent in that case because of the circumstances involved. 

The judge and both attorneys wanted to make sure, to the extent possible, that every member of the impaneled jury would be capable of keeping an open mind and providing the defendant with a fair trial. After all, in our system of justice, criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt.  

Along those lines, they also wanted to know how the potential jurors felt about spanking and other forms of physical discipline.  It was also important to them that the impaneled jurors understand and respect cultural differences with regard to the disciplining of children.  In addition, they inquired whether any of us felt that parents were justified in losing their temper on occasion and disciplining their children while in such a state.

In any event, the first individuals claiming they couldn't perform the duties required of them as jurors expressed that they couldn't judge others because of their religious beliefs.  One of those individuals said she was a Christian and the other a Seventh-day Adventist.  

As somber as the mood was in that courtroom because of the nature of the case, I started laughing when both of those individuals stated their reasoning for not being able to perform jury duty.  I wanted so badly to ask them their thoughts about gays, lesbians and transgender people, among others.  Being pretty certain of the answer I'd receive, I found them incredibly dishonest because they likely judge others all day long, every day.    

If I were the judge, I would have thought that contrary to their contention, they probably have more experience judging others because of their religious beliefs. I found it so hysterical that I posted it on Facebook during the lunch break and asked if those individuals sincerely believe they don't judge others.  My post received many "likes", as well as the following comments:

* Hilarious! Can I share the story?

* Yes, you can bet your bottom dollar they believe that. I'm sure they believe that because the Bible "condemns" something, it's not THEIR judgment, it's God's. 

* What? Wow.

* Good one!

* I would've loved to see that on cross!

Mind you, these comments were from Christian friends of mine.  

While those potential jurors were let go, I could guarantee that it was not because of their inability to judge others; rather, because of their inability to judge others fairly. Along those same lines, parents with minor children were excused, as were those who work with children, advocate on their behalf, or who otherwise appeared as though they might be biased one way or the other.  

They dismissed so many potential jurors that they went past my number before they selected a jury of twelve, and I was potential juror number thirty-eight.

I had already been questioned, as had the other potential jurors, before a seat for me in the jury box opened up.  As soon as I sat down, the prosecutor immediately dismissed me.  Among other things they learned the following from me during voir dire:

* When I was twenty years old, my step-mother and father manufactured a crime against me because I wouldn't do as they wished with regard to my mother, following their very contentious litigated divorce and that I ended up entering a plea of no contest in that case. The judge seemed intrigued by this revelation and elicited more information from me.  As such, they learned my belief that it's not uncommon for parents to use their children as pawns when they are going through a separation or divorce and to spite them for not playing their game according to their rules.  They also learned that my record has long-since been expunged, that it was disclosed and explained in my application for admittance to the Bar (despite the fact that it had been expunged), and that it caused no issue with regard to my being admitted.

* Approximately twenty years ago, I was held up at gunpoint by three individuals of the same race as the defendant in the case.

* My spouse is a first grade teacher.

* I am an outspoken advocate for changing our legal system.

* I am a mediator and family law attorney and that my approach is very child-centered.  In fact, I commented that the United States "stands alone as the only nation that has not ratified the United Nations Convention on the Rights of the Child, an international human rights treaty to protect children."

* I am very aware of the empirical research regarding the outcomes associated with spanking, none of which are positive.  However, I also told them that I am aware that this doesn't make spanking illegal or even improper from a legal perspective.

* I am well-known for my research and writing on empathy and compassion, including its importance within the legal field and have an ongoing blog on Psychology Today on that topic.

* I am the only person outside of the United Kingdom that will be presenting at the Symposium - Compassion: Child & Family Law at University of London's Institute of Advanced Legal Studies in July.  

After learning all this, they asked me whether I felt I could be impartial, and I said I could.  I explained that empathy is about deep understanding of all perspectives and open-mindedness.  

It wasn't at all surprising that I was dismissed; however, I was initially stunned that it was the prosecutor who dismissed me.  

I couldn't expect them to understand that empathy has been found to undermine bias, particularly considering that they had spent so much time explaining to the potential jurors that they shouldn't let their sympathy toward either the defendant or the deceased child impact their judgment. Empathy and sympathy are two very different things and, if you don't understand the concepts, you can't possibly understand how they work.   

It will be interesting to see how "legal justice" plays out in this tragic case.  

By the way, cultural differences do come into play with regard to the use of corporal punishment. In fact, on March 10, 2017, the New York Times published an article titled Stop Beating Black Children.

The article states in pertinent part as follows: 

"Today, black parents are still about twice as likely as white and Latino families to use corporal punishment on their children. I’ve heard many black people attribute their successes, or the fact that they weren’t in jail, on drugs or dead, to the beatings they received as children.

But if whupping children kept black people out of prison or safe from abusive cops, there would be no mass incarceration or police brutality. If beatings were a prerequisite for success, black people would be ruling the world....

Today, despite 50 years’ worth of research on the harms of 'tough loveparenting, many black parents still see a slap across the behind or a firm pop on the hand as within bounds. But it doesn’t stop there: Statistics gathered by the National Child Abuse and Neglect Data System consistently show that black children are mistreated and killed by their family members at significantly higher rates than children of any other group.

Between 2006 and 2015, more than 3,600 black children were killed as a result of maltreatment, according to the Administration for Children and Families. That’s an average of 360 children a year, three times higher than for other racial and ethnic groups. Many social workers and district attorneys I have talked to say it is not malicious parents intentionally hurting their kids who end up with convictions for child abuse or homicide; it is those who started spanking and escalated as the child got bigger....

The violence that black children experience from trigger-happy cops, in the streets of cities like Baltimore and Chicago, in schools and at home is all interconnected."

The "50 years’ worth of research on the harms of 'tough love' parenting" is referencing the empirical research I mentioned during voir dire.

"On April 7, 2016, the Journal of Family Psychology published a study by Elizabeth T. Gershoff, and Andrew Grogan-Kaylor titled Spanking and Child Outcomes: Old Controversies and New Meta-Analyses.

"The study looks at five decades of research involving over 160,000 children. The researchers say it is the most complete analysis to date of the outcomes associated with spanking, and more specific to the effects of spanking alone than previous papers, which included other types of physical punishment in their analyses....

The more children are spanked, the more likely they are to defy their parents and to experience increased anti-social behavior, aggression, mental health problems and cognitive difficulties, according to a new meta-analysis of 50 years of research on spanking by experts at The University of Texas at Austin and the University of Michigan....

Gershoff and Grogan-Kaylor tested for some long-term effects among adults who were spanked as children. The more they were spanked, the more likely they were to exhibit anti-social behavior and to experience mental health problems. They were also more likely to support physical punishment for their own children, which highlights one of the key ways that attitudes toward physical punishment are passed from generation to generation....

As many as 80 percent of parents around the world spank their children, according to a 2014 UNICEF report. Gershoff notes that this persistence of spanking is in spite of the fact that there is no clear evidence of positive effects from spanking and ample evidence that it poses a risk of harm to children’s behavior and development....

Both spanking and physical abuse were associated with the same detrimental child outcomes in the same direction and nearly the same strength."

As it turns out, the family involved in the case I've described is black.  Had the child not died as a result of the corporal punishment, he would have had many challenges to overcome in order to succeed in life because of the way in which he was parented.  Furthermore, chances are that the defendant father's parents used corporal punishment on him.  Understanding this reality doesn't make the situation any less tragic, and it probably wouldn't have occurred, had the father's parents not used corporal punishment on him.  

The decisions we make are based upon our personal biases, beliefs, assumptions, expectations and values, which are formed as a result of our personal backgrounds and life experiences. We all have personal biases, beliefs, assumptions, expectations and values. The question is how much our lack of self-awareness is skewing our perception of things.

Our personal backgrounds have very much to do with our parents and how they raise us. Our life experiences have to do with everything we experience in our lifetime, including people we befriend, schools we attend, courses we take, books we read, our sources of news, etc. Ultimately, our life experiences have very much to do with our personal choices in terms of what we do, if anything, to try and broaden our worldview. If our parents didn't teach us to see things from other people's perspectives, we either need to take it upon ourselves to learn such things or we live in a false reality that our perspective is the only perspective. 

As social science researcher Brene' Brown says, "At any given moment, people are really trying to do the best they can with what they have. Our bests are all different."

For what it's worth, considering all of the information I know with regard to empathy, corporal punishment, and cultural differences pertaining to corporal punishment, I think I would have been the least biased juror possible for this particular case.  Yet, I was dismissed because the prosecutor apparently believed the information I conveyed suggested that I was prejudiced about the case.  

"Once impaneled, the jurors’ role is to listen to the evidence conscientiously and not draw premature conclusions."  That means they want jurors with evenly distributed empathy.  

Our justice system would work much better, if lawyers and judges understood empathy and its importance with regard to justice and fairness. As Psychology Today commented when it shared my article Beware of Criticizing Concepts You Don't Fully Understand, "Empathy is often misunderstood, yet it's one of the most important skills you can practice."

That being said, having given my experience a great deal of thought, the prosecutor may have made a wise decision in dismissing me. After all, consider the following excerpt from an article titled Voir Dire: Strategy and Tactics in the Defense of Social and Political Activists that was published in the Akron Law Review:

"The defense must not only be prepared to cope with the problems of prejudice and bias, but will also be faced with an equally urgent task of education. 'Sub-cultures,' be they Black, poverty, youth, radical or any other social segment striving for structural change, are individually unique and must be approached singularly. Consequently, the juror must be directed to a mental state whereby at least comprehension, if not empathy, is realized in regard to the defendant's cultural sphere.... This does not imply that the juror need an in-depth understanding of great compassion for the defendant's segment of society (though both would be ideal); rather, the juror must be cognizant of the fact that these micro-societies do exist and must be recognized as social forces."

Who wants a fair juror, when it's all about winning?

Meanwhile, a thirteen month old is dead at the hands of his father, regardless of how the criminal case plays out.

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