Professor Harry Caldwell, We See You, Juror No. 7 and That's the Problem: Anonymous Voir Dire and the Timing Problem of First Impressions and Implicit Bias -- Georgia Law Review (forthcoming)

Professor Harry Caldwell's article, We See You, Juror No. 7 and That's the Problem: Anonymous Voir Dire and the Timing Problem of First Impressions and Implicit Bias, co-authored with Gautum Sood, will be published in the Georgia Law Review.

Abstract of We See You, Juror No. 7 and That's the Problem: Anonymous Voir Dire and the Timing Problem of First Impressions and Implicit Bias

By the time a prospective juror answers her first question, counsel may already have formed a provisional view of her. That initial encounter may shape an untested impression before the doctrines that police juror removal, Batson chief among them, have anything to review. This Article examines the consequences of judgments that arise before formal strike review begins.

Drawing on experimental psychology, this Article argues that impressions form quickly, sparse information leaves more room for category-based judgment, and the conditions of voir dire may make those early assessments difficult to test or revise. An untested impression may shape the questions counsel asks during voir dire, the answers counsel receives, and the record a court can review only later. The record is thus partly a product of the judgments a court is later asked to test. Judicial review under current jury selection doctrine begins only after those judgments have already left their mark. Batson v. Kentucky and its successors examine a completed strike and the reason counsel gives for it. The explanation offered to a court, however, may not fully reveal the perception that initially influenced counsel’s judgment.

The Article evaluates recent state reforms through the lens of this timing problem. Washington’s General Rule 37, California Code of Civil Procedure section 231.7, and Arizona’s abolition of peremptory challenges all regulate at or after the point of juror removal. None addresses the conditions under which a first impression forms, even though those conditions may influence the later decisions these reforms seek to regulate.

The Article argues that “first perception,” the appearance-based judgments that arise before substantive voir dire begins, should be understood as a distinct procedural stage. Treating it that way shifts attention from the strike itself to the information environment in which the strike begins to take shape. The Article develops four criteria for evaluating reforms directed at this stage: timing, information, testing, and safeguards.

The Article proposes one structural response: an anonymized voir dire, conducted through written questionnaires and court-administered follow-up, in which counsel first sees the jury only after it is sworn. The proposal is not intended to eliminate attorney judgment, but to delay the influence of appearance-based judgments until individualized information has had an opportunity to emerge.