Lies during jury selection:
What are the costs?
BY RYAN J. WINTER, PHD, MLS • FLORIDA INTERNATIONAL UNIVERSITY, AND
JON VALLANO, PHD • UNIVERSITY OF PITTSBURGH AT GREENSBURG
On Aug. 4, 2006, under the stony gaze of the presidents on Mount Rushmore, Randy Shauers, a young man driving
at high speed in a pickup truck, clipped a motorcycle driven by
Gregory Warger, who suffered numerous injuries, including the
amputation of the lower part of his left leg. Although Warger
sued Shauers for negligence, the jury returned a verdict in favor
of the defendant.
After the trial, juror Stacey Titus approached Warger’s
attorney, alleging that the jury forewoman, Regina Whipple,
may have unduly biased the panel during deliberations.
According to Titus, Whipple told other jurors that her
daughter had been at fault in a similar collision that left a
man dead, and that had her daughter been found negligent,
it would have “ruined her life.” Titus claimed Whipple’s
disclosure improperly influenced the rest of the jurors.
Warger’s counsel filed an appeal with the district court of
South Dakota, alleging that Whipple deliberately lied during
jury selection (voir dire) about her ability to be impartial.
The district court denied Warger’s petition, ruling that juror
statements made during deliberations cannot be used as the
basis for an appeal.
Although Federal Rule of Evidence 606(b) does prohibit
appeals based on statements that jurors make during
deliberations, there are three exceptions: when jurors make
a mistake in filling out the verdict form, when extraneous
prejudicial information is improperly brought to the jury’s
attention (for example, through pretrial publicity or third-party contact, such as a judge or attorney communicating
with jurors) or when an outside influence is improperly
brought to bear on jurors. In Warger v. Shauers, the U.S.
Supreme Court, which has agreed to hear the case, will focus
on this last exception.
Lower courts disagree about whether juror testimony can
be used to seek a new trial based on juror dishonesty during
voir dire. Some courts (including the 8th and 10th Circuits
and the district court that excluded Titus’s statement) disallow
juror statements about other jurors, citing that such statements
fall outside the purview of 606(b). However, other courts
(including the 9th and D.C. Circuits) frequently consider
juror reports regarding dishonesty, noting that if a juror’s
personal experiences are related to the litigation in question,
such experiences may constitute “outside influence” if jurors
lie about those biases during jury selection. The U.S. Supreme
Court will try to resolve this inconsistency, but regardless of its
decision, the mere possibility of juror bias should spur research
into the weight that such bias (as well as juror dishonesty about
it) may have on jury verdicts. Voir dire, after all, may be ill-
equipped to fully identify instances of juror bias for several
First, attorneys may fail to ask jurors questions that
adequately uncover bias. Asking broad questions may gloss
over specific juror biases. However, asking precise questions
may highlight some instances of bias while sidestepping
others. Second, research by Richard Nisbett and Timothy
Wilson suggests that people aren’t always aware of their
biases. Third, even if jurors are aware of their biases, they may
still reason that they can remain fair and impartial. Finally,
jurors may feel uncomfortable discussing their inability to be
fair or impartial in the presence of other prospective jurors.
Even when jurors are aware of their biases, it may be difficult
to detect their prejudices if they lie about them during voir
dire. Psychologists have long been interested in detecting lies
( William Moulton Marston introduced his first polygraph in
1915), yet research continues to show that trained professionals
in law enforcement are rarely better than novices at detecting
deception. Given trained detectives’ difficulties in deception
detection, attorneys would be hard pressed to discover juror
dishonesty during voir dire. Thus, statements that jurors make
to their colleagues in the deliberation room may be the best
tool to discern dishonesty, and allowing such statements under
Federal Rule of Evidence 606(b) may be the best way to address
While research suggests that biases can affect jurors’ legal
decisions, of more concern is the impact that such biases
may have on other jurors. While many studies suggest that
jurors’ backgrounds may affect their own case perceptions
and verdict decisions, discovering the extent to which a single
juror’s bias may sway the rest of the panel should be a goal of
psychological research. n
“Judicial Notebook” is a project of APA Div. 9 (Society for the
Psychological Study of Social Issues).