Judicial Notebook

In 2006, a jury convicted Jeffrey K. Skilling of conspiracy, securities fraud, making false representations to auditors, and insider trading in connection with the 2001 collapse of Enron Corp. in Houston. Enron was the then-largest U.S. corporation to have declared bankruptcy. Thousands of Enron employees lost their jobs and 401(k)s, and the effects of the bankruptcy reverberated throughout the Houston economy. One in three Houstonians knew someone who had been hurt by the Enron bankruptcy.

Not surprisingly, the case generated significant media attention. Skilling, who had served as Enron’s CEO, featured prominently in this media coverage.

The Sixth Amendment to the U.S. Constitution entitles defendants to a fair trial by an impartial jury. In light of the pervasive publicity surrounding the case, Skilling requested that his trial be moved out of Houston. The district court — finding that the facts of the case were “neither heinous nor sensational” and that the media coverage had been “objective and unemotional” — denied this motion and proceeded with jury selection in Houston. Based on venire members’ answers to a 14-page questionnaire, the prosecution and defense agreed to excuse 42 percent of them. Voir dire lasted five hours and seven venire members were struck for cause. In some instances the court rehabilitated jurors who had expressed some bias by eliciting their commitments to set aside what they had heard and decide the case on the evidence.

On appeal, the 5th Circuit disagreed with the district court’s conclusions about the Enron publicity, finding that the media coverage “literally saturated” the community and that the “sheer number of victims” in Houston resulted in widespread “non-media prejudice.” Accordingly, the court concluded that Skilling was entitled to a presumption of prejudice and observed that it “would not have been imprudent for the court to have granted Skilling’s transfer motion.” The court, however, noted that an “effective voir dire is a strong disinfectant of community prejudice” and found that that the presumption of prejudice had been overcome by a showing that an impartial jury had been impaneled.

Skilling appealed to the U.S. Supreme Court, arguing that the trial should have been moved and that, among other things, the court had not allowed the lawyers to sufficiently question prospective jurors and had been insufficiently skeptical of jurors’ assertions that they could be impartial. The government countered that the vetting of jurors, including an extensive questionnaire, had been effective. Oral arguments were heard in March and a decision is expected by summer.

Research in psychology has contributed much to our understanding of the effects of pretrial publicity on juror decision making. Similarly, psychology can enlighten the workings of the voir dire process.

At oral argument, Chief Justice John Roberts asked about the possibility that prospective jurors might lie about whether they can be impartial. Indeed, social desirability concerns may be particularly salient in court — prospective jurors may be disinclined to admit bias to the court and motivated to assure the judge that they can be impartial. But psychological research also suggests that prospective jurors may not be aware of the biasing effects of publicity (Nisbett & Wilson, 1977). Jurors who self-identify as impartial are still influenced by exposure to pretrial publicity (Sue et al., 1975). Even if jurors recognize the potential for bias, they may believe that they can disregard what they have heard (Pronin et al., 2004).

Research suggests that various aspects of the voir dire process can influence juror self-disclosure. But more research is needed to thoroughly explore the relative effectiveness of judges and attorneys (Jones, 1987), questionnaires and face-to-face voir dire, different types of questions, and extended voir dire (Dexter et al., 1992) at exposing juror biases, as well as to explore the effects of questioning and rehabilitating jurors on those and other jurors (Crocker & Kovera, in press). There is much more to be learned about the process of voir dire, its limits, and how it can be most effective.

“Judicial Notebook” is a project of Div. 9 (Society for the Psychological Study of Social Issues).