Last week I was called to jury duty at my local courthouse, where I have testified as an expert witness before. I showed up. I signed in. I watched two videos explaining how our justice system works. Then I was assigned a courtroom—and this time, instead of addressing the people in the jury box, I found I was one of the people in the jury box. A lawyer stepped before us and announced that the legal action for which we’d been selected was a civil matter: asbestos injury litigation.
No way, I said to myself. No way a forensic pathologist can serve as an impartial juror in an asbestos lawsuit. I have got to get excused from this. If this were a lawsuit about larceny, or financial fraud, or building code violations, it would be perfectly appropriate for me to be impaneled. But a case that relies on medical expertise as the evidentiary lynchpin? I felt confident that the attorneys litigating the case would agree that it would be inappropriate to have a medical expert on their jury.
Each of the several attorneys trying the case had a set of questions. They went one by one through the jury candidates. Do you know anyone who died of asbestosis? Do you have any strong feelings against corporations? If a smoker has a smoking-related illness, would you consider it their fault? Every lawyer finished with the same catch-all: Do you have any biases that would influence your judgement in a case like this one?
Each time I was asked this last question, I gave the same answer: Yes. I am a medical doctor and I diagnose asbestosis when it is present in a dead body that comes to my autopsy table. I have my own very definite opinions in the matter, professional opinions founded on years of medical education and practice. To my shock, attorney after attorney then nodded, thanked me—and told me to sit back down in the jury box.
I have a lawyer brother-in-law. That evening, I called him and asked what the heck was going on. Why wouldn’t they excuse me?
“Simple," he replied. "They want someone smart on the jury. They want someone who is going to listen to the facts they present. They don't care about bias as much as they want someone rational."
The next day, when another one of the lawyers asked how I was biased, I had an answer ready. "Let me explain something to you. I am a professional expert witness. I can’t say right now exactly how I am biased, whether it is for the prosecution or for the defense, but I guarantee you that I cannot be impartial when it comes to scientific testimony. If you have medical ‘experts’ get up there and testify? I'm not going to listen to them. I'm going to listen to this”— and here I pointed at my own head—“and then I'm going to convince all these people”—and I pointed at the rest of the members of the jury—“of my opinion. Because that’s what I do."
So that's how I got excused from jury duty. I don't know if my argument finally convinced the attorneys on its merits, or if my hand-waving and air quotes when I sneered medical ‘experts’ convinced them I was a lunatic. Whichever the case, they made a wise decision. I would not be capable of accepting what another medical expert told me was the absolute truth. I would question that expert’s opinion. I would challenge it, based on my training and experience, in the jury room; and, in the end, I would come to my own opinion. I can’t do that in a case about insurance fraud, but I can’t avoid it in a case about asbestosis. It is the litigants’ job to convince the entire jury as individuals. You need everyone on the jury to participate in the process of deliberation. If one juror is instead able to sway everyone else to her opinion because she has relevant expertise and professional authority, the trial lawyers have failed.
Attorney friends have confided—and griped—that they don’t get much law school training on jury selection. They learn it on the job; and, unfortunately, that means they apply their own biases when trying to elicit the biases of potential jurors. They might make assumptions based on a combination of factors, including race, gender, religion, educational background, and professed life experience. They might make the assumption that a well-educated person is going to be able to evaluate an expert’s testimony. In fact, the opposite may be the case. A juror with education and experience in the relevant area of expertise may instead dismiss what an expert witness says, even if the expert is correct. This is a flaw in jury selection as it is currently practiced in the United States: It doesn’t succeed at eliciting implicit bias.
Implicit bias has been in the news lately. These are the prejudices and predispositions you don’t even know you have. In the course of jury selection, lawyers rely on jurors to self-report their biases—but there is nothing predictive that will tell a lawyer whether jurors are biased if the jurors aren’t even aware of the preconceptions they carry with them. Lawyers may ask about educational level as a benchmark of a juror’s knowledge base and reasoning ability, but that is a poor way to assess implicit bias. You need to delve deeper, into which sources of information people consume—especially if the case involves a scientific expert witness. In a “post-truth” age of fake news and intentional, sophisticated campaigns of mass-media deception, those who rely on the internet as their primary news portal may be woefully misinformed. And a misinformed juror is worse than an uniformed one.
An expert doesn't win or lose a case: We neutralize other experts. If we’re going to do so effectively, we need to be aware of which false news stories might bias the public. A good expert will address this challenge directly: teach the jury the basic forensic terminology, and explain how misconceptions are spread by television dramas and police procedurals. For instance, bullets do not spin people around. Not everyone who confesses to a crime under police interrogation is telling the truth. Time of death determinations based on postmortem changes are not always accurate or ironclad.
Just because people subscribe to scientific myths doesn’t mean a good forensic expert can’t challenge misinformation and get the jury to understand the science of a case. Unscientific misconceptions might appeal to common sense and might calcify a juror’s biases that have built up over years spent absorbing the zeitgeist’s pseudoscientific claptrap. That doesn’t mean we should surrender to scientific illiteracy. It is our duty as forensic experts to provide the remedy to implicit bias—one jury at a time.
Bio: Dr. Judy Melinek (link to: http://www.pathologyexpert.com/drjudymelinek/) is a forensic pathologist who does autopsies for the Alameda County Sheriff Coroner's office in California. Her New York Times Bestselling memoir Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner, (link to: http://www.drworkingstiff.com) co-authored with her husband, writer T.J. Mitchell, is now out in paperback. She is the CEO of PathologyExpert Inc.