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Growing confirmation bias endangers jury system

The jury trial system was designed to allow everyday Americans to sit in judgment of their neighbors accused of a crime.

The concept is actually brilliant, because it allows people who are accused to place their fate in the hands of their neighbors, people who are just like them.

In the earliest days of the United States of America, towns and communities were small. There were few cities, with Boston, New Orleans and New York City being the only large cities.

People lived in far flung hamlets, or on isolated farms. Travel was impossibly hard. Narrow trails for walking or horseback travel dominated, and major freight was hauled by river. Trials were local affairs.

So, the jury trial system was enshrined in our system of laws in the United States Constitution and the constitutions of each state. No person shall be tried except by jury. Period.

Our Founding Fathers rightfully believed that the best way to prevent the powerful from imprisoning the weak was to grant to the average citizen the right to sit in judgment of his fellow man. This was a stroke of genius.

Many years ago I tried a case in rural Alabama that shows exactly how the jury system works perfectly. I represented a farmer accused of driving up to his neighbor's farm and shooting at the neighbor's house, barn and cattle. The prosecution was going for blood because this was a “gun crime.” When I took the case I realized it was a fraud. The “victim” was the only witness.

The cops arrived and made a police report and the “victim” signed a warrant. No forensics.

At the trial, we showed there was not one single bullet hole in any tree, house, or animal.

There was not one shell casing on the ground. Nothing. Zip.

Then we showed how my client’s farm was on the verge of collapse financially and the “victim”

had made efforts to steal the client’s farm from him, even trying to buy his mortgage. In short, the “victim” falsely claimed my client shot at his home to push my client into jail and force his bankruptcy.

My jury was a bunch of folks from this rural county who saw the writing on the wall and found my client not guilty.

This is how the jury system was designed to work.

We have a growing problem in the 21st Century. Rampant urbanization of the population, coupled with confirmation bias fueled by the internet now imperils the jury system and its fairness. Worse, people aren't neighbors anymore. People sit in their homes on their computers and experience the world via computer.

This fuels confirmation bias. Confirmation bias is where people don’t have an open mind. They have fixed ideas about an issue and cherry pick information that they hear to support their preconceived notion. You can see how this endangers the jury system, where jurors are supposed to start the trial with an open mind and let the evidence guide their thinking.

The internet has poured gasoline on the problem of confirmation bias. Internet search algorithms are designed to give you results which you favor. You aren't subjected to conflicting opinion. The more you look at web sites and social media that mirrors your prejudices, the more you believe your positions are correct. People no longer have to test their notions against dissenting opinions. In fact, if they do, they get furious about having to hear them.

So, jurors addicted to hearing only their version of facts, hearing only their positions echoed back to them, come into jury service with preconceived notions about the guilt or innocence of a defendant.

Lawyers have a greater burden than in any time in history as we try to penetrate the confirmation bias of jurors because jurors now are quick to judge before hearing a single piece evidence. We rarely have the small town neighbor judging neighbor matrix.

Confirmation bias endangers all of our freedoms, especially those of us who are charged with a crime. For the jury system to work, jurors must come into the jury box with no fixed opinions about the evidence. Those jurors are getting harder and harder to find.

(Required by Alabama law: No representation is made that the quality of legal services is greater than other lawyers.)

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