Power to Bias? The Effect of Attorney Empowerment in Voir Dire on Jury Prejudice and Race∗†

Giving attorneys more power in the voir dire (jury selection) process may allow them to 1) more easily dismiss jurors whom they wish to strike on a priori grounds; 2) acquire information that enables them to identify favorably-inclined jurors more precisely; or both. Attorneys who are more skilled can better leverage their increased power to retain the jurors they prefer. We show theoretically that, since defense attorneys tend to prefer non-white jurors a priori, the interaction of empowerment and defense attorney skill should produce juries with a greater proportion of non-whites if only the first mechanism is operative, but need not have this effect if the second is operative. We find empirically that skilled and empowered attorneys can indeed stack juries by retaining jurors predisposed to their side at a greater rate. However, we find that empowerment and skill have small and insignificant impacts on the racial composition of the seated jury. In the context of our model, this result implies that, for at least some of the trials in our dataset, attorneys leveraged empowerment in voir dire to learn more about potential jurors, rather than simply to strike more effectively by relying on racial stereotypes. Our findings provide strong evidence that extensive voir dire involving attorneys can lead to the seating of biased juries when opposing counsels are unequally skilled, yet the presence of this bias may not be detected in the observable characteristics of seated juries. We are grateful to Kevin Lang, Claudia Olivetti, Michael Manove, Aimee Chin, Chinhui Juhn, Andy Zuppann, Elaine Liu, Steven Craig, Richard Boylan, Randy Ellis, and Johannes Schmieder for excellent advice and guidance. Special thanks to Daniele Paserman, Wesley Yin, John Harris, Marc Rysman, and David Rossman for their helpful comments. Thanks to all of our colleagues who have given generously of their time and advice. The views presented are those of the authors and do not reflect those of Analysis Group. Any errors are our own. Updated drafts of this paper can be downloaded from http://www.uh.edu/~jlehman2 Corresponding author. Assistant Professor, Department of Economics, University of Houston. E-mail: jlehmann@uh. edu 211B McElhinney Hall, Houston, TX 77204-5019. The author is an Associate at Analysis Group, Inc., 111 Huntington Avenue, Tenth Floor, Boston, MA 02199. Research for this paper was undertaken when he was a PhD student at Boston University.