Professor Adam Benforado discussed the jury selection process in U.S. courts and shortcomings such as bias in a Nov. 13 interview with the BBC.

“The idea of common people taking charge of the legal system was a really noble ideal and the only problem with that is we assumed that humans would be able to flip these switches in their brain,” Benforado said. “Unfortunately, the latest evidence from the mind sciences, most notably cognitive psychology, suggests that is just not true.”

Biased behavior may result from implicit, or unconscious mechanisms over which people have little control, Benforado said. “And unfortunately with these types of biases, someone may say ‘I have no problems with people of any race. I treat everyone the same.’ But then when it comes down to the actual trial, these implicit mechanisms, these stereotypes may lead someone to view that person and treat that person differently,” he explained.

Attorneys can also use challenges for cause during jury selection to weed out people who might cause problems for their client. “If a particular juror happens to be married to the prosecutor, that’s an obvious reason why we might want to remove that person,” Benforado said.

The only reasons jurors cannot be excluded are race or gender. “The lawyers don’t have to give a reason unless they are pressed. If someone challenges you and says ‘well, the only reason you kicked that person off is because they’re black.’ Then you have to provide another reason. The problem is that this is so easily gamed. You can choose any reason at all. Courts have upheld things like saying ‘that guy’s pants are kind of sagging at the waist, he’s kind of sloppy. This case really requires meticulous folks on our jury.’ And we can exclude him,” he said.

Another issue complicating jury selection is the use of jury consultants. Today, for wealthy clients, hiring trial consultants is standard procedure with the goal of stacking the jury. Consultants, Benforado said, profile each juror and figure out before even the trial has begun which side people are on.

“And there are all these tricks and maneuvers for trying to stack the jury with people who are most biased on your side. The trial consultant industry will tell you ‘no, our goal is objectivity and fairness. But I’m a lawyer, my best friends are all high-powered lawyers, they would never pay the money they do to make things fair. They don’t want fairness,” Benforado said. “They want to win…They are PhD psychologists. These are people who are reading the latest journal articles all about biases, prejudices, and how to frame things. And that means the process, I think, is broken."

Benforado has been teaching at the Kline School of Law since 2008. He is the author of “Unfair: the New Science of Criminal Injustice,” which was a New York Times bestseller and won numerous awards in 2016 and 2017.