United States v. Arvizu, et al.
E.D. Oklahoma 92-032-5

I, Ronald C. Dillehay, under penalty of perjury, make the following declaration:

1) I hold an AB degree in psychology from the University of California, Berkeley, earned in 1957, and a Ph.D. in social psychology from the same institution, awarded in 1962. I am a licensed psychologist in the State of California. I have taught at the University of Kentucky, the University of California, Berkeley, and Texas Christian University. My teaching areas have been social psychology, developmental psychology, research methods in the behavioral sciences, behavioral aspects of health and illness, and social psychology and law.

For the period from July 1964 through June 1966, and the period July 1969 through June 1990, I was Professor of Psychology at the University of Kentucky, in Lexington, Kentucky, and held various administrative positions there. From July 1966 through June 1969 I served as Associate Professor of Psychology at Texas Christian University. I am currently Associate Dean of the Graduate School and Professor of Psychology at the University of Nevada, Reno.

2) I have authored or coauthored two books and 78 articles, chapters, or professional papers on attitudes and beliefs, authoritarianism, social perception, and other matters of basic and applied social psychology. Twenty-nine of these deal with social psychology and law, including venue surveys, juror behavior, and voir dire.

3) Education and training in research methods and statistics: undergraduate courses in descriptive statistics, correlation methods, design and analysis of research. Graduate courses in inferential statistics, multivariate analysis, computer applications in behavioral research. I have taught statistics and psychological tests and measurement.

4) Training and experience in survey research: face-to-face and telephone surveys in numerous studies over the past 30 years.

5) Among my professional experiences relevant to the applications of social psychology to law are the following:

a) Venue research in capital cases concerning publicity, community attitudes, and juror prejudice;

b) Investigations of the effects of variations in voir dire proceedings in actual capital cases on dismissals for cause and other consequences;

c) Consultant or observer on approximately 90 trials, 46 of which were capital cases, in Federal or State courts in Alabama, California, Georgia, Kentucky, Maryland, Oregon, South Carolina, and Tennessee;

d) Consultant on civil trials on matters of jury behavior, prejudice, persuasion, and witness preparation;

e) Research on jury behavior in felony trials, utilizing experimental jurors as courtroom observers;

f) Research on the relationship between juror experience and jury verdicts, utilizing court records for felony trials in the State Circuit Court in Fayette County, Kentucky;

g) Research on attitudes of potential jurors associated with qualification under Witherspoon and Wainwright v. Witt death penalty standards;

h) Comparative research on Witt and Witherspoon as standards for death qualification in capital cases;

i) Presentation of invited addresses and training seminars on jury selection for the Continuing Education Program at the University of Kentucky College of Law, the Kentucky Department of Public Advocacy, and the Kentucky Trial Lawyer's Association;

j) Participation as faculty for death penalty seminars for attorney training and for investigator training conducted by Kentucky Department of Public Advocacy;

k) Training consultant to the Office of Kentucky Legal Services Programs and to the Legal Aid Society, Louisville, Kentucky;

l) Behavioral consultant to private law firms;

m) I have qualified as an expert witness on jury issues and testified, or presented avowal testimony, in the Superior Court of San Mateo County, California, the Superior Court of Orange County, California, the Circuit Court of Prince Georges County, Maryland, the Circuit Court of Butler County, Kentucky, the Circuit Court of Henderson Co, Kentucky, the Circuit Court of Oldham County, Kentucky, the Circuit Court of Lyon County, Kentucky, the Circuit Court of Jefferson County, Kentucky, and the U.S. Federal Court in the Eastern District of Kentucky.

6) I have been asked by counsel to render an opinion concerning judge- and attorney-conducted voir dire, and as preparation for this affidavit I have discussed the case with counsel, examined certain media accounts, and read memoranda summarizing facts in the case.

7) This analysis of the differences between judge conducted voir dire and voir dire conducted by attorneys is based on my experience as a courtroom consultant during voir dire in capital cases, and my training and experience in research as a social psychologist. These lead me to a role analysis of the social structure of voir dire and a conceptualization of interpersonal influences during the questioning of prospective jurors. This analysis focuses on the prestige and authority associated with the position of the judge. The resulting formulation illuminates the differences between attorney-conducted and judge conducted voir dire, and underscores the disadvantages of voir dire conducted only by judges when compared to participation by attorneys in the questioning of prospective jurors on certain topics.

8) In terms of social structure, the courtroom is formally organized by law, tradition, and practice in a fixed and highly visible manner, and it is clear to any observer or participant that the judge is in total control of what transpires there and that the attorneys are entirely partisan with identifiable positions. Court personnel are accountable to the judge, the rules that govern what the attorneys may and may not do is under his/her control, and so on. In the parlance of social science, the positions of the various actors in the courtroom are clearly differentiated, with the judge at the top, and the roles (i.e., the expectations for each of the participants associated with the positions they occupy; the obligations and prerogatives connected with each position) are highly specialized as well.

9) One consequence of the clearly differentiated statuses and roles of the social structure of the courtroom is the expectations held by jurors for the behavior of judges and attorneys, and for themselves. These include for judges the exercise of authority, the maintenance of neutrality with respect to the controversy at issue, and the personification of legal rules and standards. The enormous respect for judges and the authority attributed to them is part of our formal and popular culture and works closely with the structured activities of the courtroom to reinforce the perception of the judge's power and perceived neutrality. On the other hand, attorneys are expected to be partisan in their actions, thorough, and assertive, as they conduct themselves under the authority of the court.

10) Jurors sense an important civic purpose for themselves (and are often reminded of that by the court), even if their duty is unwanted and intrusive in their lives. They often appear to feel themselves to be allies of the judge, as "in this thing together," in the pursuit of justice. They understand and are reminded of the fact that they need to be good citizens who are fair and impartial, who will keep an open and unbiased mind and reach an uncontaminated decision. These charges and reminders come from the judge, and typically are repeated in the form of accounts of the juror role (e.g., being fair and impartial in weighing the facts), expressions of thanks on behalf of the court for community service as jurors (e.g., tolerating disruptions in their lives to be good citizens as jurors), and as explanation for voir dire (e.g., "We need jurors who are not prejudiced and who can be fair to both sides.").

11) There is an implied opprobrium associated with "wrong" answers from jurors. A message jurors get from the judge in these relatively standard communications is that their responsibility is--i.e., that their role requires--that they be fair and unbiased. Therefore, to admit prejudice or bias, or to be unable to follow the instructions given by the judge, is to fail to be a good citizen who fulfills his or her role. I have observed jurors even apologize to the judge when being dismissed for cause on these grounds.

12) The perception on the parts of jurors that they need to be "good jurors" is also reinforced by the questions that judges ask in an effort to determine whether jurors are indeed qualified under Witt to serve. In a common scenario in state courts, after attorney questioning and a motion to dismiss has been made, judges will attempt to clarify the juror's position--or rehabilitate him or her--by questions that go to the heart of the matter. For example, "If I direct you that you must follow the law and consider all legally available penalties, will you be able to do that?" or, "Are you saying that you will not be able to follow your oath as a juror and the law as I give it to you?" The answer for a good juror/good person is apparent. And in the perspective of the juror, the judge clearly prefers such an answer. In my opinion it is due to both the nature of these questions and the high prestige, high authority source that jurors are then led to be less than honest or forthcoming in their responses to the judge.

13) The prestige and authority of the judge are inherent in the position and role of judge and are difficult if not impossible to overcome. As the embodiment of justice in the courtroom, the judge cannot escape the attributions about neutrality and power and the high valuation by jurors. These same attributions are not made about the attorneys. The resulting potential of the judge to influence the perceptions, thoughts, feelings, and behavior of jurors during voir dire is much greater than the potential of the attorneys to do so. This comes about because of the inherent differences in the social arrangements of the courtroom; they are built in. These differences make it much more difficult for judges to get answers that are not designed to please the "audience" (i.e., the judge). By contrast, the audience-pleasing dispositions of jurors responding to questions from attorneys are much less likely to color or bias responses in voir dire.

14) The judge will necessarily have much less information about the case, from either side, than the attorneys. This will especially affect the judge's ability to frame proper follow-up questions for jurors who reveal potential prejudice or bias on aspects of the evidence, witnesses, defendant, prosecution, and particularly punishments. For example, if the judge does not know in detail (which is usual) what the mitigating evidence will show, he or she is not in a position to ask questions that may lead to cause dismissals or to the intelligent exercise of peremptories.

15) How will these role differences affect questions about death penalty dispositions? To the extent that jurors are in general disposed to please the judge (and they usually are), they will attempt in response to a judge's questions to give answers that he or she would approve. That is, some jurors will do their best to indicate that they can follow the law, will abide by their oath, and will conform to instructions given by the court, even when an entirely honest response would indicate otherwise. In trying to please the court, the unwitting juror is undercutting the system.

16) The differences between judges and attorneys in terms of power, attractiveness, legitimacy, and other determinants of social influence, and in terms of differential information, would be expected to affect adversely the identification of jurors apparently excludable because they could never consider imposing the death penalty, that is, Witherspoon excludables.¹ The effects would be of two kinds: Failing to identify some Witherspoon excludables, and failing to rehabilitate effectively a number of those who appear initially to be excludable because they indicate they could not consider imposing death as punishment. Those who would never vote for death under any circumstances because of well thought out or highly principled personal positions will surface under rather simplistic or general screening. However, if the questions asked by judges are not phrased very carefully so as to convey to the juror that complete honesty of opinion is valued over expressions in keeping with the standards for qualification (i.e., compliance with the perceived position of the judge), Witherspoon excludables will be missed. Furthermore, on the other side of the coin, not all of those apparently excludable for these reasons will stand up under careful efforts at rehabilitation. A not insignificant number of venire members are unsure of their views on capital punishment. I have observed jurors give diametrically opposed answers to punishment questions depending on who asked the questions and how they were framed. Based on my observations and experience in the courtroom in capital cases, I do not believe judges will adopt the partisan commitment that is necessary to examine in more depth the beliefs and feelings of those who initially say they could not consider death under any circumstances, so as to identify those jurors who could in fact follow the law and their oath without being substantially impaired by their views.

17) It is considerably more difficult to identify during voir dire, in a process that can be referred to as life-qualifying the jury, those jurors who can be euphemistically referred to as "automatic death penalty" (ADP) jurors who would always impose the death penalty for anyone convicted of murder punishable by death. Based on my experience and training I believe this is so principally for three reasons: First, the screening is necessarily complex, since the ADP juror does not take the position that he or she would always give the death penalty, regardless of the circumstances. Hence the nature of the circumstances must be explored. In my experience ADP jurors have in mind excluding such instances as arguable self-defense, vehicular homicide, or a hunting accident, but this is not discovered without careful open-ended questions followed by careful probing. Second, many of those who are ADPs want to serve and therefore are more likely to answer in such a way as to qualify for the jury. The authority and prestige of the judge as questioner complicate this process. Even if judges were disposed to engage in the careful questioning necessary to uncover ADPs, honest responding to them is made difficult by the ADP juror's wanting to please the court (and therefore qualify). Third, ADP jurors may not comprehend that their views are disqualifying. This misunderstanding is because they do not understand sufficiently the bifurcated nature of a capital trial.

18) One kind of ADP juror would give death to any eligible convict. A second kind of ADP juror is one who would consider only death for some kinds of murders (e.g., prison killings, drug-related murders). Such a juror can truthfully say that the circumstances of the murder would determine whether he or she would be open to other penalties. But if the case at hand is one of those in which the juror believes only death should be given to those convicted, for the juror the vote for death is automatic and mitigation evidence is irrelevant. A third type of ADP juror is one who is substantially impaired in considering the particular genre of mitigation to be in issue.

19) There is another kind of bias on the part of some who strongly favor death: failing to accord the presumption of innocence, requiring the defendant to testify, and shifting the burden of proof. These tendencies require open questions and careful probing, and are defects that in reality, if not in law, cannot be cured by judicial instruction. Again, as with other disqualifying juror dispositions, jurors will find it more difficult to be honest in response to questions from the judge.

20) Regarding mitigation, the adequacy of screening of jurors for cause dismissals and the intelligent exercise of peremptory challenges on issues concerning mitigation is likely to be substantially diminished by judge-conducted voir dire. This is true for reasons of insufficient knowledge about the case and lack of partisan advocacy, both contrasting the role of the judge with that of attorneys. Judges will not be privy to the mitigation evidence and the witnesses to be introduced in the case, and will not know the strategies to be employed by the attorneys. Neither will the court, without risk of violating the position and appearance of judicial neutrality, enter into the sensitive questioning essential to determine whether jurors can be open to mitigation evidence, some of which will necessarily be controversial to some jurors (e.g., a history of extreme physical or psychological deprivation). An even more difficult problem may be presented in this case where multiple defendants appear to have distinct, possibly conflicting, mitigation themes. The court's need to maintain neutrality, yet explore the jurors' ability to follow the law in considering all mitigation evidence, are at odds.

21) It has been my repeated observation in voir dire in capital cases over a variety of jurisdictions that experience specifically with questioning jurors about death, life, and prejudice against mitigation evidence is a clear determinant of effectiveness in voir dire in death penalty cases. Questioners with death penalty voir dire experience are better able to cope with the requirements of this special type of juror examination. Recognizing the importance to this task of experience, I have spent numerous hours with attorneys in capital cases in the preparation for voir dire. A history of participation in voir dire in non-death penalty cases, which is necessarily more brief and without concern for attitudes toward the legal taking of a life and toward mitigation evidence (and where attorney participation in voir dire is arguably less important), is not a substitute for the real thing.

22) The judge, compared to the attorneys, is likely to have relatively limited knowledge of the details on important aspects of the case: publicity, the witnesses to be called, the substance of their testimony, and other evidentiary matters. This is due to the role of the judge and is a distinct disadvantage in examining jurors for bias in the manner and at the level necessary to uncover existing prejudice. For example, it has been my observation that jurors who have read, seen, or heard about the case initially actively minimize or fail to remember what they have been exposed to. Careful open ended probing (e.g., tell us what you remember about the way the killing occurred; what kind of weapon was involved; where was the body found) can reveal considerable biasing information. Jurors themselves are sometimes surprised by the extent and specificity of their information. And it would be difficult to expect that such information--sometimes inadmissible--would not come to the juror's mind during the trial.

23) With a simplistic, superficial voir dire, as conducted in most ordinary criminal trials, it does not matter whether the questions are asked by the judge or attorneys in the case. This sort of voir dire does not go beyond the most general questions unless the juror him or herself forces it. For example, the juror or the entire panel might be asked: "Have you read, seen, or heard anything about this case?", and for those who indicate they have, a follow-on question might be something like "Can you put aside anything you might have been exposed to and render a fair and impartial verdict based on only the evidence presented in this courtroom?" Based on my experience in the courtroom, it is my opinion that, particularly in a death penalty case, considerable bias and prejudice is overlooked with such questioning.

24) In this case the issue of potential ethnic bias against some of the defendants looms large. Because some of the defendants are members of ethnic minorities, it is essential to conduct voir dire on prejudice against ethnic minorities, and this is extremely difficult to do under the best of circumstances. There are strong norms in many contexts of society today, such as in the courtroom, that suppress expressions of ethnic prejudice, yet indications are that this prejudice exists but in new forms. This modern prejudice is more subtle and less easily identified, and in fact racially prejudiced persons today may be unaware of their biases. It has been estimated by scholars of racism that as high as 80% of the American population is prejudiced, with motives for that prejudice varying across individuals. Some of these motives are more pernicious than others. Most damaging for defendants in a death penalty trial is prejudice based on authoritarian personality motives, estimated to afflict approximately one in five in the American population.

In the position of esteem, respect, and legal authority enjoyed by the judge, he or she would find it extremely difficult to elicit from jurors expressions of prejudice against ethnic minority groups. Attorneys have a much better chance of doing this, but even then it requires the circumstances of individual questioning during voir dire, carefully established rapport between the questioner and the juror, and a context of openness, acceptance, and the encouragement of honesty. And simple questions that can be answered by "yes" or "no" will not provide the sample of behavior on the part of the juror essential to detect any existing racial bias or prejudice. Questioning must include a proper mixture of open-ended questions that generate self-disclosure in the juror's own words, and closed-ended questions that clarify the juror's beliefs and feelings. These opinions are based on my knowledge of the social science literature on racism and ethnic prejudice and my experience in voir dire in capital cases.

25) From a social psychological perspective, there is an advantage to the judge of being an observer during attorney-conducted voir dire, especially with the close calls often necessary in cause dismissals. Watching and hearing the opposing attorneys' efforts to clarify a juror's position on a difficult or sensitive matter affords the judge an opportunity to be in a position to identify, as a neutral party, the essence of a juror's conflicting or conflicted positions.

26) With judge-conducted voir dire there is a loss of an important source of information about juror bias: juror reactions to the attorneys. Aversion toward an attorney may reflect attitudes toward the attorney as a person or an advocate, or feelings or beliefs about a defendant or the state. In either case a prejudice and therefore an unfair burden would go undetected without the opportunity afforded by attorney-conducted voir dire. Prejudice and bias of this kind appear in the form of differential behavior on the part of the juror toward one of the attorneys. While not reaching the level of a dismissal for cause, unless the bias is a clue to other issues that are uncovered through questioning, this kind of bias is at least informative for the intelligent exercise of peremptories and the elimination of an extralegal and unfair burden for one of the parties.

27) Attorney-conducted voir dire provides a defense attorney the opportunity to present the defendant as a human being, someone to be given a consideration as a person should it be necessary to select a penalty. 'Humanizing" the defendant is more than a gimmick: research shows the importance of recognizing the human qualities of a person to be punished. The difficulty for a judge in taking the needed measures makes it unlikely they would occur.

28) In my opinion individual sequestered voir dire is essential in capital cases. My own research on voir dire in capital cases from Kentucky, later replicated with cases from Kentucky, South Carolina, and California, demonstrates that individual sequestered voir dire leads to a significantly larger number of defense inspired dismissals for cause (Law and Human Behavior, 6, 1-13; Behavioral Sciences and the Law, 5, 467-477). This likely comes about because of the greater opportunity to display for the court the presence of prejudice on the parts of some jurors. Other research reveals the inimical effects of death penalty questioning in the presence of other jurors (Law and Human Behavior, 8, 121-132; Law and Human Behavior, 8, 133-151). Potentially highly prejudicial for defendants, many of these effects are entirely avoidable with individual sequestered circumstances.

29) In summary, it is my opinion that an adequate voir dire in capital cases requires that it be conducted at least in part by attorneys, with the use of carefully framed questions some of which are open-ended and some closed, under individual, sequestered circumstances, most importantly covering death -and life and mitigation issues, and, as circumstances permit, matters of publicity, and race. Judges are at a disadvantage in attempting to conduct the essential voir dire because they operate from a position of uncommon authority and prestige that makes it difficult for some jurors to be forthright and honest. Judges also lack information about the case crucial to framing some questions, especially probing follow-up to answers provided by jurors. Furthermore, it is out of role for them to take on the partisan stance important to uncovering bias and prejudice toward one side or the other. In the latter role they run the risk of relinquishing their position as neutral party in the eyes of the juror.

Ronald C. Dillehay
Washoe County, Nevada
Subscribed and sworn before me this day of 1992.