Bike bias in jury selection and using challenge for cause

In trial, driver attitudes towards cyclists can be a barrier to justice

2017 January

In the past decade, bicycle ridership has enjoyed a steady increase in California. According to the League of American Bicyclists, between 2005 and 2013 there has been a 40 percent to 68 percent increase in the share of people commuting by bike. The increase in bicycles on the road has led to better bicycle advocacy from non-profit bicycle coalitions and, in many places, improved bicycle infrastructure.

Those of us who have been representing cyclists during this period have been encouraged by these trends and have been hopeful that it would naturally lead to more favorable attitudes towards cyclists from potential jurors. Yet, despite the ubiquity of cyclists in many areas, the general public’s attitude toward cyclists remains fairly negative. This means that when selecting a jury in a cycling injury or death case, it is important to voir dire on the issue of bike bias.

Who believes that cyclists follow the rules?

The coexistence of drivers and cyclists has fairly recently piqued the interest of researchers. A 2016 survey entitled Driver Attitudes About Cyclists: Negative Evaluations of Rule Following and Predictability, asked 2,300 people in five major cities questions aimed to document attitudes towards cyclists. The results of the survey were somewhat surprising, revealing that 67 percent of drivers and 59 percent of non-drivers agreed that other drivers follow the rules and 70 percent of drivers and 62 percent of non-drivers agreed that driver behavior is predictable.

When asked about cyclists however, neither car drivers nor non-drivers felt cyclists followed the rules of the road or rode predictably, with about one-third agreeing with the proposition that cyclists follow the rules and are predictable. (Goddard, et al. 2016, Driver Attitudes About Cyclists: Negative Evaluations of Rule Following and Predictability.) Essentially, not even other cyclists believe that cyclists generally follow the rules or ride predictably.

The survey also revealed that drivers who also occasionally cycle have some sympathy for cyclists whereas drivers who never ride a bike have more negative attitudes toward cyclists with only 25 to 28 percent agreeing that cyclists follow the rules or are predictable versus 45 to 48 percent of drivers who sometimes ride.

The most interesting finding in the survey was that those who disagreed that cyclists follow the rules or ride predictably were largely against the idea of expanding bicycle infrastructure.

Why are cyclists seen so negatively?

There are many schools of thought as to why there is still a disparity between our views of car drivers versus cyclists. The authors of the above survey posit that the “highly positive evaluations of drivers as predictible likely reflects the success of traffic engineering in creating a system in which most users understand the expected behaviors, and (mostly) abide by them. This attitude may also be explained by familiarity – drivers understand what other drivers are doing on the roadway.” (Ibid.) Still, this leaves leaders in urban areas that have actually invested in traffic engineering for the cycling community scratching their heads as to why there is still conflict (both physical, in the way of collisions, and emotional, in terms of drivers and cyclists feeling marginalized) between drivers and cyclists.

So what do drivers do with all of these negative feelings toward cyclists? A 2015 smaller scale survey examined the link between car driver attitudes, perceptions of social norms and aggressive driving behavior toward cyclists and found that negative attitudes towards cyclists equate to more aggressive driving towards cyclists. (Fruhen et al. Accident Analysis & Prevention Vol. 83, Oct. 2015: “Car driver attitudes, perceptions of social norms and aggressive driving behavior towards cyclists.”) Out on the road, these attitudes can create a hostile and dangerous environment for cyclists. In trial, driver attitudes can be a barrier to justice for injured cyclists.

How to address bike bias in voir dire

California Code of Civil Procedure section 225 allows a challenge for cause as to a prospective juror for “actual bias.” Actual bias is defined as “the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” Unless a potential juror has both the defendant and the plaintiff starting at the line equally, a preconceived notion about cyclists can equate to a bias giving rise to a for cause challenge.

In the current climate, it is not enough to scan the venire and jot down a smiley face next to the name of the millennial who has chain grease on his pant leg, or ask for a show of hands for people who ride a bike. Uncovering bike bias requires a little bit more of a deep dive, given that other cyclists can be just as critical (if not more so) of an injured cyclist.

If you are a lawyer who is also a cyclist, it is time to think like a driver. Spend some time thinking about how your cyclist’s actions can be perceived by drivers given the framework described above. Can your client’s behavior be put into the “doesn’t follow the rules of the road” or “doesn’t ride predictably” buckets by the defense? If so, you need to understand how to change the narrative early on in voir dire.

A fairly easy pre-trial exercise is to drive your car, during rush hour, through a main arterial road that is most heavily used by bikes, cars, transit and pedestrians, and be thoughtful of how you feel as a driver being in close proximity to so many cyclists. Some drivers report feelings of anxiety in such situations as their mindset is that cyclists are unpredictable and can dart in front of a car at any time. Also observe common behaviors by cyclists and see how those behaviors affect drivers. For example, on a road with a stop sign at the end of a downhill, do cyclists consistently “Idaho stop” or roll through? If so, monitor the reaction of the drivers – are drivers slamming on their brakes to avoid collisions? These small interactions add up to frustrations and fears, which leak through as jurors.

Armed with a better understanding of why there are negative attitudes toward cyclists, focus your voir dire to flush out these feelings early. An easy way to break down the panel (either via a questionnaire or during voir dire) is to separate the venire into the following categories:

• Drivers – people who mostly drive and do not bike at all

• Non-drivers:

Pedestrians/public transit users only

Cyclists

• Combo wildcards: those who use all modes of transportation

For “non-drivers” pay close attention to the pedestrian group, especially in areas where there has been a highly publicized bike-versus-pedestrian injury collision. While these collisions are extremely rare, they get a disproportionate amount of press and can make pedestrians wary of cyclists.

For the “combo wildcards” you will want to establish what percentage of cycling these folks do and whether they identify with the cycling community. General questions can include: how many times have they ridden a bike in the past year; what is their general purpose when riding – commuting, recreation, errands; where do they usually ride; do they avoid high traffic roads, do they use bike infrastructure like bike lanes. Casual riders who avoid traffic may view themselves as “safe riders” who take precautions from being injured, which may put them in conflict with your client. Both recreational and casual riders may not view cycling as a legitimate commute method, thus creating an attitude that your client needlessly placed him or herself in harm’s way.

When questioning “drivers,” you will need to flush out the negative bike attitudes. A good starting point is asking whether, if given no other facts other than a driver and a cyclist were involved in the collision, they can form any opinion on who was more likely at fault. Those who say yes, on either side, have an inherent bias. To get your challenge for cause, you need more to avoid your judge “rehabilitating” the juror. You need to know why the prospective juror holds that belief.

Follow up questions can include, have they ever been in a “near-miss” situation with a cyclist – then ask how that made them feel – scared, nervous, angry; ask if they hold the general belief that cyclists do not follow the rules of the road and whether they feel cyclists ride unpredictably. Get the prospective juror to tell that story about why they have a negative attitude toward cyclists, then watch the nodding heads from the rest of the panel and follow up. You will hear generalizations that cyclists never stop at stop signs, they zoom through traffic, and that they ride too close to cars. These are good examples, as together, they create an impenetrable bias that you will need to use a for cause challenge.

Depending on the facts of your case, you may want to know if your client’s behavior falls into the unpredictable category for certain prospective jurors. Weave your facts into the questions to take the venire’s temperature on your issue. This includes whether characteristics of your client would shape a view of unpredictability. For example, having represented many bike messengers, I learned that their negative perception by drivers rivals only that of cab drivers. Both groups are thought to engage in risky behavior on the road, so it is better to get this information out and processed during voir dire.

Once a prospective juror has given you all the facts that make up their world view on cyclists, ask if they can put every one of those instances of bike behavior they have witnessed that have made them angry, scared, or frustrated aside and view the behavior of your client without letting those prior instances color their view. If you have drawn out enough facts, many prospective jurors will realize that their beliefs are so ingrained that they cannot divorce them from the facts of your case – this is what you need to establish your “for cause challenge.”

Shifting the focus onto driver responsibility

Since not every driver has negative attitudes about cyclists, you will also want to begin a dialogue about drivers’ responsibilities and get out attitudes about car drivers. Since many people feel that drivers do follow rules and are predictable, getting these opinions out in voir dire educates the panel, allowing them to better weigh the actions of the defendant driver in your case. Some interesting questions to throw in to the mix include those that highlight the size and weight difference between cars and bikes. There is a natural flow to these questions when you are questioning drivers who are afraid to drive around bikes. The fear is that as a driver they will hit a bicyclist with their car. You can use this as a springboard for how powerful and potentially dangerous cars are and how small and unprotected bicycles are. Use your questions to frame the cyclist as a vulnerable roadway user.

This line of questioning also identifies the “extremely good driver” juror, or those that perceive they use extra caution on the road around vulnerable users like cyclists and pedestrians. Such jurors will scrutinize another driver who does not adhere to their high standards of driving.

Final thoughts

We all know that some judges are wary about for cause challenges given sometimes limited jury pools. Thus, it is necessary to create a proper record, making it impossible for the juror to be rehabilitated with the standard “of course, I would follow the law.” Using “for cause challenges” when perhaps three-quarters of your pool has some negative attitude toward cyclists can be an invaluable way to select a fair and impartial panel.