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Meaningful Jury Selection with Short Questionnaires

The problem
In most voir dires, attorneys are forced to ask jurors - as a group - only the most basic questions about controversial issues. Since most people aren't willing to disclose their true beliefs in front of 50-100 strangers, this process precludes attorneys from effectively discovering biases. At the same time, many judges are impatient with attorneys who seek more information than just the silent nodding of heads. As a result, cases are often tried to jurors about whom nothing is known. Those attorneys who have conducted jury research, (focus groups and mock trials), and even those who haven't, probably know that a case is won or lost depending on how particular issues resonate with jurors' particular values, beliefs, and experiences. Therefore, it is of critical importance for attorneys to learn something about prospective jurors before the client's fate is in the jury's hands.

The solution:
In the absence of the court allowing attorneys to conduct meaningful voir dire, the only solution is the use of a written juror questionnaire. This process gives you invaluable information without using any additional, in-court time. If your jurisdiction doesn't regularly use questionnaires - don't let that stop you! In my experience as a trial consultant, a concise and well-written questionnaire has often been welcomed by judges as a means to improve, as well as stream-line, the process. In this regard, consider that:

Written responses are more honest:

  • The pressures of public disclosure cause jurors to withhold information or subconsciously alter their oral responses. A written questionnaire creates a comfortable forum for stating opinions and experiences privately, without self-consciousness.
  • Because many jurors need time to reflect before answering a question, a questionnaire often produces more thoughtful responses.
  • Unlike court-room questioning, a questionnaire doesn't put jurors on the spot (or words in their mouths). To the contrary, the anonymity of filling it out fosters much fuller disclosure.

Written responses reflect biases more accurately:
Consider the scenario where a room full of mostly white and several minority jurors are asked if the color of the plaintiff's skin would make any difference in determining the fault of either party. From the jurors' silence, it is assumed that they are free from bias. But ask a juror to answer a written question and that person could very likely reveal biases he doesn't even know he has. For example, compare the following to the above scenario: The written question asks: "What, if any opinions do you have about racial harassment in our society?" Suppose the answer is: "I am sick and tired of hearing about it. Blacks now have more rights than whites and that's not right." Such disclosure is not likely to occur in open court. The point is that "bias is in the eye of the beholder," and such information enables you to exercise your peremptories more intelligently.

Questionnaires are more efficient:

  • Jurors who give responses that amount to a for cause challenge can be immediately set aside.
  • For cause challenges are more likely to be successful and fairly adjudicated. The judge is less inclined to "rehabilitate" a juror who has expressed his biases unequivocally, in writing.
  • Attorneys review completed questionnaires before jury selection begins. Therefore, problem areas can be flagged and follow-up can be surgically precise.

Practical considerations:
Work with a consultant to design the questionnaires, and just as important, to review them before or during jury selection. An experienced trial consultant can design questions and analyze responses so that you can get a composite profile of a juror's biases, predispositions, values, and orientations. The "warning" against doing it yourself is that lawyers all too often devise questionnaires that are laden with closed-ended questions, with a heavy emphasis on restatements of the law ("legalese"). A poorly designed questionnaire is a waste of everyone's time. For example, an answer to the following question is almost a foregone conclusion.

According to the law, a criminal defendant has no burden to testify on his own behalf, and the jury must not make any negative inference from the defendant's failure to testify. Could you abide by this legal principle? Yes___ No___

A well-worded question is much more likely to produce a variety of responses that can help you truly assess the degree to which a juror will be open-minded. For example:

Even though the state has the burden of proving every element of its case, would you still expect to hear the defendant testify on his own behalf? Yes___ No___ Why or why or why not?

If the defendant maintains his innocence, but doesn't testify at trial, how would that affect your feelings about his guilt or innocence?

The proposal to use a questionnaire should be raised with the judge early on so that there is enough time for it to be administered.

  • The questionnaire should be short, taking 20-30 minutes to fill out. This makes the judge much more likely to allow its use, and jurors more likely to explain answers more fully.
  • Ideally, prospective jurors should receive questionnaires several weeks before they must appear in court. Questionnaires could then be returned at least one week before jury selection so counsel has enough time to review them.

In sum
Jury selection is your only opportunity to learn about the people who have the power to decide your client's fate. A written questionnaire allows you to make the most of this opportunity. In this era where juries are under increasing attack, we need to devise efficient techniques that maintain the integrity of our jury system and give meaning to the phrase, "a fair and impartial jury."

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