In courtrooms making tentative steps toward reopening to in-person jury trials, some of the parties have called for increased use of juror questionnaires, ideally filled out ahead of time either by mail or online. This makes a great deal of sense in, at least, reducing the time spent during voir dire, when there will be the greatest number of people crowded into a courtroom. But, how reliable are the questionnaire responses? As I have written before, the research (e.g., Chang & Krosnick, 2010) shows that a self-administered questionnaire is likely to contain more candor than oral questioning by court or counsel, and the reason for this is that there is a strong “social desirability bias” to give the “correct” or expected answer to authority figures.
But there is still some chance that the answers will not be fully candid. In a recent study, academic researchers from Texas, North Carolina, and Massachusetts (Rogers et al., 2020) looked at reactions to death-penalty relevant questions on capital juror questionnaires, and found that nearly 30 percent admitted that they would misrepresent close to half of their responses, effectively concealing either strong support or strong opposition to the death penalty. Given that it may only take one juror to taint the fairness of a jury, this result seems to strongly point to the high risk, or near certainty, of stealth jurors in that context. Despite that fact, however, I don’t think it is a matter of simply not trusting the venire members to give you straight answers. Instead, I think it is a matter of looking for the factors in the situation and in the questions that facilitate that dishonesty, and designing around those circumstances. In this post, I will take a look at the research as well as its implications for designing juror questionnaires in any kind of case.
The Research: High Levels of Dishonesty in a Capital Juror Questionnaire
I have some experience working with capital case jury selections, and while the experience doesn’t all translate to more conventional civil cases, in some ways the juror attitudes that factor into the highest of high-stakes cases can be seen as extreme views of attitudes that determine other cases. For example, the persuasive resistance to one side or the other can be very strong. The researchers cite polls showing that about a third would refuse to sentence someone to death (no matter the evidence), and another quarter would automatically vote for the death penalty for anyone convicted of murder (without needing aggravating factors).
The research team focused on the question of whether those groups would tell the truth in a questionnaire. The answer is that many of them would not. It is difficult, of course, to use a questionnaire to see if people will lie on questionnaires, but the researchers addressed that difficulty by separately measuring candid attitudes toward the Capital Juror Questionnaire based on guarantees of anonymity and confidentiality. Using questions taken from ten actual death penalty cases, they found that both death penalty proponents and opponents were willing to alter their answers in favor of what they thought would put them on the jury. Those who supported life in prison over capital punishment misrepresented their views more often, possibly based on a knowledge of “death qualification” (the exclusion of jurors who say that they cannot impose the death penalty). The opposite process of “life qualification” (or excluding those who say they could not impose a life sentence, rather than death) is not as familiar.
Ultimately, the study found that the chances of getting a venire member who would be entirely honest in the survey is not very reassuring: 17.3 percent for those who support the death penalty, and just 11.9 percent for those who don’t.
The Formula: What Causes Dishonesty?
Rather than just coming to the conclusion that jurors can’t be trusted, I believe lawyers and consultants need to look at the unique factors that contribute to dishonesty.
One factor is motivation. Strong personal views create a motivation to serve, or a motivation to at least not be excluded based on one’s views. In a death penalty case, that strong motivation comes from a knowledge of the qualification process and the understanding that some answers are going to get you struck or challenged for cause. A death penalty opponent, for example, may know that excluding everyone with qualms about the penalty ends up stacking the deck in favor of not only capital punishment, but in favor of conviction as well. In that situation, they may not feel responsible just telling the truth on the questionnaire. In civil cases, that motivation might come from a knowledge that other strong attitudes, like an anti-corporate or anti-plaintiff bias for example, might be used for a cause challenge or a strike.
The other factor is the tendency for many questions to give guidance on what the “correct” answer is. For example, one question used in a capital case the researchers examined asked for agreement or disagreement with the following: “I am generally in favor of the death penalty. Nonetheless I believe I can vote to impose a sentence other than death if it is called for by the facts and the law in the case.” A death penalty proponent would know that “agree” is the answer the court is looking for. Similarly, the questionnaire also asked for agreement or disagreement with, “I would automatically vote against the death penalty no matter what evidence was introduced,” and a death penalty opponent would know that the expected answer is “disagree.” To anyone paying minimal attention, the questionnaire gives a strong signal.
These questions are not atypical. The researchers reference one study that looked at questionnaires from twelve capital jury selections and found that, “The vast majority of questions concerning the death penalty were closed-ended or unbalanced inquiries—specifically designed to elicit an affirmative response.”
To me, this suggests a formula that applies not just to death penalty selection questionnaires, but to all supplemental juror questionnaires:
Motivation + Guidance = Deception
What that means is that if jurors have a reason to want to hide their true views (motivation) and if the questions themselves signal what the correct or expected answer is (guidance) then jurors will often give a false answer.
The Solution: Rewrite Questions to Avoid Giving Guidance on the “Correct” Answer
When selecting a jury, you can’t avoid motivation, though you can ask about it. The potential jurors will not necessarily be completely honest, but it is still essential to do what you can to uncover the attitudes that will justify your strikes and cause challenges. When using questionnaires, the solution is to revise the questions in order to avoid giving guidance on what is, from the court’s perspective, the correct answer.
For example, instead of asking the kinds of agree/disagree questions highlighted above, you could ask an open-ended question (“What do you think about the death penalty?”) or a question that gives a number of options. For example,
In my view, the death penalty should be applied…
Automatically, whenever someone is convicted of murder
Generally, when someone is convicted of murder
Sometimes, depending on the circumstances
Rarely, only in very extreme cases
Naturally, potential jurors could still lie, but it becomes a little more difficult to do so when there isn’t a single obviously correct answer, and it becomes more likely, through a series of such questions, that you will at least learn something of the venire member’s actual views.
The study authors also recommend three questions adapted from the Pretrial Juror Attitude Questionnaire (PJAQ) that could be applied in capital case jury selection:
1. For each 100 persons being tried for a crime, what number do you believe are guilty as charged?
2. When arrests are made, do you think it mostly happens because the police (a) has no better suspects, (b) is pretty sure of the suspect’s guilt, or (c) is definitely convinced of the suspect’s guilt?
3. Out of 10 times, how often would you believe the police over the suspect?
There are parallel examples for civil litigation, and they will naturally depend on your specific case. The important points are to a) accept that jurors are not always going to be truthful; b) use survey methods that maximize the chance for candor; and c) frame your questions so they are not telegraphing the right answer by simply asking whether jurors could do what the court expects.