Here’s the situation. A large number of strangers are gathered in a formal courtroom — a hushed atmosphere, dark-wood paneling, flags for the state and the U.S., a raised bench with a stern-looking judge. Nothing about that situation says, “Get ready to candidly share your personal beliefs and attitudes!” In fact, nearly every aspect of the situation says the opposite: keep your head down, follow expectations, and make it formal. Many of the potential jurors attending will proffer their promise to be fair with the same solemnity that was attached to the oath itself. It’s a routine, and for everyone other than those consciously trying to escape jury duty, it is a matter of just saying what the judge expects to hear.
And, unfortunately, some judges seem to be just fine with that. If potential jurors just listen and then easily concede that they can be fair, then that just helps move the process along faster. Attorneys, however, should not be fine with that. A fair trial for your client depends on knowing about juror bias, which in turn depends on the potential jurors being willing to share what they think. Using whatever tools are available, attorneys should work to consciously combat the features of the situation and the judges’ preferences which inhibit expression of bias, and work to consciously create a context that encourages honest and candid disclosure. The ability of attorneys to control the conditions varies widely depending on the amount of freedom the judge allows in voir dire. But under nearly all conditions, there is something the attorney can do to promote the forms of disclosure that will provide the greatest help in intelligently exercising peremptory strikes and challenges for cause. In this post I’ll review a few methods.
The Best Opportunity: A Substantive Juror Questionnaire
For those of us with a social-science background, it is easy to see what the gold standard is for promoting candid and reliable responses from potential jurors: a questionnaire. And we don’t mean the court’s standard juror questionnaire (which, for some reason, generally includes the question of whether there are police in the family, even for civil cases that have nothing to do with the police). Instead, we mean a questionnaire agreed to by both sides and customized to address the experiences and attitudes that will matter the most in this particular case. Ideally, this questionnaire will be mailed to venire members in advance and returned at a time that will allow both sides to have a few days or more to process the results, focus their thoughts on cause and hardship challenges, and strategize their group and individual follow-up questions.
That is a best practice based on studies showing that respondents are more likely to be honest in self-administered questionnaires than in interviews. And, given the setting, it makes sense. In the privacy of their own homes, with a pen and paper, they are less likely to give the expected answer and more likely to be honest. I have seen this at work in a recent case where the judge allowed a questionnaire but then asked the same questions in oral voir dire: Many people who did not raise their hands for the judge had reported relevant experiences on the survey.
The Second-Best Opportunity: Attorney-Conducted Voir Dire
In addition to a customized questionnaire, or instead of one, the attorney-conducted voir dire is second best. Now, here, some attorneys might disagree with me and put their own voir dire at the top. But there’s a need to check your own bias. Because you conduct the voir dire, you are likely to believe that you’re getting the truth when you are looking people in the eye. But potential jurors will still have a subtle impulse to conform to the process and to give expected answers. As an attorney experienced in eliciting deposition and trial testimony, you might also be consciously or unconsciously guiding venire members to the answer that you’re looking for. When the goal is to get an honest answer, the research is pretty clear that the answer you read off of the questionnaire will be more honest than the answer you hear in open court.
But the attorney-conducted voir dire is still very valuable. Research also shows that attorneys are more likely to get honest answers than judges. And the reason, not flattering, is that lawyers are simply less respected than judges, and as a result, jurors are less likely to tacitly bow to their authority by providing what are perceived as the “correct” answers. The process attorneys follow in conducting that oral voir dire is also critical to reaping the benefit of greater candor: ask open-ended questions, divide the group to focus on the riskier minority, and (unless you’ve already chosen to remove or rehabilitate) don’t use your skills to push the individual toward your preferred answer.
The Worst-But-Still-Better-Than-Nothing Opportunity: Judge-Conducted Voir Dire
The well-studied phenomenon of “social desirability bias” refers to the implicit tendency to lean the answers we give toward those that are seen as normatively good, expected, or socially desirable. If you had an academic interest and wanted to design a situation that would most elicit that social desirability bias, then it would probably be a judge asking questions in a courtroom. Of course, we know that some potential jurors will hold out against a judge, but that is generally when they want to get tossed off the jury. For those potential jurors without that agenda, the tendency to simply say what the judge is looking for is very high.
But that doesn’t mean there is no point to a judge’s questions. That questioning can still focus on relevant experiences that you will want to consider in exercising your strikes. So when a judge asks for recommended voir dire questions, think carefully about that list. While your judge might resist, you should ask for some open-ended questions that focus on relevant attitudes. Particularly in the absence of attorney-conducted voir dire, this might be your only opportunity to hear your potential jurors talk. If you don’t go too far (e.g., don’t suggest priming questions), if you don’t suggest too many, and if you come to pretrial prepared to argue that the attitudes are directly relevant to potential bias, then you just might gain some ground in influencing the judge’s questions.
But the ideal is a questionnaire, and the next best is attorney-conducted voir dire.