By MICHAEL MAGGIANO, ESQ.
Jurors believe that they can be impartial. Unfortunately, we have learned all too many times that they are not. They receive facts through the filter of their prior life experience.
The fact that jurors bring their beliefs and expectations to the trial is not necessarily a bad thing. The jurors are there to serve as the conscience of the community as part of the justice process. Therefore, they are supposed to rely on common sense notions of the world when rendering their verdict. However, their beliefs and expectations become problematic when they impair the juror’s ability to be fair and impartial. Voir dire is designed to remove from the jury those individuals with such beliefs. Therefore, idealistically, those jurors who sit are not free of beliefs and expectations but only those that are believed to impair impartiality.
During voir dire questioning, many potential jurors express beliefs or attitudes that suggest that they cannot be fair and impartial. The trial judge, in an attempt to “rehabilitate” these jurors, often asks them if they can set aside their beliefs and base their decisions solely on the evidence and law presented at trial. This question, when posed by the judge, the God-like figure robed in black, strongly implies that competent and cooperative decision makers can accomplish this task. It is not surprising, then, that many jurors say that they can set aside their prior beliefs. However, developed belief systems are not so easily set aside. In many instances, people do not have accurate insight into their own decision processes, especially for complex decisions. Such assurances by jurors that they are able to set aside their beliefs and expectations should be viewed with a skepticism, even if confidently asserted.1
The purpose of this paper is to explore the further use of juror questionnaires in conjunction with judge and lawyer voir dire as tools for the trial judge and trial attorneys to identify potential juror bias. The attitude of some court administrators to encourage trial judges to move through voir dire with lightning speed seems to fly in the face of recent jury trial innovations. What ultimately would be the sense of letting jurors take notes and submit questions if biased jurors are not suitably identified and eliminated at the outset because of inadequate boiler-plate judicial voir dire?
Getting the jurors to speak is not always enough, even if it is through lawyer-conducted voir dire. The great majority of people do not do well at articulating their beliefs. Rarely do any of us give a clear statement of our true attitudes. Most critical and serious cases are that people are reluctant to espouse on popular beliefs. Strong social pressures against racists or sexist attitudes, for example, discourage people from admitting such beliefs publicly. The more public the forum, the more pressure there is to portray one’s self in socially desirable ways. Often, jurors shade their attitude statements to appear fair-minded and balanced in their views.
Vicky L. Smith, Ph.D. describes in Chapter 1 of Jury Trial Innovations the following:
“Many people also wish to be cooperative and helpful when responding to questions about their beliefs. They may give the answer they believe the questioner wants to hear rather than an accurate appraisal of their attitudes. Judges and attorneys can decrease this tendency by asking balanced open-ended beliefs.”2
The use of written juror questionnaires to supplement voir dire examination has been gaining increased acceptance for three important basic reasons:
1. Produce more candid responses by jurors:
Many jurors find it easier to express themselves on paper than in open court. They elaborate in response to written questions, which might otherwise only receive one-word replies in the open forum of the courtroom. During oral voir dire, jurors report that they feel uncomfortable and are afraid of embarrassing themselves or appearing uninformed. To protect themselves against these fears, they will minimize the length of their answers or say they have no opinion.
Jurors, under the shadow of the judge, will quickly realize that the norm in the courtroom is to appear “fair and unbiased.” When jurors shut down like this, it is difficult for any attorney, no matter how skilled, to obtain enough information to intelligently exercise peremptory challenges. Therefore, juror questionnaires when properly designed enable jurors to reflect more on their own views about the case issues without the social pressure of speaking in public. Additionally, the use of pre-trial questionnaires prevents jury-panel members from conforming their responses to the perceived “correct” or majority response of the panel which we see often evolving during judge-controlled “oral” voir dire.
2. Minimize contamination:
There are times when a juror will express too much. He or she may say something extremely prejudicial about the parties or the issues. It could poison the whole panel. With a questionnaire, the attorneys can review these types of statements with the court and move accordingly. For example, in a trial against an insurance company for underinsured motorist benefits, a juror might state that, “I’ve dealt with that insurance company, and it has a bad history of dealing with its customers. They make every effort not to pay an honest claim. I don’t trust them for a minute.” Although that juror may be removed from the panel, it does not eliminate the potentially damaging effect of the statement on the rest of the jurors.
3. Reducing time needed for voir dire:
Juror questionnaires maximize the efficient use of time allotted for voir dire by providing the judge and attorneys with routine biographical information and by identifying panel members with prior knowledge or strong pre-existing opinions about the parties or the case. Based on this information, some members of the jury panel may be excused while the trial judge and attorneys begin voir dire with case-relevant and follow-up questions to the remaining panel members. When judge or attorney conduct voir dire and repeat the same question to each and every juror, jurors often roll their eyes, or sigh at the laborious nature of the process. A lengthy, verbally repetitive jury selection can create disgruntled jurors and can set a bad tone for the trial. However, once a questionnaire has been administered, voir dire becomes an opportunity for judge and lawyer to ask follow-up questions based on the juror’s answers from the questionnaires. Attorneys also can observe and assess a juror’s personality during voir dire. Graeven, David B. The Use of Juror Questionnaires’ Benefits and Strategies, Trial Behavior Consulting, Inc. 1997. See also Jury Trial Innovations, at 62.
According to Marjorie Fargo, President of Jury Services, Inc., Alexandria, Virginia, every questionnaire should contain questions designed to elicit the following types of information:
Demographics. This area should cover age, race, sex, address, education, occupation, employer and length of employment, marital status, number of children, and occupational information about a juror’s spouse and children.
Media Exposure. Questions about favorite newspapers, news programs and magazines should be included here. Such information may reveal whether a juror has been exposed to media coverage of the case or issue. It is thought by behavioral experts that the jurors’ range of interests and intellectual abilities may also be indicated. In those cases where a juror has written a letter to an editor of a publication, that may reveal leadership potential or strong feelings about case-related issues such as police misconduct, nursing home conditions or jury awards.
Special Interests. Here, questions are designed to reveal important clues about the personality and interests of the juror that are relevant to peremptory challenges. For example, questions about spare-time activities and hobbies, participation in organized civic, religious, political or professional activities should be covered.
Legal Experience. These questions should cover experience with the criminal or civil justice system; training and/or employment in law, law enforcement, and the courts; previous jury experience, experience as a crime victim; experience in prior lawsuits, whether or not the process was satisfactory to the juror, whether the juror has been involved in case investigations and/or expert testimony. It is also important to inquire about experience of the juror’s immediate family and close personal friends. Often, it is through listening to the experiences of persons close to them that perspective jurors form strong negative predispositions.
Case Specific Experiences. Here, the subject matter of the litigation is highlighted such as healthcare, psychiatry, construction, property maintenance, trucking, etc. Questions about the training and employment of a juror, family members and close friends in the relevant areas must be covered. Juror membership and affiliation with groups that have taken a public stand or may have a stake in issues related to the case must be included.
Attitudes. The behavioral scientists tell us that well-structured attitudinal questions may identify jurors who hold strong predispositions against certain litigants or case issues. For example, attitudes relevant to civil cases may focus on foreign litigants, banks, insurance, the medical profession, sexual harassment, workplace discrimination or punitive damages. Attitudinal questions and opinions should be near the end of the questionnaire to avoid possible contamination of a juror’s answers about knowledge or opinions of the case.
Juror Hardship. The scope of this area includes questions regarding health problems, disabilities, responsibility for the care of dependant family members, as well as an employer’s unwillingness to pay the juror during time of service. Obviously, these issues are extremely important in lengthy trials. These questions should be asked at the very end of the questionnaire.
Procedures. The attorney for either party can move the court to permit juror questionnaires. The motion should include a copy of the proposed questionnaire. If the motion is granted, the court’s Order should note any modifications to the questionnaire and should include any procedural or administrative requirements for the questionnaires, such as the amount of time counsel will have to compile and analyze the responses. The moving party typically prepares the questionnaires and coordinates their administration. After the jury panel completes the questionnaires, the moving party also provides copies of the responses to the court and opposing counsel.
Attached are sample questionnaires. It should include an introduction that informs the jury panel about the purpose of the questionnaire. The questions should be clear, concise and stated in plain English so as to be easily understood by the jury panel.
It should be emphasized that the juror questionnaire should not replace actual oral questioning of jurors where one has an opportunity to also evaluate non-verbal communication and the interaction of the juror to other jurors, counsel and judge.
1 Munsterman, Hannaford & Whitehead, jury trial innovations, at 11-12 (National Center for State Courts, 1997).
2 Id. at 13