The Three C’s: Making the Case for a Written Trial Questionnaire

When a potential juror exhibits that he or she may not be able to make a fair and impartial assessment of your case, a cause challenge is (or should be) made. But what if you are not getting the information you need to make the all-important decision as to whether a cause challenge is warranted? And how can you maximize the opportunity to do so? In our April 2013 Insights, we discussed how to make the most out of limited voir dire and oral questioning. In this Insights, we focus on the benefits of procuring a written questionnaire prior to voir dire and highlight three major reasons you should consider doing so for your next trial.

Meaningful voir dire and jury selection – whether conducted by a judge, attorney or both – are contingent upon the potential juror providing complete, honest and accurate information. When this does not happen – whether purposeful or inadvertent by the juror – an educated decision on deselection cannot be made, potentially compromising the judicial process. While there is a lot of value in oral, attorney-conducted voir dire (especially when utilizing the tips found in our April Insights) and many venues follow this practice, written questionnaires appear to be somewhat less common. In fact, the extent to which written questionnaires are used varies widely: Los Angeles and the Bronx, for example, use them in about one-third of trials, yet they are rarely utilized in Maricopa County, Arizona1.

The Three C’s: Candor, Court Efficiency/Judicial Economy, and Contamination

Candor

In a recent study, panel members undergoing individual voir dire questioning failed to provide candid answers to 33% of the questions asked by an attorney and to 50% of the questions asked by the judge2. Other research has shown that socially desirable responses occur more frequently in face-to-face (oral) interviewing, while self-administered (written) questionnaires result in responses that are more honest3. For many, approval from a judge and/or acceptance by peers are important, so jurors may provide answers in voir dire that are desirable or “correct,” rather than answers that are honest. The advantage to procuring written questionnaires, then, is to provide a more comfortable environment where panelists can express themselves freely without feeling judged by court officials or their peers, thus encouraging candor.

Second, there are privacy concerns that may arise with oral-only voir dire. Jurors may worry about sharing embarrassing experiences/attitudes, have qualms that there is going to be a public record of the responses, etc. Given the “broad audience” that has access to the dialogue that takes place during voir dire, some jurors are not willing to over-share or expand upon their responses4. A written questionnaire can be effective in removing the confrontational, public aspect of voir dire, allowing the juror to express him/herself in a more confidential and candid manner without the pressure of the court or the presence of other panelists5. Of course, written questionnaires do not completely eliminate false answers, but help to minimize them because jurors are not as worried about impressing or disappointing their peers or figures of authority. This is especially true in topics of a sensitive nature, such as sexual abuse, illness, etc.6

Court Efficiency and Judicial Economy

A written questionnaire also allows the potential juror time to think about his/her answers and reflect on experiences and beliefs, ultimately providing more information. While there are various ways to carry out a written questionnaire, most often jurors fill one out from home or in a courthouse holding area while other jurors are being questioned. Either way, this is a luxury an attorney typically does not have when a juror is “put on the spot” or is being rushed to get through voir dire quickly because of court-imposed time constraints, etc.

The supplemental questionnaire will free valuable Court time during voir dire and maximize Court efficiency. The use of the questionnaire for background information will allow time, normally spent eliciting demographic information such as age, occupation, etc., from each juror, to be spent on more probing (and likely more predictive) questions about attitudes or prejudices. This produces a better outcome in deselection, too, because the judge/attorney will be able to tailor verbal questions to suit each prospective juror’s background as indicated on their completed questionnaire. Face-to-face questioning would then be reserved for the issues on which probing is necessary, such as prejudice against the litigant or bias arising from the facts of the particular case.”7

Finally, the jury questionnaire may also lessen the risk of reversal on a jury selection issue. As one commentator observes, “jury questionnaires coupled with sufficient time to review the information and to ask proper, meaningful and relevant questions can eliminate most appellate reversals based on jury selection.”8  Many cases appealed on jury selection grounds deal with purported juror misconduct pertaining to a failure to disclose information about pertinent relationships, past experiences, injuries and related information. The use of the juror questionnaires may help to eliminate many of these appealable issues, thus saving judicial and litigant resources in the long term.

Contamination

Finally is the issue of jury pool contamination. At times, a juror may express too much in voir dire. He/she may say something prejudicial about one of the parties that has influence on the decision-making of other panel members. For example, in a trial against a car manufacturer, a juror might say, “I’ve owned two cars made by X, and they have a bad performance history – I know from experience. I don’t trust them for a minute.” Although that juror may ultimately be removed from the panel, it does not eliminate the potentially damaging effect of the statement on the rest of the jurors. Once said, the damage has already been done. With a written questionnaire administered prior to voir dire, the trial team can review these types of statements with the court and move forward accordingly. Exploring any potentially adverse responses in open court has the unpredictable potential for contaminating the entire panel with the strongly held viewpoints of one or a few individuals. Questioning these jurors at the bench and outside the hearing of other jurors will prevent exposing the panel to the prejudicial remarks of any one juror.

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By: Jessica Baer, M.A. – Consultant 

 

 

 


1  Hans, V. P. & Jehle, A. (2003). Avoid Bald Men and People with Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection. Chicago Kent Law Review, 1185.
2  Flores, D. (2011). Methods of Expanded Voir Dire and Written Questionnaires: Experimental Results on Juror Self-Disclosure and Implications for Trial Practice, Court Call, Summer, 1-6.
3  Chang, L., & Krosnick, J. A. (2010). Comparing Oral Interviewing with Self-administered Computerized Questionnaires. Public Opinion Quarterly, 1-14.
4  Hans, V.P. & Jehle, A. pp1195.
5  Bonora, B. & Krauss, E. (1983).  Jurywork: Systematic Techniques, 3-7.
6  Tourangeau, R., Rips, L. J., & Raskinski, K. (2000). The Psychology of Survey Response. New York, NY: Cambridge University Press.
7  Babcock, B. A. (1975). Voir Dire: Preserving “Its Wonderful Power,” 27 Stan. L. Rev. 563-64.
8  Ballesteros, S. (2002). Don’t Mess with Texas Voir Dire, 39 Hous. L. Rev. 201, 240.

 


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