Making the Case for the Benefits of Attorney-Conducted Voir Dire to Promote Juror Candor in Open Court
There is nothing that trial lawyers and jury consultants fear more than a “sleeper juror.” We’ve all been there – in the courtroom just before strikes are made – wondering if the juror who sat silently is concealing some deep-seeded prejudice against our clients, or worse, questioning whether the jurors who did speak did so with candor. This is what makes voir dire, French for “to speak the truth,” undoubtedly one of the most important elements of any trial. We do our best as members of the jury selection team to ask the right questions, research the jurors to the extent we can, use our knowledge of the juror profile we created, and rely on the instructions and admonishments of the court regarding the importance of the voir dire process to appeal to the venire person’s sense of righteousness in the system. Yet we worry about the candor of the persons “in the box.” In the end, a successful voir dire is reliant on the prospective jurors’ willingness to provide honest answers about their sometimes difficult and private personal histories.
Why should we care about a jurors’ willingness to be forthright with their personal attitudes and experiences during voir dire? In the study Avoid Bald Men and People with Green Socks (2003), Valerie Hans and Alayna Jehle stated, “Life experiences and preconceptions contribute to the narrative or story that jurors develop as they listen to evidence and decide the case,” (p. 1180). Where concrete evidence is lacking, jurors will fill in those missing pieces with their own beliefs, attitudes and experiences in order to make sense of the case before them. While we recognize that everyone has beliefs and attitudes that affect their judgments, Hans and Jehle argue that every effort should be made to redevelop the voir dire process to ensure that jurors with irreconcilable belief systems be dismissed. More specifically, for example, there are some jurors who will never overcome their anti-corporate attitudes and experiences to accept that a corporation acted in the best interests of a consumer. We, as members of the jury selection team, must identify those persons and dismiss them from jury service in a civil suit involving claims of corporate negligence.
There has been considerable debate by attorneys and academics over the effective performance of attorneys versus judges during voir dire. Effectiveness is dependent upon the ability to promote juror honesty and candor (Jones, 1987, p. 134). Some scholars argue that attorneys are better equipped to perform voir dire because of their tacit knowledge of the case, their knowledge of what to ask the panel in terms of past experiences and previously held beliefs, as well as what responses should be explored further. Other scholars, however, feel that the attorneys use voir dire to ingratiate themselves with the jury panel and inoculate the jury against opposing evidence that may be presented later in the case. Still, others posit that having the judge perform voir dire saves the courts considerable time and money. So who is best for eliciting juror candor in the courtroom – judges or attorneys?
Hans and Jehle discuss a range of voir dire formats that lie along a continuum, with limited voir dire on one end and expansive voir dire on the other. For instance, limited voir dire does not typically include the use of a pre-trial questionnaire that examines the attitudes and beliefs of jurors and their possible involvement with the parties. It also limits voir dire questioning to very few closed-ended questions that are asked by the judge alone. At the other end of the continuum lies expanded voir dire. Expanded voir dire might include the use of a pre-trial questionnaire and more involvement by counsel in the questioning of the panel. It is important to note, however, that a combination of these characteristics can be found in any courtroom.
According to Hans and Jehle, limited voir dire is ineffective for two primary reasons. First, the use of closed-ended questions by the judge does not typically ferret out jurors who might have experiences or beliefs that could later affect the case. For instance, if the judge asks the panelists as a group if they have opinions about corporate greed and jurors do not individually say “yes” or collectively say “no,” the judge might continue with the next question assuming none of the jurors has an opinion about the issue. By probing the jurors individually, the judge or attorneys might uncover hidden biases that the jurors would not have mentioned during a limited voir dire because they did not think their specific opinions were important. Typically, when attorneys conduct voir dire, they ask open-ended questions to individual panel members, fostering an environment that promotes honest and candid feedback from each juror and helps attorneys deselect jurors. When jurors hear others talk openly about experiences, it encourages them to share information they otherwise would not have because they may have felt it was not relevant. The second reason limited voir dire is ineffective is when the judge performs voir dire, he/she typically asks panel members, once he/she has uncovered certain biases, if the juror can set those aside and act as a fair and impartial juror. At this point, most panel members typically give in to pressure they perceive coming from the judge and state that they can set aside the bias. According to Hans and Jehle, this is because “the judge’s approval is important to a lot of prospective jurors and many will alter their responses or hide certain attitudes in order to be perceived favorably,” (p. 1194). Social desirability bias is relevant here. This theory states that, “People are motivated to present themselves in a positive, socially desirable light,” (p. 1195). Accordingly, if jurors are asked if they can set aside their biases, a typical juror will respond in the affirmative because they want to be regarded as reasonable members of society.
Expansive voir dire, on the other hand, is a more effective way of uncovering juror bias and ensuring the deselection of jurors who might be predisposed against your case. It is a more effective form because it allows the attorneys, who naturally have a more tacit knowledge of the case, to question the panel more efficiently. Attorneys tend to ask more open-ended questions than judges, again promoting juror feedback and candor. As previously mentioned, an expanded form of voir dire might allow the attorney to question each juror individually versus questioning them as a group. This form of questioning ensures that the “sleeper” jurors are not lost in the shuffle.
In her study titled Judge-Versus Attorney-Conducted Voir Dire (1987), Susan Jones aimed to test whether or not attorneys or judges were more capable of eliciting honest responses from jurors and, therefore, eliminating the risk of a potentially biased juror ending up on the final jury panel. A large part of her study was based on the notion of subject self-disclosure. According to Jones, “individuals disclose more to: (a) those from whom they receive moderate self-disclosure (reciprocity effect), (b) those whom they like more, and (c) those whom they perceive as sharing equal status with themselves (status similarity),” (p. 133). Based on the behavior of both judges and attorneys in the courtroom, Jones hypothesized that attorneys “would be more effective than judges in eliciting juror self-disclosure,” (p. 134). For instance, attorneys “generally attempt to appear warm and friendly to jurors in order to win favorable consideration for their clients,” (p. 133). Attorneys are motivated to gain the approval of jurors. The judge, on the other hand, “sits elevated and apart from the rest of the courtroom, literally looking down upon the jurors,” (p. 134). Additionally, he/she is cloaked in a long, black robe and is addressed as “Your Honor.” Jones also states that judges and attorneys hold different social status rankings in the courtroom. While attorneys hold a higher social status than most of the potential panel members, the judge holds the most power in the courtroom. For some jurors, this high social status may be intimidating and they may be motivated to provide the judge with answers they believe he/she is looking for.
Using a sample of 116 jury-eligible community residents, Jones conducted eight mock voir dires. There were about 12 to 16 jurors per mock voir dire. In each scenario, the participants were asked to complete a pre-test questionnaire that measured attitudes regarding a number of legal issues. Each panelist then participated in a mock voir dire performed by either the judge or attorney. Jones measured four different approaches: judge-conducted voir dire that was more personal, judge-conducted voir dire that was more formal, attorney-conducted voir dire that was more personal and attorney-conducted voir dire that was more formal. Each time, the judge and/or attorney would ask the panel the same questions that were provided in the pre-test questionnaire. Jones’ primary goal was to test the number of times mock jurors changed their answers regarding their attitudes towards legal issues. Jones’ research supported her hypothesis. She reported that, “subjects changed their answers almost twice as much when questioned by a judge as they did when interviewed by an attorney,” (p. 143). Interestingly, this study also supported the notion of jurors providing answers they believed the judge wanted to hear. She reported that, “apparently, by virtue of his status and authority, the judge was established as the standard of comparison, and jurors sought to conform their attitude reports to this standard,” (p. 144). This finding was not present in attorney-conducted voir dire. Another interesting finding was that attempts by judges to appear more personal did not promote greater juror candor. This meant veniremen were left on panels with hidden agendas.
A juror who slips through the cracks in the system and onto a jury with biases that prohibit him/her from judging the case fairly is a threat to the fair outcome of that trial. Research has consistently shown that people unconsciously rely upon their own beliefs and life experiences to judge the actions of another. We see the world through the lens of our personal experiences. To be sure, impartiality implies “that the jury finally chosen has only random biases – they are a fairly typical group, none of whom holds a specific (easily discoverable) grudge against one party or cause, or especially favors one side by reason of some close relationship,” (Levit, et al., 1971, p. 925). The final jury should not contain any person that possesses insurmountable beliefs that might persuade them to favor one side over the other without a neutral evaluation of the evidence.
Research reveals that attorney-conducted voir dire is more effective in increasing juror disclosure and, for this reason, attorneys should, when given the opportunity, push for an expanded voir dire, including attorney-conducted voir dire (at a minimum) and the use of supplemental juror questionnaires. This will limit a “sleeper juror’s” opportunities to slip through and end up on a panel and also provides the trial team and their jury consultant(s) access to a broader data set that, in turn, will lead to a more accurate evaluation of the potential jurors and their relevant biases.