By Dr. Ken Broda Bahm:
Social scientists who measure public opinion for a living tend to love forced choice questions. By asking respondents whether they “support” or “oppose” an increased military response in Syria and Iraq, for example, you avoid having too many go for the soft squishy middle of being “not sure.” Of course many, possibly even most, are going to be truly uncertain of their views on a question like that, but the researcher will still learn more by seeing which side of the fence the respondent comes down on if forced to pick a side. Lawyers conducting oral voir dire in trial have the same interest. You need to quickly learn your potential jurors’ case-relevant attitudes, yet particularly when they’re being asked in open court before they’ve heard a single fact about the case, the “not sure” or the “I don’t know” can become the preferred answer. Unfortunately, that answer doesn’t really tell you much.
One good solution is to model the social scientists’ preference for the “forced choice” question. For example, in a corporate defense case, do potential jurors think big corporations are generally honest or generally dishonest? You can give the panel a couple of options and ask which they are closer to, or you can pivot off of something that a panelist just said in order to find out who agrees and who disagrees with the comment. The resulting answers will help you mentally divide the group so you know who warrants a strike, who deserves a follow-up, and who should be left alone in order to avoid helping your adversary make strikes. Forced choice is useful in voir dire for the same reasons it is useful in social science. However, in oral questioning, the forced choice can be awkward for the panel. If the questions aren’t asked in exactly the right way, your prospective jurors find themselves unable to pick a clear answer, and their critical first impression of you is that you ask unreasonable questions. But there’s a way to do it well. This post shares a few ground rules for asking forced choice questions in a way that gains the benefits while avoiding the awkwardness.
I believe there are five general rules for making your panel comfortable with forced choice questions.
1. Acknowledge the Discomfort
In your introductory remarks, let the panel know that you will be asking some questions that will give them a couple of options, and let them know that you understand the potential difficulty:
I know that your own view may fall somewhere in the middle…
But let them know that you are only asking which view they are closer to in order to start the discussion and to guide your follow-up. Knowing that their response isn’t the “final answer” will make them more comfortable in sharing their initial leaning.
2. Build in Some ‘Wiggle Words’
A key word in the construction above is the word “closer.” If your question implies two polar extremes (e.g., big corporations are either honest or dishonest), then let the venire know that you are okay with realistic shades of gray, but you still want to know which of the two views they are closer to. Other good words to use are “tends to…” “generally…” or “more often than not…” Draining away some of the absolutism of the question helps to make panelists more comfortable in expressing an opinion.
3. Give Both Options Before Asking for a Response
You will want to fully describe both options before you ask for a response to either option. That gives the panel some time to think and prevents them from giving an answer before they’ve heard the alternative. In addition, be sure to ask for responses for both alternatives. For example, if you’re asking whether oral contracts are wise or unwise and no one raises their hand for option one, don’t assume that this means they all support option two – ask option two anyway. If they raise their hand, that is useful in committing them to the position, if they don’t raise their hand for either option, that is useful to know as well.
4. Make Sure Both Options Sound Reasonable
The goal of a forced choice question is to discover attitudes, not to prime the jury for your case. If one of the options sounds like the “right” answer, then you’re learning nothing, other than the panelists’ susceptibility to give the socially desirable answer. Instead, phrase your questions so that both options could sound reasonable. Stacking the deck will get a consensus to favor the obvious alternative, but will not identify jurors with unfavorable attitudes
5. Vary the Strength of the Options in Order to Get the Right Split
One goal of questioning in oral voir dire is to separate the sheep from the goats: You need to divide the group and identify those who warrant concern and those who are safe enough for individual thematic follow-ups. In order to do that, you need to phrase questions so they are most likely to identify a “strikable minority.” That is, it is most strategic to ask a question in which those answering in the minority would be those we want to remove rather than those we want to keep. To achieve the right balance, vary the extremes in your language to polarize the options. For example, “How many of you strongly feel…” or “How many of you would rarely if ever…”
When offered a forced choice, some panelists might still resist and try to give an answer that is in-between. The five rules above help to minimize that, but if jurors insist on aiming at the middle, that is okay because you’re still learning something. The goal is to get jurors talking, and the forced choice question should be the beginning and not the end of the discussion. But to help you frame and guide that discussion, the forced choice can be an enormously useful step.
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Other Posts on Oral Voir Dire Methods:
- Don’t Prehabilitate
- Never Rely on Self-Diagnosis of Bias
- Practice the Pivot in Oral Voir Dire (Part One): The Basic Model
- Let the Lawyers Ask: Five Reasons for Attorney-Conducted Voir Dire
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