By Dr. Ken Broda Bahm:
In the early preparation for a jury selection, I will often ask the team if there are plans for a supplemental juror questionnaire. Sometimes the answer is that there aren’t any such plans, and they haven’t really thought of that. Attorneys, with some justification, might assume that the other side will object, or the court might not allow it. Others believe that questionnaires are only for very special circumstances, like a case with a high level of pretrial publicity. But I believe an attempt to get a questionnaire should be on the list every time. The only circumstance where you wouldn’t want one is when you think other side will be better at designing it than you are, or will make more effective use of the data than you will. Rather than think that, it is better to maximize your design and your use of the questionnaire.
Especially now, as courts are moving in fits and starts toward greater in-person trials while also dealing with the resurgent coronavirus pandemic, using a questionnaire has many advantages. Not only can a well-designed and well-administered questionnaire help the court in assessing the pool’s ability and willingness to make the necessary health-related adaptations, it can also help attorneys to apply more information and sophistication to the task of selecting their juries. The advantages depend on administering a questionnaire in advance, either by mailing it out and having it be returned or by having panelists fill it in online. In this post, I will lay out the arguments you should make to the court in asking for a questionnaire, focusing on reasons related to health, practicality, and the core functions of voir dire.
Health Reasons:
During Covid-19, and during the next public health crisis, a questionnaire can provide a way of finding out who can and should be present for an in-person trial. For trials that are moved online for health reasons, the questionnaire is a way of confirming technology access.
1. Asking in a private setting about health status, vulnerabilities, and vaccination status. Without being asked in open court, potential jurors are able to report whether they’ve been sick, had symptoms, or have any special susceptibilities that would make jury duty unwise under current conditions.
2. Asking in advance about willingness to follow precautions like mask-wearing and social distancing. Obviously, the issue of following or resisting health precautions has become politicized, and the court can avoid possible confrontations by asking in advance.
3. Not needing to report to the courthouse to say you’re not comfortable reporting to the courthouse. Some potential jurors simply don’t want to be there, and these days some, based on their health status, shouldn’t be there. A questionnaire in advance allows them to say so without coming in.
4. Not needing to fill a courtroom space with a large number of people. A courtroom is generally at its most crowded on voir dire day. While you probably can’t avoid that entirely in an in-person trial, you can cut it back substantially by using the questionnaire to address cause and hardship issues in advance, and by not requiring those people to report in-person.
5. Asking about technology access (for online trials or jury selections). When all or part of the trial process is moved online, you need to ask who has the technology, the internet access, and the private space available at home and who needs alternate accommodations (such as the courthouse or a library).
Practical Reasons
Often the reasons that are closest to the priorities of judges and clerks will be reasons related to courtroom efficiency. Will a supplemental questionnaire bog down and delay the process, or will it speed it up and make it more efficient? If you want positive cooperation, it should be set up to do the latter.
6. Not using the court’s time. When potential jurors fill the questionnaire out at home, on paper or on-line, and you are able to start the day for jury selection with all of that information in hand, and you don’t need to spend hours getting that information in open court.
7. Allowing jurors to be excused for health or hardship in advance. When the responses can be reviewed in advance, it is efficient for the judge and the parties to address at least some of the issues in a hearing, without calling in the entire panel.
8. Better data delivery. When responses are collected using an online instrument, they can be delivered electronically to the parties in a spreadsheet so clerks don’t need to spend time copying forms.
Core Voir Dire Reasons
We may know that the term “voir dire” comes from an Anglo-Norman phrase meaning “to speak the truth.” So what are the reasons a questionnaire would help voir dire accomplish its core function of learning the truth so as to excuse those who should be excused, while providing a rational basis for exercising peremptory challenges?
9. A broader set of responses. When using a questionnaire you can ask a lot more, and can get answers to the same questions from everyone (which often doesn’t happen with oral voir dire, causing strikes to end up being determined by who spoke the most).
10. Easier self-disclosure. When filling in open-ended responses in the comfort of their own homes, potential jurors are likely to give more comprehensive answers. So you learn more about the experiences and attitudes that matter.
11. Greater precision. Using a questionnaire, you don’t have to ask just “Yes” or “No” questions, you can ask about a variety of opinions, and can easily give respondents a range of attitudinal options from “strongly agree” to “strongly disagree.”
12. Greater truthfulness. Social science research shows that potential jurors are more likely to be honest when filling in a form than when speaking live to a judge or an attorney.
13. Focused follow-up. Based on the questionnaire responses, attorneys are able to focus more on who and where additional follow-up is needed.
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Other Posts on Jury Questionnaires:
- Get It in Writing: Seven Reasons for a Jury Questionnaire (And Three Things That Kill Its Usefulness)
- Juror Questionnaires: Don’t Worry (So Much) About ‘Helping the Other Side’
- Don’t Ignore the Elephant: The Manafort Juror Questionnaire