By Dr. Ken Broda Bahm:
When your trial-bound case faces complexity, possible juror bias, or potential juror hardships — which is to say, when you have a trial-bound case — you could benefit from a supplemental juror questionnaire, particularly when the questionnaire is customized to the issues of the case and is administered and collected before you meet the potential jurors in court. The questionnaire can be key to focusing and streamlining the selection process, allowing you to learn more about the attitudes and experiences that would be shared on paper but not necessarily shared as fully in open court, and that could support a cause challenge or warrant a strike. In my opinion, questionnaires are not used as often as they should be. High-profile cases, when they come along, offer the opportunity to increase awareness of this tool, both for the public and for the legal community. And few cases are higher profile than the upcoming trial of former Trump campaign director Paul Manafort on tax and bank fraud charges, the first of the “Trump Trials” expected in the broad investigation. It is refreshing that the government, in this case, asked for a questionnaire. Usually, in criminal cases, the questionnaire is a defense move, with the government at least affecting the bravado of, “We’ll take the first twelve…” In this case, however, it is the government, and specifically Special Counsel Robert Mueller, asking for more information. However, a look at the questionnaire (available here) raises some important points for assessing bias in that case, and in cases generally.
The main take-away for me is, don’t ignore the elephant. If there is a central attitude or experience that could derail your chances, don’t be coy or indirect in asking about it. Instead, focus like a laser on that bias. The government’s Manafort questionnaire is still in draft form and could change, of course, before it is ultimately used. The current draft avoids many of the explicit questions about politics that the public might expect, for reasons that lawyers probably understand. But less understandably, the questionnaire also avoids asking directly about some of the hardened views that have a real risk of predisposing jurors: the attitudes about the larger investigations surrounding the President. In this post, I’ll take a look at the 20-page questionnaire and look at what its omissions might say about other cases.
Understandably, the Questionnaire Avoids Explicit Politics
The questionnaire from the Special Counsel’s Office in the Manafort trial does not ask about political views, does not mention Trump, political campaigns, Republicans or Democrats. Likely, that is because they cannot. Beyond a judge’s frowning on questions that touch on voting, asking about politics would create the optics of a politicized investigation against “All the President’s Men”. And arguably, the government is still getting at that info through “stalking-horse” questions which tend to reveal politics without directly asking about it. Question 15, for example, asks for main source of news, and Question 16 asks about the other sources, including online and social media, that they regularly follow. I would probably be a little more direct — “What public figures or celebrities do you follow on Twitter or Facebook?” — but knowing whether someone watches Fox News or MSNBC will also be a fairly reliable tell.
But, Less Understandably, the Questionnaire Downplays Attitudes on the Investigation
Concerning the investigation itself, the proposed Manafort questionnaire includes only a catch-all in Question 32: “Is there anything regarding the Special Counsel’s Office that would prevent or hinder you in any way from rendering a fair and impartial verdict…?” That could reveal bias, but it is interesting that when asking about biases that would be more likely to hurt the defendant, the questionnaire is more direct, asking in Question 41b for example, “Has the news coverage or other information you have seen, read, or heard about this case caused you to form an opinion about the Defendant’s guilt or innocence?” Citizens may not know much about the Manafort case in particular, but chances are good that they’ve heard a lot more about the investigation. The questionnaire doesn’t ask if the publicity has led to any conclusions about the investigation, for example whether that publicity, or perhaps the President’s constant tweeting about it, has caused the perception that the Special Counsel investigation is a politically-motivated witch hunt. A potential juror might say they’ve formed no opinion on the Defendant, while retaining perceptions of the investigation which inevitably influence how much they trust the prosecutors, the witnesses, and the motives in bringing charges. The government seems to be assuming that pretrial publicity tends to prejudice against the Defendant, not against the prosecution or the investigation or the specific investigators. That might be true typically, but is not true in this case.
This indirectness toward the “witch-hunt” theme is probably driven by a wish to avoid explicit politicization. Robert Mueller’s team is moving to keep the Defense from criticizing the investigation, the Defense for its part doesn’t want any mentions of “collusion” with Russia regarding the campaign. By not asking about those broader themes in the questionnaire, both sides might think they are aiding their goals of keeping the trial narrow and avoiding further politicization. The government, however, may not be appreciating the fact that, based on the pretrial publicity from some media sectors, and driven by the President himself, it is really the investigation that is on trial, and not just the case or just the Defendant. The reality is that it is already deeply politicized by factors outside the courtroom. A fair trial, for both the government and the accused, depends on learning that in advance. For that reason, the questionnaire should be asking about attitudes toward the Independent Counsel law, the office, the broader investigation, the motives of law enforcement, the specific investigations in Manafort’s cases, and in other cases involving the Special Counsel’s Office.
While the trial should be narrow, the search for bias as part of jury selection should not be narrow. Precisely because these broader biases should be irrelevant in trial, it makes sense to ferret out the hardest attitudes on it in jury selection. The panel will probably hear that these attitudes don’t matter to Manafort’s charges, but in deciding the credibility of the government’s witnesses, jurors are unlikely to insulate that from their attitudes on the investigation itself.
The Lesson: Don’t Ever Shy Away from Asking About the Hard Stuff
In asking specifically about effects that pretrial publicity might have on the Defendant, but not asking about the effects that publicity might have on the investigation and the investigators, the Special Counsel is potentially missing critical information. The take-away for other cases is this: If there is a way you could lose based on a juror’s prior belief, ask about that.
Other Posts on Supplemental Juror Questionnaires:
- Get Better Answers: Top 7 Posts on Supplemental Juror Questionnaires
- Make Greater Use of Juror Questionnaires
- Get It in Writing: Seven Reasons for a Jury Questionnaire (And Three Things That Kill Its Usefulness)