By Dr. Ken Broda Bahm:
A recent piece in The New York Times focuses on the increasing prevalence of longer questionnaires for those called in for jury duty. While such questionnaires tend to attract media attention in high-profile cases, the article notes that they’ve “become a familiar presence in courtrooms across the United States.” The reaction from consultants and many litigators, though, is probably “…still not as familiar as we would like.” While the article focuses on questions of often-limited utility (e.g., What TV shows do you watch?), the use of a questionnaire holds far greater potential. In nearly all cases, a focused questionnaire can yield data that makes your jury selection more targeted, accurate, and effective. Yet SJQs still aren’t an expected tool for most judges. In our own surveys of judges, we have found the number one reason why judges don’t use them: They’re not asked to. So ask. And in building your case for a questionnaire, you’ll have a much easier time of winning judicial approval when you make it 1) a joint request, and 2) for an appropriate and to-the-point questionnaire.
But how you ask for that questionnaire still matters, and the logistics of administration matter as well. In this post, I will share seven reasons for a questionnaire, and also three factors that, when present, kill the usefulness of the questionnaire.
Reasons for a Supplemental Juror Questionnaire:
1. More Honesty
Greater candor from the venire is the number one reason for a supplemental juror questionnaire, and that reason should be prominent in any motion or oral argument advocating for one. For any judge who can get past the fiction that an oath serves as a guarantee of accuracy, the evidence for this advantage is compelling. For example, one study (Chang & Krosnick, 2010) compared a self-administered questionnaire response to an oral interview response and found that the questionnaire response was significantly less susceptible to bias in several categories, including social desirability. The voir dire process should be first and foremost about honesty, and questionnaire responses are more likely to reflect a panelist’s true attitudes and experiences.
2. Less Reliance on Demographics
We know from the line of cases starting with Batson v. Kentucky, that many demographic categories are legally precluded or suspect as reasons for strikes. Those that aren’t yet legally off-limits are scientifically suspect as well. Demographics are simply poor predictors of a juror’s leaning or ultimate disposition in a case. But when lawyers cannot use reliable and honest means to discover a potential juror’s unique experiences and opinions, then what choice to they have but to rely on what they can see? That means applying unreliable stereotypes to basic demographic information and running afoul of the law’s appropriate restrictions on discriminatory jury selection. Using a questionnaire gives attorneys a view into relevant attitudes and experiences, and a much more reliable basis for strikes.
3. More Precise Questioning
The reasons your consultant loves questionnaires is that you get broader and better data. All panelists are answering the same questions and those answers allow for a range of options beyond the a simple “yes” or “no.” The impartiality of the question is vetted in advance, with the necessary agreement of both sides serving as an effective check on any effort to play games. The result is that, when there is sufficient time to process the questionnaires, it is possible to precisely score the results. That analysis makes it possible to identify your best candidates for cause challenges or peremptories.
4. More Privacy
Let’s think about it from the potential jurors’ point of view: Is it more comfortable to answer personal questions in front of a group of strangers — including judge, parties, counsel, and court reporter — or privately with pen and paper? Even though panelists know that those strangers will ultimately see their answers, the paper and pen scenario will still be more comfortable. When the parties have a legitimate interest in exploring some very personal subjects — medical conditions, crime victim experiences, personal economic hardships, etc. — then giving the panelists an opportunity to share that information in writing is going to lead to a better and more reliable experience. Verbal follow-up will often be necessary in court, but the judge and counsel will have a better chance at knowing what they are getting into, and can also have the option of conducting the questioning in chambers or at sidebar.
5. Disqualification in Advance
On juror hardship and other cause issues, the questionnaire has the additional advantage of allowing counsel and the court to reach an agreement on dismissing some panelists without requiring them to appear in court. For a long trial, for example, we know that many will have some very good excuses for avoiding jury duty: work requirements, paid vacations, childcare, etc. It adds efficiency to screen those in advance and to not waste time with those who have an airtight excuse. In addition, the fact that the potential juror learns about trial length through the questionnaire in advance, rather than being surprised by the fact in court, makes it possible for them to check with employers, care providers, and others in advance.
6. Greater Speed
This rationale is tricky, because depending on the judge’s default practice, a questionnaire is not necessarily quicker. A good questionnaire could take a little more of the court’s time than a cursory oral voir dire by the court. But all things being equal, a thorough voir dire aided by a questionnaire is going to take less time than that same thorough voir dire conducted only orally in court. If you make the argument for greater speed, pair it with the other reasons. In other words, “In this case, we have a legitimate need for honest and precise answers on some potentially sensitive issues, and getting those answers initially via a questionnaire will be much faster than the alternative.”
7. Focused Oral Voir Dire
The questionnaire is not, or at least should not be, a substitute for oral voir dire. There are several goals of the process that are best met in person and in a group context. But having the questionnaire in advance will make that oral questioning more focused. As long as attorneys don’t repeat questions that are already answered (a move likely to irritate both judge and panel), then the oral questions are able to build on what is already known from the questionnaires. Cause issues can be investigated, other experiences can be explained, and attitudes can be explored in the more specific context of the case.
And Three Things that Kill an SJQ’s Usefulness
1. Questionnaires That Cover Only Cause
Unfortunately, I’ve seen this happen frequently: We start out with a great questionnaire, and then through the actions of the judge and the other party, questions are pared away until all we are left with is a questionnaire that covers who they know and whether they’ve had any experiences bearing directly on the case. Somehow, the idea takes hold that the only legitimate areas for questioning are those areas that could serve as a legal basis for excusing the juror for cause. If that were the standard, there would be no peremptories. As long as parties are able to excuse jurors without cause, and as long as parties want to have their own reasonable basis for doing so, then they should continue to push for being able to explore all relevant experiences and attitudes.
2. Questionnaires That Are Available to Counsel Only at the Last Minute
This unfortunately also happens: The judge approves an effective questionnaire, but does not approve the time frame necessary to analyze it. So jurors fill out the questionnaire the morning of selection, and then the trial teams are handed a stack of questionnaires as the panelists are filing into the room. At that stage, there is no time to do much more than hurriedly flip through them before and during oral voir dire. The chances of reasking questions already answered is huge, and the verbal questioning cannot effectively adapt to what the panelists have already disclosed. The best circumstance (and the only effective circumstance for a longer questionnaire) is for the questionnaires to be completed in advance, either by mail or by calling panelists in earlier, giving the team at least a couple of days — ideally a week — to analyze the results.
3. Questionnaires That Are Read But Not Analyzed
For the trial team, one of the biggest advantages in having questionnaire responses is the ability to have a holistic understanding of the views and experiences of each of the panelists. That view should account for all of the responses that make a potential juror more and less favorable. Then, by looking at all the results, you have an answer on where that panelist falls on the spectrum of risk to your client. All of that requires some kind of scoring procedure. If you just read the questionnaires, you won’t get that. Instead, you are more likely to operate based on one or two answers that stand out, and not the complete picture. Without a good analysis of the questionnaire, attorneys are also prone to put more emphasis on what they hear from the juror in open court instead of on what they write. Instead, they should be doing the opposite (see #1 at the top of this post). Given the choice, the questionnaire data is more reliable. But that data needs to be in a form that makes it useful. That is why, whenever we have the chance, we process the questionnaire responses and create a simple table (showing all the risk and benefit areas) along with a single score showing where that juror falls.
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Other Posts on Juror Questionnaires:
- In Jury Selection, Pay All Kinds of Attention to the Man Behind the Curtain
- Protect Your Jury From the Poison of the Crowd
- Beware the Herding Instinct in Opinion Formation
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Chang, L, & Krosnick, J. A. (2010). Comparing oral interviewing with self-administered computerized questionnaires Public Opinion Quarterly, 1-14
Photo Credit: 123rf.com, Used under license.
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