By Dr. Ken Broda Bahm:
In a new law journal article, University of Kansas law professor Melanie Wilson asks us to consider a situation in which a stranger approaches us on the street and politely asks us whether we’ve ever been a victim of sexual assault or abuse, whether we’ve ever been investigated by the police, what we think about abortion, what our sexual orientation is, what we watch on television, and what political groups we support. Portraying voir dire as a similarly unexpected intrusion on jurors’ private lives, the professor advocates a fundamental change to the selection process: a “juror peremptory strike” that would allow any member of a venire to opt out of invasive questioning by simply removing themselves from the case.
The motive behind the article in the current Utah Law Review (Wilson, 2012) is a good one: Jurors will not respect a process that they believe invades their privacy. But the proposed solution of jurors striking themselves could discourage legitimate questions about bias and create an easy opt out for potential jurors. The analogy notwithstanding, potential jurors are not strangers accosted on the street, they’re participants in a legal role that is one of the duties of citizenship. Subject to a judge’s review, members of the venire should answer questions that are reasonably calculated to reveal possible bias in the case. There are also many ways to ensure that voir dire serves its purpose without being an unwelcome intrusion. Questionnaires and in camera voir dire are ways to balance the parties’ interests with the panelist’s privacy. There are ways to question which are sensitive and effective, and there are ways to question which are clumsy and insulting. One implication of the article is that it helps to have someone on the team who specializes, not just in the law or in the art of advocacy, but in the task of eliciting important attitudes and experiences: a social scientist.
The Exposed Venire?
Commenting on the article to the Wichita Eagle, the KU professor and associate dean conveys a sense of rapidly eroding juror privacy. “It’s ironic that most people have fewer rights when they’re in the courtroom than they had before they went inside,” she notes. “We’re getting more and more jurors that aren’t disclosing information or withholding it. If we put enough pressure on these ordinary folks, they’re almost bound to lie.” While juror honesty is a real concern, there are means of respecting privacy short of giving jurors the ability to remove themselves from service on a case. “There is no reason to be insensitive to their rights while also compelling truthful answers about their ability to serve without undue prejudice or bias,” argues trial consultant Charli Morris. “This is not an ‘us’ versus ‘them’ proposition: The work in our courtrooms is serious business and it should be fair to everyone in the process, including criminal defendants.”
Wilson’s argument is that even when answers are provided on a questionnaire or delivered in sequestered voir dire, those answers are still potentially part of the public record, and jurors should not enjoy fewer rights than a criminal defendant when it comes to a refusal to answer questions. As much as litigators on both sides may not favor Wilson’s solution, it springs from a real concern. If the jury trial is to make a comeback, then those of us who work in that system need to be sensitive to any factor that increases juror cynicism about the process, and intrusive or clumsy questioning may be one such factor.
Short of Wilson’s solution of a juror peremptory strike, though, there are several steps that attorneys conducting voir dire should take in order to preserve its value while minimizing the chances of offense.
How Do You Get What You Need While Respecting Privacy?
1. Select Questions Carefully. Question selection ought to begin with the critical issue of whether it is directly related to the case. There are some standard questions, for example, which I’ve typically found to be of little value: “What bumper stickers if any are on your car?” or “What television programs do you tend to watch?” Yes, the responses to those kinds of questions can sometimes give a little insight into the type of person they are, but less often is there a clear idea of how that information matters to your case. Instead, to the juror, questions like that can feel like an irrelevant fishing expedition, because that is often what they are. When a question focuses on an issue with more obvious relevance to a legal issue they’ll be deciding (e.g., “Do you believe that false claims of sexual harassment are common or uncommon?”) then the panelists are most likely to appreciate your reason for asking. In voir dire, you should engage in targeted and selective digging, not a wholesale excavation.
2. Use a Privacy-Based Rationale for a Supplemental Questionnaire. One of the best reasons for using a written questionnaire as part of voir dire is that it leads to greater honesty (Chang & Krosnick, 2010). Potential jurors are more likely to disclose relevant attitudes and experiences and are less likely to clothe their responses in “social desirability bias” when they’re providing those answers in writing instead of delivering them orally in open court. When your case touches on very sensitive issues – for example a sexual harassment suit – jurors will be far more likely to provide relevant information on the form. While judges who want to streamline voir dire are often unsympathetic to an attorney’s wish to simply gather more information, they tend to be more responsive to a request based on consideration for jurors.
3. Allow a Privacy Condition. Wilson’s article notes some high profile cases where juror questionnaire responses associated with names have become part of the public record, but there is also a strong legal argument for keeping that information private where there isn’t a compelling public need for it. In any event, responses delivered only to the judge and the parties are more private than responses delivered in front of other jurors in open court. When using a questionnaire or conducting voir dire, be sure to include an instruction that jurors may request the opportunity to provide a response in a more private setting if the answer would touch on information that is sensitive or embarrassing.
4. Conduct a Mock Voir Dire. One challenge in handling sensitive topics in voir dire can also come down to attorney style. The setting in which most lawyers are used to asking questions is deposition, and in a deposition the approach to asking awkward questions is often something like, “I know that this might be embarrassing, and I apologize for that, …but here goes.” While necessity is the driver during discovery, in voir dire the approach requires attention to more than the record. Litigators need not only tact but a knowledge of what leads to a comfortable and honest response. On that score, it is helpful to rely on someone who studies public opinion, and not just the law. We will also generally conduct a mock voir dire in order to try the questions out first on a volunteer audience. When we’re done, we’re not only able to gauge the usefulness of the level of information obtained, but we are also able to ask the volunteers themselves, “Were there any areas of questioning that made you uncomfortable? Were there any topics that led you to wonder why the lawyer was asking?”
Ultimately the goal is to balance the litigant’s right to necessary information with a potential juror’s expectation of privacy. The answer is probably not to allow the panelist to end the process whenever they choose. Instead, the answer is to commit ourselves to sensitive and effective questioning.
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Other Posts on Juror Disclosure:
- Parties, Witnesses and Jurors: Don’t Be Afraid to Meet Them Face to Face(book)
- Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)
- Pay Close Attention to the Big Mouths in Voir Dire
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Melanie D. Wilson (2012). Juror Privacy in the Sixth Amendment Balance Utah Law Review (April 3)
Photo Credit: Opensourceway, Flickr Creative Commons