Picking a jury is like going on a blind date with a group of
60 people at once, according to Mark Bennett (author of “16 Simple Rules for
Better Jury Selection” on thejuryexpert.com). During voir dire, you, the attorney,
know little to nothing about the group of people staring back at you. Within a
span of 40 minutes (give or take), you have to gauge these people’s emotional
and intellectual reactions to what are likely to be sensitive topics. Wouldn’t
it make sense to learn as much as you could about the people you will be “courting”
(pun intended)?
Luckily, there’s a questionnaire for that. Jury consultant
Ronald J. Matlon highly recommends that attorneys use questionnaires to gain an
overview of potential biases, save time while information-gathering, and to
identify areas that require follow-up questioning. Jurors may also have less
anxiety and demonstrate more candor in writing down their thoughts than they
would in an oral sharing session. Thus, the attorney is more likely to find
honest and open answers on a questionnaire.
The American Bar Association (ABA) has commented on the remarkable
degree of candor jurors have shown on their questionnaires as opposed to the
candor shown during oral voir dire. For example, some jurors have included “smoking
weed” and “cockfighting” among their hobbies on written questionnaires, along
with perceptions of prosecutors having “too much power and control” and defense
attorneys being “sneaky.”
The ABA has also pointed out that viewing the answers that
jurors have tried to cross out on the questionnaires is helpful. One juror attempted
to cross out her answer “Straight and Republican” in response to a question
about what kind of bumper stickers she had on her car.
The use of questionnaires also minimizes the damaging effect
that a juror’s answer may have on the rest of the pool. The ABA cites one juror’s
answer in response to a pretrial publicity question on a written questionnaire:
“I read that the defendant confessed to the crime during police questioning.”
The confession, if rendered inadmissible, likely would have tainted the jury
panel during oral voir dire.
How nosy can these questionnaires be? There isn’t a hard and
fast rule. Some of the questions have, admittedly, gotten a little strange. In
a New York Times article last month, Stephanie Clifford commented on some of
the more interesting questions. For Michael Jackson’s doctor’s trial in
California, the questions included one about whether jurors’ doctors had
refused to prescribe requested medication. For a Boston mobster’s trial, jurors
were asked whether they believed marijuana sales should be legal, and the name
of the last book they had read.
But, hey, if these prying questions help you select jurors
more effectively without ticking them off too much (I mean, they’re already not
happy about being there, right?), then I suggest getting permission from the
judge and coordinating with the opposing party to make a questionnaire. As far
as it is in your power, go into the blind date with your eyes open.
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