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.