By Edward P. Schwartz
July 3, 2006

            Whether the challenge is making the most of time-limited voir dire or encouraging potential jurors to fess up to biases and embarrassing life experiences, a supplemental juror questionnaire can be an important tool.
            In many jurisdictions, the judge conducts a somewhat cursory voir dire in open court, where the jurors are asked, as a group, a series of broad questions about the case – “Does anyone know the plaintiff or the defendant?” “Has anyone ever been involved in a lawsuit like this one before?” “Does anyone work in law enforcement or have a relative who does?”
            Prospective jurors will only be brought up to sidebar for further questioning if they raise their hands in response to one or more of these group questions.
            This method is fraught with problems. Jurors are reluctant to volunteer information that might be personal or embarrassing, and given the hubbub of the courtroom, a juror might not hear a question perfectly, but may not be bold enough to ask the judge to repeat it.
            This happens much more often than you may think.
            In Washington D.C., Superior Court Judge Gregory E. Mize conducted an interesting experiment. Rather than interview only those jurors who answered a question affirmatively, he started interviewing each juror individually. He found that 28 percent of prospective jurors who should have raised their hands at least once during group voir dire (triggering an individualized voir dire) failed to do so. (Mize 1999)
            Remember that this number only represents those who “fessed up” when asked about their answers in private.
            The most common excuses given jurors give for failing to reveal potential bias during group voir dire were embarrassment, shyness and a belief that their answers weren’t very important. Needless to say, Judge Mize immediately started conducting individualized voir dire for every juror in every case.
            Several other studies involving post-trial interviews have uncovered similar results. (Zeisel and Diamond 1978; Seltzer, et al. 1991; Johnson and Haney 1994). In the Seltzer study, for instance, more than half of the jurors who had been victims of crimes failed to reveal this information during group voir dire. Only a quarter of those who had ties to law enforcement (which was more than a third of the sample) volunteered this information during voir dire.
            Since limited voir dire clearly does an incomplete and inaccurate job of eliminating jury bias, lawyers should concentrate on developing a well-crafted supplemental juror questionnaire to learn more about prospective jurors without stepping on the toes of the court.

Extensive voir dire jurisdictions
            Even in jurisdictions that allow extensive voir dire, supplemental juror questionnaires are important tools for ensuring comprehensive juror profiles.
            First, you don’t want to exhaust the patience of the judge, opposing counsel, and the jurors themselves, by asking the same questions over and over. A well-crafted questionnaire will economize on voir dire time by securing a lot of background information before you even meet the jurors face to face.  More importantly, the responses to the questionnaire signal to the litigator which follow-up questions should be asked of which jurors.
            Finally, face-to-face questioning is no guarantee of truthful responses. Many of the concerns regarding embarrassment and squeamishness that plague group voir dire are also present in individualized voir dire. Prospective jurors may not be comfortable discussing sensitive issues with lawyers and judges they don’t know.
            Several studies have shown that prospective jurors answer touchy questions more honestly on a questionnaire than when asked in person.

Designing your questionnaire
            As those who conduct political polls are acutely aware, the way a question is framed can have a dramatic impact on the answers you get.
            Open-ended questions invite errors of omission. So, asking a jurors whether they have any views on the tort system will elicit a lot of terse responses, often just “Yes” or “No.”
            Multiple-choice questions, however, force the respondent to articulate a position. Consider:
            Which of the following statements best describes your views about the legal system?

            (a) There are too many frivolous lawsuits because it’s too easy for people sue companies just to make money.
            (b) The legal system is stacked against plaintiffs because companies can get away with almost anything, knowing the average person doesn’t have the resources to sue successfully

            While neither response might exactly describe a particular respondent’s feelings, the juror will have to really think about his or her views and make a tough choice.
            Another useful technique is to give prospective jurors a five-point (or seven-point) scale so that they only need to circle the answer that best reflects his or her views. One example is to follow a provocative statement, such as “Police officers routinely lie on the witness stand to secure convictions” with a seven-point scale that goes from “strongly disagree” to “strongly agree.”
            The wording of questions should be varied so that someone who is answering consistently will circle some numbers on both ends of the spectrum. This will allow the person interpreting the responses to detect a juror who mechanically answers the same way to all questions.
            Jurors also naturally become suspicious of the questions and there is a tendency to try to figure out the “right” answer or to resist attempts to elicit one’s personal values. To prevent jurors from making these kinds of “strategic responses,” it is a good idea to ask tangential questions, designed to uncover attitudes that might be correlated to those of interest.
            For example, rather than asking about jurors’ political beliefs, ask them to describe their favorite bumper sticker. Instead of directly asking about attitudes on social order, ask jurors what they think about body piercing and tattoos. Attitudes about home schooling can serve as good proxies for religious fundamentalism.

Who will dominate deliberations?
            Shestowsky and Horowitz (2004) recently published a very interesting article linking mock jurors’ scores on the “Need for Cognition Scale (NC)” (Cacioppo, Petty, and Kao, 1984) with their behavior as jurors. The NC measures a person’s affinity for cognitive tasks – a willingness to do tough thinking for fun, rather than for profit. Shestowsky and Horowitz discovered that high NC jurors tend to dominate deliberations. In their study, a full one-quarter of low NC jurors spent less than one minute speaking during their deliberations.
            Apparently, a few trial consultants (through their litigators) have convinced judges to include the entire battery of NC questions on the supplemental juror questionnaire. Absent such an accommodating judge, there are questions that should proxy fairly well for the NC survey. Try asking jurors about their hobbies and find out who plays chess, or does the Sunday crosswords puzzle. I imagine that Sudoku enthusiasts are probably high NC types. On the other hand, jurors who watch a lot of network television or who knit for a hobby are probably low NC types.
            A juror who will be active during deliberations can only help your client if he or she is on your side. As such, it is important to cross-reference your NC evaluations with your attitudinal ones. Keep the high NC jurors who you expect to be sympathetic to your case and use your peremptory strikes on the high NC jurors who seem likely to favor the other side.

Plan out your motion strategy
            When you petition the judge for the use of a supplemental juror questionnaire, remember to emphasize its efficiency, convenience for jurors and capacity for truth revelation. The judge will likely be more sympathetic to your request if she thinks it will mainly help her decisions on for-cause challenges, rather than your peremptory strikes.
            Finally, don’t submit an overly long questionnaire to a skeptical judge and be sure to prioritize your questions so you can quickly make cuts if that’s what the judge requires