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Techniques for targeting juror bias.

In 1990, trial consultant Joyce Tsongas of Portland, Oregon, shared two of her favorite post-verdict interview questions for jurors:(1)

* During jury selection, do you think the attorneys failed to learn something important about you or another member of this jury? If so, could you explain?

* Did you serve with someone who probably should have been excluded from the jury because of personal bias? If yes, please tell me about that.

In my own post-verdict interviews, I have added a third question to Tsongas' queries.

* Did the attitudes of the jurors whom you feel should have been excluded from service because of personal bias affect the jury's verdict? If the answer is "yes," how so?

Of 96 jurors asked these questions, 87 percent responded "yes" to question one, and 73 percent answered "yes" to question two. Thirty-two percent said that biased jurors affected verdict outcome. These responses show that counsel may well be falling short in the quest to have jurors "speak the truth."

Most attorneys agree that the primary goal of voir dire is to explore jurors' experiences and attitudes to reveal potential bias. However, how many lawyers are focusing on this goal? And how many are spending most of voir dire on the secondary goals of educating the potential jurors about the case and establishing rapport with them?

Attorneys who are convinced that educating jurors about the case is the most important feature of voir dire often refer to the early University of Chicago jury studies conducted by Harry Kalven, Jr., and Hans Zeisel.(2)

According to frequently quoted reports of this research, only 20 percent the jurors surveyed changed their mind about liability once opening statements were over. Some attorneys have translated this supposed finding to mean that if opening statements are so decisive, then it is better to double the effect by making their voir dire into an additional opening.

Unfortunately, the original Kalven-Zeisel research made no such claim. Zeisel, in fact, has discounted the importance of opening statements:

Some years ago, a distinguished federal judge buttonholed me and said: "I understand you and your friend Kalven found out that 80 percent of all jury trials are decided right after opening statements. It is then that these juries make up their mind, and never change afterwards." With some embarrassment I answered that this sounded both interesting and important, but that we certainly made no such discovery... We never asked the question. Nowhere in The American Jury's 438 pages can one even find the words opening statement."(3)

Attorneys who use voir dire as a preliminary opening statement - to the exclusion of ferreting out biases - do themselves and their clients an injustice.

Based on years of focus group research, most trial consultants are convinced that jurors come into voir dire with opinions affecting the way they will view the case and that attorneys who place educating jurors about the case first are failing to learn about potentially detrimental biases.

In addition, general communication research confirms what common sense has told us all along: Attitudes that stem from prior experience are quite resistant to change.(4)

In post-verdict interviews, jurors often reveal the biases they brought into the trial. For instance, here are some common responses of jurors in medical negligence cases:

They really should have asked more questions in voir dire about people's experiences with bad medical care. The attorneys never bothered to find out that Juror A had had a bad experience with a doctor, and the whole jury suffered. Juror A kept talking about her experience and about how much money her doctor was making. I don't think the rest of the jury was very happy with where the verdict wound up, but it was clear that Juror A wasn't going to let us out of there until we came up with more money.

We talked a lot about foreign[-born] doctors. I can assure you that there were some pretty prejudiced people on our jury. If the attorneys really want a fair and impartial jury and they're going to ask questions to help them pick a jury, why didn't they talk about the prejudice against foreign docs?

Juror Z's little grandson was saved when he'd been born premature. He said it was a miracle. He thought doctors hung the moon, and he thought we shouldn't ruin the life of somebody who'd spent all this time getting educated to help others. Several of the jurors wound up siding with Juror Z.

Why didn't those attorneys ask us about how we felt about the high cost of medical insurance? Don't they even care that some of us think that it's all these lawsuits that are driving up the cost of medical care?

The bottom line is this: Jurors have that may affect their verdicts. Lawyers must learn about potential bias to exercise cause and peremptory challenges intelligently. One extensive study of the content of voir dires points out that in voir dires analyzed, only 41 percent of all statements made during the voir dires were made by prospective jurors.(5)

Secondary Goals

How much time should attorneys spend on education Education is a secondary goal, and previewing the case should not supersede learning about biases. Spending most of the time in voir dire talking at jurors instead of listening to them is hardly an effective way of uncovering bias.

Building rapport is also a secondary goal. Voir dire is the only time during the trial when jurors interact with attorney General research in persuasion suggests that rapport-building or finding similarities with others can make a speaker more persuasive. The greater the perceived similarity, the more likely people are to accept communication messages and to perceive the speaker as likeable.(6)

Body language can be a telling sign of an attorney's development of, or failure to develop, rapport. Jurors may display evasive, tense, or even hostile nonverbal responses to an attorney's questioning. Unfortunately, if these biases are not recognized in voir dire, they are likely to come into play against the client sometime during the trial.

It is important for attorneys to conduct the questioning because voir dire is the best time for them to establish rapport with jurors. Even more important, attorney-conducted voir dire elicits more honest responses than voir dire conducted by judges. There are several reasons sons why this is so:

* Attorneys are more familiar wit the nuances of their cases than judges and are more likely to tailor case-relevant questions that will reveal bias.

* Judges usually ask closed-ended questions that, in addition to being general in scope, may well imply a socially desirable response. Jurors are more often encouraged to communicate impartiality or lack of bias than to communicate bias. For example, the way judge phrase questions about fairness - "This wouldn't affect your ability to be would it?" or "You could still be fair, couldn't you?" - suggests that jurors not "good" people if particular experiences would affect them.

* Judges are the most highly respected figures in the courtroom. The higher the status of the questioner, the more likely people are to give answers they believe the higher-status person wants to hear. Jurors become increasingly reluctant to deviate from the socially acceptable response that they could be and impartial.(7)

But having attorney-conducted voir dire is no guarantee of juror candor. For this reason, attorneys should look at ways, from a communication perspective, to further increase candor. Good communication techniques do more than increase candor. They also increase juror satisfaction with the voir dire process. Two important techniques attorneys should consider are using open-ended questions and using supplemental juror questionnaires.

Open-Ended Questions

The best way to elicit bias is to let jurors say in their own words what their experiences have been math, or how they feel about, a topic. Voir dire should be viewed as direct examination, where attorneys usually want the witness to talk, rather than cross-examination, where they try to limit a witness's testimony open-ended questions give jurors an opportunity to reveal bias, and they also increase juror satisfaction with the process. It generally takes no more time to elicit information through open-ended questions than through a long series of closed-ended questions. In addition, when jurors are free to choose their own words in answering open-ended questions, their responses are likely to be much more telling.

How can lawyers ask open-ended questions without the usual "How do you feel about ...?" Here are some ways at may prove fruitful.

* What do you think about the idea that ...?

* I see you smile. Why's that?

* What types of experiences have you had with ...?

* What else should we know about your views?

* How does that affect your view of the case?

* What has had the greatest influence on your opinion?

* Please give me an example of that.

* What was your reaction to ...?

Also, using inclusive terms when asking questions gives jurors a chance to open up. Prefacing a general question a panel with the phrase "How many of you ..." rather than with the phrase "Do you ..." tends to elicit more responses. What appears to be at work is that linguistically, lawyer are giving the "OK", to respond by suggesting tacitly that they are expecting jurors to have had this particular experience.

Supplemental Juror Questionnaires

These questionnaires (usually referred to as SJQs) are given to jurors in addition to the usual brief questionnaires just before jury selection begins. SJQs generally focus on case-specific topics rather than on general demographic information. These questionnaires enable attorneys to question every prospective juror and to obtain detailed responses about case-relevant experiences, attitudes, and opinions. Generally, SJQs are 10 to 12 pages long.

Even though voir dire in federal courts is usually more limited than in state courts, federal courts have led the way in using SJQs. Perhaps this is because SJQs administered before jury selection can save time that would otherwise be spent in oral voir dire. Initially, the questionnaires were used in such high-publicity cases as United States v. John Z. DeLorean. But as courts have become aware that some case-relevant experiences are sensitive, SJQs are gaining popularity in many state courts and in civil cases as well as criminal cases.

Lawyers considering using an SJQ should talk with the opposition and secure their agreement about its use before talking with the judge. In a case with sensitive issues, the opponent may want a questionnaire as well. Lawyers for both sides should exchange questions and try, to agree on as many as possible before going to the judge for help in finalizing the questionnaire. Lawyers may want to prepare a draft SJQ and have it on hand when they discuss with the opposition the topic of using a questionnaire. It is also a good idea to keep the draft handy when talking with the court about using an SJQ.

In addition, lawyers should find answers to logistical questions before asking a judge for an SJQ. These questions include who will be responsible - physically and financially - for making copies of the agreed-on questionnaire for jurors to fill out, who will pay for mailing the SJQ or for the pens if the questionnaire is administered in the courthouse, and who will make copies of the questionnaires for each side once they have been completed and returned.

In requesting an SJQ, lawyers may want to point out some of the following benefits in their memorandum to the court:

There is an increased likelihood of self-disclosure by prospective jurors if they do not have to speak in front of other jurors. From his experience in case involving sexual abuse, Richard Bilby, U.S. district judge for the District of Arizona, has found that 1 in 3 prospective jurors will admit in an SJQ to knowing someone close who has been sexually abused, while only 1 in 10 will do so in oral voir dire in open court.(8)

These questionnaires are useful in dealing with other sensitive topics such as racial prejudice, sexual harassment, drug abuse and trafficking, domestic abuse, banking practices, and medical experiences ranging from AIDS to complications of pregnancy to cancer. * Where a court is not convinced that public awareness of a case is sufficiently widespread to require extensive or individual voir dire, juror responses to SJQs call provide compelling data demonstrating the actual level of juror awareness of the case.

* Attorneys can learn about jurors, knowledge of potentially prejudicial information (including pre-trial publicity) without tainting other prospective jurors.

* Voir dire is usually more efficient because some cause challenges can be determined before oral voir dire and many topics covered in the SJQ may not require additional questioning.

* Follow-up questions can be tailored specifically to the individual juror. These usually are best handled in individual sequestered voir dire if there is a possibility a juror might "blurt out" prejudicial information or be uncomfortable in explaining responses in front of the other jurors.

* Intelligent exercise of peremptory challenges is enhanced, since the parties are able to obtain relatively complete information about jurors, experiences and attitudes relevant to case issues.

* In post-verdict interviews, jurors who have completed SJQs express a greater sense of personal involvement in the selection process.

* jurors also admit in post-verdict interviews that being required to sign an oath that their answers are truthful makes them more sensitive about committing perjury.

* SJQs are designed to elicit information that will help both sides pick a jury, rather than to give information to the jury. Judges seem to like the fact that SJQs are generally neutral in design, with both sides contributing questions and both sides learning from the answers. Although some judges agree to include basic demographic information (such as details about military service, education, or employment), others limited it the amount of this information in the SJQ. Some judges like to include complete lists of parties and potential witnesses, but most questionnaires simply focus on the sensitive topics and include questions designed to elicit attitudes and opinions about them.

A few basic instructions need to be included on the cover sheet to an SJQ. They should offer a brief explanation of e questionnaire's purpose and an admonition against talking about the case involved or about anything asked in the questionnaire. Introductions also usually contain some general instructions to ensure duplication of the questionnaires for example, "do not write on the backs of pages, and "use black ink").

As noted earlier in the list of SJQ benefits, jurors seem to take questionnaires ore seriously than oral voir dire, in part, perhaps, due to the oath they sign. In some jurisdictions, SJQs are mailed prospective jurors either at the same time they are notified to report for jury service or soon after. Lawyers for one or both parties need to provide blank copies the SJQs, provide special postage supplies and pay for originating and return postage costs, and provide personnel to handle all the preparations for mailing if the jury commissioner does not have staff to complete the task.

Judges in most jurisdictions prefer to have the jurors report to the courthouse before oral voir dire to complete the questionnaires rather than to mad them. This is especially true in high-publicity cases, where judges like to instruct jurors orally about avoiding news reports and conversations about the case before completing the questionnaires.

Jurors often fill out the questionnaires in the courtroom. In some jurisdictions, though, they receive admonitions and instructions from the judge and then return to the jury room to complete questionnaires under the jury commisioner's supervision.

Lawyers should ask the judge for time to read and assimilate the information in the completed questionnaires. They also need to allow plenty of time for postal service delays when setting a deadline for returning questionnaires by mail.

If jurors complete the questionnaires in the courthouse, handing out a questionnaire in the morning and beginning voir dire in the afternoon does not allow lawyers to make full use of, the material in the questionnaires. Lawyers need one night, preferably two, to study the questionnaires carefully and to prepare meaningful follow-up questions.

SJQ Denied

What if the judge refuses to use an SJQ? Then lawyers should be prepared with a reasonable alternative that will protect juror privacy while eliciting needed information on sensitive topics.

One alternative is to prepare a list of questions on topics jurors may want to discuss with the court in the absence of other jurors. The list, or multiple-question format, ensures juror privacy in two ways:

(1) Either the attorney or the judge reads the list of questions in its entirety, and jurors are instructed to show no responses to any of the questions until the entire list has been read.

(2) The list includes some less invasive questions that jurors could be answering in chambers instead of the highly sensitive ones also being asked.

The following questions, for example, could be used in a premises liability case involving rape:

* Have you or anyone close to you ever reported a crime to the police?

* Have you or anyone close to you sought counseling - whether from a pastor, psychologist, social worker, or psychiatrist, for example - to help with some problem?

* Have you or anyone close to you been the victim of rape, sexual abuse, sexual assault, or incest?

* Have you or anyone close to you ever been accused of rape, sexual abuse, sexual assault, or incest?

Voir dire is not a last-minute endeavor. Rather, it deserves a great deal of thought and preparation if it is going to meet its goals. Good communication does not just happen. Foresighted attorneys plan for it, prepare for it, and make it happen.

Juror Criticisms of Attorney-Conducted

Voir Dire

Jurors have definite opinions about voir dire and ways attorneys conduct it. The following criticisms are based on post-verdict interviews of almost 400 jurors. The question that elicited these criticisms as, "What did you like least about the way the attorneys conducted voir dire?"

The five most frequent criticisms (in order of frequency) were these:

1. The attorneys were ill-prepared and wasted the jurors' time.

2. The attorneys talked most of the time and did not seem to care what the jurors had to say. (As a result, some jurors indicates, "We did not feel to give information.")

3. Jurors felt they were not asked the right questions, and hence they believed that bias, which should have been elicited, was ignored.

4. The attorneys embarrassed some jurors. (For example, one juror wrote, "Why did the attorneys say, |Mr.X, I see you didn't fill in the blank on education. What is your highest level of education?' Mr. X only had an eight-graded education, and the attorney really embarrassed him.")

5. Jurors felt their privacy had been invaded (especially in cases involving sensitive issues as sexual abuse, drinking, homosexuality).

Challenging Restrictive Voir Dire

One of the most worrisome trends in the name of courtroom efficiency and economy is a move toward what is often called seriatim voir dires, in which two or more juries are picked from the same venire. For example, in some federal courts, three or four juries are selected from the same 50 or 60 people during one morning session.

In these circumstances, many judges conduct voir dire themselves or restrict attorneys-conducted voir dire to a few minutes per side per case. At times, all of the morning's voir dires re completed before three or four juries are selected. Some judges. though, use a procedure where each jury is selected immediately after its voir dire and the panel is reshuffled by lottery before the next selection begins.

What can trial attorneys do when voir dire is limited? Here are some suggestions:

Argue or Improvements

If you have not read Chapter 2 of the National Jury Project's guidebook on jury selection entitled Jurywork, read it. (Jurywork: Systematic Techniques (Elissa Krauss et al. eds., 1983).) If it has been a while since read this chapter, read it again. It offers one of the most useful explanations available for assembling motions and arguments to press for improved voir dire.

Recruit other attorneys who try cases in your jurisdiction and encourage them to press for improved voir dire when they next try a case in a court with restricted voir dire. You may want to share copies of your motions and arguments with attorneys who normally oppose you and ask them to help you lobby particular judges. This suggestion may surprise you, but it was just such cooperation between plaintiff and defense bars that probably saved attorney-conducted voir dire in California two years ago.

If you work with a trial consultant or know of one in your area, get on the phone. Ask for an affidavit or other general help in challenging restrictive voir dire procedures.

Present Reasonable Alternatives

Judges may not always agree with you that the sensitive issues in your case could be dealt with best in individual sequestered voir dire or through use of a supplemental juror questionnaires. So, be ready to offer an alternatives such as the multiple-question format discussed in the main article.

Make Every Question Count

If voir dire is judge-conducted, here are some rules of thumb:

* Submit about 20 questions that a trial judge is likely to consider significant in addition to demographic questions.

* Draft the questions carefully and be prepared to explain why each is needed to uncover bias. Some judges require this justification to be included in what is sometimes called a "voir dire report." The report is divided into sections, based on the subject areas to be covered in voir dire. Each subject area includes space to explain why it is important to explore this subject.

* Press to obtain basic court questionnaires in advance, and be prepared to submit a list of follow-up questions to be asked of specific jurors who skipped questions, gave unclear responses, or answered some questions incompletely or illegibly.

* Since judges generally ask counsel at the end of voir dire whether they should ask any additional questions, be prepared to take advantage of this last chance. If you think particular jurors have more to say but were cut off by the judge, call this to the judge's attention and ask for follow-ups.

* Focus on your case themes and make sure you have covered related areas of bias in your questions.

Enlist Other Attorneys' Help

If you are in a seriatim jury selection, team up with other attorneys who are on your side. In some instances judges allow a few minutes of attorney questioning, and some careful planning can extend and improve voir dire for your side.

For example, if four civil juries are to be selected from one panel, meet with the plaintiffs' attorneys in the other three cases and divided topics. This is one way to make sure that all the significant bases are covered while avoiding repetition.

Focus on Your Theme or Trouble Areas

In seriatim juries, focus on the most troubling case areas and themes. For example, when Albuquerque attorney Randi McGinn was allotted 10 minutes of voir dire in a seriatim selection in a criminal case, she chose to concentrate on her defense theme: "My client just followed the government's advise."

McGinn's client had asked different people in the same government agency about an accounting procedure, had been given different answers, and was now being prosecuted for following the advice given by one government staffer.

McGinn Focused her voir dire on whether jurors had ever gotten conflicting advice from governmental agencies. Her voir dire was so effective in eliciting responses that two things happened: (1) she learned enough about two jurors, whom she might otherwise have stricken, to decide they were "keepers"; and (2) since so many jurors had been in a similar position, jurors were left feeling akin to the defendant.

Notes

(1) Interview with Joyce Tsongas in Albuquerque, New Mexico (Oct. 16, 1990). (2) HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY (1966). (3) Hans Zeisel, A jury Hoax: The Superpower of the Opening Statement, 14 LITIGATION 17-18 (Summer 1988). (4) Chenghuan Wu & David R. Shaffer, Susceptibility to Persuasive Appeals as a Function of Source Credibility and Prior Experience with the Attitude Object, 52 J. PERSONALITY & SOC. PSYCHOL. 677-88 (1987). (5) Robert W. Balch et al., The Socialization of jurors: The Voir Dire as a Rite of Passage, 4 J. CRIM. JUST. 271-83 (1976). (6) Ellen Berscheid, Opinion Change and Communicator-Communicatee Similarity and Dissimilarity, 4 J. PERSONALITY & SOC. PSYCHOL. 670-80 (1966). (7) Susan E. Jones's social status research entitled, judge- Versus Attorney-Conducted Voir Dire: An Empirical Investigation of juror Candor, 11 LAW & HUM. BEHAV. 131 (1987), is the most often quoted research used to argue for retaining attorney-conducted voir dire. (8) Telephone interview with Richard M. Bilby, U.S. District Judge for the District of Arizona (Jan. 18, 1994).
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Title Annotation:includes related articles
Author:Lilley, Lin S.
Publication:Trial
Date:Nov 1, 1994
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