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Are Jury Questionnaires Biasing the Jury?

Many lawyers are unfamiliar with the use of supplemental jury questionnaires, and this unfamiliarity makes them skeptical of the questionnaire’s contents. The strong tendency of attorneys new to juror questionnaires is to resist questions that contain statements that are negative about their client (e.g., “Do you believe pharmaceutical companies are money-hungry?”). We recently observed an example of this on the reality television show, Reasonable Doubt, which neatly illustrated the problem with this approach. In this series, a retired police detective and a criminal defense attorney investigate actual adjudicated cases to determine whether the appropriate person was convicted. In one episode, the incarcerated person was a lesbian accused of killing a romantic rival. One issue in her case was whether information in the jury questionnaire biased the jury panel.

The criminal defense attorney checked into the questionnaire and found questions such as, “Do you believe lesbians are more aggressive than other women?” and “Do you believe lesbians are more likely to exhibit violence in their romantic relationships?” Upon reviewing the questionnaire, she concluded that the questionnaire was indeed biasing for jurors and stated that she would never allow such a questionnaire if the defendant in this case had been her client.

What is the problem with this position? Everything. Given the time period that this crime took place and the rural location of the trial, there were probably a great number of people who would’ve had pre-existing opinions about the defendant based on her sexual preference. Without questions such as those in the questionnaire, the defense would have no way of highlighting and eliminating those prospective jurors. In this case, the questionnaire being condemned from a defense perspective had exactly the type of questions that a defense attorney would need to do a thorough voir dire for this defendant. Unfortunately, unfamiliarity with the purpose and structure of jury questionnaires can lead attorneys to resist the very thing that is most beneficial to their client.

So how should jury questionnaires be approached? With this knowledge: Jury questionnaires do not create biases. They allow jurors to express them. Avoiding inflammatory questions on a jury questionnaire does not prevent jurors from being exposed to negative ideas and including inflammatory questions does not indoctrinate jurors with those attitudes. Jurors’ belief systems are formed based on a lifetime of experiences and are not fundamentally altered in any way by questions asked of them in voir dire – whether in written or oral form.

So rather than shying away from the hard questions, we would suggest that those are, in fact, the most important questions. Because when jurors in your panel are against you, you definitely want to give them every opportunity to alert you to that fact.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

What Makes an Expert?

Selecting experts for trial has always been a challenging task. The list of considerations—solid credentials, the ability to provide clear explanations and form strong connections with jurors, prior history of testifying, financial biases—is extensive. But once selected, their role as an expert was clear: to educate jurors about complicated subject matter and to convince jurors that they can adopt his/her opinions in the case, because the expert knows best.

Until recently, that approach worked. Experts were regarded as such and jurors would evaluate the experts and decide whom they believed. In post-trial interviews, jurors would explain why they preferred one expert over another, but few jurors, in our experience, would blithely dismiss an expert as lacking expertise. Because of this, you could find the most credible, likable, and persuasive expert possible and trust them to carry a great deal of your case.

Unfortunately, jurors’ notions on experts appear to be changing. Although the U.S. has a history of anti-intellectualism, that has previously meant that laypersons were suspicious of intellectuals, including scientists, but didn’t doubt that these experts were indeed experts. Over the past several years, however, we’ve noticed a trend for laypersons to treat experts as just another layperson with an opinion.

For example, in our research on vaccines, one layperson stated that the issue was complex, then commented: I’m not a scientist. I’m going to bet that most of you are not, either. I just prefer to procede [sic] on the side of caution and not blindly agree with the CDC, federal government, and medical industry. That is, she’s not a scientist, and she’s not going to agree with the scientists.

While this attitude is easy to recognize in issues such as vaccines or climate change, we have not found one science/medical area where laypersons don’t question or doubt the expertise of the experts. Sociologists believe this change probably has to do with the evolution of how society views and discusses science and technology. In addition to recent questions about the objectivity and “purity” of science, the ability to instantly access information on any topic allows laypersons to minimize the importance of another’s expertise and to push back against such expertise based on minimal information or education.

Because jurors’ evaluation and acceptance of experts is changing—our research indicates that jurors are less impressed by credentials than they were in the past and value other experiential factors instead—it is critical that you understand what criteria jurors are using currently to evaluate experts. Such up-to-date research is imperative both in choosing an expert for trial and in deciding how much of your case to entrust to them.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

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