Are You Asking the Right Questions?
Trials are centered around questions and answers. Attorneys have expectations based on their experience questioning witnesses—they ask precise questions and expect honest answers. They can anticipate the witness’ responses and prepare follow-up questions. And they can call attention to a witness’ biases if the witness is being evasive or misleading. But how does all of that experience translate when questioning jurors? Do precisely worded questions necessarily evoke clear and honest answers?
The expectation that the back-and-forth with jurors operates in the same manner as the questioning of witnesses can lead a trial attorney astray during voir dire. Jurors arrive in court with no prior knowledge of the case they will be discussing and therefore, must provide responses with very little time to consider their beliefs and opinions. Because most of our immediate thought processes are inferential and unconscious, jurors then tend to rely on heuristics that produce biases they are not aware of. So when a juror talks at length about how a member of her family has been harmed by, for example, crystal meth, and then assures the Court that she can be fair to the person accused of possessing crystal meth, she’s telling the truth, in her mind. But from the outside, it is clear that her experiences will affect her decision-making in ways that she doesn’t recognize.
This lack of awareness of how and why we think what we do leads to two practical problems: (1) Jurors who don’t recognize their own biases, like the juror in the crystal meth case above, force the trial team to use up their limited preemptories instead of relying on a cause strike; and (2) It creates confusion as to which responses you can trust and which you should be wary of.
So how can you increase jurors’ self-awareness and therefore, elicit more accurate responses?
-Approach sensitive topics indirectly. Don’t assume that straight questions lead to straight answers. Asking questions in a less direct and more unexpected way causes jurors to think through the issue from a different angle and can lead to more thoughtful—and truthful—responses.
-Promote discussion rather than trying to force “yes” and “no” responses. Engaging in a discussion will help jurors move from automatic to intentional processing.
Recognizing that jurors, like most people, are unaware of many of the attitudes, beliefs, and biases that drive their decision-making allows you to understand why they have difficulty responding to questions with clear, coherent and reliable information. This recognition also provides you with the opportunity to develop a unique approach to voir dire that encourages discussion and reflection. Additionally, it underscores the importance of researching the language that best encourages honest, self-aware responses from jurors regarding the sensitive topics specific to your case. Because most jurors want to tell the truth—we just have to create an environment that makes it easy for them to do so.
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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.
