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.