HOW TO SAVE YOUR CLIENT WHILE SAVING THE COURT TIME
Trial courts are afforded great latitude and discretion in determining how voir dire will be conducted. Jury selection plays a critical function in assuring the criminal defendants Sixth Amendment right to an impartial jury will be honored. Without adequate voir dire, the trial judge’s responsibility to remove prospective jurors who will not be able to follow the Court’s instructions and evaluate the evidence impartially cannot be fulfilled. The entire voir dire should be directed to determine whether, for any reason, a juror has a bias of mind in favor or against either party such that his impartiality as to guilt would be impaired.
The most cost-effective and timesaving approach to jury selection is the questionnaire. Jury questionnaires are increasingly being used in both civil and criminal cases. Questionnaires have proven their value in such diverse cases as death penalty, white-collar, child rapes, police brutality, battered women and drugs. Attorneys and judges are finding the need for questionnaires compelling for the following reasons:
1. The questionnaire streamlines the jury selection process. Courts, clients and lawyers save time often wasted in unnecessary repetition of all questions. The questionnaire can be distributed to jurors and filled out by them before voir dire is conducted in court. Each juror’s questionnaire can be photocopied prior to the trial and copies can be provided to each of the parties and to the judge. These copies are to be used by all parties solely for the purpose of jury selection.
2. The questionnaire gives the juror an opportunity to be open because of the less confrontational aspect of group or individual voir dire.
3. The questionnaire allows a greater number of questions to be administered to each juror. This results in greater accuracy in the use of challenges. More potential biases may be uncovered; so more competent voir dire can be conducted.
4. The questionnaire permits jurors to consider their answers more carefully and completely. The jurors do not have to respond immediately to questions. Instead, they can think about their answers. This may be critical if a juror is repressing unpleasant memories, such as being victimized.
5. Because the jurors sign their names to the questionnaire and write their answers, the jurors are more sensitive to perjury.
6. The questionnaire gives the jurors a sense of privacy, as does individual in-court voir dire. Jurors can answer questions without being required to give their answers in a very public and formal setting. This permits more personal responses to the questions. Jurors will not be required to state that they dislike the prosecution or the defendants in open court. They can do so privately.
7. The questionnaire also permits the lawyers and judge to assess jurors’ literacy levels. Because jurors are required to write their answers. This also is a measure of the ability of the jurors to deal with complex ideas that they are not likely to confront in their daily lives. These complexities may arise because of legal issues, complex evidence or complex testimony, particularly from expert witnesses.
8. The questionnaire is useful because written, rather than oral, responses assist the lawyers in recalling the responses of the jurors. Recall of oral materials declines very quickly, particularly over the first twenty-four hours.
9. The questionnaire provides better information for jurors not in the box. In many jurisdictions, most of the jurors are almost ignored. The jurors in the box receive most of the attention of the lawyers. In fact, often jurors are ignored even when they raise their hands.
10. The questionnaire provides a more unbiased finding of the juror’s responses than the oral voir dire provides, because the lawyer cannot influence the jurors by the way he or she asks the questions. It also eliminates the influence of the attorney by the way his or her questions are presented thereby providing a better indication of their personal biases eliminating the influence of the lawyer as a factor.
11. The questionnaire provides a way to measure each juror’s own biases and ideas rather than those of the other jurors. When jurors are questioned in a group, they often give the same responses as the other jurors. Since each juror must fill out the questionnaire without the input of the other jurors and does not hear the responses of the other jurors, he or she cannot give the same response that the other jurors do, but must arrive at his or her own answers, measuring the juror’s own opinions and biases.
12. The questionnaire reduces the jurors’ opportunity to contrive to be seated or excused. A juror who has reasons for being excused must state them without having seen which excuses have (or have not) worked for other jurors.
13. The questionnaire can incorporate complex and reliable “lies scale” measures. Historically, questionnaires have incorporated these measures. This is critical for such issues as race, sex and money in particular.
14. The questionnaire can incorporate open-ended questions, multiple choice or forced-choice questions. It makes a review of the open-ended questions more efficient.
15. The questionnaire approach makes it difficult for the jurors to figure out whether it is the defense attorney or the prosecution who wants to know the answers to the questions. Therefore, they do not know with whom to be upset when they do not like some of the more personal questions such as those related to sex or finances. This is important because some of the most critical questions are sensitive questions and may evoke bias against the lawyer asking the sensitive question.
16. The questionnaire approach is less expensive than other jury selection approaches such as surveys and mock juries. Therefore, more criminal defendants will be able obtain the benefits of jury selection.
17. The questionnaire is helpful in arranging a better plea bargain since the prosecutors are aware the defense attorneys are prepared.
18. Finally, the questionnaire approach is fair to both the defense and the prosecutors. Both have access to the information generated by the instrument.
The questionnaire is only one tool to measure attitudes and does not resolve all jury selection problems. It does, however, provide a cost-effective approach to ensure that jurors who will be seated are competent.
If more resources are available, other methods such as the mock jury, focus group, or the shadow jury should accompany the method. If the judge does not allow the use of the juror questionnaire, then the lawyer can still use well-constructed questions.