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Reprinted with permission of The Journal (Summer, 1996) 1, 8-13.
One of the most challenging situations attorneys face in jury selection is getting to know jurors in restricted voir dire settings. Whether in federal court or in state courts which restrict voir dire questioning, it is imperative that attorneys take steps to maximize juror participation in the voir dire process. Unfortunately, there are a number of features present in restricted voir dire settings that serve to discourage juror participation. Answering questions in a formal and public setting, during a brief period of time, and usually as part of a large group of their fellow jurors, all serve to minimize juror participation. This article examines techniques attorneys can use to increase juror participation and candor and, thus, increase the value of voir dire in restricted settings.1
Tips for increasing participation in restricted voir dire settings:
Attorneys can increase the effectiveness of the voir dire process by attending to three areas: (a) setting the stage for participation; (b) group questioning techniques; and (c) using juror questionnaires.
The first step in empowering jurors to participate fully in the voir dire process is to set the stage for participation. Both the judge and the attorneys play key roles in this process.
Judge. As the central authority figure at trial, the judge plays a significant role in communicating to jurors what is expected of them during voir dire questioning. Attorneys can capitalize on this by asking the judge to be explicit in telling jurors of the need for candid answers and full participation. The following suggested remarks are helpful:
"Ladies and gentlemen. You are now going to participate in what we call the voir dire process. It is a time when both the attorneys representing the parties in the case and I will be asking you a number of questions. These questions are not meant to pry into your private lives. We ask these questions in order to select a jury that can be fair and impartial to both sides. Let me stress that there are no "right" or "wrong" answers. In all my years on the bench, jurors, like yourselves, have provided a wide variety of answers. The key point is that no matter what your answer may be, it is important that you answer each question as fully and as honestly as you possibly can."2
Attorneys. Attorneys also play a key role in setting the stage. If the judge does not take steps to encourage juror candor, the attorney must do so. If the judge has taken such steps, the attorney needs to reinforce the atmosphere of juror candor. Attorneys can encourage candor and participation as follows:
"Ladies and gentlemen. As the judge has said, both [the opposing counsel] and I will be asking you some questions about your backgrounds and experiences and your opinions. These questions give us an opportunity to get to know you. More importantly, these questions may cover areas that might be sensitive to some of you, perhaps as a result of some experiences you have had. Should this occur, we will have an opportunity to explore those experiences with you. This is to make sure that there is nothing that might interfere with your ability to feel comfortable in sitting on this jury. Often we find that because of some experiences that jurors have had, it is better that they be considered for service on a different jury.
"As the judge mentioned, it is important that you are candid, open, and honest in your answers. There are no right or wrong answers to the questions. No matter what your answer may be, the only correct answer is one that is completely open and candid. If you would prefer to answer a question in private, please let me or the judge know and we will simply have you give your answer over at the bench. The goal of jury selection is to select a jury that is fair and impartial to both sides. We can achieve this goal only by your being forthright and candid in your answers."
Once the stage is set, the attorney can proceed with a more productive voir dire.
Attorneys can increase juror participation during group questioning by (a) getting jurors involved early; (b) keeping jurors participating; (c) not letting jurors hide; (d) capitalizing on answers; (e) leading up to sensitive questions; (f) using side bars; and (g) asking the kitchen sink question.
Get jurors involved early. A key to a productive voir dire is having jurors participate in the process at the outset. One obstacle to participation is the jurors' initial reluctance to raise their hands in response to questioning. Therefore, breaking down this reluctance to raising their hands is an important step to achieving full participation from jurors. After jurors have raised their hands once or twice, they will not be as reluctant to raise their hands in the future.
Two approaches are available to break down the jurors' initial reluctance to raising their hands. First, attorneys can ask jurors at the beginning of voir dire to raise their hands in order to break the ice. The following illustrates this approach:
"Since I will be asking questions to you as a group, I will need for you to raise your hand in response to these questions. You know, I have found that one of the most difficult situations that jurors face in the questioning we are about to begin is their feeling uncomfortable in raising their hands for the first time. After raising their hands the first time, jurors find it is easy to participate in this questioning process. So, to help your fellow jurors who might feel a little uncomfortable in raising their hands, let's everyone raise their hands. This way we can get this over with and everyone can feel more comfortable."
A second approach to getting jurors involved in the process early entails asking a question at the beginning of voir dire that requires all the jurors to respond affirmatively. For example, asking jurors whether they live in the trial jurisdiction or have lived in the trial jurisdiction for more than two years should produce the raising of hands by all jurors:
"How many of you are residents of [the trial jurisdiction]?"
or
"How many of you have lived in [the trial jurisdiction] for at least 2 years?"
The value of the question is not in the answer received. The goal is to get jurors involved in the process by raising their hands at the beginning of voir dire.
Keep jurors participating. When voir dire questions predominately produce a minority of affirmative responses by jurors, jurors become accustomed to not raising their hands. The less opportunity jurors are given to raise their hands, the more resistance is built up to raising their hands when a question requires an affirmative response. Greater participation results from varying the form of the questions so that some questions produce a majority of affirmative responses while others produce a minority of affirmative responses. In this manner jurors become accustomed to participating in the voir dire process. The following are examples of questions that are phrased to yield either a majority or minority of affirmative responses.
"How many of you HAVE NOT been involved in a traffic accident?"
[Majority of affirmative responses]
"How many of you HAVE been involved in a traffic accident?"
[Minority of affirmative responses]
or
"How many of you HAVE NOT been involved in a lawsuit?"
[Majority of affirmative responses]
"How many of you HAVE been involved in a lawsuit?"
[Minority of affirmative responses]
Finally, by asking questions that will alternate the anticipated majority versus minority affirmative response pattern, attorneys can capitalize on information gained from the nonverbal communication of jurors. Attorneys can observe a juror's hesitation in raising his or her hand that can reveal the lack of full agreement or the presence of uncertainty concerning the question/topic under consideration.
Do not let jurors hide. In the normal course of questioning, jurors often learn that they will not be required to speak unless they raise their hands. This can lead jurors who are reluctant to participate to hide during questioning by simply not raising their hands. Attorneys can overcome this problem by asking questions that will produce a majority of affirmative responses and by calling on jurors who do not raise their hands. Consider the following example:
Attorney: "How many of you would not have any reservations in awarding money damages for pain and suffering? "
[Several jurors do not raise their hands]
Attorney: "I see, Mrs. Smith, that you have some reservations about awarding money damages for pain and suffering. Could you tell me about them?"
When using the above approach, jurors quickly understand that it does not matter whether they raise their hands or not, they will have to participate in the process. However, it is important not to embarrass jurors. Those jurors who have tried to "hide" should be given a face-saving way out. For example:
Attorney: "I see, Mrs. Smith, that you have some reservations about awarding money damages for pain and suffering. Could you tell me about them?"
Mrs. Smith: "Well, I really don't any problems with giving money for pain and suffering."
Attorney: "So, you were still thinking about your answer when the hands were raised."
Mrs. Smith: "Yes."
Attorney: "Thank you."
Once jurors know they may be called upon for their answer either way, jurors are more likely to fully participate.
Capitalize on answers. There are a number of reasons why jurors do not raise their hands when they should. Some jurors may be self-conscious or concerned about what will happen to them should they raise their hands. Other jurors may not have had enough time to search their memory and uncover the answer. Still other jurors may be unsure of whether their answer is the one the attorney wants to know. For all of the above reasons, jurors may not raise their hands in response to a question. Attorneys can overcome many of these problems by using the answer of one juror to get a second bite at the apple with the remaining jurors. That is, asking the other jurors whether they have had a similar experience or hold a similar opinion as that revealed in the original juror's answer. Consider the following examples:
Attorney: "How many of you have ever had a back or neck injury? "
[Two jurors respond.]
Ms. Jones: "I was in an auto accident and hurt my neck."
Mr. Henry: "Well, I guess it wasn't an injury, but I have had back problems."
Attorney: "I see, well, how many of you other jurors have had a similar problem as Mr. Henry, with either your back or neck?"
[Another juror raises his hand.]
or
Attorney: "How many of you would have any reservations in awarding money damages in excess of $1 million?"
[One juror raises his hand.]
Attorney: "Mr. Smith, could you tell me a little about your feelings about this?"
Mr. Smith: "Well, I really think $1 million is a lot of money and I wouldn't want to make the plaintiff rich."
Attorney: "Thank you, Mr. Smith, for being so candid. Does anyone else have a similar view as Mr. Smith?"
[Other jurors raise their hands.]3
When jurors give key or important answers (whether good or bad), it is important to see if jurors who have not raised their hands share common experiences or views. In this way, it is possible to achieve a more accurate picture of the experiences and opinions of the panel.
Lead up to sensitive questions. Whether in expanded or restricted voir dire settings, progressing from less sensitive to more sensitive questions or topics fosters continued participation by jurors. For example, if the ultimate question concerns a sensitive topic like the compensation of someone injured during arrest by police officers, it is best not to ask this question without some preliminary topic-related questions. The following illustrates the less-sensitive to more-sensitive questioning approach:
Attorney: "How many of you have ever been employed in law enforcement or been employed by a law enforcement agency in any capacity?"
[A couple of jurors raise their hands. The attorney follows up with questions concerning the nature of this employment.]
Attorney: "How many of you have family or close friends who work in law enforcement in any capacity?"
[Several jurors raise their hands. The attorney follows up with questions about the nature of their relationship and employment in law enforcement.]
Attorney: "How many of you would say that you have had a positive or satisfactory experience with law enforcement in the past?"
[Again, several jurors raise their hands. Attorney seeks to have them describe their experiences.]
[The attorney also would ask questions related to police practices, if allowed. The above questions would lead up to the following question.]
Attorney: "How many of you would have any reservations in awarding money damages to a plaintiff in a lawsuit brought against a police officer over an alleged excessive use of force when making an arrest?"
[Several jurors raise their hands.]
In addition to keeping jurors participating in the process, this approach allows jurors to spend more time thinking about the critical topic so that they are more in touch with their feelings and views. The final result is more thoughtful and candid answers.
Use side bars. Many judges will allow jurors to come to the bench and give their answers out of the hearing of the other jurors. This side bar questioning allows attorneys to address questions of a sensitive nature that, if addressed to the panel, would lead to less candid responses or questions for which some answers might infect the remaining members of the panel. As such, side bar questioning can be a valuable tool in gaining a better understanding of jurors.
There are several steps that attorneys can take to increase the utility of side bar questioning. First, jurors need to be told of the benefits to them of side bar questioning. Second, the original question that keys side bar questioning should not be too restrictive. That is, the question should not exclude jurors who should be considered. Third, the original question itself should avoid embarrassing the juror. Embarrassment could result from an overly direct question, the answer to which makes it fairly obvious what the result would be of any side bar questioning. Finally, attorneys should take advantage of opportunities to use open-ended questions at side bar. Open-ended questions do not restrict jurors to "yes" or "no" answers, but require a narrative answer that reveals more of the thought processes of jurors. Judges are more receptive to attorneys asking open-ended questions at side bar than to addressing open-ended questions to jurors in a group setting.
The following example illustrates the creative use of side bars in a psychiatric malpractice case:
Attorney has alerted jurors at the beginning of voir dire that questioning concerning potentially sensitive matters would be conducted at the bench.
Attorney: "As I said in the beginning of my questions, there will be some questions the answers to which, in consideration of your privacy, we will pursue at the judge's bench. This is one of those questions. How many of you have sought advice, counseling, or treatment from a counselor, psychotherapist, psychologist, psychiatrist, or other mental health professional or have a family member or close friend who has done so?"
[Several jurors raise their hands. Note that the remaining jurors do not know whether any juror raising his or her hand has personally sought treatment for a mental health problem.]
At side bar:
Attorney: "Who was it that sought the treatment?"
Juror: "I did."
Attorney: "Could you tell me about the circumstances involved?"
Juror: [Juror describes circumstances.]
Attorney: "Were medications ever prescribed for the condition?"
Juror: "Yes." [Describes long list of medications.]
Attorney: "What are your views of the usefulness or value of your treatment in this situation?"
Juror: "It was a godsend."
Attorney: "As a result of your experiences, what are your views on the way psychiatrists prescribe drugs for mental health problems?"
Juror: "I really think they do a conscientious job. It's not an exact science but they do their best."
Ask the kitchen sink question. It is useful to ask a question near the end of voir dire that gives the jurors one final opportunity to reveal any bias they may have in the case. Some jurors realize late in the questioning that their answers to earlier questions should have been different. Other jurors seem to open up only near the end of a particularly well-conducted voir dire. Either way, attorneys can take advantage of one final opportunity for jurors to disclose important information about themselves. The following approach takes advantage of this final opportunity for disclosure:
"I have asked a number of questions and I appreciate your being candid in your answers. However, I may not have asked the kind of question that would have raised a concern in your mind about sitting on this jury. Perhaps, this concern is a result of some past experience you have had or certain beliefs that you hold that we have not touched on. I would like you to look into your mind--as only you can--and be candid about your thoughts regarding this case. If you were sitting at either one of these tables would there be any reason why you would not want yourself as a juror in this case?"
This approach is even more powerful when the attorney can elicit an answer from each juror, one at a time.
Most jurors will not answer affirmatively to this question. However, it is the times when they do that justify asking this question in every case.
The final area to focus on for increasing juror participation in restricted voir dire settings concerns the use of a juror questionnaire. Juror questionnaires are supplemental questionnaires that jurors complete prior to voir dire questioning. When available in restricted voir dire settings, juror questionnaires provide valuable information on all jurors, not just those who are willing to raise their hands in court.
The use and benefits of juror questionnaires:
How they are used. Jurors questionnaires have been employed in a number of ways. Questionnaires can be mailed before trial with return mailers so that the questionnaires are returned to the court prior to trial. Also, questionnaires can be completed when jurors are assembled for trial. The completed questionnaires are copied and sets are made available to the parties and the judge. However, no matter what approach is taken, there needs to be a sufficient amount of time between the completion of the questionnaire by jurors and the beginning of voir dire for the parties to have an opportunity to review the answers.5
Content. There is considerable variation in the length and content of juror questionnaires. Questionnaires can range from one- to three-page questionnaires to an 80-page questionnaire as that used in the case of People v. O.J. Simpson. Juror questionnaires contain a wide variety of information ranging from the backgrounds and experiences of jurors to, in many cases, exposure to pretrial publicity and opinions related to the case. The following is a listing of the various elements of a juror questionnaire:
Benefits.While not in frequent usage today, juror questionnaires are seeing greater use, particularly as courts and attorneys become more familiar with how to efficiently use these questionnaires. There are several benefits to the use of juror questionnaires. First, these questionnaires can increase disclosure of sensitive information which jurors may be reluctant to disclose during group questioning in open court. Second, with answers to sensitive questions being made in written form, there is a lessened chance of prejudicial answers infecting the panel. Finally, the answers contained on a questionnaire can uncover areas where follow-up questions are needed, leading to a more effective voir dire.6
Conclusions
A major challenge for attorneys in restricted voir dire settings is to maximize juror participation and disclosure of information during jury selection. Attorneys can take steps to meet this challenge by (a) setting the stage for greater juror participation; (b) using group questioning techniques that promote candor and increase participation; and (c) using juror questionnaires. By taking these steps, attorneys can make the most of jury selection in restricted voir dire settings.
1. For a more in-depth discussion of voir dire questioning and jury selection, see Frederick, Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury (1995). Back to text.
2. I saw a judge tell potential jurors in his opening remarks concerning juror candor during jury selection that he didn't agree with all of the laws of the state. It was interesting to see that a number of potential jurors later admitted having problems with various aspects of the law. This shows that when an authority figure, the judge, exhibits such candor it really frees jurors to be candid. Back to text.
3. You will note from the above illustration involving the jurors' views on awarding damages that no rehabilitation or pursuit of a challenge for cause was initiated before asking the panel if they had similar beliefs. While the attorney should eventually pursue these objectives, asking the remaining panel members for their opinions at this time is more likely to reveal those members with similar views. The jurors are more likely to respond at this time because they have not seen the original juror go through the potentially difficult questioning which accompanies a challenge for cause. Back to text.
4. See Frederick, supra, n. 1, for a more detailed discussion of juror questionnaires. Back to text.
5. In many cases, when jurors complete the questionnaire at the courthouse, jurors will be asked to return the next day for jury selection. This procedure allows for the copying of the questionnaire for all parties and overnight review of the jurors' answers. In cases where a large number of jurors will be questioned, jurors may be asked to return two days after they have completed the questionnaire. Back to text.
6. It is important to note that when jurors answer questions on a juror
questionnaire attorneys lose the ability to observe the jurors' nonverbal
communication as would be possible during in-court questioning. While this
is an important trade-off, in restricted voir dire settings the
possibility of greater disclosure of information through the questionnaire
often outweighs the loss of some nonverbal information. Back to text.
