Jury questionnaires are often used during the voir dire process to help judges and attorneys identify prospective jurors who are not suitable for jury service. Jury questionnaires typically include items dealing with hardship or medical issues that may make it difficult for some individuals to serve as jurors. Often, at the discretion of the court, jury questionnaires may delve into experiences or opinions related to the case, sometimes in considerable detail. Of course, jury questionnaires are self-report measures that are vulnerable to forgetting, distortions, or deception. Lengthy jury questionnaires completed by a large group of prospective jurors can make it difficult to extract useful information in a short amount of time. Moreover, there are situations where trial attorneys would be ill-advised to request a detailed jury questionnaire.
The Sixth Amendment of the U.S. Constitution provides defendants with the right to an impartial jury. Often a part of the voir dire process, jury questionnaires may help identify sources of bias in prospective jurors that may interfere with their impartiality or ability to follow the law. The fundamental assumption underlying the use of jury questionnaires is that people are more likely to disclose information on a survey than in open court, particularly information about sensitive issues. There is a general tendency for people to appear open-minded and to provide socially desirable responses to questions posed during attorney- or judge-conducted voir dire. In theory, jury questionnaires serve to measure more accurately the relevant attitudes, expectations, and experiences related to the case.
Generally used at the discretion of the court, generic jury questionnaires have become much more common throughout the United States. The format, content domain, and scope of the items vary considerably, but there is some common content. Most jury questionnaires tap into factors that may lead to a challenge for cause, reflecting a legitimate difficulty or problem with jury service. These items include hardship issues, such as having to care of an infant or elderly parent, serious financial difficulties, or other related factors. Other items common to jury questionnaires include those dealing with medical problems, disabilities, and the use of medication that might interfere with a prospective juror’s ability to serve as a trier of fact. Most include a question relating to difficulties in reading or understanding the English language and difficulties with following the law as provided by the court. Finally, most jury questionnaires include some measures dealing with familiarity with the case (particularly if there was some pretrial publicity) and knowledge of the witnesses, lawyers, parties, or others associated with the case.
Beyond these typical items, jury questionnaires may delve into a number of other topics. Demographic items are common and often include those dealing with race or ethnic affiliation, gender, place of birth, and so forth. General experiences are also often measured: These usually include service in the U.S. military; jury experience; and prior involvement in the criminal or civil justice system as witness, plaintiff, defendant, or other party. Sometimes jury questionnaires delve into case-related experiences, such as having experience with complex business transactions, having been a victim of a workplace accident, or having personal experience with a drug dependency problem. Jury questionnaires may also include attitudinal items that could tap into constructs such as legal authoritarianism, juror bias, or beliefs about a just world, although entire scales are rarely included. More often, there is a focus on more narrow, case-related attitudes (e.g., Do you believe that politicians should be held to a higher standard of moral or ethical conduct than other people?). Finally, some jury questionnaires are quite detailed and delve into leisure activities, bumper stickers (presumably, these reflect jurors’ values or concerns), newspaper readership, television-viewing habits, and other items in the same vein. Indeed, jury questionnaires can be relatively short (10 items) or remarkably lengthy (exceeding 200 items).
Of course, attorneys are typically looking for red flags or any information that might raise concerns so that they can decide whether to explore these issues during attorney-conducted voir dire (if permitted), whether to use a challenge for cause in an attempt to excuse the juror from jury service, or whether to exercise a peremptory challenge (typically in the event that an initial attempt at using a challenge for cause is unsuccessful). Trial attorneys may also use jury questionnaires to look for indicators of leadership and receptivity to a case, relying on the assumption that a juror who exhibits leadership potential may guide the jury toward a particular view of the case.
When trial teams provide input into jury questionnaires, they often consider a number of strategic issues. First, to the extent that the survey is lengthy or acquires a lot of information, trial teams will face challenges in gathering the relevant information and evaluating each juror in time for jury selection. The lengthier the survey, the more difficult it is to make sense of the information and formulate a strategy and the greater the need for ample time to examine the surveys. In some cases, trial teams might receive 40 to 50 completed jury questionnaires and have only a short time to examine them before jury selection begins. Well-developed coding sheets are often helpful in these situations.
Jury questionnaires are particularly helpful when prior jury research reveals that certain characteristics can predict verdicts and these predictors can be incorporated into the juror questionnaires. It is possible then to estimate the probability that a particular juror will favor one side or the other. Of course, there are myriad factors that make these sorts of predictions tenuous at best.
Strategically, detailed jury questionnaires may not always be advantageous to a party. Some courts permit juror questionnaires at the expense of attorney-conducted voir dire, leaving lawyers with little opportunity to explore the responses further. If a party believes that jurors are likely to support its view of the case, a juror questionnaire may reveal supportive jurors, giving the opposing side an advantage.
Jury questionnaires suffer from the self-report problem; people are not very accurate at reporting their thoughts or behaviors because of memory or social desirability problems. Few people would disclose their use of illegal drugs, production of child pornography, or history of spousal abuse, for example. Occasionally, individuals respond dishonestly in an attempt to survive the jury selection process and serve as jurors on a case. Responses should be considered in light of these limitations.
There are a number of different ways in which jury questionnaires are administered. In some areas, individuals who are summoned for jury service complete the surveys online and submit them in advance of the trial date. In other areas, the jury questionnaire is mailed to prospective jurors, who complete it and return it to the court. Typically, the trial teams prefer to have sufficient time to examine these completed surveys before the voir dire process begins.
- Posey, A. J., & Wrightsman, J. S. (2005). Trial consulting. New York: Oxford University Press.