From Mastering Voir Dire, Chapter 7
Objectives
- To explore the basics of juror questionnaires and their construction.
- To understand the benefits of using juror questionnaires.
A major challenge faced during the jury selection process is to gather useful information about potential jurors so that lawyers may intelligently exercise peremptory challenges and uncover grounds for challenges for cause. The problem, however, is that voir dire as conducted in federal courts and many state courts impedes the discovery of important information about jurors. Particularly in federal courts, voir dire is limited in (a) what questions can be asked; (b) who asks the questions; (c) how much time is allotted for the questioning process; and (d) the opportunity for individual questioning of jurors.
One tool for lessening the problems caused by restrictive voir dire conditions is the supplemental juror questionnaire. This questionnaire is designed to supplement information available through questioning on voir dire. Since the early 1970s, supplemental juror questionnaires have been used sporadically but with increasing frequency in both federal and state courts.1 Many of the notable trials in the past few years have employed supplemental juror questionnaires. Examples of these trials include In re Exxon Valdez Litigation, International Paper v. Affiliated FM Insurance Co., Mercado v. Warner-Lambert Co., Royal Palm Resort v. Mitsui Construction Co. Ltd., Schwaller v. Merck & Co., California v. Michael Jackson, California v. 0. J. Simpson, Connecticut v. Michael Skakel, California v. Philip Spector, Kansas v. Scott Roeder, Rhode Island v. Michael Derderian, United States v. William Jefferson, United States v. Timothy McVeigh, United State v. Zacarias Moussaoui, United States v. Terry Nichols, United States v. Oliver North, and United States v. Theodore Stevens.
What Are Supplemental Juror Questionnaires?
Supplemental juror questionnaires are designed to elicit a variety of information from jurors. Depending on their scope, these questionnaires address the jurors’ background characteristics, experiences, activities, and opinions and evaluations. For example, these questionnaires can explore the following areas:
■ Background characteristics:
Occupation/employment
Education
Marital status
Income
■ Experiences:
Victimization
Involvement in lawsuits
Use of firearms
Use of commercial products
Experience with patents or other intellectual property
Exposure to/awareness of pretrial publicity
■ Activities:
Hobbies and spare time activities
Organizational membership
■ Opinions and evaluations:
General views concerning the presumption of guilt/innocence
Trust in law enforcement
Views on causes of crime
Views on civil lawsuits
Views on providing monetary compensation for noneconomic damages
Views concerning punitive damages
Favorable/unfavorable impressions of a party or parties
Beliefs in the guilt of a criminal defendant or liability of a civil defendant
Supplemental juror questionnaires can vary considerably in the number of questions asked and the subsequent length of the questionnaire.
The jurors’ answers to the questions posed in the questionnaire serve as a starting point for the examination of jurors, either by the judge, the lawyers, or both. Follow-up questions may be allowed by the court to clarify answers or to pursue important areas of concern revealed by the jurors’ answers. Subsequent voir dire questioning proceeds in the customary manner.
How to Use Supplemental Juror Questionnaires
There are two basic methods for employing supplemental juror questionnaires.2 These methods differ based on whether jurors complete the questionnaires off-site before trial (off-site method) or at trial (on-site method).
Off-site Method
One method for obtaining information requested on supplemental juror questionnaires is to mail copies of the questionnaires to potential jurors before the trial.3 The court or jury administrator sends the questionnaire to potential jurors with a cover letter explaining how jurors are to complete and return the questionnaires and when the questionnaires must be returned. The questionnaires are accompanied by postage-paid, self-addressed mailers for their return. The following cover letter illustrates this approach.4
Questionnaires are usually mailed to jurors three to six weeks before the trial begins. Jurors return the completed questionnaires by mail to the court or, in some jurisdictions, to a printing company where the questionnaires are photocopied.
It is important to secure the completed questionnaires from as many potential jurors as possible in order to maximize the benefits obtained from this approach. Therefore, follow-up contact with potential jurors is sometimes necessary. However, follow-up procedures are inconsistently applied across jurisdictions. In some jurisdictions, jurors who fail to return their questionnaires by a specific date are contacted by the court or jury administrator in an effort to secure the completed questionnaires. In other jurisdictions, no follow-up is attempted. Often, in this latter type of jurisdiction, the hope is that jurors who fail to return their questionnaires will bring the completed questionnaires with them when they come to court.
Copies of the completed questionnaires are made available to the parties (and the judge) at some designated date prior to trial. As we shall see later in this chapter, this time period may range from the day of trial to one or more weeks before trial.
On-site Method
The second method of obtaining information on supplemental juror questionnaires takes place when jurors report for trial. Jurors complete the questionnaires upon their arrival for jury service, either in the jury lounge or some other appropriate setting. The completed questionnaires are then photocopied by the court for use by the parties and the judge.
The time available for attorneys to examine jurors’ answers varies from a few hours to several days to several weeks. For example, in the Exxon Valdez civil case, jurors completed the questionnaires on a Monday and returned two days later for voir dire questioning. In the terrorism trial of Zacarias Moussaoui, all jurors completed the questionnaire on the same day, using two courtrooms in the morning and afternoon. These jurors later returned in small batches, with the first batch starting ten days later for the beginning of voir dire. In the trials of Timothy McVeigh and Terry Nichols, potential jurors reported to a rented auditorium where they completed the questionnaires and were excused for seven to ten days while the 480 to 500 questionnaires were reproduced and processed. The jurors were then contacted forty-eight hours prior to the day they were to arrive at court. However, in other cases, parties have had only a few hours at most to review the questionnaires before beginning voir dire questioning.
Deciding Which Method to Use
There are four major considerations in choosing either method for administering supplemental juror questionnaires or, in jurisdictions where procedures are already in place, seeking changes in the methods employed. These considerations are (a) allowing sufficient time for review; (b) obtaining as many completed questionnaires as possible; (c) accommodating the length of the questionnaire; and (d) minimizing outside influences.
Allow sufficient time for review. It is important that the parties are allowed sufficient time to review the jurors’ responses to the questionnaires. For the average-length questionnaire administered to fifteen or more potential jurors, allowing only a few hours of review time will be inadequate for effective consideration of the jurors’ answers. At least an overnight review of this information is necessary whether using the off-site or on-site method. When the jury venire contains large numbers of potential jurors, or when there are a large number of questions contained in the supplemental juror questionnaire, additional time will be necessary.
Obtain as many completed questionnaires as possible. Unlike with the onsite method, a major concern with the off-site method is ensuring that all jurors complete the questionnaires and return them by the designated time. Maximizing the return rate for the questionnaires requires (a) specific instructions about when the completed questionnaires are due; (b) a self-addressed, postage-paid, return mailer; and (c) a follow-up strategy for dealing with jurors who fail to meet the deadline.
Ideally, the date for return of the completed mailed questionnaires should be one to two or more weeks before trial (or the date when the parties will have access to the completed questionnaires). Asking the jurors to return the completed questionnaires within a short specified time after receipt (e.g., between twenty-four and forty-eight hours) encourages them to not delay in completing (and possibly forgetting to complete or send) the questionnaire.
Mailing the questionnaires to potential jurors several weeks before trial gives the court sufficient time to contact jurors who do not meet the return deadline. It also allows the necessary time for them to subsequently complete and return their questionnaires. If a follow-up procedure is not used, it will be necessary for the court to have the jurors who arrive at trial without having completed the questionnaire do so on-site. Additional time also will be needed for the parties to receive copies of the newly completed questionnaires and review them.
Accommodate the length of the questionnaire. Supplemental juror questionnaires that range from two to twenty pages in length can be accommodated by both the off-site and on-site methods fairly easily. In the case of the off-site method, double-sided copying of the questionnaire is helpful in reducing the number of pages (and postage costs). However, the advantages of double-sided copying are often outweighed by logistical issues, i.e., jurors are more likely to inadvertently skip questions on the back sides of pages; duplication problems can arise; and the information contained on double-sided questionnaires is more difficult for lawyers to manage during questioning.
Relatively lengthy questionnaires often are better suited for the on-site method. Lengthy questionnaires may make the overall process of completing and returning questionnaires by mail unwieldy. Of greater concern is the probable increase in non-return rates by jurors who are asked to complete a long questionnaire. A twenty- to eighty-page questionnaire can be daunting. As such, the on-site method has the advantage of providing a structured time frame for completion.
Minimize outside influences. A problem that is rarely addressed is the issue of jurors receiving assistance (or interference) in completing their questionnaires. Any interaction or assistance provided by outside individuals carries the potential for decreasing the honesty and candor of potential jurors’ answers. Outside influence is more likely with the off-site method, where the court’s ability to control the setting and monitor potential jurors is absent. While no data exist on the frequency of interference with the off-site method, it is a potential problem nonetheless. When using the off-site method, strong cautionary instructions should accompany the questionnaire in order to minimize the occurrence of any outside influence, particularly in controversial cases where the pressures for such interference are likely to be greatest. In such cases, it may even be necessary to use the on-site method to minimize any potential for outside influence.
Requesting the Use of Supplemental Juror Questionnaires
Particularly for supplemental juror questionnaires initiated by the lawyer, it is sometimes necessary to submit a motion to the court requesting their use. If the motion is not simply a formality, it will be important to set out the following: (a) why a supplemental juror questionnaire is necessary in the case; (b) the possible benefits secured through the use of a supplemental juror questionnaire; (c) a proposed procedure for using supplemental juror questionnaires, if one is not in place; and (d) recommended changes in the present procedure, if necessary. Care should be taken to anticipate potential problems and make concrete suggestions on how they can be resolved.5
Why Use Supplemental Juror Questionnaires?
There are a number of potential benefits to using supplemental juror questionnaires, including (a) increased juror disclosure; (b) development of more effective follow-up questions; (c) ability to prescreen jurors; (d) minimizing infection of the panel; (d) availability of greater total information; and (f) promotion of a faster jury selection.
Increased disclosure. The use of written questionnaires provides jurors with a greater sense of privacy and comfort than does answering questions in open court, in front of their fellow jurors and, often, the press. As a result, jurors are likely to be more candid in their answers to questions in supplemental juror questionnaires than to questions posed in open court, particularly when faced with group questioning. This factor is important when considering potentially sensitive topics, such as personal experiences with alcoholism, drug abuse, mental illness, and prior sexual assault.
The degree of candor can be striking. Past juror questionnaires have revealed answers and comments that are not likely to have surfaced during oral voir dire. Jurors’ hobbies and spare time activities have included “cockfighting” and “smoking weed.” Perceptions of prosecutors have included “too much power & control,” “always assuming guilt instead of looking for truth,” and “don’t trust their motivations.” Perceptions of defense attorneys have included “can’t understand why they defend certain people, when we ‘know’ the person did the crime,” “job to cloud issues, bringing doubt,” “look for loopholes,” “sneaky,” “defending scum of America,” “garbage,” and “crooks.” These candid comments occur more frequently in juror questionnaires than during voir dire.
The candor may be such that jurors may try to cover up their candor by crossing out some of their answers. For example, one juror reported having bumper stickers of “Straight and Republican” and “NRA” on her vehicle, with an attempt being made to cross out reference to the first bumper sticker. Or consider the potential juror who answered “yes,” she understood the defendants were innocent and “undecided” as to their guilt. Of course, this was after she crossed out “no” on the question regarding whether she understood the defendants were innocent, with the explanation, “If they are accused, they must be guilty” and also having crossed out her original answers of “definitely guilty” for each defendant on the questions addressing her opinion of the guilt or innocence of these defendants.
Increased disclosure through supplemental juror questionnaires comes at a cost. When jurors answer questions on these questionnaires, lawyers cannot observe any associated verbal and nonverbal behavior. Sometimes this tradeoff is fairly negligible. Other times it can deprive lawyers of significant information. Consequently, supplemental juror questionnaires should not be considered a substitute for in-court questioning and diligent in-court follow-up of important issues.
More effective follow-up questions. Supplemental juror questionnaires can play an important role in uncovering valuable information that should be pursued during voir dire. Candid answers contained in these questionnaires typically reveal information that otherwise might not be shared in the course of voir dire questioning. For example, on the questionnaires, jurors may admit to having been arrested in the past or having been a victim of sexual assault. However, many jurors do not provide the same information if asked on voir dire, thereby precluding the follow-up of potentially critical information.
Promoting effective follow-up questions is not restricted to the domain of sensitive topics. Even with more innocuous information—for example, jurors’ familiarity with products at issue in the litigation—the answers jurors give can serve as an important starting point for in-depth questioning.
Prescreening of jurors. Supplemental juror questionnaires can be used as a tool to eliminate potential jurors from further consideration in the jury selection process. The court may decide a priori that certain answers by jurors reflect bias, conflict of interest, taint, or hardship, which would disqualify them from jury service. When jurors give these answers, the court simply removes them from further consideration. Thus, valuable time is not wasted questioning a potential juror who will not be qualified to serve.
This prescreening capability of supplemental juror questionnaires was used by the trial judge during jury selection in United States v. Oliver North. In this case, jurors who had been exposed to Oliver North’s immunized testimony before Congress could not serve. Three questions (Questions 30, 31, and 32, shown below) were developed to elicit information concerning the possible exposure of jurors to the immunized testimony:
30. Did you see any part of Lt. Col. North’s testimony before any congressional committee over television or otherwise?
Yes _____ No _____
31. Did you read any part of any of his testimony before a congressional committee in any newspaper, magazine or book?
Yes _____ No _____
32. Did you listen over radio or otherwise to any part of any of his testimony before a congressional committee?
Yes _____ No _____
Potential jurors who answered affirmatively to any of the above questions were removed from the jury pool. This procedure saved a considerable amount of time by eliminating many potential jurors prior to voir dire examination. For example, only 38 percent of the first forty potential jurors who completed the questionnaire passed these screening questions. Thus, time was not wasted examining potential jurors who eventually would have had to have been removed for cause.
More recently, in United States v. Zacarias Moussaoui, Judge Brinkema used the supplemental juror questionnaire to “desk audit” potential jurors, eliminating with consent of the parties jurors whose answers to the following questions reflected bias, inability to follow the law, or, in the case of question 147, reflected a potential security risk:6
70(a). The defendant, Zacarias Moussaoui, is not a citizen of the United States. Would you be able to afford him the same rights and considerations as you would a defendant who is a citizen of the United States?
Yes _____ No _____ Unsure ______
Please explain:
[Space for answer]
70(b). The defendant has admitted to being a member of al Qaeda. Do you believe that you could be a fair and impartial juror in the trial of a member of that terrorist organization?
Yes _____ No _____ Unsure ______
Please explain:
[Space for answer]
129. At the present time, do you support or oppose the use of the death penalty?
Support ____ Oppose ____
Neither support nor oppose the death penalty ____
130. What are the reasons that you feel the way you do about the death penalty?
[Space for answer]
140. Do you believe that a sentence of life imprisonment without the possibility of release could ever be a severe enough sentence for someone convicted of conspiracy to commit acts of terrorism, conspiracy to commit air piracy, conspiracy to murder U.S. citizens, or conspiracy to use weapons of mass destruction, resulting in the deaths of thousands of people, as in the September 11th attacks on the United States?
Yes _____ No _____ Unsure ______
Please explain your answer:
[Space for answer]
147. Are you a smoker?
Yes _____ No _____
If yes, do you need to smoke more often than every two hours? Please explain:
[Space for answer]
Prescreening can be accomplished through other criteria as well. For example, employees of one of the parties may be eligible for automatic removal. Expression of bias, provided it meets the standards for a challenge for cause, is another criterion. As long as the criteria are decided beforehand, supplemental juror questionnaires have significant potential for streamlining the jury selection process.
Minimal infection of the panel. Whenever questioning of potential jurors occurs in the presence of other jurors, there is the potential for the answers given to infect or taint the remaining jurors present. For example, in response to questioning regarding pretrial publicity, a potential juror may answer, “I read that the defendant confessed to the crime during police questioning.” The disclosure of such a fact (if this confession was inadmissible) could infect and prejudice other jurors who heard this remark. By including questions regarding pretrial publicity in the supplemental juror questionnaire, the parties and the court are alerted to possible problems. Subsequent individual questioning of potentially tainted jurors out of the presence of the other potential jurors may be in order.
A similar situation could arise in products liability cases should a potential juror reveal that his or her employer stopped using the product at issue because it was “defective.” This type of statement made in open court could infect other jurors. The same information given on a supplemental juror questionnaire would infect no one and would alert the court to the possible need for private questioning of that individual.
Greater total information. Supplemental juror questionnaires provide a greater range of information to the parties at the conclusion of voir dire questioning. These questionnaires add to and enhance the quality of information the parties can uncover during voir dire.
Faster jury selection. A final benefit of supplemental juror questionnaires is the potential for conducting voir dire more quickly. Supplemental juror questionnaires can reduce the need for repetitive questioning of jurors.7 The judge and the lawyers do not need to pursue with each individual juror or panel of jurors the questions that appear on the questionnaire. As a result, this saves valuable court time and reduces juror boredom. Questions that address the juror’s educational background, work history, occupation, prior victimization, and spouse’s occupation can be efficiently covered in the questionnaire, with the voir dire reserved for any necessary follow up.
Supplemental Juror Questionnaire Checklist
The following checklist illustrates the kinds of procedural information of interest when considering the use of a supplemental juror questionnaire.
SUPPLEMENTAL JUROR QUESTIONNAIRE PROCEDURE CHECKLIST
TOPICS
Yes No Initial needs:
[ ] [ ] Has the jurisdiction used a supplemental juror questionnaire before?
[ ] [ ] If questionnaires have been used, are they used routinely?
[ ] [ ] If questionnaires are used routinely, does the court use a standard questionnaire?
[ ] [ ] If a standard questionnaire is used, will the court allow changes to be made?
[ ] [ ] Is a motion required when seeking to use a supplemental juror questionnaire?
By when does the motion need to be filed? ______________________
[ ] [ ] Does a copy of the desired questionnaire need to accompany the motion?
Which method for completing the questionnaires will be used?
[ ]Off-site method
[ ]On-site method
[ ] [ ] Is it desirable to request that a different method be used contrary to the method presently in use?
When using the off-site method:
How far in advance of the trial/jury selection will the questionnaires be mailed to potential jurors?
[ ] 6 weeks or more
[ ] 5 weeks
[ ] 4 weeks
[ ] 3 weeks or less
How much time will jurors have to complete and return the questionnaire?
How far in advance of the trial/jury selection will completed questionnaires be made available to the parties?
[ ] [ ] Is there a procedure in place for the follow-up of potential jurors who fail to return questionnaires?
[ ] [ ] Are procedures in place for the efficient copying and distribution of the completed questionnaires (either on paper or electronically)?
[ ] [ ] Will there be sufficient time for review of the completed questionnaires prior to questioning of the potential jurors?
[ ] [ ] Is there a satisfactory procedure in place for processing completed questionnaires returned on the day of trial?
[ ] [ ] Is there a satisfactory procedure in place for having potential jurors complete questionnaires when they report for trial/jury selection, if necessary?
[ ] [ ] Are changes in the procedures needed to promote more effective use of the questionnaires?
When using the on-site method:
[ ] [ ] Will all potential jurors be completing the questionnaire at the same time?
[ ] [ ] Is there an appropriate location/setting for all potential jurors to complete the questionnaire?
[ ] [ ] Are procedures in place for the efficient copying and distribution of the completed questionnaires (either on paper or electronically)?
[ ] [ ] Will there be sufficient time for review of the completed questionnaire prior to questioning of the potential jurors?
[ ] [ ] Are changes in procedures needed to promote more effective use of the questionnaires?
The answers to the above questions should serve as a sound basis for securing the best possible logistics for the use of supplemental juror questionnaires. The difficult part then becomes the creation of the questionnaire itself.
Endnotes
1. For other discussions of juror questionnaires, see THE JURY 1987: TECHNIQUES FOR THE TRIAL LAWYER (PLI Litig. & Admin. Practice, Course Handbook Ser. No. 340, 1987); LISA BLUE & ROBERT B. HIRSCHHORN, BLUE’S GUIDE TO JURY SELECTION (2004); and Jurywork: Systematic Techniques (National Jury Project 2009). A number of jurisdictions have recommended the use of juror questionnaires as part of recent efforts to improve jury trials. Examples of these jurisdictions include state courts in Arizona, California, Colorado, Florida, Maryland, New York, along with the District of Columbia. See also a discussion of the desirability of using juror questionnaires in TIMOTHY R. MURPHY, PAULA L. HANNAFORD, GENEVRA KAY LOVELAND & G. THOMAS MUNSTERMAN, MANAGING NOTORIOUS TRIALS (1998).
2. It is important to distinguish between qualification questionnaires, which are sent out by the court to establish the jury pool, and “nonqualification” or supplemental juror questionnaires, which are designed to provide additional information to that provided on the qualification questionnaire. It should be noted that some courts routinely send out supplemental juror questionnaires on their own initiative. However, these latter Juror Questionnaires 229 questionnaires are often general in nature and not designed to meet the needs of a specific case. Whether the supplemental juror questionnaire originates from the court or from the parties in a given case, the comments apply to both. However, we will be focusing our attention on the supplemental juror questionnaires that are at least partly under the control of the parties.
3. In some jurisdictions, requests for using juror questions must be made sufficiently far in advance for the trial judge to issue an order for their use (accompanied by the questionnaire) six weeks or more before the issuing date of the jury summons. Therefore, advance planning and familiarity with local rules are necessary.
4. This cover letter was used for the juror questionnaire in United States v. Bobby Johnson and Larry Hunt, Cr. No. 1:97-CR-426 (N.D. Ga. 1997), superseding.
5. Appendix I contains the motion for improvements in voir dire procedures, including the use of a juror questionnaire, submitted by the defense in a possession of child pornography case. The defendant’s name and case number have been redacted as per the defendant’s request. For an excellent discussion of juror questionnaires and sample motions in support of their use, see National Jury Project, supra note 1.
6. While considering the totality of the questionnaire, Judge Brinkema focused on these questions. She also concluded that heavy smokers posed a security risk in terms of the need to provide secure smoking facilities and the potential for contact with the media, among other considerations. Judge Brinkema considers question 147 as an example of the use of supplemental juror questionnaires as a way to meet the special needs present in certain cases. Overall, a substantial number of jurors were eliminated through the court’s desk audit process. Personal communication between Judge Brinkema and author (Mar. 19, 2010) (on file with author).
