by: Dr. Karen Lisko -
When John Dowd of Akin Gump Strauss Hauer & Feld petitioned the Court for a written juror questionnaire last week in his defense of Galleon Group founder Raj Rajaratnam in this significant insider trading case, he took the most critical step toward genuinely unearthing prospective jurors’ preexisting biases he could have taken. Most prospective jurors are certain to hold opinions about Wall Street, business executives, and their criminal prosecution. What is less certain is how much the venire will be willing to disclose about those biases. Without a doubt, the odds of disclosure went up when the defense submitted the questionnaire.
As Dowd notes in his motion for the questionnaire and as I mention in my book, Proven Jury Arguments & Evidence, jurors are more likely to self-disclose experiences and biases in writing than in oral questioning in court (my colleague Dr. Ken Broda-Bahm has also written about this recently). In a different type of litigation, the late Federal Judge Richard Bilby (USDC-Arizona) conducted research and found that one in three prospective jurors will admit in a written questionnaire to knowing someone close who has been sexually abused, while only one in 10 will admit that same fact in oral voir dire (Lilley, 1994).
With that kind of advantage, ensure that your written questionnaire passes three critical tests to you obtain the best information possible.
Test One: Do I have to guess at which way the juror’s answer cuts?
The single greatest mistake most writers of juror questionnaires make is to spend valuable page real estate by asking too many life experience questions. Fully two-thirds of the Rajaratnam defense team’s questionnaire asks about jurors’ demographic information and life experiences (e.g., jurors’ favorite books, jurors’ knowledge of hedge funds, etc.) Could this information be important? Probably. Misleading? Possibly. A juror with a great deal of knowledge about hedge funds could be wonderful for the prosecution if she believes Rajaratnam was criminal in his dealings with them. Conversely, a different juror with a great deal of knowledge about hedge funds could be wonderful for the defense if he believes he has heard of far worse than what the evidence shows in this trial. Don’t guess at the attitudes that might stem from life experiences. Instead, spend proportionately more paper posing attitudinal questions that unearth jurors’ opinions about case relevant facts. The Rajaratnam questionnaire does include critical attitudinal questions.
Test Two: Does the question as written bias the response?
Whether by design or default, many questions bias a prospective juror’s response to the point that its answer could mislead you about that juror. For example, the psychological principle of acquiescence bias tells us that many people answer a yes/no question with a “yes” simply because the question itself leads them to think the proposition is true. For example, the question, “Are today’s Wall Street executives greedy?” is likely to garner more anti-Wall Street exec responses than had the question been posed, “On a scale of 1 to 5 with 1 meaning ‘not at all greedy’ to 5 meaning ‘extremely greedy,’ how would you rate the typical Wall Street executive?”
Test Three: Does the answer help the other side or me more?
As designers of written juror questionnaires, we think long and hard about the first two tests. What misses the attention of many questionnaire writers, however, is thinking about how the answer distributes. Strikes being as limited as they are, you only have a shot at excusing a very small minority of the venire. If your question results in the great majority of jurors responding in a manner negative to your case, you will never be able to reach all of those jurors with your limited strikes. However, you just gifted your opposition with a response that allows them to get within “striking distance” with their few peremptories.
Think you don’t stand a chance of getting a written questionnaire allowed in your case? Don’t give up so easily. I surveyed federal judges in 2001 and asked them if they allow written questionnaires in their courtrooms. The vast majority replied that they had never allowed them. Pretty dismal until you hear their reasoning. When I asked why they had never allowed them, again, the vast majority responded, “Because I have never been asked.”
For cases where asking fails and where a written questionnaire is still disallowed, see Ken Broda-Bahm’s post about good approaches to oral voir dire in his recent post, In Voir Dire, Improvise with Structure.