By Dr. Ken Broda-Bahm:
It's the political season, and many of us are closely watching the public opinion polls. It is interesting to see that sometimes big differences between polls are caused by small differences in wording. Do Americans "prefer," "support," "favor," or "intend to vote for" a given candidate? Different words make for a different result. Question wording matters in jury analysis and selection as well. In community attitude surveys, change of venue motions, supplemental juror questionnaires, and oral voir dire, the specific words we choose for the question can strongly influence the result. One area where this problem can be acute is in rehabilitation, or the attempts by court or counsel to determine whether a potential juror can still be fair despite having expressed a bias. Psychology professor Mykol Hamilton of Centre College even coined the term "prehabilitation" to describe the common process of subtly or expressly talking panelists out of biases prematurely, before those biases have even been expressed. In a current article in The Jury Expert, the same lead author along with Kate Zephyrhawke of Hillsborough Community College carry their research one step further, and turn in one of the first efforts to quantify the differences in results stemming from various phrasings of two commonly-asked questions in voir dire.
The article (Hamilton & Zephyrhawke, 2015) looked at the question of whether potential jurors could presume the defendant is innocent until proven guilty in a criminal context. In addition, they looked at the common question of whether the potential jurors could "set aside" their prior knowledge and attitudes in hearing the case. They surveyed 401 jury-eligible adults on their knowledge and views relating to a highly publicized Kentucky murder case. The researchers converted the questions to scale-questions (e.g., "strongly agree," "agree," etcetera) rather than yes/no questions (in the view that the gradations give respondents greater comfort in admitting to some bias without agreeing to the extreme end of bias). But the main manipulation was to compare the effectiveness of questions focused on ability (e.g., "Would you be able to...?") with questions focused on ease or difficulty (e.g., "How easy or how hard would it be to...?"). The thinking is that the questions focused on ability would be seen as a question about the potential juror's competence, while the wording focused on ease or difficulty would instead normalize the authors possibility of being challenged in being fair. Based on their results, that seems to be the case. "Had we only asked the traditional, leading, prehabilitatively worded 'Assume' and 'Put Aside' questions in the Kentucky [change of venue] survey," the authors reported, "we would have concluded that only about one in five doubted their ability to put aside opinions when in fact over half of them did."