By Dr. Ken Broda-Bahm:
During voir dire, the traditional questions designed to expose bias tend to focus on the existence or nonexistence of a biasing attitude or experience. Have you formed any beliefs about the defendant's guilt or innocence? Do you believe drug companies are more concerned with profits rather than people? In truth, these biases, as well as potential jurors' self-knowledge of these biases, are more likely to be a matter of degree. A question that focuses on the level or extent of a potential bias, or on a degree of leaning for or against a particular belief is more likely to yield an expression of bias than is a question that focuses on just the presence or absence of a belief. That isn't just an intuition, it is also a finding in recent research. The current issue of The Jury Expert includes a brief research article (Hamilton & Zephyrhawke, 2016) measuring the advantage in looking at bias as a leaning rather than as a firm stance. Continuing their long-term research program focused on the effects of language in revealing or concealing bias, professors Mykol Hamilton and Kate Zephyrhawke looked at whether less formal and rigid formulations could yield greater and more reliable expressions of bias.
The short answer: They do. Testing what they call a "water cooler" version of the presumed guilt or innocence question often included in change of venue surveys, they used a formulation asking about leaning instead: "If you had to say you lean one way or the other right now about the guilt or innocence of [the defendant], which way would you lean?" Incorporating that question into nine telephone surveys on venue bias, they suspected that "the less official tone might reduce the likelihood of knee-jerk answers." Ultimately, they found that the leaning-based question tended to add 10 to 15 percent to the proportion answering in the affirmative to a more traditionally phrased question. "Increases of these magnitudes," they conclude, "could make the difference between a change of venue for your client being denied or granted." While they didn't test it directly, they also note the potential for leaning questions to serve the same purpose in oral voir dire and supplemental juror questionnaires as well. By making it a little easier and more socially desirable to say "Yes," questions focused on degrees of leaning can increase the chances for successful cause challenges and provide a better foundation for the exercise of peremptory strikes.