Juror Bias (Continued from page 22)
these leading questions, by their nature, elicit only the prospective jurors’ own per- ceptions of their biases, which is generally not accurate information. In fact, it has been held reversible error for trial courts to reply on the assessment by a venire per- son of his or her own biases and preconceptions (Silverthorn v. United States, United States v. Polizzi).
Recommendations
As a trial lawyer faced with these prob- lems, what can you do? There are two concrete recommendations which are sup- ported wholeheartedly by this author and by the substantial body of relevant jury research that has been conducted over sev- eral years. They are: (a) the expanded voir dire and (b) the use of supplemental ju- ror questionnaires.
Judges in our state
have been authorized to experiment with both of these recommendations since the adoption of the April, 2000a report from the Council on Jury Use and Management (a creation of the Conference of Circuit Judges).
(a) Expanded voir dire, as defined above, should be implemented in all trials. There should be more questions asked over a
broader scope of subject matter in order to better uncover juror bias. There should be follow-up questions asked by both judges and attorneys to create an environ- ment that makes it easier to identify damaging juror prejudice.
(b) The form of the questions asked in an expanded voir dire needs attention too. There should be a good blend of close- ended and open-ended questions. Here is how that blend might appear to ensure as much juror candor as possible. Close- ended questions can precede open-ended questions. Those are questions that can be easily answered with a “yes” or “no” answer, or by raised hands. Close-ended questions can identify juror experiences. For example, “Have you, or has anyone close to you, ever been on kidney dialy- sis?” For those who respond affirmatively, the open-ended request to ask of them is: “Please tell us about that experience.” Or, in another kind of case, one might ask: “How do you feel about the dissemina- tion of sexually explicit videos to adults?” Even if the answer is: “I have no strong feelings,” an appropriate probe would be: “Well, then, what are your feelings even though they are not strong?”
Open-ended questions such as those
above allow prospective jurors to do most of the talking, and this gives the court and counsel a good opportunity to learn what
they need to know. Listening to the ju- rors reply to the open-ended request is the best way to detect juror bias in oral voir dire. Consider this list as a series of well- constructed close-ended (experience) and open-ended (attitude) questions:
1 Have you or has anyone close to you ever been seriously injured or killed in a vehicle accident?
2 If yes, please describe the circum- stances. (Follow-up probes may be necessary.)
3 Was a complaint, lawsuit, or claim of some sort made about this? 4 If yes, please explain. probes may be necessary.)
(Follow-up
5 How was the complaint or claim re- solved?
6 How did you feel about this resolu- tion?
7 Is there any reason why any of you who remained silent during this last set of questions chose to do so? (Fol- low-up probes may be necessary.)
The reason this is a good series of ques- tions is because it follows the experience-attitude-bias continuum iden- tified at the beginning of this article. Second, supplemental juror question-
naires should be widely adopted in Maryland courts. There are many advantages to question- naires. First, lawyers can get an overview of possible bias from the entire venire, not just the people seated in the box. Sec- ond, because answers are provided in writing rather than orally, there is more candor and more assurance of identify- ing bias with questionnaires than having voir dire be entirely an open court oral experience. Third, questionnaires actu- ally save court time inasmuch as judges and lawyers need not be present when this information is gathered. They need only be present for follow-up oral questions based on the questionnaire answers. Fourth, jurors appreciate the privacy of this activity.
“Filling out the question-
naire is often less fraught with anxiety than answering questions out loud in front of an audience” (Heany, 3). Fifth, question- naires “can quickly pinpoint for the court and attorneys the specific areas that re- quire individual follow-up questioning” (Hans & Jehle, 1198). Supplemental juror questionnaires
have recently received some ringing en- dorsements.
The American Bar
Association has asked that courts consider using a specialized questionnaire address-
24 Trial Reporter
(Continued on page 26) Fall 2005
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