Eye on the Jury

Monday, June 07, 2010

Potential jurors are more likely to lie or omit information when judges conduct questioning

By Trisha Renaud

An angry Virginia judge last month accused jurors of not telling the truth during voir dire in a child molestation case and reluctantly declared a mistrial.

Virginia Judge Frederick G. Rockwell III was livid, and he let jurors know it. “The only way that this system works is if people tell the truth,” he said, according to the Richmond Times-Dispatch.

The trial of defendant Edward L. Hope Jr. was derailed after a juror sent Rockwell a note complaining of three jurors with biases that had not been disclosed earlier in voir dire. One juror had heard accounts of Hope being taken from his workplace in handcuffs. Another juror had previously been falsely accused and questioned by police, and a third had preconceptions about molestation victims since his wife had been molested.

All of this was news to the judge and the lawyers. None of this information had been revealed during jury selection.

It’s unclear just how extensive or complete voir dire was in this case. According to the Richmond newspaper, Rockwell and the lawyers had spent about two hours questioning jurors before the panel was selected, asking about such topics as their connections to law enforcement and their experiences with crime.

No doubt, the process was frustrating to not only the judge, but to the lawyers and the parties. The ability to make appropriate challenges for cause and use peremptory strikes effectively depends on getting accurate information from jurors during voir dire.

But jurors do sometimes lie, as most litigators know. They also fail to bring up information that they know or should know is relevant to the case.

A 1991 study made just that point. Researchers observed jury selection for 31 criminal trials, then interviewed 190 jurors after the trials were over, asking many of the same questions jurors had answered during voir dire. About one-fourth indicated during the post-trial interviews that they or a family member had been a crime victim when they had not revealed that information in voir dire. Almost 30 percent told interviewers they knew someone in law enforcement but had failed to reveal this in court. (See Richard Seltzer, Mark A. Venuti and Grace M. Lopes, Juror Honesty During the Voir Dire, Journal of Criminal Justice, Vol. 19, pp. 451-462 (1991).)

So how can juror honesty and disclosure during voir dire be improved? What is the best method to get accurate information from jurors?

Potential jurors are more likely to be forthcoming when voir dire is thorough and when the lawyers, rather than the judge, ask the questions.

In the 1991 study mentioned above, the voir dire in most cases was brief. In 29 percent of the cases, voir dire lasted less than an hour. In only 13 percent of the cases did the questioning take more than two hours. And, in four cases, panel members were asked a total of six questions.

In addition, in 63 percent of the cases, the judge asked all the questions. In only one case were lawyers allowed to conduct the entire voir dire.

An earlier study from 1987 looked specifically at the issue of juror candor in the settings of judge-conducted voir dire versus attorney-conducted voir dire.

In this study, 116 jury-eligible people filled out written questionnaires about their attitudes on the legal system. Then they were brought into the courtroom for voir dire sessions conducted by persons with legal backgrounds playing the roles of judge and attorneys. The mock jurors were asked the same questions they had answered earlier in the questionnaires. Researchers noted any differences in jurors’ responses. (See Susan E. Jones, Judge- versus Attorney-Conducted Voir Dire, An Empirical Investigation of Juror Candor, Law and Human Behavior, Vol. 11, No. 2, pp. 131-146 (1987).)

What happened? People were nearly twice as likely to change their answers in the courtroom when questioned by a judge as when questioned by a lawyer. Women were somewhat more likely to change their answers than men. Even three ministers who participated in the sessions changed their answers significantly.

Across the board, the mock jurors were more candid about their attitudes and beliefs when the lawyers conducted voir dire.

Researchers concluded that the mock jurors tried to supply the answer they believed the judge wanted to hear—the one they believed to be the most socially acceptable rather than their true belief. In an attempt to conform to some perceived judicial standard, they shifted from moderate attitudes to more conservative ones.

The researchers also examined how candid jurors were when the questioner adopted either a formal or a personable style, and when the questioner disclosed some small background information about himself or herself, a technique known as “reciprocity.”

Neither personal disclosure nor a more personal style improved juror candor when the judge was the one asking questions. In contrast, jurors’ answers were more consistent when attorneys asked the questions, particularly when a more personable style was used.

The problem isn’t that judges are unskilled at asking questions or that they are all intimidating personalities. The issue is their status—the robe and the high bench are visible signs of authority and higher social status. Jurors get it.

The respect jurors have for the position of judge—and most show great deference to the court—doesn’t make them more forthcoming when talking to a judge. On the contrary, that respect causes them to want to please the judge and to avoid embarrassment by conforming to a perceived notion of what is socially acceptable.

So when you’re in federal court—where judges conduct the vast majority of voir dire—keep asking the judge for opportunities for counsel to participate in voir dire. If the judge is reluctant and concerned about moving the case along, suggest a time limit on the lawyer portion of voir dire.

If that fails, propose a supplemental juror questionnaire. It will likely provide better answers than those the judge elicits during voir dire.