Lawyers and Jurors: Interrogating Voir Dire Strategies by Analyzing Conversations

DOIhttp://doi.org/10.1111/jels.12226
Date01 September 2019
Published date01 September 2019
Journal of Empirical Legal Studies
Volume 16, Issue 3, 515–541, September 2019
Lawyers and Jurors: Interrogating Voir Dire
Strategies by Analyzing Conversations
Catherine M. Grosso*and Barbara O’Brien
Thisstudy of individualized jury selectionfor 792 potential jurorsacross 12 North Carolina cap-
ital cases, selectedwith purposive case selection,analyzes the conversations that occurduring
voir dire to examinethe process that produces decisionsabout who serves on juries. Lawyers
question prospective jurors in voirdire partly to gather informationabout prospective jurors’
ability to decidea case without prejudice. Jury selection,however, suffers from what social sci-
entists call demand characteristics. Demand characteristics provide a respondent with clues
about theexpected response and interferewith effective informationgathering. We identified
two characteristics that bear on thepresence and strength of demandcharacteristics: the form
and toneof the question. We sorted all8,583 general legal opinionquestions along a four-step
scale by combining these characteristics. We then used time-series analyses to examine
responses to these questions in sequence. Juror responses were longest and most likely to
include an affectiveutterance when the demand characteristics were weaker, and that loqua-
ciousness andaffect fell at each step of the scale.An independent qualitative studyreplicated
these findings,and supported the assertionthat length and form are valid measuresof quality
in thiscontext.
I. Introduction
This first analytical article from our capital jury selection conversation database focuses on
documenting and understanding techniquesof information gathering in voir dire and their
*Address correspondence to Catherine M. Grosso, Michigan State University College of Law, East Lansing, MI
48823; email: grosso@law.msu.edu. Grosso and O’Brien are Professors of Law at Michigan State University College
of Law.
We like to take this opportunity to expressly acknowledge the nonauthor contributions of Debra Roter and
Susan Larson, Department of Health, Behavior & Society, Johns Hopkins Bloomberg School of Public Health, and
the thorough and thoughtful feedback from anonymous reviewers. This article is based on work supported by the
National Science Foundation Law and Social Science Foundation under Grant No. 1318723. Any opinions, find-
ings, and conclusions or recommendations expressed in this material are those of the authors and do not necessar-
ily reflect the views of the National Science Foundation. We thank our senior project managers and coders: Abijah
Taylor, Alison Swain, Jennifer Bossory, and Nadine Kassem. This work would not have been possible without the
support of our colleagues at Michigan State University, in particular Associate Dean for Research Michael
Sant’Ambrogio. We also appreciate the helpful feedback we received for this article from many others, including
Shari Seidman Diamond, Valerie Hans, Mona Lynch, Nancy Marder, Mary Rose, Sam Gross, and Phoebe Ellsworth,
and at presentations at the Law and Society Annual Conference in 2017 and 2018 and the Annual Psychology-Law
Society Annual Conference in 2018.
515
impacts on juror responses.
1
Lawyers questionprospective jurors in voir dire partly tocollect
information.The process of questioningprospective jurorsshould bring to light biasesor past
experiencesthat call into question a prospective juror’s abilityto decide a case objectivelyand
without prejudice.
2
In death penaltycases, like those in this study, voir dire also seeks to elicit
the prospectivejuror’s views on the death penalty.The wisdom of a decision to excuse a juror
for cause, peremptorily remove her, or seat her on the jury depends on the quality of the
informationthe court and lawyershave about that juror.
Voir dire providesthe opportunity for the court and lawyersto speak directly to poten-
tial jurorsand to gather that information.For the voir dire processto work, the questionsmust
elicit truthful and thoughtful answers that can inform the court and attorneys about the
juror’s ability to consider the evidence fairly and impartially. Prior research has shown that
voir dire may not beas productive as lawyers intend.
3
Among other limitations, jury selection
suffersfrom a high level of what socialscientists call demandcharacteristics.
Demand characteristics provide a respondent with clues about the expected
response and interfere with effective information gathering. If jurors feel intimidated, or
that they are expected to provide only “correct” answers rather than genuine ones, voir
dire is merely a costly ritual rather than an effective means to ensure an impartial jury.
Additionally, lawyers may deploy demand characteristics selectively and do so in a man-
ner consistent with stereotypes and inconsistent with effective information gathering.
This article takes only the first step toward analyzing that possibility by documenting the
influence of demand characteristics on juror responses in actual cases.
We use the Roter Interaction Analysis System (RIAS)
4
to analyze the influence of
characteristics that prior research has shown relate to the strength of demand on length
and quality of juror responses.
5
RIAS was developed to analyze in a highly detailed way
verbal interactions between health-care providers and patients, and researchers have
since used it to evaluate the efficacy of different communication styles as well as to assess
1
The details on the development and capacity of this database appear Barbara O’Brien, Catherine M. Grosso &
Abijah Taylor, Examining Jurors: Applying Conversation Analysis to Voir Dire in Capital Cases, A First Look,
107 J. of Crim. L. & Criminology 687 (2017).
2
Nancy S. Marder, Juror Bias, Voir Dire, and the Judge-Jury Relationship, 90 Chi.-Kent L. Rev. 927, 928 (2015)
(noting that the “explicit purpose of voir dire in the U.S. jury system is to determine if a prospective juror can be
impartial”).
3
See John H. Blume, Sheri Lynn Johnson & A. Brian Threlkeld, Probing “Life Qualification” Through Expanded
Voir Dire, 29 Hofstra L. Rev. 1209, 1211 (2001) (noting that “it turns out that voir dire in capital cases is woefully
ineffective at the most elementary task—weeding out unqualified jurors”); Kathi Middendorf & James Luginbuhl,
The Value of a Nondirective Voir Dire Style in Jury Selection, 22 Crim. Just. & Behav. 129, 130–31 (1995) (dis-
cussing the lack of evidence for effectiveness of common voir dire tactics).
4
Debra Roter developed this system based on observed patterns of variables and polar typologies in patient-doctor
conversations. Debra L. Roter & Susan Larson, The Roter Interaction Analysis System (RIAS): Utility and Flexibility
for Analysis of Medical Interactions, 46 Patient Educ. & Counseling 243 (2002).
5
See discussion in Section II. C.
516 Grosso and O’Brien

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