Picking juries: questionnaires and beyond.

• Author: Hurney, Jr., Thomas J.

A prior version of this article was presented at the Medical Liability Committee Meeting during the IADC 2008 annual meeting at The Greenbrier, White Sulphur Springs, West Virginia, where Mssrs. Hurney and Sellers spoke on jury selection. The laws of Alabama and West Virginia are featured in this article because that is where the authors practice.

SELECTING a fair jury continues to be a sometimes daunting task for defense counsel. A Harris Poll, released January 21, 2008, contains some interesting findings about jury duty:

One of the civil duties many people dread, or try to get out of, is jury duty. And many do seem to get out of it--while two-thirds (65%) of Americans have been called to serve jury duty, two-thirds of that (68%) actually attended, leaving one-third (32%) who did not. Of those who have attended jury duty, just over half (55%) have actually served on a jury. Bringing this back to the population as a whole, a plurality of Americans (44%) has attended jury duty and one-quarter (24%) has actually sat on a jury. (1) The article discussing the Harris Poll notes, "the reverse can also be said--three-quarters of Americans have never served on a jury and over half have never even attended jury duty. Unfortunately, looking at the numbers this way clearly shows a civic duty that many may be ignoring." Thus, in picking juries, we certainly face folks who do not want to be there, and search for a way off the jury panel.

Against this backdrop, voir dire presents an important and challenging task for every defense lawyer as we attempt to determine which jurors are possibly biased against our clients. (2) Some courts allow full voir dire by counsel, some by the court, and some do both. (3) We defense lawyers are barraged with information about how to pick juries, to perform voir dire effectively, and recognize the biased juror. As we perform the important task of selecting the jury, questionnaires specific to the case are increasingly becoming a part of the process. Typically, questionnaires are drafted by both sides and submitted by agreement. These questionnaires are particularly prevalent in medical liability cases, where issues related to jurors' experiences as patients or knowledge of the health care providers involved and tort reform are often subjects that bear inquiry. While questionnaires provide important information and allow jurors to perhaps answer some of the more personal questions in a private setting, they are no substitute for voir dire. Regardless, they are a valuable tool in attempting to seat an unbiased jury.

1. Use of Questionnaires: General

   Jury consultants generally counsel in favor of the use of jury questionnaires. One consultant advises, however, that "there are a number of instances where jury questionnaires may be harmful in trying to get a jury that will be most receptive. For instance, few attorneys, in their eagerness to have a jury questionnaire, stop to think why their opponents are equally eager to have one." (4) "While a questionnaire may offer the opportunity to ask questions that would never be posed in open court, there is a danger when it becomes a substitute for posing questions in open court. Often the judge will permit less attorney-conducted voir dire because of the use of the questionnaire. A questionnaire can never give the full flavor of the intensity of a juror's feelings about an issue, the salience of the issue to the juror, and his or her knowledge about it." (5)

   The necessity of good voir dire following questionnaires is addressed in a New York Times article discussing a jury questionnaire used in a terrorism trial: "[W]hile the questionnaires were obviously intended to help both sides in the case categorize the jurors according to several broad themes, they also had the fascinating effect of taking a sociological snapshot of eighteen ordinary citizens at a time when steel barriers were being erected to protect the federal courthouse from a potential terrorist assault." Moreover, "[b]y combining the information obtained from Prospective Juror Questionnaires with in-court observation of jurors' behavior during oral voir dire, attorneys can make far more accurate evaluations of prospective jurors. We have been startled by the accuracy of our predictions when both sources of information are combined. Questionnaires are a valuable tool, allowing the attorney to make more astute challenge decisions while saving valuable court time." (6)

   In general, whether to allow the use of questionnaires is within the sound discretion of the trial court. "The means and methods that the trial judge uses to accomplish [the purposes of voir dire] are within his discretion." (7) However, a trial court "may abuse its discretion if it so limits the voir dire that the litigants are unable to determine whether the jurors are statutorily qualified or free from bias." (8) Moreover, "[t]he process to select jurors should endeavor to select jurors who are not only free from prejudice, but who are also free from the suspicion of prejudice." (9) Many courts use a general questionnaire for the entire venire panel, (10) and will, on motion or agreement of counsel, also submit questionnaires that are tailored to the particular case. (11)

   Usually, however, questionnaires tailored to the particular case are used to hone in on issues and answers that merit further inquiry and to "develop information in the record regarding the presence or absence of any pertinent bias ... and raise challenges accordingly." (12) Occasionally, challenges for cause are made on the basis of unsworn juror questionnaire answers. A difficult issue is raised when the court or counsel attempts to strike a prospective juror "for cause" on their unsworn questionnaire answers, with no follow up inquiry on voir dire. Few states have directly addressed the issue, and federal law deals only indirectly with the issue under the Jury Selection and Service Act of 1968. (13)

   Under the Jury Selection and Service Act of 1968, (14) the court "may excuse a potential juror (1) upon showing of undue hardship or extreme inconvenience, or (2) if the potential juror may be unable to render impartial jury service or that his service as a juror would be likely to disrupt the proceedings." (15) Federal courts have held the dismissal of prospective jurors based on jury questionnaire answers is governed by the Act. (16)

   State courts have varied tests for the disqualification of jurors. For example, West Virginia Code [section] 56-6-12 (1923) provides for questioning of jurors to determine "whether he is a qualified juror, or ... has any interest in the cause, or is sensible of any bias or prejudice therein[.]" Put another way, "the test of a qualified juror is whether a juror can render a verdict based on the evidence, without bias or prejudice, according to the instructions of the court." (17) Any...