The Labor Certification American Bar Association The Journal of the Section of Litigation From the Bench L02773316

A case for Jury Questionnaires

I am an unapologetic believer in jury voir dire. I am convinced that it helps eliminate jurors whose reviews could make their participation in deciding a case either unfair in fact or subject to the perception of unfairness. Were I presented with the option of arbitrarily selecting and seating jurors, with peremptory challenges eliminated, I would immediately decline because I believe that a controlled voir dire process, with participation by the judge and the advocates, serves the interests of justice and improves the experiences of those summoned to serve.
The jury system has remained a cornerstone of our justice system in large part because it is perceived to be fair and open. It will continue to flourish only if fairness and openness are preserved and if the experience of jury service is made as rewarding as possible for potential jurors. Towards these ends, I advocate for the use of jury questionnaires in all cases. I proceed from the premise that the exercise of peremptory challenges will remain a part of the process of jury selection.
I use a standard questionnaire in every civil and criminal jury case I try. In lengthy or high profile cases, I typically mail the questionnaire to potential jurors in advance and make copies of the responses for the lawyers, subject to their agreement not to duplicate them and to return all copies to the court after jury selection. Assuming that I have a large enough panel to do so, I allow the lawyers for the parties, based on the responses, to agree on the striking of certain jurors before the venire is required to appear, so that those prospective jurors need not report. I also rule on motions to strike for cause based questionnaire responses, for the same reason. This approach eliminates unnecessary inconvenience for prospective jurors who would otherwise be excused for cause only after making a trip to the courthouse.
There are logistical issues to consider. The questions must be simple and easy to understand and the questionnaire not too long. Except in highly unusual cases, four pages is sufficient, but in a very high-profile case, a substantially longer questionnaire may be necessary. For example, in United States vs Lay and Skilling, Judge Lake submitted a fourteen page questionnaire to the jurors, giving them six weeks to respond. The questionnaire should be enclosed with a cover letter signed by the court, explaining that the information sought is important and that it must be supplied directly by the prospective juror unless a disability prevents that person from writing or typing his or her own answers. The letter should emphasize that the prospective juror should not worry about spelling or grammar but should answer to the best of that person's ability. Where a disability requires the prospective juror to have assistance in responding to the questionnaire, the reason assistance is required and the name of the person assisting should be supplied. If the prospective juror does not communicate well enough in English to respond to the questionnaire, he or she should have the option to state that fact in lieu of responding in English and then answering in his or her preferred language if desired, although the court may not have access to all necessary translators to interpret such responses. The judge should provide an estimate of how long the questionnaire should take to answer and a deadline when it should be returned. Before sending the questionnaires, the judge should consider whether the parties, rather than the court, should pay the cost of copying and mailing.
The prospective juror who filled out a mailed questionnaire should be required to sign the questionnaire, under oath, confirming that he or she responded to the questionnaire or identifying the person who did. As did the court in California v. Jackson N133 603 (Cal Supreme Ct. 2004), the judge should also make such assurances about juror confidentiality as are appropriate. The clerk will be required to follow up with those prospective jurors who do not return questionnaires responses. The lawyers will have several days to review the responses.
In the usual case, where questionnaires are not mailed, I have the venire fill out the questionnaires in the central jury room. About one week before the venire is to report , I furnish my standard questionnaire to counsel for review and comment, and I sonsider modifications upon request. Often, counsel request the addition of a series of questions seeking more detail about either the work history of the venirepersons, or their views on particular subjects that might be germane to the issues in the case (eg, how they feel about tort reform or whether and why they have ever fired an employee). I usually make the requested modifications, as long as they are not argumentative and do not unduly lengthen the questionnaire.
In my experience, the process of having the venire fill out the questionnaire at the courthouse takes, on average, one half to two hours. After the clerk has checked to make sure that each panelist has signed the completed questionnaire and filled out the front and back of each page, I give the attorneys approximately 20 minutes to review the responses before we commence voir dire [Christian Milan was a law clerk intern with the U.S. District Court Northern District of Texas The United States of America L02773316 L01432062 LSAC L24033516 jurisdoctorstud]