Voir dire is intended to identify and neutralize prejudice in prospective jurors and is a heavily used trial consulting for lawyers tool. However, surveys of actual and mock jurors hearing civil and criminal cases reveal that this can be a very difficult task for many reasons, not least of which is the fact that successful voir dire depends upon jurors’ accurate self reports of prejudice. Unfortunately, there are many reasons why jurors may not disclose prejudice. First, jurors may be unaware of their prejudice. Field studies as well as laboratory studies have shown that prospective jurors with anti-defendant information or views were equally likely to declare themselves to be impartial in judging the defendant as were jurors without the same information, while their verdicts showed that they were significantly more likely to judge the defendant harshly. Biased jurors may not feel that they have any bias to reveal and may not speak up during voir dire. Another concern with self-report during voir dire is that jurors may be aware of their biases but may not disclose them to the court. Surveys reveal that many jurors give what they believe to be the answers expected of them, rather than their own honest responses. Other jurors fail to understand the questions. Still other jurors may fail to reveal bias because they are interested in the outcome of the case and want their views to be expressed on the jury.
Informed trial attorneys need to know where prejudice or bias can come from and how to find it. Three methods are recommended here for uncovering bias in the jury panel. First, individual voir dire, in which the judge or the attorney asks individual jurors direct questions, as opposed to asking questions of the group as a whole, will generally elicit more extensive and honest answers. It is socially easier for a prospective juror to remain silent in response to a question directed at the entire panel than to volunteer personal information in what is, for most jurors, an extremely intimidating setting. An individual is much more likely to be forthcoming if he is singled out, because he will not have the option of remaining silent. A prospective juror is also more likely to be honest in revealing bias during individual voir dire. In a group, a biased juror may lie by omission, whereas a biased individual would have to verbally deny his bias, a much more difficult task for most people.
For similar reasons, open-ended questions are much more likely to reveal bias than simple “yes or no” questions. One reason for this is that many “yes or no” questions have obvious “right” answers from a social acceptability standpoint. Also, few people will choose to elaborate on their feelings, or sources of bias, unless they are obliged to do so. Asking “How do you feel about personal injury lawsuits?” for example, will elicit much more information about a jurors’ opinions about tort reform than “Do you think there are too many lawsuits these days?”
Finally, written juror questionnaires are very useful tools in uncovering bias. First, a questionnaire allows the attorneys to gather a larger volume of information about prospective jurors than would be possible during oral voir dire. Second, this quantity of information is provided by each member of the panel. This is particularly important because, in most cases, the first group of jurors in the box is questioned fairly extensively, while the last jurors questioned, those replacing those excused for cause or peremptorily challenged, are asked only a few perfunctory questions. And, in general, it is these last individuals who tend to remain on the jury. Not because they are less biased, but because they were given less opportunity to reveal bias. A juror questionnaire, however, will elicit the same extensive amount information from each and every juror. Finally, it is much easier for a juror to be honest on paper, where he can write “PRIVATE” next to any sensitive response, than in open court, where he may be vulnerable to unfavorable social judgments.