Judge-Conducted Voir Dire: Jurors Less Candid Than When Attorneys Conduct Voir Dire
Let's stipulate that the whole point of voir dire is to elicit honest, candid responses on issues that bear on the case, so that lawyers can exercise challenges effectively. If we aren't getting the most candid responses from jurors, then the point is thwarted, and the whole exercise is rendered useless, and fairness suffers.
Well, it turns out that in the modern world of increasing judge-conducted voir dire, that is exactly what's happening. When judges conduct voir dire, prospective jurors are TWICE as likely to change their answers to please the questioner than when attorneys do the voir dire. TWICE. It's not because judges are not necessarily skillful at conducting the voir dire-- some are and some aren't, just like lawyers. Rather, a study showed that it's because jurors are more inclined to alter their answers to conform to their perceptions of the judge's standards than they were inclined to alter their answers for attorneys. (The cite for the article is at the end of this post; though it's from 1987, there is no reason to think that the psychological mechanisms of this phenomenon aren't still good; humans haven't evolved much (nor been more intelligently designed, if you prefer) in the intervening years.)
The study actually tested two things: (1) effects of whether the attorney or the judge does the voir dire, and (2) style of the questioner, no matter which person does the questioning.
We can dispense with the second one quickly: To the surprise of nobody, a warmer style elicits more honest disclosure from jurors, ESPECIALLY WHEN ACCOMPANIED BY AN APPROPRIATE AMOUNT OF SELF-DISCLOSURE FROM THE QUESTIONER. Obviously, lawyers shouldn't be doing an impromptu 'Oprah' show in which they divulge everything about themselves, but it's critical that the questioner disclose something about his or her background, life, values, beliefs, thoughts about the legal system, SOMEthing. (Note for later: Who doesn't do this when conducting voir dire? Yep. Judges. But we'll see that it wouldn't matter if they did; the robe still gets in the way of honest disclosure from laypeople.)
It's also worth noting that attorneys actually have an interest in putting forth effort to be warm and engaging with jurors, as they are trying to become more liked by them for strategic reasons. That right there puts lawyers in a better position to elicit honest disclosure from jurors than are judges.
But the first part of the question -- which party gets more truth/conformity -- turns out to be at least as powerful in affecting jurors' forthrightness.
Methodology: Researchers hired a bunch of jury-eligible folks to come to the courthouse, gave them questionnaires, and had actors play the lawyers and judge. They conducted eight voir dires (or as I call that, a fun weekend). The participants filled out part of the questionnaire, then either the judge or the attorney would conduct the voir dire, then an interruption would be invented (e.g., judge got an emergency phone call) so that participants would fill in more of the questionnaire. After that break, the questioner would return, and other conditions might be changed (such as the interpersonal level of the questioner). The written answers were compared with the verbal answers, and then the differences were compared with differences observed with different types of questioners. (The formal methodology in the study is discussed in the article cited at the end of the post, and I am simplifying it greatly... for MY benefit!) Participants found the setting highly realistic; they thought the judges and attorneys were authentic.
Results: So it turns out that jurors were more consistent with their attitude reports (the written stuff) when questioned by attorneys. As indicated at the outset, they were twice as likely to change their answers when questioned by a judge. And please do note: according to the researchers, in NO case were judges more effective than attorneys. This is important to note because there is a widely held belief that judge-conducted voir dire elicits greater candor from jurors than when lawyers do their voir dire. Demonstrably untrue-- again, not because judges aren't skilled and fine people, but that damn robe and high seat...
Jurors were most honest when it was the attorney doing the questioning, and doing so in a personal manner. Next most honest was attorney questioning in a formal manner. Note that even with a judge questioning in a personal manner, it elicits less candor than the attorney acting all stiff-like. And let's face it: when was the last time you saw a judge conduct voir dire in a way that approaches warm and personable?
Again, I'm not criticizing judges' questioning skills or intentions in conducting voir dire. However, one of the reasons given for increasing judge-conducted voir dire is that it gets more honest responses out of the venirepersons. This is demonstrably false. Judge-conducted voir dire saves time for reasons that are mostly just maddening to people who really understand bias. But if we all agree that the point of voir dire is to get candid input from jurors in order to assess their probable ability to serve fairly on THIS case, then we should all agree that proveably inferior methods of achieving that should be abandoned.
If you have a judge that insists on doing all voir dire, the cited article could serve as a basis for a motion to permit at least some attorney-conducted voir dire... and the rationale would not be a slight to the judge's skills, but a recognition of the effects of being the one person in the room in a black robe and elevated desk. "Your Honor, it's not that we don't think you would be an incisive and moving interviewer. Lordy, no. It's actually that you are TOO much of a legal hottie, that everyone wants to please you. It's not your fault you are so magnetic, Your Honor..."
___________________________________________
Source: "Judge- Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor" by Susan E. Jones, Journal of Law & Human Behavior, Vol. 11, No. 2 (1987). Law & Human Behavior is the bimonthly journal for the American Psychology-Law Society, a division of the American Psychological Association. Lawyers can join the AP-LS and receive the journal; best 60 bucks you'll spend this year. I find that it leans somewhat more toward criminal work, but there is a great deal of useful research for civil practitioners. For more information and for (paid) access to journal archives, see http://www.ap-ls.org/.
Well, it turns out that in the modern world of increasing judge-conducted voir dire, that is exactly what's happening. When judges conduct voir dire, prospective jurors are TWICE as likely to change their answers to please the questioner than when attorneys do the voir dire. TWICE. It's not because judges are not necessarily skillful at conducting the voir dire-- some are and some aren't, just like lawyers. Rather, a study showed that it's because jurors are more inclined to alter their answers to conform to their perceptions of the judge's standards than they were inclined to alter their answers for attorneys. (The cite for the article is at the end of this post; though it's from 1987, there is no reason to think that the psychological mechanisms of this phenomenon aren't still good; humans haven't evolved much (nor been more intelligently designed, if you prefer) in the intervening years.)
The study actually tested two things: (1) effects of whether the attorney or the judge does the voir dire, and (2) style of the questioner, no matter which person does the questioning.
We can dispense with the second one quickly: To the surprise of nobody, a warmer style elicits more honest disclosure from jurors, ESPECIALLY WHEN ACCOMPANIED BY AN APPROPRIATE AMOUNT OF SELF-DISCLOSURE FROM THE QUESTIONER. Obviously, lawyers shouldn't be doing an impromptu 'Oprah' show in which they divulge everything about themselves, but it's critical that the questioner disclose something about his or her background, life, values, beliefs, thoughts about the legal system, SOMEthing. (Note for later: Who doesn't do this when conducting voir dire? Yep. Judges. But we'll see that it wouldn't matter if they did; the robe still gets in the way of honest disclosure from laypeople.)
It's also worth noting that attorneys actually have an interest in putting forth effort to be warm and engaging with jurors, as they are trying to become more liked by them for strategic reasons. That right there puts lawyers in a better position to elicit honest disclosure from jurors than are judges.
But the first part of the question -- which party gets more truth/conformity -- turns out to be at least as powerful in affecting jurors' forthrightness.
Methodology: Researchers hired a bunch of jury-eligible folks to come to the courthouse, gave them questionnaires, and had actors play the lawyers and judge. They conducted eight voir dires (or as I call that, a fun weekend). The participants filled out part of the questionnaire, then either the judge or the attorney would conduct the voir dire, then an interruption would be invented (e.g., judge got an emergency phone call) so that participants would fill in more of the questionnaire. After that break, the questioner would return, and other conditions might be changed (such as the interpersonal level of the questioner). The written answers were compared with the verbal answers, and then the differences were compared with differences observed with different types of questioners. (The formal methodology in the study is discussed in the article cited at the end of the post, and I am simplifying it greatly... for MY benefit!) Participants found the setting highly realistic; they thought the judges and attorneys were authentic.
Results: So it turns out that jurors were more consistent with their attitude reports (the written stuff) when questioned by attorneys. As indicated at the outset, they were twice as likely to change their answers when questioned by a judge. And please do note: according to the researchers, in NO case were judges more effective than attorneys. This is important to note because there is a widely held belief that judge-conducted voir dire elicits greater candor from jurors than when lawyers do their voir dire. Demonstrably untrue-- again, not because judges aren't skilled and fine people, but that damn robe and high seat...
Jurors were most honest when it was the attorney doing the questioning, and doing so in a personal manner. Next most honest was attorney questioning in a formal manner. Note that even with a judge questioning in a personal manner, it elicits less candor than the attorney acting all stiff-like. And let's face it: when was the last time you saw a judge conduct voir dire in a way that approaches warm and personable?
Again, I'm not criticizing judges' questioning skills or intentions in conducting voir dire. However, one of the reasons given for increasing judge-conducted voir dire is that it gets more honest responses out of the venirepersons. This is demonstrably false. Judge-conducted voir dire saves time for reasons that are mostly just maddening to people who really understand bias. But if we all agree that the point of voir dire is to get candid input from jurors in order to assess their probable ability to serve fairly on THIS case, then we should all agree that proveably inferior methods of achieving that should be abandoned.
If you have a judge that insists on doing all voir dire, the cited article could serve as a basis for a motion to permit at least some attorney-conducted voir dire... and the rationale would not be a slight to the judge's skills, but a recognition of the effects of being the one person in the room in a black robe and elevated desk. "Your Honor, it's not that we don't think you would be an incisive and moving interviewer. Lordy, no. It's actually that you are TOO much of a legal hottie, that everyone wants to please you. It's not your fault you are so magnetic, Your Honor..."
___________________________________________
Source: "Judge- Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor" by Susan E. Jones, Journal of Law & Human Behavior, Vol. 11, No. 2 (1987). Law & Human Behavior is the bimonthly journal for the American Psychology-Law Society, a division of the American Psychological Association. Lawyers can join the AP-LS and receive the journal; best 60 bucks you'll spend this year. I find that it leans somewhat more toward criminal work, but there is a great deal of useful research for civil practitioners. For more information and for (paid) access to journal archives, see http://www.ap-ls.org/.
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