Good morning, ladies and gentlemen. My name is Judge Simon Dickens [feel free to use your own name, of course] and I welcome you to your courtroom. I say “your courtroom” because all the courts belong to you, the citizens of this state. There’s a reason we have courtrooms: we need a civilized way to resolve disputes that arise in our community, and having good citizens like yourselves come in and hear a dispute in our community and give a verdict… well, that’s about as civilized as it can get. Today, these parties at these tables in front here are asking for a jury to resolve something.

Let me put it this way. There’s a lot of talk in America these days about our core values and fundamental principles. Maybe we would all agree that anything in the Bill of Rights is a basic, core American principle. Foundation. Bedrock. You know the First Amendment guarantees freedom of speech and the Fifth Amendment says you can’t be forced to testify against yourself, and other things you might recall. Well, the Bill of Rights also gives us the Seventh Amendment, and it relates to civil trials like this one, not criminal ones; those are covered in other amendments. The Seventh is just about civil trials. And you know what it says? It says, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

Well, I can pretty much guarantee that these parties are fighting over more than $20. [Pause for puddles of laughter.] So that means that our fundamental American values are that we want them to have a jury if they want one. Why? Because we don’t want people in our community settling their scores in other ways, like old duels or just breaking in and stealing what you think is yours.

And notice what the Amendment tells us– it says that the right to a jury shall be preserved. Preserved. That means it already existed before the 1790’s in America, and the founders just wanted to make sure it was continued. It’s our basic values, folks. Been around for centuries.

But why should folks care, folks like yourselves who have taken time out of your life because you were summoned by the court for jury duty? Well, I can think of at least two reasons. One is that I hope you will agree that it is good for democracy and for civilization to have regular citizens from the community come in and solve disputes rather than leaving it to people to fight it out in other ways. Second, someday you might have a dispute and need some good people to come in and resolve it. Think of it as donating blood: it’s not fun, but you do it once in awhile because it’s important and because you want there to be others who will help out when you might need it.

And there’s something else: most people never serve on a jury, and most people who have been a juror have only done it once or twice in their whole adulthoods. That’s a pretty small price to pay to live in a society that resolves problems this way. Your country calls on you for three things: vote a couple times a year, pay your taxes every year, and come in and be on a jury once or twice in your life. (They used to ask you to go to war for your country, but that’s all volunteer now, so these are the three things your country asks you to do.) It should be an honor to do all three, because that price is small compared to what it took to get these rights and to keep them for 220 years.

Now, I appreciate the fact that nobody woke up today and really wanted to come in, take an oath to tell the truth, and then get asked a bunch of personal questions and have to answer them in front of strangers. Please understand that the lawyers and I don’t want to make you uncomfortable and certainly don’t want to embarrass anyone. But I can tell you right now: if you are a human, you have some biases and attitudes, and I specifically asked the jury commissioner to send up only humans this time. [Pause for chuckles.] So we expect folks who have attitudes, experiences, and biases about things. But we have to find out whether some of those biases and attitudes are about some of the subjects in this case. Because then you won’t be the right juror for this case. Wouldn’t be fair. You’d be a great juror on another case, but maybe not this one. So that’s why we will ask you lots of questions. This same process is happening in probably about 4000 courthouses across America this week, so you are in big company.

Many of you will be asked to leave, and you won’t really get an explanation as to why. Please understand that it’s nothing personal; you are a fine person in many ways, but maybe just have something in your background or in your mind that would make you a great juror on some other case, but maybe not this one. We thank you for your good citizenship for coming in here anyway.

We have lists of your names, both random and alphabetical. We follow the random list when we’re putting you into the jury box, but you’ll see the lawyers and the clerk jumping around between lists; that’s why. Don’t worry about it. I always think it looks funny myself, so that’s why I mention it.

[Handle hardships and the more obvious cause challenges here. Then:]

So we will call the first 18 of you from the random list, and we will get to know you first. The rest of you in the back, please pay attention because many of you will get up here, too, and we can save each other’s time by just asking you, “Did you hear the earlier questions? What answers did you think of for them?”

Again, folks, we all thank you for putting aside whatever is going on in your life this week and coming in and being part of resolving a dispute in our community. It’s what good citizens do in a good democracy. Thanks for taking part here today. I’m honored to have you in our courtroom.

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…”

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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/. ]]> http://juryology.com/2006/05/21/judge-conducted-voir-dire-jurors-less-candid-than-when-attorneys-conduct-voir-dire/feed/ 0