Supplemental Juror Questionnaires, Part 1

“Everything we see is a shadow cast by that which we do not see.” – Martin Luther King, Jr.

The Importance of Juror Questionnaires

Earlier this week, I came into possession of a supplemental juror questionnaire that is a thing to behold… with thick rubber gloves and tongs. I will share it with you in a bit, but first some background for counsel who don’t use them much.

Supplemental juror questionnaires (SJQs) are essential in jury selection for a trial that is going to be longer than one court week, or involves any kind of issues that are complex or sensitive. I am routinely surprised that trial counsel on both sides don’t think of using SJQs, or push hard enough if they meet opposition. And then I’m disappointed that they are often an assemblage of missed opportunities because lawyers don’t write or think like the people they are asking to fill out these forms.

There’s The Rule… And Then There’s Getting The Black-Robed One to Follow It

In California law – at least as written (ahem) – it should be fairly easy to get one approved in trial:

“A court shall not arbitrarily or unreasonably refuse to submit reasonable written questionnaires, the contents of which are determined by the court in its sound discretion, when requested by counsel. If a questionnaire is utilized, the parties should be given reasonable time to evaluate the responses to the questionnaires before oral questioning commences.” (California Code of Civil Procedure, section 222.5, emphasis added.)

Unfortunately, in actual fact, judges are often reluctant to approve them, and in the minority of cases where counsel asks for one and meets with a little grumbling, they don’t push hard. But the judges shouldn’t grumble and the attorneys shouldn’t cave: the legislature has used the words “shall not… refuse” SJQ’s. Unfortunately, judges – by their own self-centered view of procedure and through the quiescence of counsel – fixate on the later words “sound discretion” to shrug off the questionnaire altogether. Well, dammit, read the rule. The questionnaire shall not be refused by the court for arbitrary or unreasonable grounds; it is the contents that are within “sound discretion” of the court.

The reasons that judges don’t like them include visceral dislike of them, distrust of lawyers and consultants who want them, fear that they will elongate the jury selection process (spoiler alert: they should not lengthen the process)… all arbitrary and unreasonable. I would ask lawyers to consider having the conversation on the record and asking the judge to explain his or her reasons for refusing the SJQ in its entirety. I believe that if counsel will start quoting the rule – in a nice way – and asking judges to go on the record with their non-arbitrary, reasonable grounds for refusing the questionnaire entirely, the bench and bar will get more comfortable with this potentially powerful tool.

Another judicial cop-out is a tacit insistence that both parties must “agree” on the questionnaire, otherwise it won’t get approved. Again, that is a lawless position for a judge to take. Nowhere in the rule of any state of which I am aware is it even implied that both sides have to agree. Such an insistence is arbitrary and unreasonable. It is the court that issues the questionnaires “when requested by counsel.”

There is a phenomenon in Major League Baseball that umpires have “their own” strike zone. The strike zone is very thoroughly described in the rulebook and is not ambiguous. Finally, starting in the late 1990’s, MLB started evaluating and tracking umpires on it, and the calling of balls and strikes has gotten much more uniform. It’s still not perfect, of course, as different people have differing abilities. But it’s absurd that umpires would think they get their own opinion of a strike, rule book be damned. It is just as absurd that we should just accept in a republic that judges get their own whims about juror questionnaires when the legislature has spoken in strong favor of them and the executive has signed it into law.

Greater Candor: Private Written Answers vs. Speaking to Strangers?

The value of the SJQ is obvious: if the questions are written well – a BIG-ass “if,” as we’ll explore in the next post– then answers that prospective jurors write down are more honest and revealing than verbal answers in the courtroom.

Further, written answers get close to a 100% response rate, whereas verbal answers to questions after the compulsory simple ones in court are nearly all by self-selection. Do you really only want to know the core beliefs of those who volunteer to speak up? Of course not. While they are probably your jury leaders, they are only a few of the votes.

SJQs give us that better view inside people, the part we wouldn’t otherwise see. The title of this piece is a Martin Luther King epigram, and I think SJQs are the heart of understanding more about our jurors that would continue to dwell in the shadows, the part that drives the things we can see.

This will be continued in the next blog post later this week.

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