Using Jury Questionnaires: (Ab)using Jurors
Reprinted in part in The Judges' Journal, Vol. 47, No. 1, p. 10, 2008
52 Pages Posted: 3 Oct 2007 Last revised: 27 May 2008
America's courts summons millions of our citizens to serve as jurors each year. The number of citizens responding to those summonses is dropping, and in some courts the number of non-responders is reaching a critical level. Task forces have been created to address this problem, but their reports rarely discuss the intrusive nature of, and overreliance on, jury questionnaires.
The selection of a jury is, of course, an essential part of a trial, and jury questionnaires - when properly used - can make that process more effective and expeditious. This Article examines the use of juror questionnaires in the courts.
The Article identifies and separates the four approaches to the use of jury questionnaires and analyzes the pros and cons of those schemes. It focuses principally on the more expansive, intrusive form of questionnaires, which is directed more toward information gathering than jury qualification.
Questionnaires are used in virtually all high-profile cases such as the Exxon Valdez oil spill, and the criminal prosecutions of Robert Blake, Kobe Bryant, Michael Jackson, Timothy McVeigh, Zacarias Moussaoui, Scott Peterson, O.J. Simpson, and Martha Stewart, among many others. The practice of using questionnaires in both civil and criminal litigation, though, is not limited to high-profile cases. Some courts rather routinely use jury questionnaires, but the intrusive voir dire questioning and the highly discretionary use of jury questionnaires probably play a significant role in the reluctance of citizens to report for jury duty.
This Article suggests that questionnaires may not contribute as much as their proponents contend and may impose more costs than proponents tally. It also exposes some of the real, but under-recognized costs of the expansive use of jury questionnaires.
The Article argues that the use of jury questionnaires must be better controlled, and offers specific, concrete suggestions for mending the current system, such as discouraging the use of generic questionnaires, limiting their use to specific cases based on need, and properly protecting sensitive information about prospective jurors.
Keywords: Batson, consultant, Don Siegleman, Enron, Exxon Valdez, Healthsouth, identity theft, jury, Kenneth Lay, Kobe Bryant, litigation, Timothy McVeigh, Martha Stewart, Michael Jackson, OJ Simpson, peremptory, PressEnterprise, privacy, questionnaire, religion, Richard Scrushy, Scott Peterson, trial, venire
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