America. In this series, Jamie Oliver, a British celebrity chef, travels across the ...
African Americans, only one of them would be willing to speak up about it in ...
USE OF JURY QUESTIONNAIRES IN DISCOVERING JUROR BIAS By Darci E. Burrell Levy Vinick Burrell Hyams LLP 180 Grand Avenue, Suite 1300 Oakland, CA 94612 510-318-7700
[email protected] Some believe that with an African American president in the White House, race discrimination is no longer an issue in America. To the contrary, however, racial bias continues to play a role in American society and, as a consequence, in the American judicial system. Such bias, however, is not always readily apparent or easily expressed. An example of this can be seen plainly in an episode of “Jamie’s American Road Trip,” which recently aired on BBC America. In this series, Jamie Oliver, a British celebrity chef, travels across the United States, meeting with cooks in urban and rural settings, learning about various aspects of American culture, as well as the food. On a visit to Georgia, Oliver sits down for a discussion with a group of white citizens who live in the trailer park in which he is staying for the night. When he asks if there was partying and dancing in the streets when Obama was elected, there are noises of disagreement and one of the women in the group demurrers. She likes Obama, she says, but some people in the South are not happy with him because they are anti – here she stops, gestures to the crowd around her and says “They’re not going to say the n-word here right now” before amending her statement to say that one of them would. That individual obliges her by saying, “They got a queen, we got a nigger.” Oliver is visibly shocked and removes himself from the group as quickly as possible. Reflecting on the experience the next morning, he states, “That’s the first time I’ve ever heard it said truly and meaningfully.” 1 While Oliver’s naivety regarding American racial politics is surprising and even a little amusing, this episode of “Jamie’s American Road Trip” is instructive in a couple of respects. First, it demonstrates that racial bias is alive and well, even in the age of Barak Obama. Second, and perhaps more importantly for our purposes, it shows that while many people may feel racial bias, they may not be comfortable expressing it in “mixed company.” The woman who speaks makes clear that although other members of the group may be prejudiced against African Americans, only one of them would be willing to speak up about it in Oliver’s presence, with the cameras running. Clearly, they had expressed those feelings openly at some point because she was aware of them. 1
http://www.youtube.com/watch?v=G2RhJcBnnFg
This discomfort with expressing one’s true feelings about prejudice and discrimination has obvious implications for selecting jurors in discrimination cases. How is one supposed to go about weeding out jurors who are biased if they are reluctant to express those feelings? By some accounts, the traditional system of voir dire – judicial and/or attorney questioning – may be ineffective in discovering such bias. In civil cases, jury selection takes an average of 3.1 hours in state court and 2.3 hours in federal court. See Collin P. Wedel, “Twelve Angry (and Stereotyped) Jurors: How Courts Can Use Scientific Jury Selection to End Discriminatory Peremptory Challenges,” 7 Stan. J.C.R. & C.L. 293, 315 (2001). Often, voir dire takes less than an hour, and it is not uncommon for “less than half [of the potential jurors to ] say more than a sentence.” See Matthew Huston, “Unnatural Selection,” Psychol. Today (Mar. 2, 2007). Judgeconducted oral voir dire may be even less effective. Jurors are far more candid when responding to researchers or attorneys than when answering questions posed by judges. See Gregory E. Mize & Paula Hannaford-Agor, “Jury Trial Innovations Across American: How We Are Teaching and Learning from Each Other,” 1 J. Ct. Innovation 189, 208 (2008). When responding to judges, potential jurors are more likely to give what they perceive to be “socially desirable” answers. Id. Of course, the socially undesirable answer is most useful for purpose of ferreting out attitudes that are “inconsistent with suitability to serve as a fair and impartial juror in the particular case.’” Cal. Civ. Proc. Code § 222.5. One mechanism that can be useful for eliciting these attitudes is the juror questionnaire. As practitioners in California, my firm routinely uses juror questionnaires to learn more about juror attitudes. Under California law, the court may require prospective jurors to complete questionnaires “as may be deemed relevant and necessary for assisting in the voir dire process . . . .” Cal. Civ. Proc. Code § 205(c), (d). The court may not “arbitrarily or unreasonably” refuse counsel’s request to submit a reasonable written questionnaire to the jury. Cal. Civ. Proc. Code § 222.5. As many practitioners across the country know, however, jury questionnaires and extensive voir dire in general is not always welcome. Even in California, some judges view questionnaires with disfavor. This is unfortunate. Questionnaires are far more dependable than oral interrogation during voir dire and are the best predictor of bias. Wedel, 7 Stan. J.C.R. & C.L. 293, 315. One reason for this result seems to be somewhat obvious – a juror may feel far more “safe” disclosing something he or she perceives to be socially unpopular in response to a questionnaire then in open court. This purpose – allowing potential jurors the freedom to express honestly held but socially undesirable feelings – is one of the main reasons that my firm typically seeks to use a questionnaire. In a lawsuit in which our client claims discrimination or harassment, our usual questionnaire includes, among other topics, a range of questions designed to elicit the potential jurors’ feelings about such claims. These questions include:
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Whether any of the juror’s employers had a claim of discrimination or harassment filed against them and what impact those claims had on the company or on the juror;
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Whether the juror has ever heard about someone making a claim of harassment or discrimination that the juror felt was not justified;
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Whether the juror or anyone close to him or her has ever been accused of discrimination or harassment against someone else;
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Whether the juror or anyone close to him or has ever been subjected to any form of discrimination or harassment;
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Whether the juror feels that discrimination or harassment is largely a thing of the past;
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Whether the juror thinks people use claims of discrimination or harassment as an excuse for their own shortcomings or poor work performance;
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Whether they have any ethical, moral, political or other beliefs or opinions that would affect the juror’s ability to be a juror.
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Whether there is any reason, no matter how small, why the juror would not treat both sides equally in a case alleging discrimination or harassment against an employee.
While some jurors provide perfunctory responses to these questions, a surprising number of jurors provide candid, apparently honest, 2 answers. It is in response to these questions that we discover jurors who believe that they have been subjected to discrimination themselves and cannot be impartial jurors for that reason; jurors who strongly believe that there is no race discrimination today and that anyone who complains about race discrimination is looking for a payday or trying to ignore their own shortcomings; jurors who have prejudices against the protected classification to which the plaintiff belongs. In two cases tried by my firm in 2011, jury questionnaires revealed pertinent information about juror bias that could have prevented the plaintiffs from getting a fair trial. In both cases, although the plaintiff was a lesbian, sexual orientation discrimination was not a claim in the case. Nonetheless, we knew that the jury would ultimately learn that these plaintiffs were lesbians and wanted to ensure that bias against gays and lesbians would not negatively impact the jury deliberations. In one instance, a juror expressed – repeatedly – very 2
There is always the possibility that jurors will exaggerate racial bias in order to avoid jury service.
strong bias against gays and lesbians, making it clear that he would not have been able to put aside his disapproval to fairly consider the evidence. It is certainly possible that this juror would not have felt so free to express his opinions had he been asked in open court. In the other case, a potential juror indicated that his church was involved in litigation involving gays and lesbians that was tying up church resources. During oral voir dire, the juror was not particularly forthcoming as to the level of his involvement. Subsequent internet research, however, revealed that he had much more personal involvement in the litigation than he had revealed while being questioned. In light of the juror’s lack of candor during oral voir dire, it is not hard to imagine that, absent a questionnaire, we would never have learned of this information. In both instances, these jurors were dismissed for cause. One of my law partners is brilliant at voir dire, and I have long been convinced that one of the reasons for this is that she is able persuade jurors to freely express their biases. She makes them feel okay about expressing those “socially undesirable” opinions, and that has proved to be an invaluable tool in jury selection. For the rest of us who not so skilled, there is the jury questionnaire, and hopefully, courts will become more open to their use in the future.
