January 2009, Page 36

An Unbeatable Combination: Mock Trials and Written Questionnaires
By Carolyn S. Koch

There have been numerous articles throughout the years about the importance of using a written questionnaire in white collar criminal cases during jury selection. The various authors cover important issues including logistics and how to increase the chances of getting a judge to allow the use of a questionnaire. Never included in these articles, however, is any mention of the most critical aspect of using questionnaires effectively: using the results to identify the juror biases and attitudes that are most helpful and harmful to one’s client.

It is typically assumed that the moment juror biases are revealed, experienced lawyers will automatically know which biases they want to include or exclude from their jury. I have seen time and time again that it is never that obvious and, more often than not, lawyers will rely on untested assumptions to their detriment. For this reason, in a high-stakes white collar defense, while it is critically important to use written juror questionnaires, they should not be used in isolation. Instead, questionnaires should be used in conjunction with mock jury research such as focus groups and mock trials.

Cost of a Mock Trial Is Not Unreasonable
While the juror questionnaire tells you what jurors think, the mock trial tells you what jurors think about your case. Using both tools together is an unbeatable combination. If you do your homework and do the right kind of jury research project for the right price, you will learn the truth — that the cost of a focus group or mock trial is far from prohibitive especially in light of its strategic benefits. First of all, lawyers can do mock trials themselves. When the stakes are high and the resources are available, however, I do not recommend that route. Nonetheless, if lawyers take the time to do it right, they can obtain extremely helpful feedback on their own, costing them nothing more than their own time and the monetary payment to the mock jurors. Second, lawyers should be savvy when thinking about working with consultants and should not waste money on bells and whistles they do not need. Lastly, there are reputable trial consultants who are willing to provide their services on a pro bono basis.

In fact, that’s exactly what I did in a recent, high-profile white collar case. I saw the true injustice and was willing to jump on board to help. The defense was tricky because almost everything that could have helped the defendant was deemed inadmissible. We needed to see if laypersons would be able to acquit the defendant with only half of the story. We also needed to know if there were jurors who — based on their life experiences, attitudes, and biases — would be more likely to convict or acquit. The court had already granted permission to use a written questionnaire, and it was finalized before our scheduled mock trial. Since the litigants viewed this case as political, the juror questionnaire focused a great deal on politics, probing deeply into the views of the jurors about the Bush administration and the threat of terrorism, among other relevant issues. We used the mock trial to test our theories, not only about the case, but about which juror attitudes could either help or hurt us.

Significantly, the majority of mock jurors — no matter who they were or what they believed — wanted to acquit the defendant. That was excellent news for us, especially since it was the first time that the defendant received any truly objective feedback vindicating him. Equally significant is what we learned about the attitudes of the jurors: No matter where they fell along the political spectrum — whether they were impassioned zealots or totally apolitical — their political beliefs and criticisms about the Bush administration and the War on Terror had absolutely no impact on the outcome.

We knew politics had no impact on the outcome because all of our mock jurors filled out “preliminary attitude questionnaires,” which were designed to approximate the real voir dire questionnaire. With regard to the small minority of mock jurors who wanted to convict, we saw that among their many responses to the preliminary attitude questionnaire they shared three discrete biases in common. While I would like to disclose the three biases that made these jurors the absolute worst for the defendant, I will refrain from doing so since the government continues to prosecute these cases. (Let them do their own homework!)

Strategic Game Plan For Jury Selection
When it came time to de-select the jury in federal court, we knew exactly who we needed to get rid of and why. With beautiful simplicity, we eliminated every potential juror with the same triad of troubling attitudes we uncovered during our research. This was critically important because we had approximately 100 completed questionnaires and each contained more than 100 questions. We could have easily been sidetracked by dozens of irrelevant biases. Instead, our mock trial research gave us a clear game plan for jury selection. Because the mock trial replaced the typical speculation with solid answers about juror profiles, we saved ourselves from squandering peremptory challenges on juror biases that, in the end, proved meaningless.

Attaining Victory
Despite the fact that the U.S. government seemed to have its own trial consultant during the jury selection, I am pretty sure that our opponents did nothing more than their own brainstorming in their effort to understand which juror biases would help or hurt them. I say this because during jury selection we reached a point when the jury exceeded the defense’s wildest hopes for “ideal.” At that point, both sides had four peremptories left. It was the government attorneys’ turn to exercise a strike. Instead, they told the court they were satisfied with the jury. I was giddy in disbelief. I could not believe they left some of those people on the jury. But then I realized that our opponent, the U.S. government, did not know what we knew. After a four-week trial, the real jurors acquitted the defendant in one day of deliberations.

After the acquittal, I reviewed all the juror questionnaires, looking for reasons why our opponent was happy with that panel. It appeared that the government started out its case believing that Bush-hating jurors would convict the defendant. Eight of the 12 jurors held very negative views on George Bush and his administration, while the remaining four jurors indicated “no opinion” or “neutral.” None of the jurors indicated a positive view. It seemed the government started out with this belief and never altered its course. The defendant, however, totally out-gunned by the government’s unlimited resources, was able to use the right tools to identify the true issues that made a difference to jurors, both in the mock trial and the real trial.

Had the defense team relied solely on the juror questionnaire to save the defendant, the case might have resulted in a conviction. We would have had no choice but to rely on untested assumptions about the biases of the jurors. The defense would not have learned the counterintuitive information about which juror biases would help or hurt. We would not have had the edge during jury selection — an edge that resulted in the government unwittingly retaining jurors we knew would help us the most. Without that edge, I do not believe we would have experienced such a decisive victory.

Optimizing Questionnaire Efficiency
Juror questionnaires often get a bum rap for being inefficient. The real jury mentioned in the example above was seated in less than six hours, despite a lengthy questionnaire and the fair amount of media exposure associated with a four-week trial. All prospective jurors had come into court on a previous day, a few weeks earlier, to fill out the questionnaire. When all questionnaires were completed, both sides received copies to review.

We worked with opposing counsel in order to agree on a list of jurors who would be excused for cause. For purposes of efficiency, before the jury selection starts, make sure the clerk has truly eliminated the agreed-upon “for cause” jurors. We noticed with dismay that many of the jurors we agreed to dismiss were still in the pool. The judge was frustrated and assumed that we failed to agree to get rid of unsuitable jurors, but this was not the case. I also recommend attorneys keep the marked up “excused” jurors’ questionnaires with them. In this instance, when these jurors were accidentally included by the clerk in the panel, we were able to conduct the appropriate follow-up that resulted in their ultimate elimination.

Questionnaire Format
Optimal efficiency also depends on: (1) how well-written the questionnaires are, (2) the degree to which jurors can explain their answers on the questionnaires, and (3) whether sufficient pretrial time has been set aside for counsel to review the questionnaires thoroughly. For example, if a questionnaire focuses mostly on “yes” or “no” responses with no opportunities for jurors to explain their opinions, the litigants learn too little about the views of the jurors and will still need to engage in substantial follow-up voir dire. But when a questionnaire allows jurors to freely express themselves on key relevant issues, the litigants will have a solid understanding of each prospective juror. When counsel can easily identify all problem areas in advance, follow-up can be eliminated (because counsel already can tell who and what the problems are) or simply handled in a surgically precise manner.

Obtaining Permission to Use the Questionnaire
There are several ways to increase the chances of getting permission to use a written questionnaire. The conventional wisdom is that lawyers should ask for a questionnaire when they can convince a court that the case is uniquely complex or has suffered the glare of media exposure. However, there is no reason to artificially limit the request to these two narrow scenarios. If a lawyer is picking a jury in a jurisdiction that allows for no meaningful oral voir dire, and the case is important (rather than “complex”), that is reason enough to consider asking for a written questionnaire. I have been repeatedly pleased by judges who are willing to try something different, as long as they are convinced it will improve the process without increasing headaches.

Don’t wait until the last minute. First, it is important to make your request early on. Then, at a very minimum, you have time on your side. Second, while most judges want to avoid giving attorneys carte blanche during jury selection, judges — just like the rest of us — can see the same frustrating patterns repeating themselves in every jury selection. For example, in longer cases, judges often summon a much larger panel of jurors to convene for jury selection. But larger panels mean fewer jurors speak up, and this means more biases fall through the cracks. Harmfully biased jurors (from a judge’s perspective) can gum up the works by causing a mistrial. Discussing and defining these kinds of potential problems with the court, well in advance of your trial date, is an excellent starting point to gain approval.

Spell out the logistics for the court. The key to the most successful use of a written questionnaire is ensuring that the jurors have enough time to fill it out and the attorneys will have enough time to review the responses. If you spell out the logistics and help the court envision exactly how a questionnaire will work, and show that it will improve the jury selection process in the case, you are more likely to get your request granted.

Work with opposing counsel. When both sides work together in a non-adversarial way to ask for and create a useful questionnaire, the chances for approval will be increased. The best questionnaires give both sides what they want, which in no way means you give up the tactical edge (that comes from your ability to wisely interpret the information that has been revealed to you).

Be mindful of questionnaire length. Crafting a questionnaire is a collaborative effort. Despite counsel’s intentions to keep it short, once it incorporates what each side wants, 10 pages can quickly become 20 pages or more. Keep in mind that the best questionnaire will give jurors ample opportunity to explain their views and experiences. But if the questionnaire is too long, writer’s cramp and fatigue will set in, causing jurors to start giving you less complete and less thoughtful answers.

Lawyers often err, however, by trying to make a questionnaire too short. Ironically, a short questionnaire is not more efficient because it will not eliminate or reduce the need for substantial in-court, oral voir dire. If the questionnaire takes jurors 10, 15, or 20 more minutes to fill out, so what? If a questionnaire requires you to put an extra ream of paper in the copy machine, that does not slow down the wheels of justice.

A questionnaire that contains approximately 50 questions, with ample opportunity to explain responses, gives counsel a solid feel for the jurors. In every questionnaire experience I have had, my views for each juror were 95 percent solidified before I ever laid eyes on him or her in court. Once in court, because our questionnaires were comprehensive, we were able to quickly hone in on the problem areas and conduct surgically precise follow-up without having to worry that areas of biases were being missed. This is not to say that you can select a jury blind, based only on the questionnaire, but a good questionnaire gives the lawyers almost everything they need, without wasting any in-court time.

The Kinds of Questions to Include
A mock trial is the best tool to use in determining the most effective questions. But whether or not you have a mock trial under your belt, at a minimum a questionnaire should cover hardship issues, employment details, some “world view” information, relevant experiences, and opinions about relevant issues. When I craft a questionnaire with lawyers, I have found that they tend to be more interested in relevant experiences (“Have you ever been a victim of a crime?”), while I tend to be more concerned about relevant opinions (“Do you think our criminal justice system treats crime victims fairly or unfairly?”). I find opinion questions much more helpful because, as we all know, people can have very strong opinions without having any associated personal experience on the topic.

I also find that lawyers want questionnaires to include details about a prospective juror’s family members and children. In my opinion, this information can take lawyers on the wrong track and can be very misleading. While it may be true that a juror’s opinions can be influenced by a spouse, parent or child, it is more likely true that the best indicator of a juror’s opinions is that juror’s own opinions.

Allowing Jurors to Explain Their Answers
If a questionnaire only focuses on a “yes” or “no” response, it is completely useless and a poor substitute for oral voir dire. It is in the explanation where you learn a juror’s true views. Let’s look at a juror’s responses to questions in a criminal case.

What is your general opinion about how our justice system treats criminal defendants?

Generally positive __Generally negative __ Neutral __

The juror checked off “generally positive,” but in his explanation wrote, “Been in the jail for work. No problem. Three square meals, T.V. (cable) (sometimes better than me).” His “generally positive” answer really meant that he thinks criminal defendants are treated too well (“sometimes better than me”).

In your opinion, what do you consider to be the biggest problem with the criminal justice system — in other words, what bothers you most?

He answered: “That’s for the jury to decide.”

In your opinion, what is the best feature about the criminal justice system?

His answer: “We the people.”

Those three answers (in addition to his many other answers) painted a picture of a man who does not like to see criminals treated better than law-abiding citizens, but also believes in the power of the people to make sound judgments. This indicated that he was not likely to be the type of person bowled over by the power of the U.S. government.

While that juror’s answers were concise and to the point, lawyers reviewing his answers could still get a sense of his views, his values, and the issues that potentially could push his buttons.

Other jurors responding to questionnaires have more to say. Understanding people who are verbose takes less skill. The following questions and responses are from a public corruption case.

Are you generally satisfied or dissatisfied with how the criminal justice system prosecutes and punishes people for white collar crimes?

The juror answered: “Generally dissatisfied. They usually do some jail time but never make restitution to the people they steal from and hurt. These white collar criminals go on with their lives and don’t feel any remorse.”

Do you have any general opinion about the trustworthiness of elected officials?

The juror answered: “Negative opinion. I feel most elected officials are untrustworthy.”

Based on what you heard or read in the news, have you formed any opinions or drawn any conclusions about the defendant’s innocence or guilt in this case?

She answered: “Yes. I feel he is probably guilty from what I’ve heard.”

Could she presume the defendant innocent and follow the court’s instructions?

The defendant is presumed innocent and cannot be convicted unless the jury, based on all the evidence, unanimously decides that his guilt has been proved beyond a reasonable doubt. The burden of proving guilt rests entirely with the government. The defendant has no obligation to prove his innocence. Would you have any difficulty following these rules?

Her answer: “No” (as in no difficulty). “I would do as the government wishes.”

Obviously, the ease with which she believed she could follow the court’s rules did little to assuage the defendant’s concerns. Also obvious is how a juror’s own words give counsel the information needed to properly assess biases along a continuum. A juror who says “we the people” and “that’s for the jury to decide” is entirely different from a juror who says she would “do as the government wishes.”

Questionnaire responses also demonstrate the futility of the current practice during oral voir dire in which jurors themselves are asked to do their own internal assessment of whether or not they can be fair. If a fair jury is the stated goal, then the ultimate question of fairness must be determined by counsel and the court, not by prospective jurors.

When prospective jurors can only answer “yes” or “no” to written questions without any explanation, it is too easy for them to misunderstand the question, and too easy for counsel to misinterpret their answers. A juror’s reaction to the Fifth Amendment is a perfect example because so many ordinary and relatively “fair” people have the natural expectation that innocent people would want to testify while guilty people would be afraid to take the stand. It is only a small minority of people who readily accept and understand the Fifth Amendment’s purpose.

Consider these Fifth Amendment questions that we included in a questionnaire.

Do you believe that a defendant in a criminal trial should be required to testify?

The juror gave the correct answer by stating “no.”

Do you believe that a criminal defendant who is also an elected public official should be required to testify?

The juror again gave the correct answer by stating “no,” but here she elaborated. “Required, no (under the Fifth Amendment) but should he? Yes [emphasis in original]. He has another responsibility and that is to uphold the integrity of his office.”

Would you have any problem following [the judge’s instructions concerning the Fifth Amendment] if the defendant chose not to testify at trial?

This juror indicated that she would have “no problem” following the judge’s instructions, but in the explanation section she wrote, “But I still would be of the opinion that he should testify.” (She underlined the word “should” three times for emphasis.)

A different juror answering the same questions gave the same answers, but his explanations depicted an entirely different view. He said, “They have to be proven guilty for the system to work.” (He underlined the word “proven” three times with a dark and intense scribble.) For the next question, he explained: “If the evidence can prove the guilt of a person, then that should be all that is needed.” For the last question, he stated: “If the evidence can’t prove guilt, then the defendant testifying would be trying to prove his innocence.”

There are jurors whose opinions seem to be based on a misunderstanding of the question. Compare the above responses to a different juror who responded that he believed a defendant in a criminal trial should be required to testify: “To hear his side of the story.” When asked if a criminal defendant who is also a public official should be required to testify, he answered: “Everyone should testify.” This juror’s responses are not clear. Does he think it is an issue of fairness — that it would be unfair to a defendant if he did not testify? Does he think that the system allows for “special treatment” for public officials? Rather than assume jurors understand their duties on these critical issues, a questionnaire gives jurors the chance to express their concerns and doubts, which gives the court and counsel the chance to assess whether a juror is uninformed or clearly biased.

Assessing Bias Along a Continuum
All jurors have a variety of biases, and not all biases are created equal. When you have approximately 100 written juror questionnaires, seeing the unique or stand-out opinions is another tool that helps you better assess a juror’s pros and cons. Allowing jurors to explain their beliefs is the only way to fairly and accurately gauge biases. After all, like beauty, bias is in the eye of the beholder. These examples taken from actual questionnaires prove that mere “yes” or “no” questions (with no opportunity to explain) allow jurors to hide their biases. The examples also show that jurors willingly and openly share their biases if they are given the chance.

Questionnaires, when properly crafted and used without the benefit of jury research, will certainly give you a solid feel for a juror, the juror’s life experiences, and perhaps the nature of the juror’s biases. But the danger here is that strongly articulated biases that are demonstrated in a questionnaire can easily take you off track if you have not done any prior research. In the example given in the beginning of this article, our mock trial research told us definitively that strongly negative attitudes about George Bush and his administration were a red herring. If we had not known that, we might have been alarmed by strongly worded biases, such as the juror who wrote, “After 9/11, [Bush] went after Iraq under false pretenses. I believe he lied to the American citizens.” Because of our research, we knew that attitudes about George Bush and his administration would have no impact on the decision-making of the jurors. This allowed us to make a fuller assessment of this particular juror’s pros and cons and identify him as a positive juror — one that we wanted. He turned out to be the foreperson, helping lead the jury to an acquittal.

The lesson to remember in this instance is that the additional voir dire information gleaned from a written questionnaire still does not allow you to better predict the outcome of a case. Nor does all that additional juror information
provide a guarantee that a particular juror will lead you to victory. Many lawyers have had the experience of pinning their hopes on the “best” juror who ends up being the “worst” juror. This is why it is so critical to use a mock trial in conjunction with a written juror questionnaire. That is the only way to identify and understand one’s best and worst case issues, and the best and worst juror profiles. When lawyers experience jury research, they will inevitably remember three important lessons that are intuitively known but routinely forgotten: (1) laypersons almost always see the case differently than lawyers do; (2) untested assumptions are more often wrong than they are right; and (3) knowing this before trial is often the difference between victory and defeat.

Understanding the True Costs and Benefits of Mock Trials
Nothing is more valuable to the defense than getting objective lay feedback before trial. And the fact that it is valuable does not mean that it costs an arm and a leg. Lawyers often assume the costs are prohibitive and as a consequence, they fail to give clients the opportunity to even consider how mock jury research can help their overall defense. In several cases in which I was involved, family members insisted on doing a focus group. These were ordinary people — not wealthy executives — faced with the prospect of losing a loved one through a criminal conviction.

For example, I did a small, one-jury panel of 12 jurors in a gruesome death penalty case where a toddler was beaten to death. The toddler’s mother’s had a boyfriend. The boyfriend actually confessed to the crime, only later to say he was trying to protect his girlfriend. Making matters worse, he was an unemployed amateur pornographer. In our mock trial, we had a video that showed the toddler, the defendant, and the girlfriend interacting during the Christmas holidays. Jurors’ reactions to this video were visceral. They saw the defendant kindly interacting with the child; they felt that the mother looked cold and detached. From the video alone, jurors deduced that the girlfriend was insecure, especially because of the defendant’s avocation of taking pictures of naked women! Jurors felt that the girlfriend cared more about the boyfriend than her own child. As a consequence, to the jurors it was entirely believable that the girlfriend was behind the beatings that became fatal.

The government had been planning to portray the girlfriend as a victim. The mock trial helped us see that such a strategy was likely to backfire. But it also showed that there was going to be some level of culpability for the defendant. All of this feedback gave the defendant and his lawyers the information they needed to strategize for the best possible result. In the end, the defense lawyer was able to negotiate a sentence of 25 years, which was the most successful resolution of a capital case to date in that state.

Key Ingredients for a Mock Trial
There are many different ways to conduct jury research, but if jury selection is inevitable, structure the project so that juror biases that will help or harm the defendant can be identified. To do this, there are a few key ingredients. First, you need truly representative jurors — not paralegals, family members, friends, people from the unemployment office, or the retirement home. You need jurors from the community who represent a fair cross section, and who are screened for biases in a way that approximates a real voir dire. There are lawyers who do this themselves, have paralegals do it for them, or hire consultants to help.

Second, you need to use enough mock jurors so that any attitude patterns can be revealed. A project using only eight to 12 people will be useful in preparing or resolving your case, but it is not large enough to reveal patterns about juror biases and attitudes that can help during jury selection. To discern if outlying jurors (the best and worst) share opinions (or any other identifying features) in common, find at least 20 jurors. Third, you need to ensure that jurors hear a balanced case presentation for both the defense and the prosecution. Too often, lawyers in the thick of the battle have blinders on and cannot easily formulate the best arguments against the client. Working with a knowledgeable outside consultant (or other lawyers who can truly see the other side) can often give you the objectivity to ensure that you are testing out the worst-case scenario.

Using a Mock Trial to Prepare for Jury Selection
It is not enough to throw all the facts at a group of people, watch and listen to them deliberate, and then walk away feeling as if you know the answers. Surface observations of how mock jurors respond to a case will not help during jury selection. To gain a strategic advantage during jury selection, you want your mock jurors to fill out “preliminary attitude questionnaires” that are relevant to what would constitute ideal voir dire. Mock jurors should continue to fill out questionnaires throughout the research project, sharing their private opinions at key junctures.

Before mock jurors deliberate, it is critically important that all jurors fill out a comprehensive questionnaire concerning every evidentiary issue and argument. Think of it as a detailed verdict form, but filled out by individual jurors. That way, the defense will end up with a blueprint of the strongest issues that can unite jurors, no matter who they are and what they believe. You can also identify those issues where there is rabid disagreement. Having such a blueprint allows you to study the minority of jurors who either favor or disfavor your client, and re-strategize your case so you can make the most of your best issues.

Finally, the mock jurors should have the opportunity to deliberate to a verdict. Here is where you can see how the rigors of deliberation impact the individual decisions of jurors. Moreover, this is where an attorney can see which jurors prove to be the best and the worst. Because you have individual juror responses to the preliminary attitude questionnaires, you will be freed from the dead-end judgments wrought by surface observations. Instead of looking at your best juror (a young female) and concluding, “Young females are what I need,” you can look at your best (and worst) jurors’ attitudes, biases, and beliefs that were shared before they heard the case. This is the most effective way to understand the best and worst jurors. Knowing this information before trial allows counsel to mount the best defense overall and craft a voir dire questionnaire that can truly make a difference in the client’s ability to win an acquittal.

Is there some way I can get lay feedback about this case so that I can prepare the best possible defense or prepare my client for a realistic risk assessment? This is the bottom line question a defense attorney should always ask. Lawyers who have experienced mock trials and focus groups have found that there is no better way to prepare for trial than to learn how real people are likely to judge a case.


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