Not all questionnaires are equal

The Supreme Court has not addressed how juror questionnaires affect the public’s right of access to jury selection. But the answer may vary depending on how the juror questionnaires are used.

Some courts use questionnaires primarily for qualification purposes in order to help determine whether potential jurors are eligible and available to serve. Many courts send these “qualification questionnaires” out to potential jurors before issuing summons for jury duty. David A. Schulz, a media attorney at Levine Sullivan Koch & Schulz LLP in New York, described how “every district in the federal court is required to have a jury plan for selection of jurors. Some of that includes doing preliminary screenings, where you send something out to people by mail to see where they live.”

For example, the website for the U.S. District Court covering Seattle (Western District of Washington) says: “[I]f you recently received a Juror Qualification Questionnaire from the U.S. District Court, you are being considered for jury service. However, this is NOT a summons for jury service, therefore, you are not being called to report at this time.”

The website says the court uses these jury qualification questionnaires to obtain information about the potential juror so the court can objectively determine whether he or she is qualified to serve. The questions on such forms often seek to uncover whether the juror is a citizen of the U.S., of legal age and a resident of the county in state courts or resident of the district in federal courts. Depending on the jurisdiction, the questionnaires may also ask whether the juror can read and understand English or if there is any physical or mental impairment that may interfere with their ability to serve.

The information on juror qualification questionnaires is typically used by court clerks’ offices to determine if a potential juror is qualified for jury duty. According to Schulz, these types of questionnaires are generally considered “administrative documents,” and are typically not available to the press or the public. The lack of access to these documents has “never been a problem,” Schulz noted.

Sometimes courts ask prospective jurors to fill out questionnaires as a substitute for asking questions in open court. Occasionally such questionnaires are sent along with jurors’ summons for service, and are completed and returned by mail. Florida’s criminal court rules provide that the court clerk must make the questionnaires available to the parties for use during voir dire, upon request. Alternatively, the mailed questionnaires can be created for a particular case and mailed prior to beginning the in-court juror selection process.

Questionnaires may also be administered while potential jurors assemble for a particular case, but prior to being placed on an actual trial venire, the panel from which a jury is selected. Colorado law requires that questionnaires be distributed to jurors “on or before the first day of the term of trial.” Absent court order, the completed questionnaires are provided to the trial judges and counsel for use during the jury selection.

Alternatively, questionnaires can be distributed to potential jurors after the jury panel is created for a specific trial, but before in-court questioning begins. In each of these instances, copies of the completed questionnaires are typically distributed to the parties and the judge.

Schulz emphasized that these more detailed types of questionnaires are “absolutely” part of voir dire and thus presumptively open to the public. George Freeman, assistant general counsel of The New York Times Co. and co-chair of the American Bar Association Section of Litigation’s First Amendment and Media Litigation Committee, said he agrees. “They really are no different than the former way of asking questions in open court of a particular juror where everyone can listen,” and, therefore, should be open to the public, Freeman said.

Such questionnaires have traditionally been used primarily in high profile cases like the criminal prosecutions of Kobe Bryant, Michael Jackson and O.J. Simpson. Attorneys and judges face the high probability that potential jurors have already encountered information about these cases, and may have formulated biases and prejudices prior to setting foot into a courtroom.

In such cases, juror questionnaires can help expedite the selection process. As Schulz explained, “where you have to call a lot of jurors in and there is going to be a significant number who for one reason or another need to be dismissed for cause, a questionnaire is an effective way of screening the pool.”

The use of juror questionnaires has expanded into less publicized cases as well. Jury selection can be a time-consuming enterprise for trial courts and litigants who are, therefore, under increasing pressure, due to calendar congestion, to speed up all aspects of the trial. In hopes of “trying to make jury selection more efficient and find ways to minimize the time and effort spent sitting around the court room,” courts have begun using juror questionnaires, Schulz noted.

Montana’s Uniform District Court Rules reinforce this point, saying completed questionnaires “should be used so as to expedite the examination of jurors.”

“There is no hidden agenda here,” Freeman said, regarding the appeal of questionnaires to courts. “It is just a matter that you can get more information more quickly by having [potential jurors] fill out a form than by asking jurors individual questions. It’s really more a matter of efficiency than anything else.”

Although juror questionnaires are available for use, S. Douglas Dodd, a media and communications law attorney in Tulsa, Okla., said “ordinarily it does not supplant or replace standard voir dire questioning, it just shortens it.”

Questionnaires may also be a more effective way of eliciting honest responses. Jack Daniels, a trial attorney in Los Angeles, said questionnaires eliminate “peer group pressure.” Instead of feeling pressure to answer in conformity with one’s neighbor, potential jurors will be “much more forthcoming when they can answer the questions in writing,” he said.