When jury trials start up again, one way or another, it is going to be a strange and potentially uncomfortable experience for the jurors. If reporting in person, they will be dealing with distancing, masks, temperature checks, hand washing and a risk of infection. Alternatively, if they are logging in to participate via Zoom or similar web-conferencing technology, then they will be contending with their own technology, and finding a location where they can sit alone for long periods of time in front of a screen. In either scenario, the ability and willingness of the juror to do what the process demands will matter.
We know already that this willingness isn’t evenly distributed across the population. Based on our own research and the research of others, those willing to serve are more likely to come from rural areas, to have less concern about the virus, to have less of a focus on the welfare of society, to be more individualistic, and to be conservative or a Trump supporter. In many to most cases, those jurors would be apt to see the fact pattern differently. Those who have the most comfortable time with web-conferencing are also likely to differ from the rest of the population in having greater than average income and education. From a systemic perspective, we certainly would not want trials where individuals opt in to jury service, as that is a recipe for radically unrepresentative juries. But from the perspective of the parties, we would not want to be blind to that willingness. You might assume that those who answer the summons and show up or log in for jury selection are those who are willing, but there is a clear difference between those who show up hoping to be excused, and those who are actually willing or even enthusiastic about serving. Reluctant jurors might have a grudge against the party perceived to have forced them to be there: the plaintiff asking for money, or the defendant who refused to settle and avoid trial. So, it pays to ask about willingness.
In this post, I will share a few illustrative voir dire questions focusing on three dimensions of juror willingness to participate in either in-person or online trials in the next few months. The questions are written for attorney-conducted oral voir dire, but could be adopted to a supplemental juror questionnaire, which is an especially good idea these days for either in-person or online juror participation.
How Comfortable Are You?
Here the focus is on the degree of personal acceptance the potential juror has with either physical or virtual presence for trial.
In-Person:
In the current state of the pandemic, how comfortable or uncomfortable are you with being here in a courtroom with others?
How comfortable or uncomfortable are you with the court’s precautions to minimize the chances for spreading the virus?
Did you debate whether you would respond in-person to your jury summons, or not?
Online:
How much or how little confidence do you have in your technology and your internet connection right now?
How much or how little confidence do you have in your own ability to control your technology?
Do you think you will or won’t have trouble isolating yourself in a room with nothing but this computer screen for company?
How Favorable Are You?
The issue here is whether the potential juror supports or opposes the method of holding trial at the present moment, whether that is in-person or online.
In-Person or Online:
Do you personally feel that the courts are right or wrong to continue to have a trial in this fashion?
Do you think that a trial conducted in this setting helps or hurts the idea of justice?
If it were up to you, would we continue trials in this fashion, or would we wait until the danger has passed?
How Motivated Are You?
The question here is how positive or negative their attitude is toward their own participation in a trial in this fashion, whether in-person or online.
In-Person or Online:
This is hypothetical, but if the jury system was based on volunteering rather than randomly calling people in, would you be one of those who volunteered?
If you are selected for the jury, is serving something that you think you would look forward to, or something you would dread?
Do you want to be on this jury? Why or why not?
Naturally, this wouldn’t be the bulk of your voir dire. The majority of your questions would focus on attitudes or experiences that would predispose the juror to bias based on the facts of your case. But, particularly given the unprecedented circumstances that courts now find themselves in, we can’t take juror willingness for granted, or see it as irrelevant.
