How effectively does counsel and the court question potential jurors as part of the selection process? New research in the journal Language in Society (Clayman & Fox, 2025) provides some additional perspective on that question. The two authors, coming from the academic perspective of conversation analysis, reviewed transcripts from more than 100 question and answer sequences from four criminal trials in Arizona state court and one federal civil trial in northern California. The researchers found that the question styles tended to address “social desirability,” or the tendency for answers to be biased in the direction of a perceived “correct” or “normal” answer, in a few ways. Specifically, they observed that the questions tended to make indirect rather than direct references to bias, to diffuse responsibility for bias (attributing it to circumstances rather than individuals), and to frame biases as being minimal or unlikely.
One thing that stands out to me from their examples is how little of the questioning seems to be actually effective questioning, in the sense that the language is aimed at positioning jurors to “pass the test” rather than geared toward finding out what the jurors actually think. Most of the shared examples are fairly stock constructions:
- You could be fair and impartial…to both sides, is that correct?
- Is there anything about that experience you had that’s going to bias you in some way for or against one of the parties here?
- Is what happened to you going to interfere with your ability to hear evidence in this case?
- So you could listen to all the facts and keep an open mind as you hear the evidence?
The researchers acknowledge the strong role of social desirability in leading jurors away from what might be honest feelings of bias, but in the examples provided, the questioners are not only failing to minimize that tendency, but the questioners — not just the judges but the attorneys as well — are at times leveraging that desirability in order to get answers supporting fairness and an ability to serve. They do this by suggesting that bias is minimal, abnormal, and conquerable.
What also stands out as well is the absence of any noted difference between attorneys’ and the judges’ questioning. There should be a difference because their goals are distinct. Judges don’t want an obvious biased person serving on their juries, but at the same time, they’ll often have an implied perspective of “the faster we move through this stage and the more potential jurors we retain in the process, the better.” For attorneys, in contrast, the ultimate purpose is a strategic one. Advocates being motivated to maximize the number of negative or questionable jurors (for their side) who are removed for cause. Attorneys should not model the judge’s style of questioning, but based on the examples in this research, it appears that they do.
The researchers mention three phases of individual questioning: a problem identification phase (where an area of possible bias is identified), a juror self-disclosure phase (where the panelist shares their relevant opinions or experiences), and then a juror self-assessment phase (where they ultimately say whether they can be fair or not). If we see the process as simply diagnostic and not strategic, and if we trust juror self-assessment, that might be the sequence. Given that attorneys have a strategic goal, and given that the social science gives us plenty of reasons to doubt the validity of juror self-diagnosis and the “rehabilitation” process, I believe that effective voir dire for attorneys will involve three different purposes overlying these phases, with the attorney flexibly shifting between these purposes as the situation requires.
Purpose One: Context
In the first goal, attorneys want to set a context for candid self disclosure, to try to undercut the notion that potential jurors are just there to affirm their fairness as the correct response. Instead, the message for the individual being questioned, and for the whole group, is that this is a time to honestly share your views or experiences without worrying about what is correct or what the court expects. Language to set this context might include the following:
There are no wrong answers here…
Complete honesty is very important to this part of the process.
We don’t want you to hold back or to just give us the answer that you think we expect…
There are cases where I would not be the right juror for…
Purpose Two: Diagnosis
In this second purpose, the point is to diagnose whether a potential juror’s attitude or experience is a concern or not. At least initially, it is the questioner’s job to make that diagnosis, not the juror’s. Open-ended questions are going to be best at this stage of exploring possible bias:
How do you feel about that?
Tell me more about that.
In what ways might that affect you?
There is an important principle at work here: Do not lead them until you know where you want them to go. At this point, you don’t know if they’re bad for you or not, so let them talk without prematurely going to the “Can you be fair?” question.
Purpose Three: Strategy
In this final and ultimate purpose of the questioning, once you have determined that a potential juror is unfavorable for you, the questioner should shift to closed-ended questions that are designed to confirm that bias by leading the juror toward that conclusion. In a recent post, I pointed out five steps toward locking in the challenge, and these steps can be seen as building on this strategic purpose. The basic goal is to frame the question so that it points them toward, not away from, the position you expect them to take, making it easier to acknowledge the bias rather than to disavow it:
So I would be correct in thinking that this would be difficult for you to set aside?
From what you’re saying, it sounds like the other side might have a bit of a head start from the get-go, is that right?
So, do you think this might not be the right kind of case for you?
If the potential juror is good for you, of course, then this questioning style would flip, focusing on rehabilitation rather than the cause issue.
Note that, as the purpose shifts, the style of questioning shifts as well – moving from modeling questions to set a context, to open-ended questions to discover possible issues, ultimately ending with closed-ended questions to confirm the juror’s eligibility or ineligibility. But at all points, attorneys should be asking with a purpose.
____________________
Image credit: Shutterstock, used under license
