Holland & Hart - Persuasion Strategies

There is one question that is particularly important in the context of current high-profile jury trials in the midst of the continuing pandemic, but the question really applies to all trials: Why would we gather large numbers of people together in open court to assess their baseline experiences and attitudes, when we could gain the same information more efficiently using an out-of-court questionnaire? As a trial is preparing to get underway in Hennepin County, Minnesota, they’ve wisely decided on a comprehensive mailed-out supplemental written questionnaire, to be followed by three days of live questioning in small groups. The extra care is warranted, given that the trial involves the charges of murder and manslaughter against the four former police officers — Derek Chauvin, J. Alexander Kueng, Tou Thao, and Thomas Lane — involved in George Floyd’s death this past spring. It is safe to assume that nearly everyone saw Officer Chauvin pressing his knee against Mr. Floyd’s neck for more than eight minutes while Floyd repeated in his final moments that he couldn’t breathe.

The event touched off months of massive protests in Minneapolis and across the nation. Given that associated riots and looting also marred the summer, it is likely that relatively few, particularly in the Minneapolis area, who were untouched by the events. The court in this case rejected a change of venue motion, not on the basis of there being no cause, but on the basis of there being no real solution, with all Minnesotans likely being highly familiar with the situation. With the questionnaire now being in the hands of potential jurors (due on January 2nd for a jury selection to get underway on March 8th), I think it is worth taking a look at the questionnaire and drawing a few lessons from it. 

I have found that, when thinking of ideas for your own questionnaires, it is useful to review a lot of questionnaires. Looking at the questionnaire for the trial of the four former officers, it is comprehensive but not overwhelming, with 11 pages of questions. While many are the common questions about personal background, media usage, police contacts, and willingness to follow the law, there are a few unique elements of the questionnaire that are worth noting.

1. The Question Order Matters

It is noteworthy that the first question focuses on what respondents already know and believe about the case: “What do you know about this case from media reports?” It is important to ask this at the start, before possibly informing jurors, or priming them with the message that they can and should simply shut that information out and make a decision based on the facts presented. Similarly, questions about hardship and ability to serve are included at the very end of the questionnaire, after the potential jurors have had a chance to think about what the case involves and how willing they would be to sit as jurors.

2. The Question Format Matters

That first “What do you know” question is also phrased as an open-ended question, with jurors given a lot of space (an entire page) to write an answer in their own words. Further, the instructions read, “It is important for the Parties to know all of the details you remember,” and to “please take your time to search your memory and provide a full account of what you recall.” Finally, it adds a reason for potential jurors to be candid and thorough: “This will help to shorten the jury selection process.” It is also interesting that many of the “Yes/No” questions are phrased that way, but do not have “Yes/No” checkboxes. Instead, they simply leave an open space for jurors to answer. For example, Question 10 asks, “No matter what you have heard or seen about this case, and no matter what opinions you might have formed, can you put all of that aside and decide this case only on the evidence you receive in court, follow the law, and decide the case in a fair and impartial manner?” Following that with space to write an answer, instead of just checking a box “Yes” or “No,”  subtly nudges potential jurors toward a more nuanced answer. 

3. All Actors Matter

In a criminal case, the prosecuting party is the state, not the victim. That notwithstanding, the questionnaire is is correct in tacitly treating George Floyd — as well as the Black Lives Matter movement, and the larger protesting public — as parties as well. If a potential juror is motivated to oppose any or all of those actors, and see any or all as not worthy of legal protection, that could certainly help the defense. So, just as the questionnaire’s second question asks for positive or negative views of the Defendants, the third question asks the same regarding George Floyd. Latter questions ask about views and experiences regarding BLM and the protests. Potential jurors may know intellectually that criticizing the Defendants does not require praising the victim or the public acts surrounding his death. But it is still safe to assume that it is a bit like a civil case in the sense that the credibility of each actor matters.

4. Organization Matters

I often see juror questionnaires that consist of just one long list of questions. The Floyd trial questionnaire, however, is divided into six parts, and includes clearly labeled sections that address knowledge of the case, media habits, experience with law enforcement, and other issues. That may seem like a small thing, but it helps to keep the purpose of the questions clear and helps orient the potential jurors’ responses. The section headings also help to prevent burn-out to some degree, since each heading regains attention by announcing a new topic. The structure also helps your team in scoring the responses by grouping similar themes together.

5. Time Matters

It is noteworthy that potential jurors received the questionnaires in December, and will return them in January, but that jury selection will not get under way until early March. For the trial teams, and the jury consultants they are working with, that provides ample time to not just review the questionnaires, but to systematically analyze them and to score them based on cause and peremptory issues. It also provides ample time for the teams to supplement their understanding of each potential juror by comparing their survey answers to their own publicly available social media presence. While not everyone welcomes that inquiry, it is legitimate as long as it sticks to what is in the public domain. If a potential juror writes that they have no views on the killing, but also posts selfies from the protests, that discrepancy really should be known in advance by the two sides.

A final question that might be asked about this questionnaire and other questionnaires used in higher profile trials is this: Why not do this in every trial? Particularly with the pandemic, but even without it, there is no good reason to either spend too much time in open court addressing these issues, or to force the parties to operate with unknowns. Questionnaires are efficient, and lead to greater honesty. So why aren’t they used more often?  One reason we tend to hear from judges is that the parties are not asking for them, or the two parties can’t agree on a version. That’s a good reason to plant the seed early with the judge, and also initiate the process early with opposing counsel.

The other reason I sometimes hear from counsel is that they don’t want to hand a potentially useful tool to the other side. That can be an important consideration, but I generally see it as parallel to the ability to use demonstrative exhibits: Theoretically, the tool helps both sides, but you want to be the side that uses the tool more effectively.


Image credit: Lorie Shaull, Flickr Creative Commons