By Amy Singer, Ph.D., Diana Greninger and Kemberlee Bonnet
Voir dire, or jury selection, is one of the most important parts of a trial. It requires careful, well-planned questioning. However, there are more factors to consider for voir dire than simply asking a question and receiving a response. Important variables pertaining to a given case require much more investigation. For example, social desirability effects and specific personality variables are highly important to detect during voir dire because those variables aid the litigator in understanding an individual juror’s information processing and individual cognitive style.
For many societal majority members, it is socially desired to appear unprejudiced. This includes the courtroom setting. For example, there is strong evidence in the psychological literature supporting that when a crime itself is racially charged, white jurors will be less likely to deliver a guilty verdict for a black defendant, but not for white defendants. When a crime is not racially charged, white jurors are more likely to deliver a guilty verdict to a black defendant, but not for white defendants.
White jurors try to appear unprejudiced, but research shows that if they are given a large amount of information to process, this will increase their cognitive load, causing any prejudice to slowly become apparent. By increasing cognitive load during voir dire through follow-up questioning, a litigator will be able to uncover suppressed prejudices.
Need for Cognition vs. Need for Affect
Some individuals are more disposed toward attention to detail. Individuals that engage in attention to detail in decision making have a higher Need for Cognition (NFC), meaning they enjoy making decisions that require effort, considering all relevant information presented or available. Individuals with a lower NFC tend to rely on mental shortcuts.
In contrast, some individuals’ emotions play a major role in their decision making. The role of emotion in decision making is described in the psychological literature as Need for Affect (NFA). Those with high NFA are more likely to recall more information from emotional messages, as opposed to messages that require reasoning. This is in contrast with individuals with low NFA, who strive to avoid emotions, especially extreme emotions.
It is important for the attorney conducting voir dire to distinguish these two variables and be able to recognize individuals exhibiting these two types of response patterns. How do you distinguish these types of personality variables via voir dire questions? By follow-up probing. For example, a question such as, “How many of you have ever seen someone suffer a violent death?” should be followed up by a question such as, “What are your thoughts or feelings about seeing someone suffer a violent death?”
By phrasing the question this way and asking individuals to choose to answer by expressing their thoughts or their feelings, the litigator will be able to distinguish jurors with NFC vs. NFA. Follow up further by asking, “Why do you think or feel this way?” In addition, when you ask an individual juror, “What do you mean by a violent death?” you are able to uncover that person’s individual operationalization of violent death. Finally, following up with “why” or “why not” gives insight into a juror’s value beliefs and decision making process. By doing this, you are uncovering elements that can help you to understand if that potential juror is a critical thinker, or an affectively-driven thinker, based on the elements of their response.
Follow- up questions provide a litigator with information of that individual juror’s cognitive trajectory. With some reasonable accuracy, this gives the litigator strategic input, based on how the follow-up questions were answered.
Open-ended follow-up questions provide higher quality information than closed-ended questions because they encourage the potential juror to talk. However, it is very important to pay attention to how open-ended questions are worded. If worded correctly, more information can be uncovered. For example, if a litigator asks potential jurors, “Do any of you…”, individuals are less likely to answer or raise their hand for fear of being singled out. However, if the litigator asks the question differently, such as, “How many of you…” then the jurors feel more comfortable answering the question when first asked because the juror will feel that there will be others in the group that are similar in that regard.
These are only a few examples of the way in which voir dire follow-up questions can and reveal more about the potential juror than his or her first response to a closed ended question or initial open-ended question. There are many potential mediating and/or moderating variables that are likely involved. More can be revealed by further examination of potential contributing variables.