Scaled Questions in Jury Selection

I often use a scaled question or two near the end of jury selection, and find such questions to be very useful tools for getting potential jurors to rate themselves (essentially, though not explicitly).

A scaled question is a question that calls for an answer on a continuum. For example, “On a scale of one to ten, with ten being most important and one being least important, how important is it to you that the guilty be punished? On the same scale, how important is it to you that the innocent go free?”

The example is a two-part scaled question; I would ask both questions at the same time, writing them up on the board for the panel’s reference. When the time came to deselect the jury, I would subtract the first from the second. I wouldn’t choose my strikes based solely on this number, but a negative difference (first number higher than second; “punish the guilty” more important than “free the innocent”) or a zero or one would be a warning sign that might make me reconsider a decision not to strike, or (more likely) solidify a decision to strike.

Scaled questions help to draw some information from those silent jurors who might not have said much during a general voir dire. They get information from people (even people who have not been warmed up with a proper voir dire) in a way that binary (yes/no) questions never will.

I have talked about the inutility of binary questions here. With binary questions, there may be only one “correct” (socially acceptable) answer. For example, when the judge in a federal case asks the panel “can you be fair?” (Federal judges’ voir dires being more worthless even than prosecutors’) everybody knows what answer she wants, and every person on the panel is going to give the judge the answer she wants. The answer to a binary question might lead to a challenge for cause (which a scaled question will never directly do), but only if the juror knows that socially deprecated answers are not “wrong” (see Getting the Jurors’ True Feelings).

With scaled questions, there may be a socially deprecated answer at one end of the scale, and the juror’s perception that this answer is “wrong” might skew his self-evaluation toward the other end of the scale, but there will still be several choices that might reveal something about the juror. For example, if he is asked to rate his feelings about a subject on a scale of 1-10 and his true feeling is a 10 (which he thinks is “wrong”), he can rate himself a 9 or 8. By contrast, if the juror is asked a “yes/no” question and his true feeling is “no” (which he thinks is “wrong”), he can only answer “yes.”
Many lawyers find jury selection an anxious experience. Adding some scaled questions to their repertoires, if they don’t already, should help eliminate the anxiety.

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