Seeking a Fair American Jury Trial: Using Jury Questionnaires to Identify Bias
By: Sufia M. Khalid
The right to a fair jury trial is guaranteed by the Fifth and Sixth Amendments to the United States Constitution. Duncan v. Louisiana 391 U.S. 145 (1968). In an increasingly polarized and politicized society, it can be difficult to secure access to a fair trial. In the criminal justice system, this is particularly true. In post-9/11 America, the layers of biases against Muslim men and women add a weighty complexity for attorneys to consider.
Selecting an unbiased jury is critical. In our criminal defense department, we primarily handle cases of Muslim American defendants charged with national security-related federal offenses. These cases present extreme examples of the sensitive nature of the charges in the United States and the attitudes towards Muslims in society that necessitate thorough juror examination.
At trial, attorneys are given limited ability and information to select a jury from members empaneled at random from the relevant jurisdiction. Limited judge-led questioning, often with some time for attorney-led questioning, is assumed to be sufficient to identify potentially biased, conflicted, and unsuitable jurors. But that is wholly inadequate for many cases where politicized, racialized, and other sensitive biases are at play (e.g. terrorism-related cases of Muslim defendants). Thorough questioning which encourages members to answer candidly, free from the pressure of sharing their beliefs in front of strangers, which also increases court-efficiency, is a remedy with meaningful results.
The Supreme Court has long recognized the usefulness and efficiency that a jury questionnaire can bring to voire dire, and gives wide latitude to trial judges in how to conduct voire dire. Rosales-Lopez v. US 451 U.S. 182 (1981) (noting it “has long been the rule that judges have been accorded ample discretion in determining how best to conduct voire dire.”) Many trial judges have noted the usefulness of juror questionnaires and in practice they have provided invaluable and critical insight into juror biases that would likely have never come to light in the traditional voire dire process.
In one of our jury trials we received numerous questionnaire answers about anti-Muslim bias that were surprisingly candid and unlikely to have been discovered in open voire dire where jurors tend to mimic those around them. Several jurors stated they believed Muslims were more violent than others because they believed Islam was a violent religion that preached violence and hate towards non-Muslims. Others stated that Muslims who had made anti-LGBTQ statements (that would be admitted in trial) were products of a hateful and intolerant faith, and considered them radical and un-American. Still others said they would not trust Muslims or their testimony because they understood that Islam taught that it was okay to deceive and lie to non-Muslims. These jurors were successfully challenged for cause, or identified for peremptory challenge.
This is why seeking a juror questionnaire is helpful in cases involving sensitive and politicized charges or defendants. The right to exclude biased jurors is meaningless in the absence of a reasonable system for identifying such jurors. See e.g. Turner v. Murray, 476 U.S. 28 (1986) (interracial crime); Aldridge v. United States 283 U.S. 308 (1931) (exploration of racial prejudice); United States v. Baldwin, 607 F.2d 1295 (9th Cir. 1979) (bias in favor of law enforcement officers). Courts have granted a joint jury questionnaire in many of our cases. See United States v. Georgianna Giampietro 640 F.Supp. 3d 612 (M.D. Tenn.); see also United States v. Jason Fong, 8:20-cr-00146 (C.D. Cali.).
Juror questionnaires are not as commonly used as they should be, so the path to securing one can be difficult. In our terrorism-related cases, we have had the most success by writing out a juror questionnaire that has questions we want answered, and including some questions that opposing counsel may want answered (in our cases these are typically questions that would identify anti-law enforcement bias). This questionnaire is then attached to a Motion for a Juror Questionnaire. In the Motion for Juror Questionnaire we explain the areas of bias unique to our case and why they present a real risk of juror bias. For Muslim clients, it is helpful to cite to studies like: “Republicans Prefer Blunt Talk About Islamic Extremism, Democrats Favor Caution” which shows that views toward Muslims have become increasingly polarized along political lines; and “What Americans Know About Religion: Feelings Towards Religious Groups” which shows that Americans rank Muslims as the religious group they feel the most negatively towards. These types of studies support the motion for a questionnaire by educating and alerting the Court to the real likelihood of significant bias in the jury pool.
Identifying the benefits to the Court of using a questionnaire is also important. These benefits include: improving efficient use of court time and resources by allowing Courts to quickly parse prospective jurors without the need for individual questioning, avoiding tainting the jury if a potential juror reveals they were exposed to news media about the case, and quickly identifying jurors who would be challenged for cause and allow the Court to review those answers without provoking the threat of jury pool contamination. In our cases we have seen jury questionnaires reduce the length of time required for jury selection in these cases from three days to just one day. This was because frequent sidebar conferences were avoided for the significant number of jurors who indicated some degree of bias and thus would have required additional private questioning.
It is often a three-way negotiation process with opposing counsel and the Court in coming up with an appropriate questionnaire, but that process is worth the effort and if done well can be an invaluable tool in rooting out anti-Muslim bias from a jury trial.
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By: Sufia M. Khalid
Federal Criminal Defense Staff Attorney at the Constitutional Law Center for Muslims in America (MLFA’s legal division). Ms. Khalid works on national security prosecutions brought against Muslim defendants which include novel constitutional issues, prosecutorial overreach and discrimination, and FBI entrapment. Learn more about MLFA’s work here: Our Cases - MLFA