Former UVA lacrosse player George Huguely is charged with killing UVA women’s lacrosse player Yeardley Love. His trial is scheduled for February, 2012, in the Charlottesville Circuit Court. The media frenzy has been intense, and in the last few weeks there has been a lot of discussion about how the court expects to select a jury. In Virginia, a felony criminal jury consists of 12 people; with the trial scheduled for 2 weeks, it is quite likely that they will select at least two alternates. In the usual case, the court brings in 30 or 40 jurors; if it is more widely publicized case, the court may bring in 60 or 70 jurors. Apparently the judge has decided to bring in 300 jurors — about 10 times more than for the simple trials. Ordinarily, voir dire — jury selection — takes a few hours in Virginia; in a big case like a capital murder case, jury selection may take all of one day, but that is unusual. Everything about this case is expected to take longer; a typical Charlottesville murder trial may take 3 or 4 days, but it is scheduled for two weeks.
Both sides want to be sure that they know as much about the jurors as possible, and in particular they want to know what the jurors know about the case. It has been impossible to escape the media coverage, and the difficult question for any litigant in a case like this is to figure out what effect that media coverage has had on the potential jurors. (Of course, you always get some people who claim to know nothing of the case; in that case you have to decide whether you think the person is so oblivious that they really don’t know anything, or whether they are just lying because they want to get on the jury, or whether you care which it is.)
A lot of attention has been paid to the fact that Judge Edward L. Hogshire has agreed that there should be a jury questionnaire that each of the prospective jurors will complete. The lawyers will then review the answers and will fashion their questioning of the would-be jurors based on those answers. Judge Hogshire ordered a jury questionnaire in another high-profile murder case — the case of Andrew Alston, who in 2003 killed a firefighter and was convicted of manslaughter.
The Virginia Supreme Court doesn’t really like jury questionnaires.
Three weeks before trial, Strickler submitted to the court a two-page “Juror’s Personal Data Questionnaire” and moved the court to order each venireman to complete and return it before trial. The court denied the motion and noted that some of the questions on the questionnaire were impermissible and that others could be answered by reference to an information sheet returned by all prospective jurors.
The trial court ruled correctly. Strickler’s argument in favor of the questionnaire was that it would “save some time” at voir dire. As laudable as that aim might be, we think the use of a pretrial questionnaire would pursue it at too high a price. We observed in Pope v. Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352, 358 (1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 716 (1988), that “the trial judge has the opportunity, which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand.” For that reason, we entrust to trial judges wide judicial discretion in deciding the sensitive question whether a challenged prospective juror “stand[s] indifferent in the cause,” Code § 8.01-358, and we will not disturb the exercise of that discretion unless “manifest error appears in the record.” Pope, 234 Va. at 124, 360 S.E.2d at 358. To the extent a pretrial juror questionnaire would probe a juror’s attitudes outside the courtroom, it would detract from the trial judge’s “opportunity … to observe and evaluate … prospective jurors first hand.” In our view, the opportunity to see and hear the veniremen, when questioned during voir dire, is crucial to the effective discharge of the trial judge’s responsibility.
Strickler v. Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d 227, 232 (1991). Interestingly, the Court stopped short of saying to trial judges, “You can’t have jury questionnaires.” They said, “If you turn down a defense request for a jury questionnaire, we won’t reverse you on that.”
But anyone who has ever tried a highly publicized case knows how hard it is to select a jury in a circus atmosphere. In Virginia, the lawyers get very little information about prospective jurors — name, address, occupation, employer and age. Trial lawyers have two kinds of challenges to individual jurors. First, they can challenge for cause anyone who shows that he or she is biased. The easiest case would be a family member or close friend of either George Huguely or Yeardley Love. Or if the juror has already formed an opinion on the guilt or innocence of George Huguely. If a juror participated in one of the community meetings about dating violence held in the wake of this killing, or if he or she participated in a “Take Back the Night” candlelight vigil, that person might already have an opinion about the case. Anyone with an opinion already formed is subject to being excused for cause.
The second kind of challenge is called a peremptory challenge. Assuming that there are 12 jurors and 2 alternates, there will be 24 jurors qualified, and each side will be permitted to strike 5 for any reason at all (other than race or gender). In the usual case, the lawyers don’t know enough about the jurors to exercise these challenges as anything other than a guess or a hunch — “He didn’t look like he was happy to be here; she smiled at the prosecutor but didn’t smile at me.” In a case like this, going on that kind of a hunch is pretty scary. Whether or not there is a questionnaire, you can be sure that both sides will have researched the jurors as best they can. Google searches, criminal record checks, etc. If you were a defense lawyer, would you want to know if the prospective juror had a daughter the age of Yeardley Love? It would probably tell you a lot about the person to know if they got their news from Public Broadcasting or from Fox News. Of course, there is a limit to what can be done without starting to stalk the jurors. That’s where the questionnaire comes in handy. The questionnaire will not only allow the lawyers to learn information quickly and privately that will inform their decisions on challenges for cause, but it will also give the lawyers information necessary to make the peremptory challenges intelligently.
The exact questions being asked have not been publicly released, but based on past experience it seems likely that jurors will be asked a series of demographic questions, amplifying on the very slim amount of information that jurors give about themselves. For example, they will surely be asked about whether they have children, how old they are, whether any one in the family plays lacrosse, etc. They will then be asked a series of questions intended to find out whether they know anything about this case, and whether they have formed an opinion about the case. They are probably going to be asked a series of questions about where they get their news. About whether any member of their family or a close friend has been the victim of a violent crime. Whether any member of the family is a lawyer, or a law enforcement officer, or a psychologist or a corrections officer. Generally, the questions have to ask something that is at least vaguely related to the bases for a strike for cause.
For Judge Hogshire, the best part of this process is that to ask all of these questions to the possibly hundreds of potential jurors in open court would take days or weeks. But if the jurors answer the questions ahead of time, the actual time spent in court, in front of the Judge and tying up his courtroom and his time, will be cut way back. For the lawyers, the best part is that they get information well ahead of time, so that they can think about what they are doing instead of just reacting on the fly. For potential jurors, they will be assured that the information that they give on the forms will not be distributed or made publicly available, so there is at the same time a greater degree of disclosure and a greater degree of confidentiality.
The Virginia Supreme Court’s lack of enthusiasm notwithstanding, the use of a jury questionnaire can only help the effort to have a fair trial that doesn’t take forever.
