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Opinions may vary depending on how you ask that question

Wednesday, July 3, 2013
posted by Douglas Keene

unanswered questions - brainstorming conceptWe spend a lot of time asking potential jurors questions and attempting to sort out just what their responses could mean about attitudes and values and beliefs as they relate to our specific case. So it was wonderful to see the new Pew Research Center article on how asking the same question results in different answers depending on how you have worded the question. As it happened, four different major organizations looked at the polarizing issue of the Department of Justice’s subpoenas of reporters’ phone records. CNN/ORC, Washington Post/ABC News, Pew Research, and FOX News all polled the public on the DOJ subpoenas. But, as you might expect, each organization asked the questions a bit differently and, as you might predict, each got a slightly different result. After the differing responses to the differently worded questions on the same issue were published, Pew Research wrote about the reasons ‘why’ each of the four major organizations had gotten the results they had.

The Pew Research article itself is so good and specific that we are not going to summarize it here. They talk about the importance of language, context, and of question order when you are trying to get clear information about how people feel about a specific issue. Suffice to say that while three organizations (CNN/ORC, Washington Post/ABC News and Pew Research) described the DOJ as having “subpoenaed”, “obtained through a court order”, or having “secretly collected” phone records, one organization (FOX News) used the phrase “secretly seized”–and had the most lopsided balance of opinion of any of the surveys. (Go read the Pew article!)  The Pew article describes the practice of “push polling” without actually calling it that.

The Pew article concludes as follows:

“Overall, while wide differences across polls suggest that public reactions may be only loosely formed, there is important information to glean from situations like these. There is likely a core of Americans who support the DOJ’s actions irrespective of the survey language (the 31% who say justified even in the Fox News survey). And another core who concretely oppose it (the 33% who say not justified in the Washington Post/ABC survey). And for the rest, there are clues as to the types of considerations that may affect their views if and when attention grows and information becomes more widespread.”

It’s an excellent reminder to carefully review your questions to potential jurors to ensure that the question achieves what you have in mind. Sometimes push-polling is what an attorney wants (although we aren’t fans of the practice, and neither are most judges).

This article focuses on wording questions in a “low information situation”. Specifically, what that means is that when not a lot is known, how you ask your questions can dramatically influence the responses. Most trials involve “low information situations” although there are obviously some where media coverage results in “high information” or “high misinformation” as the case may be.

Your goal is to ask the sorts of questions you believe will elicit the reactions desired and either to fan the flames of emotionality or to bolster the calm rationality of analytical thinking. Each side is going to attempt to give their jurors ammunition for the deliberation room. The Pew analysis shows just how much a turn of phrase actually matters.


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