Law.com

ABA Wants to Put Jurors on Active Duty

Leonard Post
The National Law Journal
08-10-2004


Incoming American Bar Association President Robert J. Grey Jr. is starting his one-year tenure with a bang, launching a major revision of jury standards.

In what he has described as a "massive undertaking," the new and revised standards now being drafted will likely transform jurors from passive observers during the trial process to active participants -- a direction that some states have already taken.

Among the provisions on the table:

• Jurors questioning witnesses.

• Jurors discussing evidence as a civil trial unfolds.

• Return to jury unanimity and 12-person juries.

Expansions of challenges for cause and reductions in the number of peremptory challenges are also in the mix.
Speaking of the overhaul -- called the "American Jury Initiative" -– Grey, a partner in the Richmond, Va., office of Hunton & Williams, says, "We recognize that this is a massive undertaking, but we also recognize that it's time to do it."

"Juries have evolved. ... Through new technology, they receive, digest and use information in new ways," he said. "They are more sophisticated and that should be reflected in how jurors are allowed to handle information and arrive at a verdict."

The initiative has two parts -- the American Jury Project and the American Jury Commission. The project will draft a set of standards and submit them to the House of Delegates at the ABA's midyear meeting in February. The commission will educate the public about the critical role a jury plays in the U.S. justice system and encourage people to serve.

21ST CENTURY JURIES

The project met for the first time in Chicago on June 10 to begin its work, while Grey was still president-elect. Their first task was to overlay the best practice standards now found in three distinct areas of the ABA standards -- civil litigation, criminal justice and judicial administration -- and combine them.

"We're not reinventing the wheel," said inactive senior Washington Judge Gregory Mize, a project member. "We'll be incorporating some of the standards from these other documents."

In what has been described as animated, but cordial, discussions in Chicago, the two dozen project members began to freshen the existing standards and put new proposals on the table. Since that meeting, as many as 10 members at a time have met through a series of conference calls.

"We're dragging the jury trial kicking and screaming into the 21st century," said Patricia Lee Refo, the project's chair, the outgoing chair of the ABA Section of Litigation and a partner in the Phoenix office of Snell & Wilmer.

"The idea is to take everything we know today about how people learn and process information, and apply it to the jury trial," Refo said. "There are still courtrooms in this country, for example, that don't let jurors take notes. Why in the world would we do that? None of us would listen to something of critical importance for days at a time without taking notes."

Project member and retired Maricopa County, Ariz., Superior Court Judge B. Michael Dann, who is a visiting fellow at the National Institute of Justice, has long fought for more active juror participation.

"The 10-year-juror reform movement has advocated a number of changes in the traditional formula, which assumed juror passivity," Dann said. "But active learners make better learners. The reforms introduce appropriate forms of juror activity that promote engagement and better learning and better juror satisfaction consistent with the parties' rights to a fair trial. Different ABA groups have endorsed some of these reforms, but no one had considered them as a package, but this group seems open-minded to doing so."

Every standard is slated for review. They range from juror note-taking, to the sizes of juries, to juror unanimity. Many reforms that have been adopted in some states have been proposed as new standards. These include: jurors being allowed to discuss evidence as a civil trial unfolds; jurors taking written jury instructions into deliberations, or taking jury books in that might include instructions, stipulations, brief summaries of the case by lawyers, and exhibits; and jurors taking notes, which is still forbidden in three states and discretionary in most others.

Expansion of challenges for cause and a reduction of the number of peremptory challenges allowed have been debated.

Grey, in response to a question at a National Center for State Courts-sponsored event in May in New York, acknowledged that peremptory challenges are often used "to get a biased jury." He was not, however, expressing an opinion about changing the ABA standards on such challenges, and he is not a project member.

And Mize doesn't expect much, if anything, will change regarding peremptory challenges, nor does he think it should.

"I don't think we'll have a recommendation that will do away with them," Mize said. "The traditional rationale has included a needed safeguard in the event a judge gets a challenge for cause wrong -- a backup to correct that error. Judicial error in for-cause strikes is not going to go away."

Giving jurors straightforward answers to their questions during deliberations is among the standards advocated by project member Shari Seidman Diamond, a senior research fellow at the American Bar Foundation and a professor at Northwestern University School of Law.

"Every effort should be made to supply a prompt, complete and responsive answer," said Diamond, a leading empirical researcher on the jury process. "And that's more than they do now."

She noted that judges often merely reread an instruction, rather than answer specific questions about an instruction's meaning.

UNANIMITY: A HOT ISSUE

Mize said that jury unanimity is one of the more hotly debated subjects.

"There is overwhelming support for unanimity except in some contexts involving civil litigation," Mize said.

Jury voir dire is in the mix, too, and is a tougher one to resolve, Mize asserted. "An advocate is looking for someone who won't hurt, or is warmly disposed to, their client," he said. "A judge is looking for an efficient way to find fair and impartial jurors."

There will be a set of core values, a preface of black-letter principles to which everyone agrees, said the project's reporter, Steve Landsman, a professor at DePaul University College of Law in Chicago, whose job it is to boil down the committee's discussions and recommendations. He insisted that although there is now a 26-page working document, it is still in flux. Most of the members were expected to meet again in person in Atlanta.

As an author and a lawyer interested in the quality and the integrity of the system, Landsman is certain that juries of 12 are the gold standard.

They are "better in remembering the evidence, and their decisions are much more likely to fall within the range of the acceptable or the appropriate, or whatever we want to call it," Landsman said. And "if you look at the data, what comes through loud and clear is that a smaller jury prevents the possibility of getting truly representative panels in a substantial number of cases -- that's straight statistics."

Only about one-third of the 15 million people who are sent juror summonses actually report to a courthouse. Some are excused for financial and health reasons; others can't be found and others just don't respond, said project and commission member G. Thomas Munsterman, the director of the Center for Jury Studies of the National Center for State Courts.

The ABA aims to increase participation by educating the public about the importance of jury service and the role it plays in American democracy. That job falls to the Commission on the American Jury, which is led by an Honorary Chair, U.S. Supreme Court Justice Sandra Day O'Connor. New York State Chief Judge Judith S. Kaye is one of three co-chairs.

An ABA-commissioned Harris Poll released Monday will give some guidance to the commission that will first meet in September to plan its campaign.

"For most people, jury service is seen as an interruption in their personal lives; we want people to see it as we do, as a privilege of citizenship, as a chance to do something meaningful in people's lives," said Kaye, who reported to jury duty last week.

"The ingeniousness of Robert's [Grey's] initiative is that there's a role for everybody -- for companies not to be negative when their employees are called, for schools to educate our children about its importance, for judges, for lawyers. ... " Kaye said. "Our job will be to correct the negative perceptions about jury service that are wrong and to correct the problems when the negative perceptions are based on fact."

The "initiative" is designed to be an ongoing process that will survive his tenure, Grey said.

"We cannot accomplish it all in one short year," said project chair Refo. She cited "interpreters for jurors" as an example of something that won't be resolved this year.

"If you are not completely fluent in English and you're an American citizen, does that mean you should never be on a jury?" asked Refo. "Some courts permit jurors who cannot hear. We're all a part of one justice system."


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