Philadelphia’s Juror Participation Committee
CBS Philly reported on January 24, 2017 that Philadelphia has created a Juror Participation Initiative Committee to find solution for the jurisdiction's low juror response rate. Currently, 42% of summoned people fail to respond. Judge Sheila Woods-Skipper said, “The right to a trial by jury depends on the willingness of all to serve.” The committee will consider a wide array of possible solutions.
The January, 2017 edition of Jury Matters is available online and is published by The Civil Jury Project at New York University. This edition features an article titled, Juries are Valuable: The Civil Jury Project and Baylor Law School are testing whether juries add value to large commercial contracts. The article looked at commercial contracts by publicly traded companies that were reported to the Security Exchange Commission using Form 8-Ks. The contracts were drafted by presumably sophisticated parties. Some of the contracts contained clauses waiving trial by jury or requiring arbitration. However, the study concluded that publicly traded corporations value the option of trial by jury because more than half the contracts left the option of trial by jury open. This is an interesting article worth taking the time to read.
Indiana’s Proposed Jury Study
Indiana state representative Gregory Porter introduced H.B. 1108. The digest of the bill states:
Jury study. Requires the Indiana judicial center to conduct a study of the manner in which prospective jurors: (1) are notified that they have been selected as a prospective juror; and (2) may communicate with the court concerning jury service. Requires that the study must be conducted in at least five counties meeting certain criteria, contain certain information, and be transmitted to the legislative council before November 1, 2018.
Ensuring that mock trials/focus groups don’t impact actual jurors
A federal magistrate judge recently ordered mutual disclose of the names of mock trial/focus group participants so that the court can be sure that these individuals don’t serve as jurors. The order states:
"The parties are notified that if either party intends to conduct mock trials, focus groups, or similar studies in preparation for trial, the party who commissions such a study shall retain, to the extent practicable, the name and address of each participant in the study. Any party who commissions such a study shall advise the other party to the case, as well as the court, in writing, that such a study occurred. . . . Upon receipt of any jury list, the party who commissioned the study shall immediately cross-reference the jury list with the identities of the participants and advise the other party and the court of any prospective juror who participated in any study. Before jury selection, the party who commissioned the study shall provide the names and addresses of all participants in the study to the court in camera," 3rd Eye Surveillance, LLC v. The City of Fort Worth, Texas, 6-14-cv-00725 (Texas, E.D.)
The oddity of this order is why the court did not want to simply trust the voir dire process to remove jurors that had exposure to the case as the result of mock jurors/focus groups.
Alternative Approach to Drafting Jury Instructions
Jonathan Michael Barnes , a J.D. candidate at the University of Mississippi School of Law posted his article online recently titled, “Tailored Jury Instructions: Using Syntactic Measures to Draft Instructions for a Specific Jury”. It is interesting conceptually although the approach may be difficult to implement. The abstract to the article states:
The judicial practice of pattern jury instructions causes disingenuous application of the law and continues to be a problem across the United States. The average American adult has an eighth-grade reading comprehension, but pattern jury instructions are written on average at a level of complexity requiring a twelfth-grade reading comprehension or greater. This discrepancy in the average jury’s reading comprehension and the average pattern jury instruction’s readability causes juries to miscomprehend the law. When juries miscomprehend the law they disingenuously apply it to their determinations of fact, either by unknowingly misapplying it, or by relying on sociological and behavioral mechanisms to make up for their lack of comprehension. Thus, proper jury process – the process of a jury comprehending the law and genuinely applying it – is hindered by pattern jury instructions.
Jury instruction reform is not a new idea among legal scholars. The Plain English reform movement seeks to revise all pattern jury instructions to one standard, Plain English. But this reform has major flaws. Jury instructions written at a Plain English standard may be under-revised: if a specific jury has a comprehension lower than the Plain English standard, then the instructions have failed to adequately instruct the jury. They may also be over-revised: if a specific jury has a comprehension greater than the Plain English standard, then the instructions have unnecessarily redacted the legal precision of its language. Further, Plain English revision uses two major linguistic components, semantics and syntax. By significantly revising semantics in pattern jury instructions, appellate courts are more likely to find reversible error. Thus, Plain English reform fails to adequately ensure each jury has instructions optimal for its specific comprehension, and it fails to adequately ensure that the instructions will avoid appellate reversal.
This article is the first to provide a jury instruction reform method that ensures a specific jury will comprehend a specific set of jury instructions. This article argues that by using syntactic measurements of both a specific jury’s comprehension and a specific set of pattern jury instructions’ readability, an attorney can then tailor the jury instructions to correlate that specific jury’s comprehension to the jury instructions’ readability. This article contends that by limiting revision to syntactic components of linguistics, the instructions retain legal precision and avoid risk of reversible error. By optimizing the ability of a specific jury to comprehend its instructions, that jury now has a greater ability to genuinely apply the law. Thus, tailored instructions, rather than pattern instructions or Plain English instructions, is the appropriate method to encourage proper jury process.