Juries

Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW — What Would Jurors Want? — A Federal Trial Judge's View

Judge Mark W. Bennett

Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW — What Would Jurors Want? — A Federal Trial Judge's View

Abstract:     

Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWWJ — “what would jurors want” — a jury centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings about trial by jury as they participate in the purest form of democracy in action. This article proposes five bill of rights that have been proven to achieve these goals. If adopted by courts and practiced by trial judges, jurors across the nation will exit courthouses as our greatest community ambassadors for the Sixth and Seventh Amendment rights to trial by jury. This is an important step to ensuring that vanishing civil jury trials are not, going, going, gone

Extending Batson to Sexual Orientation

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender.  To do otherwise would be a violation of Batson and its progeny.  At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.  Minnesota may soon follow suit if state Senator Scott Dibble has his way.  He recently introduced SF 1777  (Jury service exclusion due to marital status or sexual orientation) in the Minnesota state senate.  The bill prohibits excluding anyone from jury service because of their sexual orientation and marital status.  At present, Minnesota law currently bars discrimination in jury selection based on race, color, religion, sex, national origin, economic status, or a physical or sensory disability.

For more background on this topic see the articles below.

Huffington Post: Discrimination Against LGBT Jurors Remains Legal

‎Union Tribune: Judge slams prosecutors for dismissing gay juror

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Taiwainese Quasi-Juries

Following in the footsteps of Japan and South Korea, Taiwan is considering implementing a quasi-jury system where citizen panels consisting of five members can advise judges in cases involving the death penalty or life imprisonment.  The judges, however, do not have to follow the advice of the jurors.  However, the judges would have to justify any deviation from the decision of the jurors. Also, under the proposal, the jurors can ask questions of the witnesses and defendant.

China Post: Quasi-juries would be good first step in judicial reform

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Changes Coming to Michigan Jury System: Jurors Given Tools to Succeed

This week the Michigan Supreme Court announced changes to how state jurors process and learn information during trial. The reform measures, which reflect a growing trend across the country, will give Michigan jurors a more active and a less passive role in the trial process. 

These upcoming changes also serve as a counter balance to the problem of jurors using technology to discuss or research cases.  By allowing jurors to take notes, ask questions and discuss the case prior to deliberations, the court removes many of the reasons why jurors feel the need to conduct improper communications and research.

As reported by the Detroit Free Press: Michigan jurors will be able to pose question to witnesses, take notes, get ...

Starting Sept. 1:

Jurors can, with judge’s OK, submit questions in civil and criminal trials.

Jurors can, with judge’s OK, take notes during the case and use them in deliberations.

Jurors in civil cases can, with the judge’s OK, discuss the evidence among themselves when all are present in the jury room before the conclusion of the case.

Jurors will be given pretrial instructions covering their duties, trial procedures and the applicable law.

At the judge’s discretion, attorneys may give interim commentary as well as their opening statement and final argument.

Judge must give juries a written copy of the final instructions and must invite jurors to ask questions to clarify the instructions.

If there is a deadlock or impasse, a judge “may invite” jurors to list the outstanding issues if the judge can help “in clarifying or amplifying the final instructions.” 

 

Allowing Jurors to Ask Questions

Here is an Op-Ed piece by the Chicago Sun Times supporting the idea of allowing juror questions.  As discussed previously, the Illinois Supreme Court is considering a change in court rules to explicitly allow jurors to ask questions of witnesses.

In Civil Trials, Let Jurors Ask Questions

Should you find yourself serving on a jury, we think you should be allowed to ask questions.We wouldn’t want you to make a spectacle of yourself, jumping up in the jury box and shouting to a witness something along the lines of, “Sir, were you or were you not in that tavern on the night of April 3!”No, that would be best left to Perry Mason.But we do think that you, as a juror, should be allowed to submit the occasional question in writing to a bailiff, who would hand it to the judge, who could — after considering any objections from lawyers on both sides — pose the question to a witness...to continue reading go here.

Georgia to Expand Potential Jury Lists

OnlineAthens recently ran a story entitled Will Deeper Jury Pool Improve Verdicts. 

According to the article:

The Jury Reform Act of 2011 allows court officials to compile a statewide database from a variety of sources - not just from voter registration rolls - to ensure defendants are more likely to be judged by their peers...by culling names from the state Department of Driver Services, local vital statistics offices and other public sources into a statewide database.

While I applaud Georgia's efforts to improve its jury selection process, I did find a quote within the article quite interesting.  According to one Georgia district attorney:

"There's a possibility (the new law) could open up jury service to every Tom, Dick and Harry, and that could diminish the validity of the jury system," [Harry] Gordon said. "If it liberalizes people that get on juries, it's possible you could find more undesirable jurors, but it's going to have to be tried because it's the law, and we'll just have to wait and see if it works more efficiently or not."

What is a desirable jury?  One that is prosecutor-friendly.

To read the entire article go here.

IL SCT Seeks Comments on Juror Questions

The Illinois Supreme Court Rules Committee is seeking comment on a proposal to allow juror questioning of witnesses in civil trials. Currently, there is no rule that explicitly authorizes jurors to ask questions in civil trials.  Neither is there a rule that explicitly prohibits Illinois judges from permitting the practice. 

Anyone wishing to testify at a public hearing on the issue should contact the committee in writing no later than Friday, May 13. For more information about testifying or providing written comments go here.

Proposal to Streamline Jury Trials in New Zealand

As the articles below indicate, a 526-page Criminal Procedure (Reform and Modernisation) Bill has been introduced in New Zealand  to "speed-up" trials.  Among other things, this proposed legislation would make it more difficult for some defendants to request a jury trial and would allow some juries to go forward with only 10 members.

TVNZ: Government signs off court system overhaul

New Zealand Herald: Law society slams bill

Stuff.co.nz: Justice shake-up will save millions: Govt

Push to Reduce Misdemeanor Criminal Jury Trials in England

As discussed below, the Commissioner for Victims of Crime, Louise Casey is recomending that Magistrate Judges rather than jurors decide misdemeanor cases or petty offenses.  One of the reasons offered for the proposal is cost cutting.  According to the Commissioner, almost 70,000 Crown Court cases each year could be heard in magistrates' courts, saving £30m.

Politics.co.Uk:  Trial by jury faces the axe for petty crimes

Public Service: Save millions by using magistrates more

BBC News: Cut jury trials, says victims' champion Louise Casey

Press Association: Jury trials cut 'could save £30m'

Calls for Jury Reform

In light of the hung jury in the Blagojevich trial, this article suggests that the federal courts would be well served to embrace the jury reform efforts undertaken in the state courts. 

Mistrials are already rare in federal court, but some say they would be rarer still if the federal courts were to adopt the string of reforms that have revamped the actions of state court juries in the past 20 years, upending centuries of tradition. By some counts, the measures have halved the hung-jury rates in state criminal trials. The aim, says one of the nation's leading reformers, is to prevent the kind of outcome that happened in Chicago: a mistrial that leaves no one happy.

Time: Judicial Reform: How to Cut Down on Hung Juries