By Dr. Ken Broda Bahm:
I regularly interview jurors after a trial, and nearly every time, the former jurors that I speak with see their time in the box as a worthwhile experience. Eight million Americans report for jury duty each year, and while there are definitely complaints, a consistent theme is that upon completing their service, jurors are proud of their efforts and have a better understanding of our legal process. By far, the most common complaint, though, is that courts could have made much better use of the jury’s time: Procedures should have been more streamlined and attorneys should have been less repetitive. Jury duty is asking a lot, and the least we can do is make it a better experience. As trial lawyers, judges, and consultants fight to preserve and extend the American jury trial, part of the mission is to ensure the process embodies the utmost respect for the citizens who are serving in that central role as the finders of fact.
In a forthcoming article, (Bennett, 2016) U.S. District Judge Mark W. Bennett makes a strong case for putting that respect in more concrete terms. “It is surprising given the distinctive role of jury trials in this nations’ history,” he notes, “that jurors do not have their own widely adopted bill of rights.” He tells the story of his own evolving belief that courts can do more, and it started with a juror in his courtroom bravely raising her hand and asking why everyone else in the courtroom — judge, counsel, witnesses, and the clerk — all had water to drink, but the jurors did not. He didn’t have a good answer…and he promptly installed cupholders in the jury box. His realization that water was just one of a number of annoyances relating to both process and substance led him to a “WWJW” or “What Would Jurors Want” approach to judging. In large part, the mission of ensuring a better experience for jurors grows out of the 1993 Arizona Jury Project that addressed, among other things, “enforced passivity of jurors,” and “unacceptably low levels of juror comprehension of the evidence and of the judge’s instructions.” So far, Bennett writes, the Arizona Supreme Court is the only venue that publishes a bill of rights for jurors. In this post, I will review the judge’s argument for changing that.
Bennett offers five broad points to his bill.
1. Jurors Have the Right Not to Have Their Time Wasted By Judges, Lawyers, Witnesses and Unnecessary, Cumulative, and Excessive Evidence
The number one complaint Judge Bennett notes in his debriefings with jurors after their service is a poor use of time. This is his advice for reducing the reality and perception of that misuse:
- Judges should “Just say ‘No’ to sidebars,” by resolving issues before the jury arrives.
- The trial day should always start and end on time.
- Attorney-conducted oral voir dire should be allowed — yes, even in federal court — but should have a set time limit (usually 30 minutes).
- Jurors should never wait while attorneys review a questionnaire. If questionnaires are used, they should be returned in advance so they can be reviewed out of court.
- Openings and closings should have hard time limits.
- Judges should have high levels of involvement in order to eliminate redundant, cumulative, and excessive witnesses and evidence.
2. Jurors Have the Right in Jury Selection in Every Civil Case to Be Told Exactly How Long the Trial Will Last—Minus Deliberations
In Judge Bennett’s experience, there is only one way to make trial duration predictable, and that is by imposing hard time limits on evidence. But the practice also improves the presentation. As Bennett notes, “In my experience, most judges impose hard time limits because of docket pressure. I impose them because I hate to see jurors suffer.” The recommendation for hard limits comes from the 1993 Arizona Jury Project, yet it is still used in only about one in five trials. When time is more open-ended, attorneys will worry about leaving something out, and as a result, they’ll err on the side of putting so much in that the key points no longer stand out.
The recommendation for hard time limits on evidence plays a strong role in improving trial advocacy by encouraging more focus. Bennett quotes Stephen Susman and Thomas Melsheimer, “In our experience, when the parties are forced to decide how to fit their evidence into a strictly enforced maximum number of hours, the presentation invariably improves.” That was my experience during a two-and-a-half month trial a few years ago. The always-running clock led to strategy discussions every evening on how to reduce examination outlines, eliminate unnecessary witnesses and generally streamline the presentation — all of which helped us and our jurors. I’m convinced the net effect of those time limits was to vastly improve the clarity of the information.
3. Jurors Have the Right in Every Trial to Their Own Set of Plain English “Final” Jury Instructions Prior to Opening Statements
The research is clear that providing the instructions in plain language works. The recommendation to do that, also coming from the Arizona Jury Project, has caught on to some extent, but it’s application can be uneven with widely varying understandings of what “plain” means. Bennett notes a problem in committees of lawyers working on plain instructions, and I have a hunch that the more lawyers involved, the less plain those instructions become.
Bennett believes judges should play a stronger role in enforcing plain instructions, using a “What Would Jurors Want” standard. That entails:
- Giving jurors their own written set of instructions.
- Making sure those instructions are geared to the way the average person reads, and include lots of white space and bullet points.
- Providing the instructions to the jurors, along with a verdict form, before opening statement.
That last recommendation for pre-instruction, still only used in about 25 percent of cases, requires judges and counsel to resolve the law before trial, and to eschew the “Let’s wait and see how the evidence comes in” approach that causes the law to be up in the air at the very time jurors need to understand it the most: when the evidence is coming in.
4. Jurors Have the Right to Have Their Trial Judge Thoughtfully Consider Innovations That Enhance Their Experience and Improve the Fairness of the Trial
In that sometimes too tradition-bound setting of a court, the players need to be open to new ideas. Bennett gives a few examples:
- A modified daily schedule, like 8:30 to 2:30 with 20 minute breaks, but no lunch break. Jurors love it.
- PowerPoint slides for the judge’s voir dire, placing the common questions on a slide.
- Note-taking by jurors (some judges still don’t allow it).
- Juror questioning of witnesses.
- Juror access to exhibits (either in binders or in electronic form) during deliberations.
- Debriefing following a verdict (if the jurors want it).
- Interim summaries by counsel in long or complex trials.
Judge Bennett provides a few other examples that are more controversial, like allowing pre-deliberation discussion by jurors. The point is not that every innovation is a good one, but that judges should give a thoughtful look at them, and should look at research and experience and not just tradition.
5. Jurors Have the Right to Juror Creature Comforts
According to Bennett, jurors should have:
- Comfortable seating.
- Stretch breaks between witnesses.
- Nutritious snacks (not just vending machine fare and doughnuts).
- A microwave and refrigerator in the jury room.
- Occasional personal touches like home-baked cookies.
This aspect of the bill of rights perhaps sounds a bit less heady than the others. But if you want a comfortable and focused jury, they may be just as important.
To Bennett, these recommendations tie into the movement to preserve the jury trial. “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!” What should also be noted, however, is that many of the features that make trials a redundant and excessive experience for jurors also make it the same kind of experience for parties and attorneys. When the presentation is drawn-out, the law is uncertain, and the jury is confused, that contributes to the decline in the attractiveness of a jury trial. If we want to bring everyone back to the courtroom, at least for those cases where resolution by trial is the right way to go, then it is time to get more serious about making the trial a better, more efficient, and more respectful place for jurors and for everyone else.
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Other Posts on the Juror’s Role:
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Bennett, M. W. (2015). Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW—What Would Jurors Want?—A Federal Trial Judge’s View. A Federal Trial Judge’s View (August 27, 2015), 38.
Image Credit: 123rf.com, used under license,