Beyond note taking: innovations in jury reform.

Praises for the institution of trial by jury am at least as old as the Sixth and Seventh Amendments to the U.S. Constitution. Inspirational rhetoric notwithstanding, jury trial procedures are often structured around the niceties of evidentiary requirements rather than the ability of flesh-and-blood jurors to comprehend the evidence and apply the law. In spite of these constraints, juries regularly do an admirable job of returning verdicts that are reasonable and just.

But even some of the staunchest advocates of the American jury say that juror comprehension is taxed by lengthy cases, complex evidence, and intricate case law. Not only are the interests of justice poorly served by juror misunderstanding, jurors themselves are sometimes dissatisfied with their participation.

The problem is that jury trial procedures often incorrectly assume that jurors can evaluate evidence in the same manner as a well-trained trial judge. Recognizing that trial procedures sometimes fail -- miserably, in some cases -- to consider how laypeople process information, most jury reform efforts have opted for a "fix it, don't nix it" approach.

The procedures described below are among the newest jury trial innovations being implemented by judges and trial attorneys to maximize juror comprehension of trial evidence and applicable law.

Some of these techniques have been used widely in recent years. Juror note taking, for example, is permitted in all jurisdictions, with restrictions in some of them.(1) Studies that examined the advantages and disadvantages of juror note taking repeatedly found no prejudice to either party as a result of the practice.(2) Researchers were less successful at documenting the purported advantages of note taking, but their results generally demonstrated that jurors who take notes have superior recall and are more attentive than those who do not.(3)

Another often-used technique is providing preliminary instructions about applicable law before the evidentiary part of trial. Preliminary instructions typically include the basic principles of law that will govern the case as well as more traditional topics about the role and responsibilities of the jury. This technique provides the panel with a legal framework in which to consider the evidence -- making it easier to identify, recall, and evaluate evidence during deliberations.(4)

To be effective, jury instructions must be comprehensible to jurors regardless of when they are delivered. All too often, jury instructions are drafted with an eye toward satisfying appellate courts that they are legally accurate and with little concern that they are comprehensible to jurors.

Poorly drafted instructions may present only minor problems for appellate judges already familiar with basic legal principles. For jurors, however, they are major obstacles to a correct application of the law to the facts. One commentator, noting how often jurors misunderstand instructions, characterized poorly drafted ones as "judicial nullification."(5)

Recognition that poorly drafted instructions are often less useful than no instructions at all has made "plain English" jury instructions popular. Studies have demonstrated that juror comprehension improves dramatically by defining or eliminating unfamiliar terminology, correcting grammar and syntax, and improving organization.(6)

Providing written copies of instructions so that jurors do not have to ask to have them repeated frequently -- or worse, to have to rely solely on their memory of multipage instructions -- is another technique courts use as a commonsense remedy for juror confusion.

Many courts have known about and practiced the techniques described above for years, even decades. Cases have become increasingly complex, however, and their resolution often depends on the jury's accurate understanding of disputed expert testimony. A few courts have concluded that complex cases are too difficult -- and the consequences of erroneous verdicts too hazardous -- to entrust to juries.(7)

Other courts, apparently less pessimistic about jurors' abilities, have responded with innovative modifications to their jury trial procedures that enable panelists to understand complex evidence and testimony.

Jury tutorials

Jurors presented with unfamiliar terminology or complex concepts often find it difficult to digest this new information while simultaneously applying it to their evaluation of expert testimony. Juror tutorials, conducted jointly by the parties as part of the opening statement, introduce new information to the panel using a lecture-style format.

This provides jurors with basic concepts to evaluate the import of expert testimony. Also, the judge and attorneys can present undisputed issues jointly that would otherwise be offered as expert testimony by one or both parties.

One of the earliest known uses of this technique was by Ninth Circuit Court of Appeals Judge Pamela Ann Rymer when she was a federal trial judge. In a 1984 computer software patent case, Rymer found herself unfamiliar with the terms and references to the software's application to the computer.(8) She asked the parties to convene a tutorial for her, the deputy clerk, the court reporter, and the law clerk.

The one-day seminar, conducted on a Saturday, was informal and off the record, with ample opportunities for questions. Rymer found it so useful that she asked that it be repeated in the opening statements to the jury. The experts agreed on which topics each would cover. The presentation stopped short of the claims in the case but did end with an explanation of how the computer program operated.

Consecutive expert testimony

A significant obstacle to juror comprehension of expert testimony is that disagreement wrong opposing experts often rests on subtle differences in their conclusions. Because opposing experts testify at different stages during the trial, they often present their conclusions without truly debating the differences in their reasoning. As a result, jurors often find it difficult to determine the extent of real difference between the experts and the degree to which each could defend his or her conclusions in a dialogue with the other.

One remedy is to reorder the sequence of proof so that opposing experts offer their testimony consecutively. Or opposing experts can offer joint testimony at trial or at a conference in front of the jury during which they identify points on which they agree or disagree and the basis for their conclusions. This technique permits the jury to determine the extent of real difference between experts and to compare these differences side by side.

From a purely pragmatic standpoint, this is not a radical departure from actual trial practice in many cases. Limitations on the availability of expert witnesses -- and the expense of having experts cool their heels outside the courtroom while waiting their turn to testify -- often force litigators to present expert testimony out of sequence. Presenting expert testimony in a format that is conducive to critical evaluation by the jury is at least as legitimate a reason for consecutive, or even concurrent, expert testimony as accommodating the busy schedules of expert witnesses.

Although praised by jury reform advocates, this technique has detractors. Defense counsel often say the technique disrupts their trial presentation strategy. They argue that reorganizing the defendant's case around the timing of the plaintiffs expert witnesses places the defendant at a distinct disadvantage.

Trial judges who have used this technique are sensitive to this concern. Despite substantial evidentiary case law that places questions of trial procedure at the discretion of the court, most trial judges express reluctance to modify the sequence of proof without the consent of all parties.

Juror questions

Another practice slowly gaining acceptance is permitting jurors to question witnesses. This technique is especially appropriate for complex cases. After direct and cross-examination of witnesses, jurors submit any questions in writing to the trial judge, who reviews them privately with the attorneys. After ruling on any evidentiary objections to the questions, the judge resumes the trial and reads the questions aloud to the appropriate witness.

Judges and attorneys unfamiliar with juror questioning often express reservations about allowing it, especially in criminal cases. No jurisdiction expressly prohibits this practice, however, and at least one court has held that an admonition forbidding juror questions to witnesses was reversible error.(9)

Studies show that juror questioning increased the panel's comprehension and satisfaction without any corresponding prejudice to the parties.(10) Judges and attorneys report that the vast majority of juror questions are serious, concise, and relevant. Moreover, attorneys familiar with the practice report that juror questions can benefit their trial strategy.

First, juror questions provide insight into how the jury is perceiving the evidence and testimony, which is useful for honing closing arguments. Questions can also function as a red flag in the event that a crucial piece of evidence or testimony is inadvertently omitted.

For example, in a criminal case charging possession of a gas grenade, a juror inquired whether the grenade was charged. The prosecution realized that the grenade had never been tested, and the judge had no choice but to dismiss the case.

In another case, a man was charged with maliciously wounding his former wife's lover with a gun. He claimed it was an accident. A juror asked if the gun's safety was on when the man entered the house. It was not, and the jury convicted.

Evidentiary discussions

Social psychologists have long understood that people learn more efficiently when they can discuss new information periodically as it is presented. Doing so permits people to mentally organize new information into a coherent picture, which improves their ability to remember important points.

Until recently, however, most courts prohibited jurors from discussing evidence and testimony until final deliberations, regardless of the length or complexity of the case. The only significant debate among appellate courts on this question was whether a trial court instruction permitting juror discussions was reversible or harmless error.(11)

Appellate courts base their objections to juror discussions on a number of assumptions about jury decision making, despite a substantial body of social science research challenging the accuracy of those assumptions. The foremost is the belief that jurors who engage in predeliberation discussions will prejudge the case before hearing all the evidence that is to be presented and instructions on the law. Courts are particularly suspicious of juror discussions in criminal cases, which necessarily raise concerns about shifting the burden of proof from the prosecution to the defense.

A careful look at these concerns, however, reveals two substantive f laws in reasoning. Namely, that jurors who do not discuss the evidence suspend all critical judgment about the case until jury deliberations begin and that jurors, having formed an initial impression, are incapable of changing their minds after hearing the additional evidence.

In fairness to appellate courts that have condemned juror discussions, their concerns may have been valid when these opinions were drafted. Jury selection in 1945, the year Winebrenner v. United States was decided, consisted of a very different process than exists today.

The key-man system of jury selection was popular at that time. This process produced predominately middle- to upper-class white male jurors who enjoyed fairly high social standing in their communities. It seems reasonable to assume that many of these jurors -- especially in smaller communities -- knew each other well and would be inclined to talk freely about the case if not expressly prohibited from doing so. Even jurors from similar backgrounds, regardless of whether they knew each other before jury service, would tend to reinforce each other's opinions.

This is hardly the case today. Changes in the social fabric of American life, such as increased mobility and urbanization, make it much less likely that people selected for a jury know one another or are familiar with each other's views. Moreover, jury reform efforts in the late 1960s and 1970s discarded key-man jury systems, replacing them with random-selection procedures, more inclusive source lists, and prohibitions on discriminatory practices to ensure that panels more accurately reflect the demographic characteristics of communities.

Notwithstanding appellate court disapproval, a handful of trial courts have heeded the lessons of social psychology and now permit jurors to discuss the evidence as the case progresses.

The Arizona Supreme Court instituted this practice in civil cases by court rule in December 1995,11 and a smattering of trial judges across the country use the procedure on an experimental basis, generally with the consent of the parties.(13)

Procedures for juror discussions are relatively straightforward. Jurors are instructed at the outset that they may discuss the evidence among themselves during the trial but only in the jury room and only when all are present. They are cautioned that discussion is appropriate only as long as they keep an open mind until they have heard all the evidence, all instructions on the law, and all arguments of counsel.

Anecdotal reports from judges and attorneys familiar with this technique -- and from jurors who have experienced it -- overwhelmingly describe the benefits of the process. Among these are improved juror comprehension of the evidence.

For example, in a fairly complex medical malpractice case, one juror reported that being able to discuss the evidence and testimony during the trial gave his jury the opportunity to clarify any misunderstandings immediately, rather than trying to recall confusing witness testimony during final deliberations -- several weeks after it was presented originally. That jury collectively drafted several questions to the expert witnesses to clarify the medical t testimony, which helped them avoid relying on one juror's expertise as a paramedic.

In another case, a juror found that discussing the case during trial helped her fellow jurors set aside some of their individual biases that might otherwise have influenced the verdict inappropriately. Several days into a weeklong trial, another panelist had commented that the plaintiff had worn the same shabby clothes to court every day. This comment prompted an extended discussion among the jurors about why they should not permit their own views about socioeconomic status to influence their decision making in the case. Without the opportunity to deal with their prejudices explicitly, the jury's perceptions about the credibility of the parties would have been too firmly established to set aside if the panel had been forced to wait until final deliberations to discuss them.

To evaluate the technique and to document its pros and cons, the National Center for State Courts, with funding by the State Justice Institute, is conducting an 18-month research project on juror discussions. The results are expected in mid-1998.

Deadlocked juries

Even where the evidence and law appear to the judge and attorneys to be fairly straightforward, jurors' perceptions can differ radically, resulting in lengthy deliberations and apparent deadlock, or a hung jury. More difficult cases, such as those involving complex or ambiguous evidence and testimony, can further confound juries. After receiving word from deliberating jurors that they have reached an impasse, many courts merely repeat the jury instructions and advise jurors to keep trying. Another common technique is the Allen -- nor dynamite" -- charge, which essentially admonishes dissenting jurors to rethink the reasonableness of their position.(14)

From the jurors' perspective, however, these methods are not helpful -- and often downright coercive.(15) A more useful technique, and one that is arguably less prejudicial, is to ask jurors to list the key issue or issues that divide them and to clarify the jury instructions or offer additional argument or evidence on those points. Reopening the case in this way emphasizes the informational influence of consensus building -- that is, the persuasiveness of other jurors' arguments -- in group interactions. It also deemphasizes the normative influence -- or the tendency to cave in to the majority opinion.(16)

This technique has three advantages. First, it encourages jurors to keep their attention focused on the disputed issues, rather than putting pressure on jurors who hold a minority opinion to capitulate. Second, this intervention helps fill in gaps in jurors' memories and clear up misunderstandings that lead to disputes about factual or legal issues. Finally, the technique provides jurors with the help they need, so they will be more likely to reach an accurate verdict. And if, after further deliberations, they are still deadlocked, they know they have done their best and are more satisfied with their efforts.

Like other innovations, this jury trial technique generates opposition, mainly on grounds that it intrudes on the privacy and confidentiality of the deliberative process. The criticism would be well founded if the jury were required to either render a verdict or explain precisely its failure to do so. However, the technique as currently employed merely offers assistance to the jury. The jury's acceptance is entirely voluntary, making the offer more helpful and less coercive.

Just because a hung jury and mistrial are a better outcome to a losing party than an adverse verdict does not mean that a jury that reaches a verdict as a result of reopening the case acted inappropriately or with prejudice.

Renewed appreciation for the role of the jury appears to have turned the tide of the jury reform movement toward structuring trials that encourage more active and better educated jurors. Procedural modifications that contemplate the dynamics of jury decision making result in more just verdict -- and increased public confidence in the justice system.(17)

Notes

(1.) See, e.g., State v. Kipf, 450 N.w.2d 397 (Neb. 1990).

(2.) See, e.g., Larry Heuer & Steven Penrod, Juror Notetaking and Question Asking During Trials, 18 LAW & HUM. BEHAV. 121 (1994); AMERICAN JUDICATURE SOC'Y, TOWARD MORE ACTIVE JURIES: TAKING NOTES AND ASKING QUESTIONS (1991).

(3.) David L. Rosehanet et al., Notetaking Can Aid Juror Recall, 18 LAW & HUM. BEHAV. 53 (1994).

(4.) Larry Heuer & Steven D. Penrod, Instructing Jurors: A Field Experiment with Written and Preliminary Instructions, 13 LAW & HUM. BEHAV. 409 (1989); Saul M. Kassin & Lawrence S. Wrightsman, On the Requirements of proof and the Timing of judicial Instructions on Mock Juror Verdicts, 3 7 J. PERSONALITY & SOC. PSYCHOL. 1877 (1979).

(5.) Michael J. Saks, Judicial Nullification, 68 IND. L.). 1281 (1993).

(6.) Shari S. Diamond & Judith N. Levi, Improving Decisions on Death by Revising and Testing Jury Instructions, 79 JUDICATURE 224 (1996); Amiram Elwork et al., Juridic Decisions: In Ignorance of the Law or in Light of It? I LAW & HUM. BEHAV. 163 (1977).

(7.) See, e.g., In re Japanese Elect. Prod. Antitrust Litig., 631 F.2d 1069 (9th Cir. 1980).

(8.) Candle Corp. v. Boole-Babbage, Inc., No. CV82-4758-PAR (C.D. Cal. 1984).

(9.) Carter v. State, 234 N.e.2d 650 (Ind. 1968).

(10.) See generally AMERICAN JUDICATURE SOC'Y, supra note 2.

(11.) Compare, e.g., United States v. Klee, 494 F.2d 394 (9th Cir. 1974) (harmless error), cert. denied, 419 U.S. 835 (1975); with Winebrenner v. United States, 147 F.2d 322 (8th Cir. 1945) (reversible error).

(12.) ARIZ. R. CIV. P. 39(f).

(13.) G. THOMAS MUNSTERMAN ET AL., NAT'L CTR. FOR STATE COURTS, JURY TRIAL INNOVATIONS 138-40 (1997).

(14.) Allen v. United States, 84 U.S. 207(1873).

(15.) See, e.g., Vicki L. Smith & Saul M. Kassin, Effects of the Dynamite Charge on the Deliberations of Deadlocked Mock Juries, 17 LAW & HUM. BEHAV. 625 (1993).

(16.) Vicki L. Smith, How Jurors Make Decisions: The Value of Trial Innovations, in MUNSTERMAN ET AL., supra note 13, at 20-21.

(17.) This article was prepared in conjunction with the "Innovations in Jury Trial Procedures Project" by the National Center for State Courts in cooperation with the American Bar Association's Section of Litigation under a grant from the State Justice Institute (SJI-93-12K-B-263). The innovations described are discussed in more detail in the book Jury Trial Innovations, which can be purchased from the NCSC by calling 888) 228-6272.