Court considers proposals to improve Florida jury system.

If recently proposed reforms are adopted, Florida jurors will soon be allowed to take notes and ask questions during trial. They also will enjoy a "juror bill of rights" including fair compensation, comfortable and convenient facilities, and assistance from the court for serious anxiety due to jury service.

The committee appointed to review the state's jury system submitted these and other far-reaching reform proposals to the state supreme court in February. The Jury Innovations Committee's 48 specific recommendations address issues from enforcing juror summonses and educating the public about the importance of jury service, to reimbursing jurors for parking and revising standard jury instructions.

"There is a division of opinion on many of the suggestions," said Bill Wagner of Tampa, a former ATLA president and member of Florida's Supreme Court Committee on Standard Jury Instructions in Civil Cases, which reviewed the proposals. "Many judges are unwilling to experiment with new ideas. Some of the older attorneys, myself included, believe that many of the suggestions deserve a try at least, and many hold promise."

For example, Wagner said, allowing jurors to ask questions and discuss testimony during trial, and encouraging lawyers and judges to use plain language, are reforms that have merit. But some of the proposals' goals may be difficult to translate into workable rules.

The Florida proposals are part of a nationwide trend over the past decade: experimenting with jury reforms. In 1994, Arizona became the first state to propose changes that would address increasing criticism that jurors are too passive and do not fully understand evidence and trial instructions. Many of the proposals, some of which were similar to those now pending in Florida, were accepted and implemented in December 1995.

The Arizona actions influenced several other jurisdictions--including California, Colorado, the District of Columbia, New York, and Washington state--to consider proposals to improve jurors' performance and their understanding of the trial process.

The Florida proposals drew written comments from several groups. The trial lawyers section of the Florida Bar opposed one recommending a comprehensive study of the use of peremptory challenges, calling them "a necessary and important component of all jury trials." The section also expressed reservations about the juror bill of rights: "Any proposal should clearly indicate that the `rights' being given are aspirational, and do not carry the weight of the law." Among the proposed "rights" are provisions for random and nondiscriminatory jury selection, reasonable accommodation for disabled jurors, and protection against employers' retaliation for jury service.

The section also said that allowing jurors to discuss evidence prior to deliberations "is likely to create more questions during the trial, and it gives an advantage to the party going first."

The Florida chapter of the American Board of Trial Advocates (FLABOTA) also opposed this proposal: "Any discussions that potential jurors would have concerning the evidence necessarily would involve a discussion of the merits of the case. This would de-emphasize and work against the concept that jurors should keep an open mind until all of the evidence has been presented. It strikes at the fundamental fairness of the process."

Wagner noted, however, that "juries begin deciding the case as they hear the evidence, regardless of what the judge tells them. Perhaps group discussions during trial would result in jurors' being more flexible in later decision-making, having heard opposing viewpoints while testimony is fresh."

FLABOTA supported allowing jurors to submit written questions for the judge to ask a witness, "so long as the judge consults with the lawyers representing both sides prior to submitting jury questions to witnesses."

The members of Wagner's committee were divided on this point. Some noted that jurors often ask questions about matters that are inadmissible. Judges must handle questions delicately, the committee said, to reduce the risk of a mistrial.

It also had reservations regarding the proposal for "simple and clear instructions": "Simplicity and clarity are sometimes competing goals. A complex legal concept may not be amenable to a simple instruction."

Most standard jury instructions, the committee noted, have been used for many years, and there is "a significant body of case law" addressing them. New instructions would probably generate more appeals, it said, so the court should consider whether the costs of revision outweigh the benefits.

The Florida Supreme Court is expected to render its opinion on the proposals by August. Because the proposals were not submitted as a specific rule or statute amendment, additional drafting will be needed if the court accepts them.

For more information on the proposals and to read a copy of the committee's final report, visit www.flcourts.org/osca/ divisions/committee/juryinn.html.