Florida jurors poised to play a more active role: jurors may take notes and, at the judge's discretion, ask questions in both criminal and civil proceedings.

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Jurors in Florida have been elevated to play more active roles in trials.

Now, in both civil and criminal trials, they may ask witnesses questions and take notes, thanks to the Florida Supreme Court's approval of those recommendations from the Jury Innovations Committee.

"The fruits of the labor of all of those who have participated in this matter will be gleaned by the citizens of this state in the form of a more meaningful and satisfying jury experience, as well as a more efficient and more effective jury system overall," Justice Charles Wells wrote in the October 4 opinion in case SC05-1091 that involved amendments to the rules of both civil and criminal procedures, and standard jury instructions for both civil and criminal cases.

The Jury Innovations Committee of the Supreme Court's Judicial Management Council undertook what has been described as the most comprehensive review and evaluation of the jury system in the history of Florida. Out of 48 recommendations from the committee detailed in its 111-page report, in 2003 the court approved 18, declined eight, and referred 22 for further study. The October 4 opinion deals with 11 areas referred to various committees submitting reports.

Allowing jurors to ask questions of witnesses was one of the most controversial innovations.

The late Third District Court of Appeal Judge Robert Shevin, who chaired the committee, told the News (December 15, 2001): "The goal of this committee from the get-go was to come up with suggestions to help bring about jurors who are more educated, who can understand the facts better, who will be much more in a position of being able to reach a conclusion, who will be more accurate about the decision-making process, who will be more confident in their verdict and decision--all of these things to get them to play a more active role, so we will have jurors who have a better understanding of the importance of their responsibility. And I would say questioning by jurors is designed to do just that."

But others--including Justice Peggy Quince--prefer that jurors simply listen to witnesses and keep their thoughts to themselves.

Milton Hirsch and Brian Tannebaum, on behalf of the Florida Association of Criminal Defense Lawyers Miami Chapter, filed comments against that innovation: "The juror, instead of struggling to maintain a scrupulous neutrality, takes on the role of detective, inquisitor, partisan. Neutrality goes by the boards in the effort to 'solve the case.' But it is not the juror's role to 'solve the case.' It is not the juror's role to develop facts. It is the juror's role to draw inferences and reach conclusions from facts developed by those whose role it is to develop facts."

Justice Quince, concurring in part and dissenting in part, wrote: "I would not adopt the proposal to allow questions by the jury. I strongly believe that it is the responsibility of the parties through their attorneys to present the evidence to the jury in the form of their questions and the physical and demonstrative evidence. In addition, I would not allow jurors to take notes except in cases where the trial exceeds three days. The collective memory of the jurors should not become what one juror may have written down."

The new Florida Rule of Civil Procedure 1.452--Questions by Jurors--now mandates the judge in every civil jury trial to permit jurors to submit written questions directed to witnesses or the court.

The new Florida Rule of Criminal Procedure 3.371 gives the judge the discretion to permit juror questions during the trial under a similar procedure as the corresponding civil rule. New standard civil instruction 1.13 and new standard criminal instruction 2.13 explain the procedure to a jury.

Justice Kenneth Bell, concurring in part and dissenting in part, wrote: "I agree that jurors in civil cases generally should be permitted to submit such questions.

However, I also agree with what the Civil Procedure Rules Committee characterized as its 'strong recommendation' that, as in the new Florida Rule of Criminal Procedure 3.371, this rule should be permissive rather than mandatory,"

As for other recommendations, the court decided the following:

* Standardized Juror Questionnaires: The court concluded that the current form 1.984 in Rules of Civil Procedure is adequate for civil cases and adopts a new form for criminal cases, as proposed by the Criminal Procedure Rules Committee. The use of these forms shall be at the discretion of the chief judge of each circuit.

* Juror Note-taking: Revised civil (1.8) and new criminal (1.6) instructions inform jurors that they may, but are not required, to take notes during the trial, give guidance on the use of notes, and advise jurors that their notes will be destroyed once the trial is over. Standard civil instruction 7.2 is revised regarding use of notes during deliberations and a new subdivision of Florida Rule of Judicial Administration 2.430--Retention of Court Records--requires the court to destroy jury notes as soon as the jury is discharged.

* Juror Notebooks: The committee noted they can serve a useful function, especially in civil cases and in lengthy and complex trials. The court adopted new Florida Rule of Civil Procedure 1.455 and an identical criminal rule, 3.372, and amended civil rule 1.200(b) to add the potential use of jurors' notebooks to the list of issues to be addressed at the pretrial conference.

* Juror Time Management: The committee recognized research that shows juror satisfaction is directly linked to how efficiently juror time is managed. The court adopted new Florida Rule of Judicial Administration 2.256 that incorporates provisions of the ABA Standards Relating to Juror Use and Management and "is meant to provide meaningful guidance to the courts on how to achieve the most efficient use of juror time."

* Written Jury Instructions: The court amended Florida Rule of Civil Procedure 1.470(b) and Florida Rules of Criminal Procedure 3.390(b) and 3.400 to require the court to provide the jury with a written set of instructions for use in deliberations.

* Final Instructions Before Closing Arguments: The committee recommended that judges be encouraged to give final instructions to the jury before closing arguments. While current standard civil instruction 1.1 encourages this procedure and the court agrees there are advantages, it concluded "the timing of instructions should ultimately be left to the discretion of the trial judge on a case-by-case basis."

Florida Rule of Civil Procedure 1.470(b) is amended to allow the trial judge to orally instruct the jury either before or after closing arguments and provide appropriate instructions during the trial. If instructions are given prior to final argument, the amended rule directs the trial judge to give final procedural instructions after final arguments and before deliberations. A similar amendment is made to Florida Rule of Criminal Procedure 3.390(a).

* Judicial Answers to Deliberating Jurors' Questions: The committee urged judges to be as responsive as possible and fully answer deliberating jurors' questions, consistent with applicable case law. In response, the court authorized publication and use of a new standard civil instruction 7.3(a), as proposed by the Civil Jury Instructions Committee.

"This new instruction provides a format for judges to follow in recognizing and answering or, where appropriate, not answering juror questions." The court authorized an identical criminal instruction, 4.3.

* Read Back of Testimony: The committee recommended the court develop specific criteria for the denial of a juror request to read back portions of the trial testimony. The Civil Procedure Rules Committee declined to propose a rule, pointing out that current Florida case law gives trial judges broad discretion. The court agreed and declined to adopt any rule. But the court did authorize publication and use of new civil [7.3(b)] and criminal [4.4] jury instructions addressing the read-back of testimony.

* Juror Impasse: The committee recommended that trial judges in both criminal and civil cases should be allowed to assist deliberating juries in reaching a verdict where an Allen charge has been given and the jury remains deadlocked. Jurors should know exactly what can occur if they cannot reach a verdict, that is, what a mistrial actually means, the committee said. However, the court deferred to opposition from both the civil and criminal jury instructions committees and declined to adopt amendments to current standard jury instructions.

* Post-verdict Discussions: The committee recommended that judges should advise jurors of their rights to discuss or not discuss their deliberations and verdict after the trial. The committee also suggested the topic should become institutionalized training at the New Judges College and Advanced College for Judicial Education, where experienced trial judges could provide valuable insight. The court agreed with the Civil Jury Instructions Committee that current instruction 7.4 is sufficient. And the court authorized the publication and use of revised standard criminal instruction 4.2, as proposed by the Criminal Jury Instructions Committee.

By Jan Pudlow

Senior Editor