Waking up jurors, shaking up courts.

Editor's note: Several states, including California and New York, are either studying or experimenting with new trial procedures that encourage more active participation by jurors. Many of these procedures are patterned closely on changes already implemented in Arizona. That state's position at the forefront of jury reform was acknowledged by CBS with the April 16 airing of "Enter the Jury Room," a two-hour documentary that recorded jury deliberations in four Arizona trials.

The changes in Arizona procedures were recommended by a committee chaired by Superior Court Judge B. Michael Dann, who has since been recognized nationally as a leading proponent of better informed and more active juries. TRIAL Associate Editor Donald Dilworth questioned Judge Dann about jury procedures. His comments follow.

What do you think is wrong with the traditional idea of jurors as "passive receptacles of information"?

Let me answer that by recalling something I heard. After a two-month murder case, a juror reported to me that she had felt "gagged and bound and treated more like a hostage than a responsible adult decision maker."

Most researchers would validate this juror's frustration. They conclude that the "passive juror" model is a fiction. It does not accommodate jurors' need to understand, and it denigrates individual jurors and the institution of trial by jury itself. The "passive juror" notion is an antiquated legal model that is neither educational nor democratic.

It flies in the face of what we know about human nature to assume that jurors remain mentally passive, refrain from using preexisting frames of reference, consider and remember all the evidence, and suspend all judgment until they begin formal deliberations.

Why should we think that greater participation will result in better understanding of the facts and issues of a case?

Because jurors, educators, and other experts tell us it does. Many behavioral scientists tell us that by involving jurors in the fact-finding process -- by permitting their note taking and questions and by giving them copies of preliminary and final instructions -- they are better able to understand, organize, evaluate, and recall the evidence and the law.

As the saying goes: "Tell me about it, and I will forget. Show it to me, and I might remember. Involve me, and then I will understand."

Jurors who have been the beneficiaries of recent reforms are enthusiastic about the benefits. Those who had prior jury service are especially happy, remarking that the changes enabled them to better perform their tasks.

Let's talk about specific changes. A lot of courts now permit jurors to take notes during trial. What are the pros and cons on this?

The arguments against juror note taking mostly reflect an innate distrust of jurors. Critics say that not all jurors can take good notes and that the better note takers will have undue influence. They say note taking during trial will distract jurors and that jurors may tend to rely too much on their and others' notes.

On the other hand, everyone else in the courtroom can take notes. Why not the decision makers? The benefits are obvious to anyone who survived college or law school: better recall of the testimony, fewer requests for readbacks during deliberations, increased juror attention during the trial, and increased juror satisfaction with their experience.

Note taking, or the right to take notes, should not depend on the whim or preference of the individual judge.

Arizona provides jurors with a "case notebook." Would you tell us about that? What limits, if any, are placed on its contents?

Multipurpose juror notebooks are authorized by the new rules, but whether to use them in a particular case is left to the discretion of the judge. Notebooks are generally intended for especially lengthy trials or complex cases.

The trial judge must supervise preparation of the notebooks to assure that they are useful to the jurors and that neither side has an unfair advantage. Contents may vary from case to case, but notebooks usually include paper for note taking, copies of preliminary and final instructions, a list of witnesses and some identifying information, copies of key exhibits, a glossary of technical terms, and brief summaries of the parties' claims and defenses.

Care should be taken not to overload the notebooks. To do so would risk defeating their purpose. Their preparation is not nearly as much trouble as it sounds. This is information the lawyers and the judge should have at hand. The notebooks are a valuable tool in engaging jurors in the evidence and trial.

Jurors in Arizona can ask questions of witnesses. How does that work in practice?

The rule change requires judges to pre-instruct jurors that they may ask questions. Most judges have incorporated this into their preliminary jury instructions. [See the sidebar on page 22.]

Most of the questions I've seen during trials are really quite good and have been well received by the attorneys. Questions that do not call for relevant information or that seek plainly prejudicial information, such as insurance or prior convictions, do not go further. However, judge and counsel are given the opportunity to frame an admonition informing jurors to decide the case without considering certain subjects.

The process is minimally disruptive, but it does add several minutes to the trial, depending on how many and what kind of questions are asked. Regardless, the effort pays dividends in the form of enhanced juror participation and improved juror comprehension.

Attorneys make "mini" opening statements before voir dire. What's the benefit there?

Very brief descriptive statements about the case by counsel, immediately prior to voir dire, improve jury selection. Since the jurors know more about the case and its issues, they are able to answer questions more completely and intelligently. Juror satisfaction with the process is also improved.

I have not encouraged or permitted mini-openings in typical three-to-four-day trials, because the need isn't there. However, in lengthy or complex cases, I alert counsel well in advance of trial to prepare a brief statement (no more than five minutes) for the whole panel. Experience indicates that many judges and lawyers need confidence-building in the use of this technique before its full potential can be realized.

In a major break with tradition, Arizona allows jurors in civil cases to discuss evidence among themselves while the trial is in progress. Why is this done?

Swearing the jurors to silence concerning their shared task was thought by us to be unnatural, unrealistic, and unwise. We expected, and are now experiencing, a number of benefits resulting from regulated juror discussions.

First and foremost, jurors report that permitting this interactive communication increases their understanding and recall of evidence. Second, jurors can share their questions and confusion on a timely basis instead of waiting until deliberations. Third, we know that the traditional admonition not to discuss the case doesn't often succeed because jurors do the natural thing and manage to talk about the case with each other over lunch, in carpools, and so on. This reform should reduce these "fugitive" conversations, since jurors can now vent in the jury room.

The question of whether jurors close their minds too early as a result of discussions is currently being studied by the National Center for State Courts. We welcome this study and confidently look forward to the results.

Currently, civil jurors report that the ability to discuss evidence in the jury room is very advantageous and does not result in early decisions about outcomes. They report that they have been told by the judge to avoid "outcome" discussions, and they know it would be unfair to decide the case before hearing everything. I take their word.

Incidentally, an interesting symbiotic relationship has grown up between juror question asking and jurors being allowed to discuss the evidence during civil trials. Working together, jurors are framing "group" questions on matters they think are important.

A lot of jurors apparently have trouble with jury instructions. Why is this?

Considerable research has been done on this problem, and a number of suggestions have been made. Generally, shortcomings in legal instructions relate to their timing, form, and content.

Let's talk about timing. Arizona's rules now require the judge to pre-instruct the jury with as much substantive law as the judge safely can. At a minimum, this includes the requirement that the plaintiff or the prosecution must prove to prevail. Where applicable, causation and damages should be covered too. Affirmative defenses can be discussed if appropriate.

Timing is also important at the end of the case. Another local rule change allows the judge to read and distribute copies of final instructions before -- instead of after -- closing arguments. Instructing before arguments has several benefits. For example, counsel can better integrate the instructions into their closings, and jurors are better able to understand and evaluate the arguments, knowing the applicable law.

Improving the form of instructions also can contribute to juror understanding. The fewer and shorter the instructions, the better. Organizing instructions in a logical order helps. Providing a table of contents is a common courtesy appreciated by any reader. In my state, all instructions must be in writing, and copies must be provided to each juror.

With respect to content, many attempts have been made to reduce complex legalese to plain English. Some attempts have succeeded better than others. I personally doubt that lawyers and judges can get the job done without "outside" assistance. The Arizona jury reform committee recommended that social scientists, educators, and former jurors be added to standing bar-bench jury instruction committees and that proposed plain-English instructions be "road tested" before they are sanctioned and published for use.

Suggested improvements include making instructions as case-specific as possible. For example, the parties' names should be used instead of the generic "plaintiff" and "defendant." Judges can help by asking for questions immediately after reading the instructions and by making it clear that questions about the instructions that arise during deliberations are welcomed.

Perhaps the most controversial of the Arizona rules permits a judge to help deadlocked jurors to reach a verdict. Can you give us an example of how that's done?

National estimates of mistrial rates, criminal and civil, range from 5 percent to 20 percent, although mistrials in civil cases occur at a much lower rate.

It has been said that the only thing worse than trying a case once is having to try it twice. To that I would add: The only thing worse than trying a case twice because of a hung jury is doing so without taking reasonable measures at the first trial to maximize the chances of a verdict. Even if the rate of mistrial is low, the substantial direct and indirect economic, human, and social costs of a trial should not be repeated if possible.

From a global point of view, some mistrials should be expected. The system contemplates that a minority view may prevent a verdict. What's unfortunate, however, is a mistrial where it might well have been avoided if the judge and attorneys had just offered assistance after learning that jurors felt they were at an impasse.

Traditionally, jurors are given a pep talk and told to return to deliberations. Jurors then learn the magic phrase "hopelessly deadlocked," because that wording is usually found in their second note. Brought back to the courtroom for a second time, they are asked if they are "really" deadlocked, and a mistrial is declared upon hearing the expected answer.

Under our new rules, judges may open a dialogue with the jury by sending in a message along the following lines:

"This instruction is offered to help your deliberations, not to force you to reach a verdict. You may wish to identify areas of agreement and of disagreement. You may wish to discuss the law and the evidence as they relate to areas of disagreement.

"If you still have disagreement, you may wish to identify for the court and counsel which issues or questions of law or fact you would like counsel or the court to assist you with. If you elect this option, please list in writing the issues where further assistance might help bring about a verdict.

"I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is reasonably probable that you could reach a verdict as a result of this procedure, it would be wise to give it a try."

Depending on how the jury responds, the judge can do a number of things: give new or clarifying instructions, re-open the trial to take additional evidence, or direct re-argument on specific points.

There's nothing coercive about the procedure. And it works -- not in all cases but in enough to make it worthwhile to try. I have opened a dialogue with four juries -- two criminal and two civil. In one civil case, the issues could not be addressed legally or practically. In two of the three remaining cases, additional argument by counsel produced verdicts.

If changes like these are reasonable and legal, what's the holdup in other courts? Who is typically against change, and why?

Failure to adopt these and other reforms is likely attributable to one or more of the following:

* no one on the bench or in the bar or legislature has seen fit to step forward to champion reform,

* satisfaction with the status quo,

* the conservative nature of the bench and bar,

* fear of loss of power and control by judges and lawyers, and

* inherent distrust of jurors.

Do you think that tight control over the information-delivery process is essential for the adversary system to work?

Absolutely not. In our adversary system, the parties' lawyers exercise near complete control over what comes in at a jury trial. Judges can elicit information, but most do not. However, in a bench trial, the typical judge is much more active.

The fact finders and decision makers -- the judge in a bench trial, jurors in a jury trial -- should be allowed to seek answers to questions that vex them. Of course, controls must be imposed to prevent a jury from taking over the fact-finding process or becoming an advocate for one side, but the Arizona reforms contain those safeguards.

The real rub comes when a juror's question calls for admissible information that one side does not want to come in. This tests one's theory of the trial. Is the purpose of trial a search for the truth as best we imperfect beings can ascertain it? Or is it a game, where contestants can turn the information spigot on and off and "hide the ball" if necessary, ignoring the truth and the needs of the decision makers?

A greater balance needs to be struck in favor of limited, structured juror participation if trial by jury is to continue to serve as one of the mainstays of our democratic system of justice.

Can you give us some examples of problems that might be expected when a court implements these kinds of reforms?

Some judges and lawyers are evading some of the more important rules through stipulations. For example, some judges ask the attorneys if they want the jurors to submit questions or discuss evidence during trial. These stipulations are accepted by judges who fail to understand that the trial innovations were intended to benefit jurors and the trial itself. They are not the lawyers' or parties' rights to waive.

Some judges balked at pre-instructing juries on the applicable substantive law, citing logistical problems. They complained they didn't have time to "settle" instructions the morning of trial.

Judges also need to exchange ideas about how to handle juror questions. Some judges turn to the jury, just before each witness is excused, and ask if there are any questions for that witness. I don't think that's necessary or advisable. Once jurors have been told to signal if they have a question, I trust they will let us know. Stopping to solicit questions is disruptive, and some jurors resent being "put on the spot."

Aside from benefits for the overall civil justice system, is it in the best interests of plaintiff attorneys to have active, participating jurors?

Active jurors, who have a voice in deciding what facts come out at trial and are free to discuss the evidence during breaks, will probably spell trouble for any attorney -- plaintiff or defense -- who subscribes to the game theory of trial. Intelligent jurors may ferret out information that the attorney would prefer never see the light of day.

On the other hand, attorneys who have the facts on their side will likely benefit from fact-driven questions from jurors. Both sides should benefit from learning what's on jurors' minds, so counsel can address those concerns or ask the judge to do so.

One of the four trial deliberations televised recently by CBS involved an example of juror nullification. Are new procedures being considered for addressing that problem?

While nullification can happen in civil trials, it usually occurs in criminal trials when jurors acquit despite strong evidence of guilt. Arizona's jury trial reform committee recognized that jurors possess the raw power to nullify the law by finding as they wish, despite the law. However, there was virtually no support among committee members for telling jurors they had this power, let alone informing them that they had a right to nullify.

Two changes in current practice were recommended. For one, we voted that rules of evidence be expanded to permit evidence of a party's intent and motive for acting as he or she did. Also, the committee recommended that juries in criminal cases be instructed on the range of punishment should the defendant be convicted. The Arizona Supreme Court has yet to act on these two controversial proposals.

What can trail attorneys do to encourage changes in courtroom procedures?

Here in Arizona, we were blessed with the leadership and support of the highest court, especially that of then-Chief Justice Stanley Feldman. A statewide committee met over a period of 18 months and issued a report that contained 54 recommended changes. The Supreme Court promulgated almost all of the rule changes favored by the committee. [A detailed account of the Arizona jury trial reform experience can be found at 79 Judicature 280 (1996).]

Attorneys and trial judges who support jury trial reforms would do well to find one or more champions on the state supreme court. Whether or not the chief justice is willing to so serve, the leaders should prevail upon the chief to appoint a statewide committee of lawyers, judges, social scientists, and former jurors to recommend changes for the jurisdiction.

Meaningful reform depends on a willingness by both the bar and the judicial leadership to put aside untested assumptions, myths, superstitions, and partisan concerns and look at the trial through the eyes of jurors. Empathy is the key. And committed attorneys and judges are the needed stewards.

Instructions on questions by jurors

Judge Dann's typical instructions to jurors on questioning witnesses:

"You may have questions of the witnesses or me from time to time. If one is important to you, please write it down -- do not sign it -- and hand it to the bailiff during a recess. Or signal if you have a question for a witness about to leave the witness stand. The bailiff will bring it right to me.

"I will discuss the question with the lawyers. I will apply the same legal standards to your questions as I do to questions asked by the lawyers. If I decide that the question is a proper one, the attorneys or I will provide an answer through a witness or otherwise at the earliest logical opportunity.

"Keep in mind, however, that the rules of evidence or other rules of law may prevent some of your questions from being answered. The failure to ask a question is not a reflection on the person who asked it."