January 31, 2010

JUDGE PUSHES FOR PRE-DELIBERATION DISCUSSIONS

“Jurors are rarely brilliant and rarely stupid, but they are treated as both at once.” Chief U.S. District Judge Warren Urbom, Toward Better Treatment of Jurors by Judges, 61 Nebraska Law Review 409 (1982).

In other words, “We expect jurors to remember and understand brilliantly the facts and the law of complex cases, but often we think them too stupid to be trusted to take notes, ask questions, and in other ways take an active part in the acquisition and management of the information necessary to render an informed verdict.” William W. Schwarzer, Reforming Jury Trials, 1990 U. Chi. Legal. F. 119, reprinted in 132 F.R.D. 575 (1991).

Recent research has prompted some judges to reject old notions about how to treat jurors.

In 2007, for example, when Rhoderick T. Flockhart was accused of distributing marijuana in Denver, Colorado, the trial judge told the attorneys that “the court allows the jury to discuss the case prior to the conclusion of the case, but will instruct them not to draw any conclusions about what the evidence shows.”

Defense counsel objected, but the judge instructed the jury:

“You will be able to discuss the case as you go along. However, even though you’ll hear in opening statements what the evidence is expected to show, you’ll not have heard all the evidence until the last witness is finished. So don’t draw any firm conclusions about what you’ve heard. Keep an open mind all the way through the trial and draw your conclusions only at the conclusion of the case.”

The Colorado Court of Appeals reversed Flockhart’s conviction, with Judge Steve Bernard vigorously dissenting from the majority’s analysis of pre-deliberation discussions.

“Within the last fifteen years,” Judge Bernard explained, “the model of treating jurors as passive spectators has been subject to significant criticism.”

“A large and significant body of social science research about how human beings process information and learn indicates that jurors are active decision makers, rather than the mythical blank slates who wait until the close of a trial to decide a verdict,” Judge Bernard recounted.

This accumulating body of compelling research prompted the Arizona Supreme Court to authorize pre-deliberation discussions in civil cases.

Rule 39(f) of the Arizona Rules of Civil Procedure says that jurors “shall be instructed that they will be permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Nothwithstanding the foregoing, the jurors’ discussion of the evidence among themselves during recesses may be limited or prohibited by the court for good cause.”

After Arizona adopted this rule, Judge Bernard noted, “three empirical follow-up studies all provided evidence that allowing jurors to engage in predeliberation discussions under this rule improved the trial process.”

“Allowing jurors to engage in predeliberation discussions provides palpable benefits,” Judge Bernard concluded. “Jurors understand the evidence better, they are less confused, and, in some circumstances, predeliberation discussions convince jurors to alter or reverse preliminary decisions about the case.” People v. Flockhart, 2009 WL 4981910 (Colo.App.) (December 24, 2009).

Here are highlights of Judge Bernard’s analysis (with omissions not noted in the text):

Jurors in the United States are passive spectators of a well-orchestrated jury trial presented by lawyers and judges. Jurors act as passive judges of what evidence the parties choose to present and which proof the law of evidence allows.

The earliest English juries were much different than present-day American juries. They played an active role in the trial process, often gathering evidence before trials began.

The present-day model of jurors as passive listeners who choose between the parties’ evidence is a product of a historical struggle, hundreds of years in duration, in which lawyers and judges sought to gain control over juries.

It is, therefore, not surprising that the fear of losing total control over the trial and fact-finding processes prompts too many lawyers and judges to reject even the most modest of proposals for jury reform.

However, within the last fifteen years, the model of treating jurors as passive spectators has been subject to significant criticism. Controversial acquittals, such as those in the O.J. Simpson and Rodney King cases, raised questions about the effect of bias on the criminal justice system, and spurred calls for jury reform.

It is not my intent to take any position on those well-known acquittals. Rather, my attention is drawn, for the purposes of this case, to certain observations that commentators made about the jury system in general in the wake of the calls for jury reform flowing from those verdicts. For example:

“Chief Judge Warren Urbom of the District of Nebraska has succinctly described the way we treat jurors: ‘Jurors are rarely brilliant and rarely stupid, but they are treated as both at once.’ We expect jurors to remember and understand brilliantly the facts and the law of complex cases, but often we think them too stupid to be trusted to take notes, ask questions, and in other ways take an active part in the acquisition and management of the information necessary to render an informed verdict.” William W. Schwarzer, Reforming Jury Trials, 1990 U. Chi. Legal. F. 119, reprinted in 132 F.R.D. 575, 590 (1991).

Social Science Research

The commentators urging jury reform considered substantial social science research that raised questions about whether the enforced passivity of American juries is productive.

For example, one observer commented that American juries are excessively passive, which “interferes with learning and reduces opportunities for jurors, individually and collectively, to perform to their potential as community representatives and decision makers in trials of criminal and civil cases.” B. Michael Dann, “Learning Lessons” and “Speaking Rights”: Creating Educated and Democratic Juries, 68 Ind. L.J. 1229, 1235 (Fall 1993).

Such interference with learning creates real problems. Obstacles to jury comprehension “produce trials which leave jurors floundering in a mass of disconnected and obscure evidence.” Schwarzer, 132 F.R.D. at 576.

Jurors confused by a lack of comprehension lose interest in the trial process. Dann, 68 Ind. L.J at 1241.

Concerns like these led reformers to a large and significant body of social science research about how human beings process information and learn. This research indicates that jurors are “active decision makers,” “rather than the mythical blank slates who wait until the close of a trial to decide a verdict.” Valerie P. Hans, Paula L. Hannaford & G. Thomas Munsterman, The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The Views of Trial Participants, Judges, and Jurors, 32 U. Mich. J.L. Reform 349 (Winter 1999).

Indeed, “studies consistently disclose that ‘the juror is not a passive and altogether accurate encoder of information who suspends judgment until the end of the case.’ Behavioral research reveals that a ‘juror’s natural tendency is to actively process information as it is received as well as afterward, thus forming tentative judgments about evidence’ before deliberation.

“In a survey of criminal jurors, approximately 57% of the jurors stated they made up their mind prior to deliberations. In another study examining 783 civil and criminal jurors, 71% admitted they began deciding the case before retiring for deliberations. In fact, only a quarter of the jurors polled (26%) stated they retained an open mind throughout the trial and only began to reach a decision about the outcome of the case after deliberating with their colleagues.” Natasha K. Lakamp, Deliberating Juror Predeliberation Discussions: Should California Follow the Arizona Model?, 45 UCLA L.Rev. 845 (1998) (quoting Dann, 68 Ind. L.J. at 1263, and William H. Carlile, Power to the Jurors, Christian Sci. Monitor, Feb. 22, 1996).

“Further, critics of the passive juror model argue that it “flies in the face of what studies about adult learning have proven. The educational model of learning, in contrast to the legal model, has demonstrated conclusively that active learners are better learners. The educational model recognizes the reality that jurors bring with them their own frames of reference. The existence of these frames of reference underscores the need to have continuous feedback and the need to provide a legal frame of reference as early in the trial as possible.” Jacqueline A. Connor, Jury Reform: Notes on the Arizona Seminar, 1 J. Legal Advoc. & Prac. 25 (1999).

Implementing Reform in Civil Cases

“This compelling body of research prompted reforms. Arizona was the first state to act, appointing a commission to study the problem. The commission’s report, issued in 1994, stated that, according to this research, “limitation of all discussions among trial jurors and the accompanying assumption that jurors can and do suspend all judgments about the case are unnatural, unrealistic, mistaken and unwise.” Arizona Supreme Court Committee on More Effective Use of Juries, Jurors: The Power of 12 at 97 (1994).

To address this problem, the Arizona Supreme Court issued Ariz. R. Civ. P. 39(f), which states that, in civil cases, jurors

“shall be instructed that they will be permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Nothwithstanding the foregoing, the jurors’ discussion of the evidence among themselves during recesses may be limited or prohibited by the court for good cause.”

At least three empirical follow-up studies have been conducted, which all provided evidence that allowing jurors to engage in predeliberation discussions under this rule improved the trial process.

The first study, in 1996, surveyed Arizona trial court judges. The results indicated that the benefits of predeliberation discussions outweighed the concerns. Jurors were more alert and happy; they understood the case better; they reached verdicts quicker; and allowing predeliberation discussions did not seem to benefit one party over the other. Lakamp, 45 UCLA L.Rev. 845 at 871-73.

The second study sent surveys to jurors, judges, attorneys, and litigants who had participated in about 160 civil trials in 1997 and 1998. A high percentage of jurors and judges thought that jurors’ comprehension of the evidence improved, and that predeliberation discussions contributed to that improvement.

Further, about seventy percent of the judges did not think that allowing jurors to discuss the case before the presentation of evidence had been concluded resulted in the jurors reaching premature decisions about a verdict. Hans, 32 U. Mich. J.L. Reform at 367, 371-72.

The third study videotaped all juror discussions and deliberations in about fifty civil trials conducted between 1998 and 2002.

This study showed that deliberations were shorter; jurors understood expert testimony better; jurors were better able to clarify evidence and understand it accurately; the judge would have reached the same result as the jury in ninety percent of the cases; and, perhaps most important for the discussion here, there was no evidence that predeliberation discussions favored the plaintiff. Shari Seidman Diamond et al., Juror Discussions During Civil Trials: Studying an Arizona Innovation, 45 Ariz. L.Rev. 1, 62, 63-64, 71 (Spring 2003).

Colorado quickly followed Arizona’s lead. In 1996, our supreme court established the Committee on the Effective and Efficient Use of Juries in Colorado, which was tasked with studying the jury system here and recommending ways in which communication with jurors could be improved.

This process produced a series of reforms that became effective in our state on January 1, 1999. These included allowing jurors to take notes; providing them with trial notebooks; allowing them to ask questions of witnesses under the court’s careful supervision; and, in a pilot project in civil cases, allowing jurors to engage in predeliberation discussions. Rebecca L. Kourlis & John Leopold, Colorado Jury Reform, 29 Colo. Law. 21 (Feb.2000).

Surveys of jurors participating in the 53 civil jury trials involved in the project reported that 93% of the jurors thought that predeliberation discussions assisted them in understanding the evidence and avoiding confusion; and, although about 14% of the jurors reported that they thought discussions held during the trials encouraged jurors to reach a final decision before the trials’ end, 62% of the jurors emphatically disagreed with this contention. Id . at 22.

As a direct result of these conclusions, jurors in Colorado are now instructed about discussions during a civil trial:

“You may discuss the evidence during the trial, but only among yourselves and only in the jury room when all of you are present.

“You must not, individually or as a group, form final opinions about any fact or about the outcome of this case until after you have heard and considered all of the evidence, the closing arguments, and the rest of the instructions [the judge] will give you on the law. Keep an open mind during the trial. Form your final opinions only after you have discussed this case as a group in the jury room at the end of the trial.” CJI-Civ. 1:4 n. 2 (2000).

Predeliberation discussions promote, rather than discourage, group decision making.

If proper instructions are given, such discussions can deter jurors from locking in their positions, because the jurors remind one another of the need to follow the court’s instructions, and to keep an open mind until their deliberations begin.

Predeliberation discussions do not encourage premature judgments. Rather, such discussions may encourage jurors to keep their minds open.

Allowing jurors to engage in predeliberation discussions provides palpable benefits. Jurors understand the evidence better, they are less confused, and, in some circumstances, predeliberation discussions convince jurors to alter or reverse preliminary decisions about the case.

Research indicates that jurors often form opinions about the case and talk about it before final deliberations. Research further demonstrates that allowing predeliberation discussions can channel these normal human behavioral tendencies in a manner that improves the quality and fairness of deliberations.

As the Arizona committee that studied jury reform observed, research shows that the “limitation of all discussions among trial jurors and the accompanying assumption that jurors can and do suspend all judgments about the case are unnatural, unrealistic, mistaken and unwise.”

No comments: