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States weigh ideas to improve juries
AP Legal Affairs Writer
SEATTLE — Imagine showing up for a college course and being told you can't take notes or ask questions. The course will be taught by several professors, and what they say may or may not be on the final exam. If you know anything about the subject matter, you'll be dismissed.
Oh, and no discussing the lectures with any of your classmates until the end of the course.
That's what serving on a jury is like in many courtrooms, legal scholars say. But jurisdictions around the country are taking measures to change one of the pillars of American democracy, including letting jurors ask questions and telling them ahead of time what points of law to focus on.
The changes have been implemented piecemeal around the country over the past decade, with certain states — Arizona, Colorado — emerging as leaders. The 9th U.S. Circuit, which is based in San Francisco and covers nine Western states including Washington, and the 7th Circuit, which is based in Chicago and covers Indiana, Illinois and Wisconsin, are studying what changes should be made in federal courts. The American Bar Association issued new principles calling for jury reform last summer, intensifying a national dialogue among judges, lawyers and scholars.
"A lot of this is about improved communication with the jury," says Tom Munsterman, director of the Center for Jury Studies at the National Center for State Courts in Williamsburg, Va. "It's about helping them get a better understanding of the evidence, a better understanding of the law and maybe better verdicts, or at least verdicts the jurors are more comfortable with."
The center is surveying judges and lawyers around the country, asking them about their most recent jury trial to get a sense of what measures have stuck since jury reform gained momentum in the late 1990s. Based on 8,200 questionnaires returned so far:
• In 73 percent of cases, jurors were allowed to take notes.
National Center for State Courts: www.ncsconline.org
American Bar Association: www.abanet.org
• In 69 percent, they were given pens and paper.
• In 18 percent, they were given pretrial instructions on the law.
• In 15 percent, they were permitted to write questions for witnesses.
• In 1.5 percent, they were allowed to discuss evidence before the end of the trial.
Most of these changes have come to be known as the "Arizona reforms," thanks to now-retired Maricopa County Superior Court Judge B. Michael Dann, who wrote a seminal law review article on the topic in 1993. Dann argued that jury trials should be considered exercises in adult education, and that what is known about how people learn — such as by taking notes and asking questions — should be applied to juries. Previously, there was a fear that if jurors took notes, they might miss something, or they might rely too heavily on something they wrote down incorrectly.
Many states have examined such measures since then, employing them to varying degrees. All states allow jurors to ask questions in civil trials. Colorado's Supreme Court in 2004 upheld allowing jurors to ask questions in criminal ones, as have other states. Indiana allows jurors to discuss evidence before the end of the trial in civil and criminal cases.
Five states forbid juror questions in criminal trials: Georgia, Mississippi, Minnesota, Texas and Nebraska.
Federal courts have moved more slowly. The 9th Circuit's jury improvement committee, headed by U.S. District Judge Susan Bolton in Arizona, plans to issue recommendations next month urging judges to adopt all of the above reforms, except that pre-deliberation discussions would be allowed only in civil trials, and only when all jurors are present.
"One of our recommendations is that jurors should be permitted to take notes," Bolton told The Associated Press. "I can't believe that actually has to be a recommendation. I imagine you're taking notes right now, because next week you don't want to try to remember what I'm saying."
Some lawyers and judges fear letting jurors ask questions will slow trials, because the questions are typically written down and handed to the judge. But Bolton says that concern is not usually borne out.
The 9th Circuit's committee has already recommended a number of changes for selecting jurors, such as making it tougher to get out of jury duty, as many states have done.
For Becky Roe, a Seattle attorney who organized a seminar on jury reform for judges and lawyers this month, one of the most important reforms is instructing jurors on points of law before the trial.
Last summer, she served on a King County Superior Court jury in a felony harassment case. Only at the end of the trial did the judge tell jurors that part of their job was to determine whether the defendant had threatened the victim with death, or just bodily harm, and whether the victim had genuinely believed her life to be at risk. The jurors had a hard time remembering some of the crucial testimony.
"It makes sense to tell the jury in advance what you're wanting them to decide," Roe says. "It's never made any sense to me to send somebody out to watch cricket, and then explain the rules after the match."
Copyright © 2006 The Seattle Times Company