M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Predeliberation Discussion
At the April 1998 Joint Procedure Committee Meeting, a motion carried to amend Rule 51, N.D.R.Civ.P., to allow predeliberation discussion by jurors. The motion carried by a vote of 10 to 7. Because the motion did not carry by a two-thirds vote, the proposal remains for further Committee consideration. Minutes of the Joint Procedure Comm. 9 (April 30-May 1, 1998).
The proposal was not considered at the September meeting to wait for completion of a study by the National Center for State Courts on the Arizona experience. In 1995, Arizona became the first state to allow civil jurors to discuss the evidence among themselves during trial. The study has now been completed and is reported in the article: "Permitting Jury Discussions During Trial: Impact of the Arizona Reform," which is contained in the following material. This memo summarizes the article.
The article first sets forth some of the theoretical arguments for and against predeliberation discussion by jurors from a broad psychological perspective.
*Psychological research indicates that even under traditional adversary rules, jurors take an active approach to their decision making
- Jurors form impressions as the evidence is presented and those impressions help shape their subsequent processing of evidence.
- Trial discussions may reveal areas of misunderstanding and confusion, and present jurors from forming and holding early opinions since they will be exposed to different perspectives during trial discussions.
*Psychologists do not consider "active information processing" to be an unequivocally good thing as it could facilitate selective recall rather than total recall, and can make jurors form a biased impression of the evidence.
*The danger of formal discussions during trial is that jurors will prematurely adopt the same shared biases.
Next, the article sets forth a number of hypothesized effects of allowing jury discussion.
*Allowing trial discussions might improve the accuracy and quality of decision making.
*Allowing trial discussions could encourage premature judgment and solicify group biases based on incomplete evidence.
*Trial discussions will cause jurors to reach premature decisions about who should win the case.
*Trial discussions will promote jurors' understanding of the evidence.
*Trial discussions will reduce forbidden conversations among jurors or with outsiders.
*Trial discussions will increase the cohesion of the jury and reduce divisive cliques.
*Trial discussions will reduce juror stress by allowing jurors to express themselves.
*Trial discussions will increase juror stress because of conflicts produced by trial discussions about the evidence.
*Trial discussions will increase the accuracy and quality of final deliberations. Because the initial review of the evidence is done in a timely fashion when memories are fresh, the accuracy of the final deliberation should be higher.
*Trial discussions will narrow the final deliberations to key issues.
*One or two jurors may come to dominate the jury early on. Because they are able to influence the other jurors' early thinking, they will have greater power in the eventual verdict.
*Jurors who are allowed to discuss the evidence during the trial will show more satisfaction with the process and outcome.
To permit an experimental test of the reform, the Arizona Supreme Court issued an administrative order allowing civil jury trials to be randomly assigned to either a discussions condition or a no discussions condition. Questionnaires were distributed to the jurors, judges, attorneys, and litigants. All total, there were 192 valid cases in the sample.
Following are conclusions from the article.
*Allowing jurors to discuss the evidence during trial probably does not encourage prejudgment. Overall, the reports from jurors as to when they began leaning toward one side showed no significant differences as a function of trial discussions. Most jurors appear to wait until fairly late in the trial to decide who should win; the opportunity to talk about the case with fellow jurors does not seem to alter this overall pattern. In addition, there were no differences between Trial Discussion Jurors and No Discussion Juries in their ratings of the importance of the first and last witness or in their ratings of the quality of the plaintiff and defense attorneys.
*Trial Discussion Juries were significantly less likely to report that they were unsure at the start of jury deliberations, and more likely to say they favored the plaintiff at that point. However, the initial favoritism for the plaintiff appears to have been a function of the trial evidence and not of bias created by trial discussions. The fact that judges agreed with the juries suggests trial discussions do not increase the likelihood of unsupportable plaintiff verdicts.
*Jurors reported allowing them to discuss the evidence during trial is extremely helpful in assisting them in their factfinding mission. However, comparisons between the reports of No Discussion and Trial Discussion revealed no consistent differences in juror comprehension. Neither the attorneys nor the litigants reported different assessments of jury comprehension as a function of trial discussions.
*No Discussion Jurors were marginally more likely than Trial Discussion Jurors to admit they had spoken to family or friends. Trial Discussion Jurors were much more likely to engage in informal discussions with other jurors. The opportunity to engage in trial discussions tends to shift some of the talks away from friends and family, but it may also increase the degree to which jurors talk informally with one another about the case.
*Judicial satisfaction with the jury's verdict was relatively high and approximately the same for No Discussion and Trial Discussion Juries. Jurors were extremely well satisfied with both the experience of deliberation and the jury's decision on both No Discussion Juries and Trial Discussion Juries.
*There is some evidence that Trial Discussion Juries reported more conflict and less unanimity than the No Discussions Juries. The study found trial discussions promote more vigorous and contentious debate. Trial Discussion Jurors reported greater conflict and less unanimity on the final ballot.
The results of the study fulfill neither the fondest hopes of supporters nor the worst nightmares of critics of trial discussions jury reform. The authors of the study conclude the wisdom of the reform is generally favorable.