FROM:Patricia R. Monson
North Dakota Jury Reform - Jury Trial Discussion
I have attempted to summarize, for the Committee's convenience, the article entitled "The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The Views of Trial Participants, Judges, and Jurors."(1) This article is a preliminary report of the current reaction to the reform approved by the Arizona Supreme Court in 1995 which allowed jurors to take notes and submit questions to witnesses, to discuss the evidence among themselves during the trial, and to allow additional instruction and argument in deadlocked juries. Arizona Rule of Civil Procedure 39(f), which allows civil jurors to discuss the evidence among themselves during the trial (the rule presently under consideration by this committee,) has been in effect for 2½ years and although it is still too early to know what precise impact the reform has on the jury decision making process, some data has been accumulated and reported in this article.
Adversary v. Inquisitorial Systems
The public and the participants in the judicial process perceive that some improvement of the jury system in this country is needed. It is generally recognized that many of our traditional trial procedures contribute to the problems that juries encounter understanding the evidence and applying the law. Ideally, in our "adversary system", the evidence is developed by the attorneys for presentation to a neutral and passive decision making body based on the belief that this neutrality is enhanced/maintained when the jury is not actively involved in the evidence. The Arizona rule utilizes an "inquisitorial system" where the decision maker is actively involved in the development of the evidence. One study referred to by the authors shows that, even though jurors are believed to be primarily passive in their decision making, they are more accurately described as active decision makers.(2) This is true particularly in very long and complex cases.
Previous psychological research on jury decision making and legal commentary on the subject reveal the following positive and negative effects of the Adversary and Inquisitorial Systems:
Adversary System Inquisitorial System
(No Discussion) vs. (With Discussion)
Delayed judgment until all evidence in - Possibility of premature judgment
+ Other Jurors are not aware of biases - Possible solidification of group
until final deliberations biases
- Less accurate recall of evidence + Improved accuracy of recall of evidence
- Overall quality of deliberations is reduced + Improved quality of decision making
These pros and cons of pre-deliberation discussions have been the subject of great debate and controversy for decades. The preeminent decision speaking to prohibition of such discussions is Winebrenner v. United States, 147 F.2d 322 (8th Cir. 1945), where the court spelled out six justifications for prohibition:
1. Primacy versus recency argument - the effect which the sequence of the presentation of the evidence has on the juror may lead jury to a premature consideration to the evidence it hears first and to arrive at an initial opinion;
2. This premature consideration and discussion of the evidence would result in the jurors establishing permanent opinions which would be difficult to change as the trial progresses and other evidence is introduced;
3. The recognized need for the importance of procedural regularity in jury trials; e.g. the timing of jury instructions which traditionally are given after all of the evidence is introduced;
4. The requirement that the jury deliberate as a collective body;
5. Allowing discussions violated the defendant's Fifth Amendment right to due process (later changed to Fourteenth Amendment due process rights);
6. The Sixth Amendment right (criminal cases) and the Seventh Amendment right (civil cases) to an impartial jury would be violated; the court concluding that pre-deliberation discussions have the effect of shifting the burden of proof from the prosecution to the defendant.(3)
In the 1987 case of U.S. v. Wexler, 657 F. Supp. 966 (E.D. Pa. 1987), Judge Ditter confronted head-on the holding in Winebrenner and set out the following arguments for the allowance of pre-deliberation discussions:
1. Judge Ditter did not agree with the concept that simply because jurors are not allowed to discuss the evidence, they haven't formed premature judgments;
2. Jurors who express an opinion are not less likely to change their minds than jurors who remain silent;
3. Jurors are concerned, responsible, conscientious citizens who take their decision-making job seriously;
4. Jury instructions/admonitions are sufficient to overcome any objection to jury discussions;
5. Discussions enhance juror attention, comprehension, ability to recall evidence, and improve the jury's overall performance;
6. Most juries believe that the "ways of the law are mysterious" and are more likely to do something which makes sense to them, i.e. discuss the evidence and ask questions, than to follow a command which is completely unexplainable!(4)
Jury Trial Innovations Report
In a 1997 report on Jury Trial Innovations done by the National Center for State Courts,(5) a review of psychological research and legal commentary led the authors to the following conclusions relative to juror discussions.
1. Improved juror comprehension and mental organization of the evidence into a coherent picture.
2. Improved juror recollection of evidence and testimony by emphasizing and clarifying important points.
3. Increased juror satisfaction from providing an outlet to jurors to express themselves instead of waiting until final deliberations.
4. Promotion of greater cohesion among the jurors and reduction of the amount of time spent in deliberations.
5. Allowing the jurors to discuss the evidence prevented them from violating the court's admonitions not to do so which, literature suggests, is more likely than not.(6)
1. Pre-deliberations facilitate or encourage the formation or expression of premature judgments.
2. Domination or undue influence by an aggressive, overpowering juror.
3. Pre-deliberation discussions might detract from the ideal of the juror as a neutral decision maker.
4. Quality of deliberations could decline as jurors become more familiar with each other's views.
5. Sanctioned and structured deliberations might produce a narrower and more confined set of final deliberations.
6. Juror stress might increase because of conflicts produced by prior discussion.(7)
In an attempt to determine what impact allowing trial discussions had on the deliberation process, a field experiment was conducted last year in Superior Courts in four Arizona counties. The Arizona Supreme Court issued an administrative order which allowed trial judges in civil cases to instruct jurors in some trials that they were forbidden to discuss the evidence until final deliberations. One hundred ninety-two valid cases where the jury had actually deliberated, were used to obtain and calculate responses from judges, jurors, attorneys, and litigants in an effort to determine the benefits and drawbacks of allowing pre-deliberation discussions.
In those trials where jurors were allowed to discuss the evidence during the course of the trial, the judges gave the following instruction:
You jurors may discuss the evidence during the trial, but only among yourselves and only in the jury room when all of you are present. Despite what you have heard about or experienced in other trials, where jurors cannot discuss the evidence among themselves during the trial, that rule has been changed in Arizona to permit jurors to talk with each other about the evidence during trials in civil cases like this one. The kinds of things you may discuss include the witnesses, their testimony, and exhibits. However, you must be very careful not to discuss or make up your minds about the final outcome, or who should win the case, until you have heard everything - all the evidence, the final instructions of law, and the attorneys' arguments - and your deliberations have begun. Obviously, it would be unfair and unwise to decide the case until you have heard everything.(8)
The field experiment revealed that, of the groups questioned, the judges were by far the most supportive of the reform. Seventy-five percent of judges responding believed that jurors' understandings of the evidence was enhanced and therefore, were in favor of the reform. Only fifteen percent where opposed to it. See Table 1 of the report attached hereto.
In examining the results obtained from the jurors who took part in this field experiment and comparing it to the concerns expressed by the psychologists and courts which have addressed the issue, it is interesting to note that many of the justifications for prohibition can be dispelled. For instance, there was little concern expressed by the jurors in this study of being influenced by other more aggressive jurors or of one or two jurors dominating the deliberations. On the other hand, jurors' responses support the notions of improved accuracy in recalling the evidence, assistance in resolving confusion, and improved comprehension. Seventy-seven percent of all jurors responding favored the reform. See Tables 2 and 3.
The field experiment also sought to test the hypothesis that trial discussion encouraged prejudgment. Jurors were asked to indicate at what stage of the trial they started the decision making process; at what stage, if any, they had changed their mind; and at what stage they had actually made up their minds on the ultimate issue. The table summarizing the jurors' reports is attached as Table 4. Contrary to claims made in literature published by jury consultants to the effect that jurors make up their mind during opening statements, this experiment shows that only 2 percent of those jurors reporting had made up their minds at that time. Nearly half of all jurors reported that they did not make a firm decision about who should win the case until final deliberations.
Generally, the experiment concluded that when jurors tend to decide the case is not a function of pre-deliberation discussions. Most jurors reported that they had changed their minds at least once and the frequency was not affected by being permitted to discuss the evidence during the trial. The report concluded that there was no apparent pattern of early judgment as a result of the jurors ability to engage in trial discussions.(9)
The data obtained in this field experiment also confirmed what many involved in the system have suspected for years - jurors to a substantial extent, are involved in informal discussions with family, friends, and other jurors despite being instructed to the contrary. Id. at 44.
Other states considering this reform have been encouraged to test the impact of the reform experimentally before adopting it widespread. In California, the Blue Ribbon Commission recommended in 1996 that the reform be adopted. The AOC staff however, recommended waiting until the Arizona evaluation had been completed. That is the current status of the reform in California. The National Center for State Courts has advised, however, that the AOC is planning to present a report to the California Judicial Council summarizing the Arizona reform and recommending that it be approved in California. If the Judicial Council agrees, it will issue for public comment a draft administrative order allowing juror discussions. The administrative order will thereafter be implemented as a "rule".
A second experiment on the impact of pre-deliberation discussion is currently being undertaken in Pima County, Arizona, Superior Court. Fifty civil trials are being videotaped, including juror discussions and deliberation, in an effort to obtain a more thorough understanding of whether these discussions affect the decision making process and juror interaction.(10)
Table 1. The Views of Judges, Litigants, and Attorneys about Trial Discussions
Item Judges Litigants Attorneys
(n=40) (n=124) (n=221)
1. Trial discussions improve juror
understanding of evidence (% agreeing) 75% 58% 49%
2. Trial discussions encourage jurors
to make up their minds early on, before
all the evidence and the law is
presented (% agreeing) 30% 53% 55%
3. Support reform (% supporting) 75% 45% 49%
4. Feel comfortable with jurors
engaging in trial discussions (% agreeing) --- 48% 51%
Table 2. Jurors' Views of Benefits and Drawbacks of Trial Discussions [Mean Response, Jurors Who Were Randomly Assigned to Trial Discussions and Engaged in At Least One Discussion (n=479]
1. How accurately was the trial evidence remembered during trial discussions?
(1=not at all accurately; 7=very accurately)
2. How helpful were these discussions for resolving confusion about the testimony
or evidence presented during the trial? (1=not at all; 7= a great deal) 5.63
3. How thoroughly were all jurors' points of view considered during these
discussions? (1=not at all thoroughly; 7=very thoroughly) 5.90
4. How concerned were you about inappropriately influencing or being
influenced by the opinions of the other jurors or by engaging in trial
discussions? (1=not at all concerned; 7=very concerned) 2.70
5. To what extent would you say that one or two jurors dominated
these discussions? (1=not at all; 7=very much) 3.57
Table 3 Views about Trial Discussions of Jurors Who Were Randomly Assigned to Trial Discussions and Engaged in At Least One Discussion (n=479)
1. Trial discussions improve juror understanding of
evidence (% agreeing) 81%
2. Trial discussions encourage jurors to make up their
minds early on, before all the evidence and the law
is presented (% agreeing) 26%
3. Support reform (% supporting) 77%
4. Felt comfortable engaging in trial discussions (% agreeing) 83%
Table 4 Percentage of Jurors Reporting When They Made Up Their Minds Who Should Win Case
No Discussions Trial Discussions Statistically
Juries Juries Significant?
Plaintiff's opening 2% 2% no
Defendant's 2% 3% no
Plaintiff's evidence 9% 9% no
evidence 13% 10% no
Plaintiff's closing 4% 6% *yes
closing 11% 12% no
instructions 6% 4% no
Jury discussions 8% 8% no
Jury deliberations 46% 45% no
TOTALS 100% 100% 1 of 9
1. The article is based on a paper presented on March 21, 1998, at the Michigan Law School Symposium and on research funded by the State Justice Institute Grant to the National Center for State Courts. Authors of the article are Paula L. Hannaford, Senior Research Analyst with the National Center for State Courts; Valorie P. Hans, Professor, University of Delaware; and Thomas Munsterman, Director, Center for Jury Studies, National Center for State Courts.
2. Diamond and Casper, Blindfolding the Jury to Verdict Consequences: Damages, Experts, and the Civil Jury, 26 Law and Soc'y Rev. 513 (1992).
3. Winebrenner, at 328-329.
4. Wexler, at 968, 969.
5. Jury Trial Innovations (G. Thomas Munsterman, Paula Hannaford, and G. Marc Whitehead eds., 1997).
6. Id. At 139-140.
8. Court comment to ARCP Rule 39(f).
9. Hannaford, Hans, and Munsterman Permitting Jury Discussions During Trial: Impact of Arizona Reform at page 28-29.
10. Shari Diamond and Neil Vidmar, American Bar Foundation and Duke University School of Law, are in charge of this research funded by a State Justice Institute grant to the Arizona Superior Court.