M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Mini-Opening Statement and Preliminary Instructions
As part of its 1995 jury reform, Arizona amended it rules of civil and criminal procedure to allow mini-opening statements before voir dire and preliminary substantive jury instructions immediately after the jury is sworn. See Rule 47(b)and 51(a), Ariz.R.Civ.P., and Rule 18.5(c) and 18.6(c), Ariz.R.Crim.P.
The mini-opening statement is intended to be a non-argumentive informative statement, which will allow jurors to know more about the case. Knowing more about the case before voir dire may assist the jurors understanding of the purposes of voir dire and the reasons for the questions being asked.
Preliminary substantive jury instructions are intended to inform the jurors, in advance of hearing the evidence, about the elementary legal principles governing the proceeding. Understanding the elements of the alleged crime or claim may assist the jurors in organizing and processing the evidence in their minds as they hear it, focus the jurors' attention on the relevant issues, improve the jurors' recall, and reduce the jurors' chances of applying an erroneous rule to the evidence. Having preliminary substantive jury instructions will accommodate the jurors' natural tendencies to immediately process evidence as they receive it. Potential disadvantages include: jurors may view trials from too narrow of a perspective; jurors may embark on a hypothesis-confirming search; jurors may engage in premature decision making; jurors might oversimplify the issues; and the length of the trial may be increased.
Currently, Rule 51(a), N.D.R.Civ.P., and Rule 30(a), N.D.R.Crim.P., provide: "The Court shall instruct the jury after the arguments of counsel to the jury are concluded." Likewise, in both civil and criminal cases, N.D.C.C. 28-14-10 and 29-21-01, respectively provide for instructing the jury after closing argument.
Other authority indicates it may be appropriate to instruct the jury before the evidence is heard. In criminal trials N.D.C.C. 29-21-02 provides: "When the state of the pleadings requires it, or in any other case, for good reasons and in the sound discretion of the court, the order of trial and argument prescribed in section 29-21-01 may be departed from." In a civil case, Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473, 476 n.3 (N.D. 1986), the court gave tacit approval to preliminary instructions on the merits of a case. In Glatt, the trial judge gave eight pages of preliminary instructions, and the supreme court noted the conclusion of an article entitled Techniques for Improving Juror Effectiveness, National Center for State Courts Report (Volume 13, Number 1, January 1986). The study concluded preliminary jury instructions significantly increased the satisfaction of jurors with the way the trial was conducted, but did not appear to benefit one side more than the other.
Should North Dakota's rules of criminal and civil procedure be amended to expressly allow mini-opening statements before voir dire and substantive preliminary jury instructions immediately after the jury is sworn?