Chair Medd called the meeting to order at 10:00 a.m. and welcomed Committee members to the Committee's first meeting in some time. By way of general information, he noted that the incoming president of the American Bar Association has announced a project to thoroughly review the jury process, although apparently the number of jury trials nationally has declined. He noted that civil jury trials appear to be more infrequent in North Dakota as well. Ron McLean said the number of jury trials in the Fargo area has also declined, due in part to the impact of successful mediation. Deb Simenson observed that jury trials in Burleigh County consist mostly of DUI trials. Wally Kowitz said there have been more jury trials than expected in the Northwest judicial district, with a large share also being DUI trials.
Review of Governing Statutes, Rules, and Standards
Chair Medd then drew attention to Attachments B and C (July 1, 2004) - NDCC Ch. 27-09.1, the Uniform Jury Selection Act, and Administrative Rule 9 governing jury selection procedures and the related standards for juror use and management. He suggested the Committee should review these provisions to determine if any changes should be considered.
In response to a question from Chair Medd, staff drew attention to Section 27-09.1-05, which permits the court, on its own motion or at the request of a party, to select jurors from one or more counties in the judicial district if the county of venue has a population less than 10,000 and the court determines the number of prospective jurors is insufficient to obtain a fair and impartial jury. He said there has been discussion concerning whether the population and "fair and impartial" qualifiers should be eliminated. Those changes, he said, would essentially allow the court to select prospective jurors from other counties whenever it was considered necessary to do so. The concern, he said, is that in rural counties with declining populations, including those with populations of more than 10,000, it is becoming more difficult to assemble a pool of prospective jurors.
Ron McLean said it may be worthwhile to allow the court greater discretion to address situations in which sufficient numbers of prospective jurors are simply not available in a given county.
In response to a question from Ron McLean, staff said there could be a budgetary impact if jurors were to be regularly selected from another county and there may also be concerns about juror inconvenience in having to travel appreciable distances to serve as a juror.
Ron McLean wondered about the possible impact on counties with a large minority population, such as those on Indian reservations. He said there may be a question regarding whether there is truly a jury of peers if a number of jurors are selected from other counties. Jim Fitzsimmons said on the other hand that there may be advantages to drawing jurors from other counties. For example, he said Dunn County has a small percentage of Indian population and if additional jurors could be selected from McKenzie or Mountrail County, for example, which have a higher percentage of Indian population, then the possibility of more Indian members on the jury may be enhanced.
Judge Holte suggested the possibility of eliminating the required finding that a fair and impartial jury cannot be obtained from the jury pool. He said additional prospective jurors could then be selected simply on the court's own motion or in response to a party's request. Alternatively, it was suggested that the statute could perhaps be modified to refer to obtaining an "adequate jury pool" rather than a "fair and impartial" jury, as fairness and impartiality are generally not the issue.
Judge Holte noted that in high profile cases it may be helpful to be able to summon jurors from other counties even if the county of venue has a population greater than 10,000.
Following discussion, Committee members agreed staff should prepare draft legislation amending Section 27-09.1-05.1 to delete the population requirement and substitute obtaining an adequate jury pool for the current reference to obtaining a fair and impartial jury.
Committee members then reviewed that portion of the statute governing the selection of additional jurors in the event of a natural disaster. Staff noted that the present language, which permits obtaining additional jurors from an adjoining county in the judicial district, was included to address problems caused by the flood in Grand Forks. Judge Medd observed that for Grand Forks County there is little benefit in trying to obtain additional jurors from the two adjoining counties in the district because of the low populations in the counties. He suggested it would be more helpful if the statute would permit obtaining additional jurors simply from an adjoining county, without limiting it to counties in the judicial district. He said that would permit Grand Forks, for example, to obtain jurors from Walsh County, which is located in a different judicial district but is contiguous to Grand Forks County. After further discussion, Committee members agreed the draft legislation should include deletion of the judicial district qualifier with respect to obtaining jurors from an adjoining county in the event of a natural disaster.
Chair Medd said the draft legislation would be reviewed at the next meeting.
Juror Privacy - Juror Qualification Forms and Questionnaires
Chair Medd drew Committee members' attention to Attachments D and E (July 1, 2004) - ABA Standard 20 regarding juror privacy and a publication authored by Paula Hannaford of the National Center for State Courts which discusses possible approaches to protecting juror privacy. He noted that juror privacy is becoming more of an issue with the increase in identity theft and other breaches of privacy.
Ron McLean observed that at a recent Inns of Court session there was considerable discussion of juror fear of retaliation having increased significantly. Judge Holte said there is the inevitable complication with respect to juror privacy in North Dakota because of the essentially rural character of the state and the fact that people within a community are generally known to one another. Jim Fitzsimmons agreed but said there likely is a difference between jurors serving in a trial in a larger city and jurors serving in a trial in a rural court location. He suggested jurors should be viewed as "customers" of the judicial system and that any unnecessary personal information should be eliminated or restricted as much as possible.
Judge Holte observed that many times jurors will indicate privacy concerns on the questionnaires completed after jury service, even though there was no concern expressed at the time of jury selection.
Staff recalled the Committee's earlier discussion of issues concerning juror privacy and security and the decision then to defer further discussion pending the publication of the Hannaford
article [Attachment E (July 1, 2004)]. He said the article is intended to provide guidance for courts in addressing what is generally regarded as a complex issue. The article, he said, essentially suggests drawing a distinction between juror information that is needed for administrative purposes, which could be made confidential, and juror information that is desired by lawyers as an aid to the juror selection process.
Ron McLean observed that New York follows a process in which the administrative information is destroyed after a certain period of time. He suggested that may be a minimal first step to be considered in protecting juror information here. Deb Simenson noted information sheets, which contain juror personal information, are routinely distributed to the lawyers in the case.
Staff said there is a distinction between the juror qualification form - the information solicited regarding basic qualification for juror service - and information required for payment, and the information that is assembled and distributed to lawyers for purposes of assisting in jury selection. He said there is no statutory provision governing collecting information from jurors other than the statute providing for the form and contents of the basic qualification form.
Ron McLean said that he likely would need no juror information other than who the juror is and probably would not need a personal address as long as the city of residence is known.
With respect to the revised juror qualification form included as Attachment F (July 1, 2004), staff said the revision separates the previous form into two forms - one to obtain information required by statute for qualification purposes, and one to obtain "administrative" information (address, mileage, etc) for use by the clerk's office. He said the revision deletes information in the previous form which solicited information regarding whether the person or a member of the person's family had ever filed suit or had ever been sued. He noted that NDCC Section 27-09.1-09(3) provides that the contents of juror qualification forms must be available to the public unless the court determines there is good reason for the information to be confidential.
Deb Simenson noted that the qualification form used in Burleigh County asks whether the person has ever served on a jury in a DUI trial. That is included, she said, because of the limitation on a person serving on a jury when that person has served before on a jury regarding a similar offense. Staff noted that NDCC Section 29-17-36(5) provides that there may be a challenge for implied bias if the prospective juror has previously served on a trial jury that has tried another person for the same offense.
Ron McLean observed that for administrative purposes, the clerk's office likely only needs the juror's name, address, telephone number, and perhaps employer. He said the form on which such information is provided could then be used by the clerk's office for purposes of contacting the prospective juror and payment, and then destroyed. The next distinction, he said, is with respect to the kind of information the clerk provides to the attorneys in the case. He said a plausible argument can be made for not disclosing the juror's address to the attorneys if the juror requests that information not be disclosed. Most jurors, he said, likely will not make such a request because their addresses are already in the telephone book. However, he said he would disagree with the suggestion in the Hannaford article [Attachment E (July 1, 2004)] that the scope of voir dire examination, with respect to juror identifying information, should be curtailed. He said lawyers can intelligently use peremptory challenges only if they have enough pertinent information. He said that in North Dakota the issue, rather than being one of disclosure of personal information, is the fear on the part of some jurors of retaliation, predominantly in criminal cases. He suggested that in criminal cases a prospective juror should be excused if the juror informs the court that the person is afraid to serve.
Judge Medd said a prospective juror may not have enough information at the outset to know whether serving on the jury will be a problem or whether to authorize disclosure of information.
Wally Kowitz suggested the possibility of a two part form, perhaps similar to the draft, with one part for qualification purposes, which would be shared, and one part for administrative use, which would not be shared and would be destroyed after a certain period of time. Ron McLean suggested the form should include a provision by which the juror could authorize disclosure of information. Jim Fitzsimmons said another alternative may be to allow the court to determine whether the personal information will be disclosed. Judge Holte said because the concern seems to be primarily with respect to criminal cases, perhaps disclosure, or nondisclosure, of information could be linked to the kind of proceeding.
In response to a question from Ron McLean, Judge Medd said that he will excuse a juror if the juror indicates to him that the juror is afraid to serve. He said procedures or practices should be in place that easily permit a prospective juror to notify the court that the person is fearful of serving.
In response to a question from Judge Medd, Ted Gladden said he could contact Tom Munsterman at the National Center for State Courts regarding whether any procedures have been adopted in other jurisdictions to address instances in which jurors are afraid to serve.
Judge Holte wondered how the judge, once a proceeding is underway or is just getting started, would elicit information from prospective jurors about a fear of serving.
Wally Kowitz noted Standard 11(c)(ii), which provides that the juror questionnaire must request only that information essential for "[p]roviding basic background information ordinarily sought during voir dire examination." He said that provision would likely require modification if it is concluded that juror personal identifying information will not be generally available.
Following discussion, Committee members agreed the draft qualification and questionnaire forms should be initially modified to include a line for the prospective juror's name on the qualification form and to delete the question regarding religious scruples on the questionnaire.
Chair Medd said the forms and the general issue of disclosure of information will be discussed at a future meeting.
Excusing Prospective Jurors from Service
In response to a question from Chair Medd, staff said another question that has arisen is with respect to varying practices used in excusing jurors from service. He said that while Standard 6 of the Standards Relating to Juror Use and Management provide guidance to be followed, there are differing practices with respect to who is responsible for excusing jurors and what is needed to support a request to be excused.
Judge Medd noted that Standard 6 requires that requests to be excused and their dispositions must be written or otherwise made of record. He agreed there is a general issue concerning who is responsible for administering the process and there may be too much discretion in determining who is excused and under what circumstances.
Wally Kowitz observed that in the Northwest judicial district all judges except two handle requests to be excused. With respect to the other two, he said he handles such requests.
Jim Fitzsimmons cautioned that the process may be subject to challenge if there is suspicion that it is arbitrary or capricious in the manner in which excuses from juror service are considered and granted.
Staff noted that Standard 10(c) requires the development and adoption in each judicial district of a local jury management plan. He said the plan may be an appropriate place to address procedures for excusing jurors. Judge Medd suggested the possibility of conducting a workshop of sorts to develop a template for the local plans. He said the plans, once adopted, could possibly be placed on the Supreme Court's website.
Following discussion, Committee members agreed procedures for excusing jurors should be developed and included in each local jury management plan. The assistant state court administrator for trial courts will be contacted and advised of the Committee's conclusion.
Juror Failure to Respond to Summons - Response
Committee members then discussed how the judicial system should respond when jurors do not respond when summoned for jury service. It was agreed that there is no clear common practice in this area.
Deb Simenson said there have been instances in Burleigh County when the sheriff has been sent to pick up jurors who have not appeared for jury service.
Wally Kowitz distributed a letter used in the Northwest judicial district which advises the person of the importance of jury service and the possible sanctions for not appearing. He said the letter attempts to take a positive approach and reinforce the civic duty associated with jury service. A copy of the letter is attached as an Appendix. He further noted that if prospective jurors do not appear, the jury clerk will assemble a list of the names of those who did not appear and submit it to the appropriate judge for a determination of how the situations will be handled.
In response to a question from Deb Simenson, Judge Holte said tribal members often face the difficulty of being called for jury service in tribal courts as well as state courts.
Noting the variation in experiences in different areas of the state, Judge Medd said one method of beginning to address the issue might be to share procedures that are used in the different counties and districts. He noted the previously mentioned procedure of compiling a list of the jurors who have not appeared and submitting it to a judge for disposition.
In response to a question from Jim Fitzsimmons, Deb Simenson said in Burleigh County the clerk's office calls jurors who do not appear.
Jim Fitzsimmons suggested there should be, at minimum, follow-up contact of some kind with prospective jurors who do not appear for service. To do otherwise, he said, may leave the impression that jury service is not considered important and that not appearing will have no consequence.
In response to a question from Chair Medd, Committee members agreed that as a minimal step the local jury management plans should include a procedure for contacting those who do not appear in response to a juror summons.
Committee members agreed the Committee should attempt to meet in early October. Members will be contacted regarding a possible meeting date. Chair Medd suggested the Committee should at some point discuss possible methods for juror recognition and appreciation.
There being no further business, the meeting was adjourned at 2:00 p.m.
Jim Ganje, Staff