Judge Joel Medd, Chair
Judge Steven Marquart
Judge Laurie Fontaine
Judge Robert Holte
Judge Gerald Rustad
Chair Medd called the meeting to order at 1:00 p.m. and drew attention to Attachment B
(June 7, 2006) - minutes of the June 14, 2005, meeting.
It was moved by Robin Huseby, seconded by Deb Simenson, and carried that the minutes be approved.
Juror Qualification Form - Draft - Comments
Chair Medd drew attention to Attachment C (June 7, 2006) - the revised juror qualification form and comments received regarding the revisions. He said the basic purpose of the revisions is to separate the information required by statute to be solicited on the form and information that is needed essentially for administrative purposes, which includes personal information. He noted that the revised form was distributed to judges, clerks, attorneys, a representative of the Trial Lawyers Association, and to Jack McDonald who represents media interests. He said the comments were generally favorable concerning the proposed revisions. He said comments from trial attorneys expressed dissatisfaction with the perceived limitation on information that could be solicited. And some comments, he said, also suggested additional changes to the form. One suggestion, he said, was to include on the form a notice that a person 72 years of age or older may request to be excused from jury service. This suggestion, he said, is related to the current provision in the Standards for Juror Use and Management that permits a person 72 years of age or older to request to be excused without providing a medical reason. He noted also that the statute governing the qualification form requires that the prospective juror's address be provided. Consequently, he said, the form should be further revised to include an address line. With respect to further suggestions, he said a comment recommended the form include a notice that the form will be copied and distributed to attorneys as well as a notice that the administrative questionnaire will be used only for administrative purposes and will not be distributed.
Judge Marquart observed that attorneys often contact clerks about juror information and asked if the completed qualification form will be the only information the attorneys receive. Judge Medd said the qualification form would be the primary source of information. He noted that Administrative Rule 41, governing access to judicial records, and NDCC § 27-09.1-09 provide that contents of the qualification form are public unless disclosure is limited by the court.
Judge Marquart said the revised qualification form will provide a limited amount of information that is useful to attorneys. He said the current form used in his district asks, for example, that the prospective juror provide an employer name. He noted that if more information is available initially it aids in shortening the voir dire process. Ron McLean asked if there would be any problem associated with requesting the prospective juror's employer or the spouse's employer. Dixie Knoebel suggested that employer information may be more appropriately solicited on the administrative questionnaire as employer information is not a qualification issue.
In response to a question from Ron McLean, Judge Marquart said some jurors have expressed concern that attorneys have gone too far in requesting personal information and have created ill-feeling on the part of jurors. Judge Medd observed that he informs prospective jurors that personal information may be solicited during the selection process and if there are concerns questioning will be conducted in chambers. Additionally, Judge Medd noted that the qualification form is a starting point for information and a judge can review with counsel whether additional information is considered necessary.
In response to a question from Dixie Knoebel, Judge Medd said if the Committee agrees about revisions to the qualification form, the revised form would be submitted to Sally Holewa, who, as State Court Administrator, is responsible by statute for approving the qualification form.
Jim Fitzsimmons said, with respect to available jurors, the Committee should look ahead to the impact of declining populations in areas of the state. He cautioned that it may not be prudent to advertise the opportunity to avoid jury service, which might be an unintended consequence of including a notice on the form that a person 72 years of age or older can be excused simply by requesting. He suggested possibly asking whether the person would have any special difficulties associated with serving. He said court staff could then make a determination concerning whether the person should be excused. Ron McLean agreed that a prospective juror over the age of 72 should have a quick, easy way to contact the clerk's office and discuss whether there are any special difficulties for the person in performing the functions of a juror.
Dixie Knoebel noted that Question 5 on the qualification form asks whether the person has a physical or mental disability that would affect the ability to serve on a jury. She suggested adding a provision to the form such as: "If you are 72 years of age or older, do you have any particular concerns about serving? If yes, contact [court staff] at (telephone number)."
Judge Medd drew attention to related language on a Michigan qualification form (copy attached), which provides: " The law states that if you are 70 years of age or older you do not have to serve on jury duty unless you want to. If you are 70 years of age or older, do you want to serve on jury duty?" Committee members agreed such language would essentially serve as an automatic excuse from service.
Staff noted that Standard 6, paragraph (a)(iii), of the current Standards included with Administrative Rule 9 essentially provides that a person "may" be excused if the person is "72 years of age or older on the dat of the summons and request not to serve."
Jim Ftizsimmons said the dilemma is how to inform prospective jurors that they may be excused without inviting or advertising in such a way as to encourage people to request to be excused. Deb Simenson agreed and cautioned about the practice of allowing an entire category of people to avoid jury service.
Committee members then considered Dixie Knoebel's earlier suggested language. There was general agreement that the language would provide notice to those 72 years of age or older, but would allow court staff to evaluate each situation individually.
Judge Medd drew attention to Sally Holewa's suggestion that Question 2 regarding state and county residency be split into two questions. Staff noted that NDCC §27-09.1-07 provides that the form must ask whether the prospective juror "[i]s a citizen of the United States and a resident of the county." Committee members agreed the revised form should reflect the statutory provision.
With respect to whether the qualification form should solicit the prospective juror's address, Ron McLean observed that the content of the qualification form is purely the business of the Supreme Court. Since, he said, a prospective juror's address is a issue regarding privacy, the form should not request address information. Robin Huseby agreed that including address information would negate any desire to shelter the privacy of juror information. But, she said, not including it may result in a challenge from counsel that the form does not reflect statutory requirements. Ron McLean reiterated that the Supreme Court should determine whether address information is solicited.
With respect to the administrative questionnaire, Deb Simenson suggested that space be included for a cell phone number. Committee members agreed.
Following further discussion, it was moved by Ron McLean, seconded by Dixie Knoebel, and carried that the revised qualification form be further revised as follows: 1) include an advisory that the form will be copied and distributed to attorneys in the case; 2) include Dixie Knoebel's suggested language concerning prospective jurors who are 72 years of age or older; 3) modify Questions 1 and 2 to reflect the statutory provision regarding U.S. citizenship and county residence; 4) not to include a request for address information; and 5) include an advisory that the administrative questionnaire is for clerk use only and include space for cell phone numbers.
Administrative Rule 41 and Access to Juror Information
Chair Medd next drew attention to Attachment D (June 7, 2006) - parts of recent amendments to Administrative Rule 41, which governs access to judicial records. He noted particularly new Section 5(b)(5), which provides that names of qualified or summoned jurors and the contents of qualifications forms are confidential if disclosure is prohibited or restricted by court order.
Staff noted that, with the exception of the reference to the names of summoned jurors, the rule provision is a different way of reflecting the current statutory provision, which provides that names of qualified jurors and the contents of the qualification forms are "available to the public" unless the court determines access should be limited.
Judge Medd asked whether, as a juror privacy and security issue, there should direction in
AR 9, or elsewhere, that provides some mechanism by which the court can routinely review the
affected juror information before it is disclosed to the public. He said in many cases disclosure of
the information is automatic and the court has never had an opportunity to determine whether access
should be limited unless a specific issue is raised by a party. He said it may also be a potential
education issue as judges may not be generally aware that access to names of qualified jurors and
the contents of the qualification form can be limited.
Administrative Rule 9 Standards and ABA Principles for Juries and Jury Trials
Chair Medd next drew attention to Attachment F (June 7, 2006) - a staff memorandum concerning the AR 9 Standards and the recently adopted ABA Principles, followed by AR 9, the Standards Relating to Juror Use and Management, and the ABA Principles. Staff noted, as the memorandum summarizes, that the ABA Principles for Juries and Jury Trials do not replace the ABA Standards, which are reflected in the AR 9 Standards. He said the ABA Principles incorporate, in various places, language from the ABA Standards, make references throughout to particular Standards, and address several jury issues not addressed in the Standards.
Chair Medd said the primary question for the Committee is whether to modify the AR 9 Standards based on the ABA Principles or to consider some other kind of action. He suggested also reviewing the commentaries to the ABA Principles.
Ron McLean suggested the possibility of recommending the adoption of the ABA Principles as an Appendix B to AR 9.
Chair Medd said the relationship of the ABA Principles to the current Standards will be reviewed further at a future meeting.
Survey Regarding Eye-Witness Testimony
Committee members next reviewed a request to the State Court Administrator by a Professor of Psychology at the University of North Dakota regarding participation in a survey of jurors about their knowledge and beliefs about eye witness testimony.
Chair Medd said the particular issue is whether or to what degree the court system should participate in the publication and distribution of the survey to jurors. He said there was a tentative consensus that if the survey process moves forward the survey should be distributed after trial.
Robin Huseby questioned the need for the court system to be involved and suggested those conducting the surveys could obtain the juror names themselves without that information being directly provided to them by the courts. Ron McLean said the draft survey instrument, which was distributed earlier, seems biased in the construction of questions. Judge Medd agreed some of the survey language appears less than neutral in describing eye witness issues.
Following further discussion, it was moved by Robin Huseby, seconded by Ron McLean, and carried that the Committee not recommend participation in the survey project.
Status of Committee
Chair Medd advised Committee members that the Judicial Conference would consider an amendment to the Conference's Bylaws which, among other things, would essentially disband the Committee as a committee of the Judicial Conference. He said similar amendments will be considered with respect to other Judicial Conference committees. The question for Committee members, he said, is whether the Committee should remain a Judicial Conference committee or be reestablished as a committee of the Supreme Court or, perhaps, as a committee of the Administrative Council.
Following discussion, it was moved by Ron McLean, seconded by Robin Huseby, and
carried that the Chair convey to the Judicial Conference the recommendation that the
Committee be reestablished as a committee of the Supreme Court.
There being no further business, the meeting was adjourned at 4:05 p.m.
Jim Ganje, Staff