|Members Present |
Judge Robert Holte, Chair
Judge Lester Ketterling
Judge Joel Medd
Judge John Paulson
|Members Absent |
Judge Bruce Haskell
Surrogate Judge Jon Kerian
Chair Holte called the meeting to order at 10:10 a.m. He said since the Committee's last meeting he had exercised the prerogative to encourage Ted Gladden and the administrative staff to proceed with such matters as development and distribution of a jury exit questionnaire, see Attachment G (November 17, 1998). He said some districts have used the questionnaire, while others have not. Deb Simenson observed that use of the questionnaire, or a questionnaire like it, was discontinued in the South Central judicial district because very little useful information was being obtained. Chair Holte said the general approach was for judges to have very little involvement in the distribution of the questionnaire and assembling of data. The information gathered on the questionnaire, he said, would be assembled by the administrative staff and provided periodically to judges and clerks.
Judge Paulson said the best time to obtain information from jurors is after the jurors have completed the verdict. Once jurors have left the courthouse, he said, a much smaller percentage of responses will likely be obtained. Judge Holte said jurors in his court are told in advance they will be given a questionnaire to complete and are encouraged to complete the questionnaire while at the courthouse. He said of the responses he has reviewed, every respondent thought juror pay was too low. One interesting problem, he said, is that teachers are apparently being required to pay for substitutes when they are to appear for jury duty, or are not being paid if a substitute is provided for and the teacher is ultimately not called for jury duty. He said every district seems to have a different procedure for getting the questionnaire to jurors, if the questionnaires are used at all. He suggested someone should have basic responsibility for receiving and assembling the information in a summary fashion.
In response to a question from Chair Holte, there was no objection to Ted Gladden and the administrative staff continuing with the distribution of the questionnaire and gathering of information. Ted Gladden said the questionnaires could be distributed on a random basis, for example following every other trial. Judge Paulson suggested a sample of criminal and civil jury trials should be obtained and that questionnaire distribution target certain times of the year.
With respect to the timeframe for the information gathering project, Committee members agreed the questionnaires should be distributed and information gathered and analyzed for the next one year period.
In response to a question from Jim Fitzsimmons, Ted Gladden said there are approximately 300 jury trials held per year.
Judge Medd said he liked the questionnaire form and has found it useful. However, he noted there is no question regarding whether jurors were allowed to ask questions. He said responses in that area may be interesting.
Ted Gladden said one of the objectives of assembling the questionnaire information was to enable administrators to use the data in modifying procedures and practices. For example, he said, if the issue is parking, someone should work with the county commission. That is, he said, if there are concerns that can be translated into operational activities, then someone should take the lead in coordinating a response. Another potential initiative, he said, is that of exploring whether means-tested day care services could be provided for those for whom day care availability hinders jury service. However, he said, if data is not gathered, it is difficult to know what problems may exist.
Chair Holte requested that Ted Gladden contact local administrators to ensure the forms are distributed and the data assembled and summarized.
Chair Holte next drew attention to Attachment B (November 17, 1998) - Standards Relating to Jury Use and Management and the Jury Selection Plan. Staff noted there are Committee note references, statutory cites, and other information in the standards that require updating. He said that is likely a project that can be undertaken by the Committee over the next year or so. Judge Medd noted there had been a few changes to the ABA Jury Standards and suggested those should be reviewed as well.
Chair Holte said the Standards would be revised and reviewed at the Committee's next meeting.
Chair Holte drew attention to a letter received from Ted Gladden which recounts concerns raised by Judge Schmalenberger about jury selection in counties in which population levels are declining. He said Judge Schmalenberger suggested the possibility of providing for automatic drawing of jurors from adjoining counties if the population in a county falls below a certain level. A copy of the letter is attached as Appendix A. He said the suggestion contemplates a possible statutory change, most likely to N.D.C.C. §27-09.1-05.1, attached as Appendix B. That statute, he said, allows a judge to request additional juror names from an adjoining county if the county of venue has a population of 10,000 or less and the judge has made a determination that there are insufficient prospective jurors to ensure a fair and impartial jury. An associated problem, he said, is that there is no particular process or procedure in place to implement the statute as it currently exists.
Judge Paulson suggested that some of the issues concerning jury selection in these situations might be resolved by involvement of counsel and judges in pretrial conferences.
Ted Gladden suggested that perhaps the current statute could be retained in its present form, but also amended to provide another alternative that once a county's population falls below a certain level, then the court is automatically allowed to request additional names from an adjoining county.
Tom Dickson suggested that a party to an action should be permitted to raise the issue, rather than leaving it entirely for the court on its own motion, as §27-09.1-05.1 currently provides. That way, he said, lawyers would have some explicit responsibility for addressing the question.
After further discussion, Committee members agreed the issue should be considered further and possible statutory changes reviewed. There was also agreement that a procedure for implementing the existing statute should be considered, with a focus on such issues as who qualifies and excuses out-of-county jurors.
Staff noted that §27-09.1-05.1 currently provides that the clerk from the adjoining county must provide names of prospective, "qualified" jurors.
Tom Dickson suggested the Committee should present a proposal for a modest amendment to the statute that allows a party to request that additional jurors be selected from an adjoining county. Committee members agreed.
Chair Holte next drew attention to Attachment C - letters and an article concerning juror confidentiality.
Judge Medd said confidentiality is a broad-based concern that should be addressed in statute or in the jury management plan. The Munsterman article, he noted, identifies certain information from juror qualification forms which is necessary for administrative purposes (address, name, telephone numbers), but which may be problematic if available, for example, to a defendant in a criminal case. Staff noted that N.D.C.C. §27-09.1-09(3) provides that names of qualified jurors and contents of qualification forms must be available to the public unless the court determines the information should be kept confidential to some degree. Tom Dickson observed that the purpose of the Bismarck Tribune article referred to by Judge Graff (see Attachment C) was to hold the jurors in the Olander case up to ridicule. He said in another case in which he was involved, a newspaper printed the names of the jurors who were deadlocked 6-6 on a verdict. However, he said, juror information should not be confidential because it harms the presumption of innocense if jurors are referred to by number rather than by name.
Ted Gladden noted that courts in Maricopa County, Arizona, distribute completed qualification forms to lawyers, judges, and others in the court system and then the forms are collected and shredded so any information not intended for public consumption is not available.
After further discussion, Committee members agreed the Committee should review information concerning procedures in other jurisdictions regarding juror confidentiality. In response to an observation by Jim Fitzsimmons, Committee members agreed there is a general interest in protecting juror confidentiality as long as a defendant's right to a fair trial is not compromised. Members also agreed that Jack McDonald should be invited to a future meeting to obtain the media's perspective on issues concerning juror confidentiality.
Excusing and Deferring Jury Service
Chair Holte drew Committee members' attention to Attachment D (November 17, 1998) - A memorandum concerning jury excusal and deferral policy. He suggested issues concerning the excusing and deferring of jury service should be incorporated with the review of the jury standards, particulary Standard 6. He observed that the practice of excusing jurors is different around the state, both in terms of procedures and in terms of who it is that grants the excusal. Additionally, he said, excusal based on age, for example, varies in different areas of the state.
Jim Fitzsimmons suggested the procedure for excusing and deferring jury service should be somewhat informal, but if a request for excusal is denied, the person should be able to appeal that decision to the presiding judge or some other designated official.
Ted Gladden said there is a need for minimal standards regarding excusal procedure so that clerks are not excusing informally. He said an important issue is whether the response regarding an excusal request is written or not, which becomes an important factor if the jury makeup is ultimately challenged.
Chair Holte suggested Standard 6 be reviewed with the objective of developing possible minimal standards for excusing and deferring jury service. He said there appears to be agreement that a decision on excusal or deferral should be in writing and that there should be some appeal process if the excusal is denied.
Juror Qualification Forms and Felony Convictions
At the request of Chair Holte, staff summarized Attachment E (November 17, 1998) - A memorandum and letter regarding jury qualification forms and felony convictions. He said the memorandum simply makes clear that a felony conviction may not be used for purposes of disqualifying a prospective juror. He said associated changes would be required to the jury qualification form and to page 4 of the jury selection plan.
Ted Gladden observed that while there should be a standard jury qualification form, there appears to be different forms in use across the state. Committee members agreed a uniform jury qualification form should be developed and used throughout the state. Judge Paulson emphasized the importance of attorney involvement in developing the form. Staff noted that N.D.C.C. §27-09.1-07 sets the general contents of the qualification form and provides that the form is subject to the approval of the state court administrator.
In response to a question from Judge Ketterling, Tom Dickson said while the statutory requirements for the form are fairly limited and basic, more information obtained on the form enables jury selection to proceed more quickly.
Minority Representation on Jury Panels
Chair Holte observed that issues concerning information gathered on qualification forms are related to concerns about the inclusiveness of the jury selection process. He said one suggestion is to include on the form a question concerning race or ethnicity.
Ted Gladden noted that Standard 12 suggests that information be gathered to ensure the representativeness and the inclusiveness of the jury source list. Consequently, he said, unless there is a particular legal barrier, information concerning race and ethnicity should be obtained from the jury qualification forms.
In response to a question from Tom Dickson, Ted Gladden said information obtained from the National Center for State Courts jury project indicates the prevailing opinion is that voter and driver's lists are the two best sources for juror selection. He said only small improvements, if any, are gained by adding other lists.
With respect to Native American representation on jury panels, he said that in his time with the Minnesota courts, court personnel visited reservations with the League of Women Voters and conducted voter registration drives. Additionally, he said, articles were published in tribal newspapers and information programs were conducted in local schools. However, he emphasized that until the relevant data is assembled, it is nearly impossible to determine whether there is a systemic problem in the jury selection process.
Judge Holte observed that if the question is included in the qualification form, then the process of obtaining and assembling information can be started and some conclusions could be drawn about the selection process.
IT WAS MOVED BY JIM FITZSIMMONS, SECONDED BY JUDGE KETTERLING, AND CARRIED UNANIMOUSLY THAT A QUESTION CONCERNING RACE OR ETHNICITY BE ADDED TO THE JURY QUALIFICATION FORM.
Ted Gladden said the question would likely follow the format contained in the U.S. Census.
Chair Holte requested discussion of any other issues before the Committee.
IT WAS MOVED BY TOM DICKSON, SECONDED BY JUDGE PAULSON, AND CARRIED UNANIMOUSLY THAT THE COMMITTEE RECOMMEND TO THE JUDICIAL CONFERENCE THAT §27-09.1-05.1 BE AMENDED TO PERMIT A PARTY TO RAISE THE ISSUE OF SELECTING ADDITIONAL JURORS FROM AN ADJOINING COUNTY.
Chair Holte said the Committee would likely continue to hold meetings in conjunction with the Judicial Conference.
No further business appearing, the meeting was adjourned at 12:30 p.m.
Jim Ganje, Staff