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Univ. of South Carolina School of Law

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Wednesday, October 8, 2008

We The Jury, Take 3: 7th Circuit Issues Report On ABA's Principles For Juries And Jury Trials, Including Jury Questioning Principle

An article in today's Daily Iowan notes that the 7th Circuit's Bar Jury Project Commission recently completed a three year test of seven of the American Bar Association's nineteen Principles for Juries and Jury Trials and issued a written report, the Seventh Circuit American Jury Project Final Report.  The first principle explored in the report was the ABA's recommendation regarding jury questioning, which states that:

     C.  In civil cases, jurors should, ordinarily, be permitted to submit written questions for witnesses. In deciding whether to permit jurors to submit written questions in criminal cases, the court should take into consideration the historic reasons why courts in a number of jurisdictions have discouraged juror questions and the experience in those jurisdictions that have allowed it.

          1.  Jurors should be instructed at the beginning of the trial concerning their ability to submit written questions for witnesses.

          2.  Upon receipt of a written question, the court should make it part of the court record and disclose it to the parties outside the hearing of the jury. The parties should be given the opportunity, outside the hearing of the jury, to interpose objections and suggest modifications to the question.

          3. After ruling that a question is appropriate, the court may pose the question to the witness, or permit a party to do so, at that time or later; in so deciding, the court should consider whether the parties prefer to ask, or to have the court ask, the question. The court should modify the question to eliminate any objectionable material.

          4. After the question is answered, the parties should be given an opportunity to ask follow-up questions.

So, how did the Seventh Circuit test this principle and the other principles?  Well, you can get the full methodology in the report, but, basically, one or more of the ABA's principles were tested in 50 jury trials, after which 434 jurors, 86 attorneys, and 22 federal trial judges completed questionnaires.  And according to the report, "[t]he concepts tested by the Seventh Circuit Project were generally viewed by the participants as enhancing the jury trial process."

Specifically, with regard to the jury questioning principle, "Of the participating jurors in the test, 83 percent said the questions positively affected their understanding of the facts.  In addition, 77 percent of participating judges and 65 percent of the attorneys were in favor of the procedure."  And that's really just the tip of the iceberg.  The report also contains a wealth of statistical data on issues such as how many questions were submitted by jurors, whether the judges/attorneys/jurors were satisfied with the number of juror questions asked, and how the number of questions asked varied based upon the educational background of the jurors."  (Furthermore, the report contains similar detailed data for each of the 7 tested principles).

This data jives with the findings from the implementation of Florida's new rules, which mandated jury questioning in civil trials and made such questioning permissible in criminal trials (I have blogged the Florida experience about here and here).  As I noted in my second post on Florida's new rules, Circuit Judge De Furia has been the only judge in Florida to allow juror questions in all of his trials,

     "And according to both prosecutors and defense attorneys who have tried cases before De Furia, the process has improved the quality of the trials. Meanwhile, jurors in those cases have claimed that the process has clarified issues and made their decisions easier."

As I also noted then, "I still maintain that juror apathy/confusion is the biggest concern facing the American legal system, and I think that based upon these early returns, the Florida rules could indeed serve as a model for other states."  I think that the results of this report corroborate this conclusion, and I hope that courts takes a long look at all of the findings of the Seventh Circuit's report in the years to come.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/10/juror-questions.html

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