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Tag Archives: American Jury Project

The Experts Look at Improving Voir Dire

Posted in Trial

Anne Reed has an excellent post at her Deliberations blog about improving the voir dire system based upon Judge Mize’s and Center for Jury Studies director Paula Hannaford-Agor’s new paper, Building a Better Voir Dire  – click here to read the post and for a link to a pdf of the article, which is also worth the read.  Reed’s post and the article fit well with my recent series of posts on the Seventh Circuit’s American Jury Project report — to read those posts and for a copy of the report, click here (juror questions); here (preliminary jury instructions); here (12 person juries); here (interim statements by counsel)and here (Phase I principles). 

Reed nails a huge problem with improving voir dire specifically or the trial process generally — judges and lawyers have different interests.  Judges who do lots of trials while facing bulging dockets and populations with little interest in appearing for jury duty often want trials over quickly and efficiently using the smallest jury pool possible.  Lawyers want to know as much as possible about as large a pool of jurors as possible.  Of course, the more in-depth the voir dire process, the more time it takes.  And the process of testing new ideas and improving upon voir dire, or any part of the trial process, also takes time up front, even if it saves time in the long term.  But Reed, Mize and Hannaford-Agor identify two resources that help limit the upfront costs for judges — the American Jury Project and the NCSC’s State-of-the-States Survey.  Both are incredible resources for judges that want to try new approaches to better serve all trial stakeholders.

Most of all though, it is exhilirating to see important groups like the NCSC and the Seventh Circuit massing their resources to evaluate and improve the trial process.  I look forward to covering more efforts like these and to continuing the discussion about how to best try cases in our courts.

American Jury Project: Questionnaires, Deliberation Guidance and Time Limits

Posted in Trial

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the four Principles studied in Phase Two,* this post looks at the additional three Principles considered only during Phase One: juror questionnaires, deliberation guidance, and trial limits.

The Phase One study showed strong value in having potential jurors answer questionnaires prepared by the court and counsel before voir dire. It streamlined the voir dire process, preserving judicial resources and benefiting jurors who are not comfortable with public speaking. The Commission recommended using questionnaires. For much more on questionnaires and a great library of them, check out Anne Reed’s Deliberations blog – click here for Reed’s questionnaire library.

The Phase One analysis of adding deliberation guidance instructions was inconclusive. Judges in sixteen trials used the following instructions regarding picking a foreperson and deliberating:

A.                 Jury Instruction on the Role of the Presiding Juror:

You are free to deliberate in any way you decide or to select whomever you like as a foreperson. However, I am going to provide some general suggestions on the process to help you get started. When thinking about who should be foreperson, you may want to consider the role that the foreperson usually plays. The foreperson serving as the chairperson during the deliberations should ensure a complete discussion by all jurors who desire to speak before any vote. Each juror should have an opportunity to be heard on every issue and should be encouraged to participate. The foreperson should help facilitate the discussion and make sure everyone has a chance to say what they want to say.

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American Jury Project: Interim Statements to the Jury

Posted in Trial

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries.

In seventeen trials, counsel were allowed to make interim statements before or after witness testimony and at the end or beginning of each week, as follows:

  • Counsel could make interim statements before or after their questioning of a witness, on either direct or cross;
  • The statements were given outside the presence of fact witnesses;
  • Counsel could object having interim statements just as in an opening or closing, but could not respond to them, to avoid excessive contentiousness;Advance notice of interim statements was not required;
  • Counsel’s statements for a trial were time-limited at the start of trial; and
  • Counsel were given ten minutes at the end and beginning of each trial week to summarize old testimony or preview the coming testimony.

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American Jury Project: 12 Person Juries

Posted in Trial

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries – click here for a previous post regarding juror questions and click here for a previous post regarding preliminary jury instructions.

Twelve person juries had the least conclusive results of the four Phase Two Principles. Mathematical modeling and other data suggested that twelve person juries would increase jury diversity and, therefore, presumably fairness. Fifty trials used twelve person juries. 50% of the judges in the trials believed the larger panels resulted in increased diversity, but only 39% of the trial attorneys agreed. But relatively few judges (25%) and trial attorneys (25%) thought the larger juries increased the fairness of the trial. Judges (78%) and trial attorneys (64%) largely agreed that the larger juries did not decrease trial efficiency. Finally, 93% of jurors and 77% of attorneys agreed that “the right number” of jurors were empanelled expanded in their cases.

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American Jury Project: Juror Questions

Posted in Trial

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied.

First up is allowing jurors to submit written questions for witnesses. As I discussed previously, jurors and judges both overwhelmingly believed juror questions benefited both juries and trials. It is hard to imagine that juror questions would not benefit trials and justice. If you ever have the opportunity for a post-trial discussion with a jury, a common theme is what the jury did not understand about the trial and the questions jurors wanted the lawyers to ask. While it is a little frightening for trial lawyers to give up some control of the trial process, overall both sides are better off with the jurors’ questions answered, removing a huge distraction for jurors. And you can learn much about how a jury is leaning or what you need to do in your case by listening to jurors’ questions.

Of course, as with most things during a trial, the details are very important. The Commission used the following initial jury instruction explaining that written questions could be submitted, that they would be asked only if allowed by the Fed. R. Evid., that they might be revised to comport with the Rules, and that questions may or may not be asked of all witnesses:

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Seventh Circuit American Jury Project

Posted in Trial

The Seventh Circuit instituted a Commission to study the implementation of the ABA Jury Project.  The Northern District was heavily represented on the Commission.  The following Northern District Judges were members of the Commission:  Bucklo, Brown, Coar, Darrah, Denlow, Der-Yeghiayan, Gottschall, Holderman, Kennelly, Lefkow, Moran, Schenkier, St. Eve, and Zagel.  The Commission recently published its report — click here to read it.  The report describes a two phase analysis.  In the first phase, district judges tested the following seven ABA Principles:

1.       Twelve-Person Juries;

 

2.       Jury Selection Questionnaires;

 

3.       Preliminary Substantive Jury Instructions;

 

4.       Trial Time Limits;

 

5.       Juror Questions;

 

6.       Interim Trial Statements by Counsel; and

 

7.       Enhanced Jury Deliberations.

Other Principles, such as juror notebooks and allowing jurors to take notes, were already in such widespread use that they were not tested.  Click here for the Phase One Project manual detailing the principles, the rationales and authority behind them, and suggested procedures.  Phase One resulted in questionnaires from 22 participating federal trial judges, 74 participating attorneys and 303 jurors from 38 trials that used one or more of the seven Principles.  Based upon the analysis of Phase One results and questionnaires, the Commission focused Phase Two on the following four Principles:

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