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.
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:
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: