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.

Continue Reading The Experts Look at Improving Voir Dire

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.Continue Reading American Jury Project: Questionnaires, Deliberation Guidance and Time Limits

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.
83% of judges using interim statements would use them again and believed they assisted juror understanding. No judge reported abuse of interim statements. Most judges that did not try interim statements believed they would decrease trial efficiency.
Both trial counsel and jurors agreed with the judges that interim statements improved trials. 90% of jurors thought the interim statements were helpful for introducing or summarizing evidence.
The Commission suggests courts use interim statements for trials lasting longer than one week. The longer a trial runs, interim statements become both more helpful and more critical to juror understanding.

Continue Reading American Jury Project: Interim Statements to the Jury

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.
The actual fairness of trials may not have been improved by larger juries. But the increased diversity of the twelve person jurors should at least increase the perception of fairness. Much of the power of our judicial system rests in a shared public perception of its fairness. The perception of fairness, therefore, is critical to the system. As a result, I agree with the Commission’s finding that, despite the inconclusive findings, twelve person juries warrant at least further study, if not widespread adoption.
Finally, one interesting procedural note: courts across the country face consistent problems filling jury pools. So, increasing jury sizes will strain an already strapped system. This is partially resolved by the Commission’s decision not to increase each side’s three peremptory challenges along with the increased jury sizes. Not increasing peremptory challenges reduces the increased strain on the jury pool and helps increase diversity, but it also limits counsels’ ability to pick the best possible jury. There may not be a perfect solution to this problem, but it is, at a minimum, an interesting tension that warrants additional study.

Continue Reading American Jury Project: 12 Person Juries

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:
In this trial, we are using a procedure that you may not have seen before. As members of the jury, you will be permitted to submit questions for a witness after the lawyers have finished questioning the witness. Here is how the procedure works: After each witness has testified and the lawyers have asked all of their questions, I will turn to the jury to see if anyone has any additional questions. If you have a question, you should write it down and give it to the court staff.
You may submit a question for a witness to clarity or help you understand the evidence. Our experience with juror questions indicates that a juror will rarely have more than a few questions for one witness, and there may be no questions for some witnesses.
If you submit a question, the court staff will provide it to me and I will share your questions with the lawyers in the case. If your question is permitted under the rules of evidence, I will read your question tot the witness so that the witness may answer it. In some instances, I may modify the form of phrasing of a question so that it is proper under the rules of evidence. On other occasions, I may not allow the witness to answer a question, either because the question cannot be asked under the law, or because another witness is in a better position to answer the question. Of course, if I cannot allow the witness to answer a question, you should not draw any conclusions from that fact, or speculate on what the answer might be.
Here are several important things to keep in mind about your questions for the witnesses.
First, all questions mush be submitted in writing. Please do not ask questions orally of any witness.
Second, witnesses may not be re-called to the witness stand for additional juror questions, so if you have a question for a particular witness, you should submit it at the end of that witness’s testimony.
Finally, as jurors you should remain neutral and open throughout the trial. As a result, you should always phrase any questions in a neutral way that does not express an opinion abut the case or a witness. Remember that at the end of the trial, you will be deciding the case. For that reason, you must keep an open mind until you have hard all of the evidence and the closing arguments of counsel, and I have given you final instructions on the law.
The following instruction was used at the end of trials:
During the trial, written questions by some members of the jury have been submitted to be asked of certain witnesses. Testimony answering a question submitted by a juror should be considered in the same manner as any other evidence in the case. If you submitted a question that was not asked, that is because I determined that under the rules of evidence the answer would not be admissible, just as when I sustained any objection to questions posed by counsel. You should draw no conclusion or inference from my ruling on any question, and you should not speculate about the possible answer to any question that was not asked or to which I sustained an objection.
Jurors were allowed to ask questions in 38 trials, and asked questions in 31 of those. 56% of jurors asked at least one question. Judges (63%), litigators (60%), and juries (87%) generally agreed that jurors asked an appropriate number of questions. Most jurors said that their questions were for the purpose of:
Clarifying information;
Getting additional information;
Linking evidence; or
Covering something lawyers missed.
Judges (77%) and litigators (65%) largely agreed that juror questions increased juror understanding and that they did not harm trial efficiency – judges (75%) and litigators (66%). Even the losing litigators largely believed juror questions enhanced juror understanding. Based upon this data, it appears that juror questions should be widely adopted.

Continue Reading American Jury Project: Juror Questions

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:
1. Juror Questions;
2. Interim Trial Statements by Counsel;
3. Twelve-Person Juries; and
4. Preliminary Substantive Jury Instructions.
These Principles were chosen because of Phase One popularity (78% of jurors reported that being able to ask questions increased their satisfaction with the process) and because of a desire to study the Principles more. Click here for the Phase Two manual.
In Phase Two, 108 jurors from 12 trials employing one or more of the Phase Two Principles filled out questionnaires. In addition, 12 attorneys and 4 district judges that participated also filled out questionnaires. The results are interesting, but more importantly create the opportunity to powerfully impact the trial system across the Seventh Circuit in ways that benefit all of the stakeholders in the trial process — the litigants, the jurors, the judge and the judge’s chambers, and the litigators.
All four of the Phase Two Principles showed significant benefits to the trial process. 83% of jurors reported an increased understanding of the facts when allowed to ask written questions through a judge — the questions were reworded to meet evidentiary rules. And 75% of judges and 65% of attorneys thought the questions benefited jurors. Similarly, preliminary substantive jury instructions were found to improve trials by jurors (80%), judges (85%) and attorneys (70%). And the same was true for interim statements to the jury — jurors (80%) and judges (85%). Finally, twelve-person juries were found not to harm efficiency, while increasing juror diversity.
Each of the four Phase Two Principles, as well as several of the additional three Phase One Principles deserve more attention and analysis. So, over the next several weeks I will provide follow up posts discussing the findings of those Principles in greater detail. I will start with the idea of juror questions, which I find particularly important, later this week or early next.

Continue Reading Seventh Circuit American Jury Project