A comment on “But have we made any progress? An update on the status of jury improvement efforts in state and federal courts,” by Paula Hannaford-Agor, NCSC Center for Jury Studies
By Stephen D. Susman
ABOTA Jury Summit April 30, 2015
| Here are the statistics:* | 2005 | 2015 |
| Use of Juror Questionnaires | 10% | 20% |
| Length of Voir Dire State | 2 hrs | 3 hrs |
| Federal | 2 hrs | 2 hrs |
| Preliminary Substantive Instructions | 18% | 19% |
| Juror Notebooks | 8% | 12% |
| Juror Questions | 16% | 25% |
| Pre-Deliberation Discussions | 2% | 5% |
| Interim Summation | 1% | 1% |
| Instructions Before Closings | 36% | 44% |
| Written Instructions (one-set) | 67% | 54% |
| Written instructions (each juror) | 26% (down?) | |
| Guidance re: Deliberations | 56% | 60% |
*Based upon studies conducted by the National Center for State Courts a decade apart of lawyers and judges around the country about their most recent state and federal jury trials. The differences between federal and state are negligible.
Conclusions:
Voir dire has either remained as, or become more, time consuming
Except for providing the jurors with a single set of written instructions and some guidance on deliberations, the majority of state and federal courts do not use any of these innovations
The past decade has seen little adoption of these innovations [apparently these studies did not inquire about the most promising innovation—imposing time limits on jury trials]
So what’s the problem?
- Trial judges are very reluctant to experiment or change
- There are very few experienced jury trial lawyers left and hence few who are confident enough to agree to try these innovations
And the solution?
- Identify trial judges that are pushing the envelope by utilizing all or most of these innovations and get them to agree to convert their courts for one year to laboratories where, with the permission of litigants, jury trials employing these innovations can be videotaped and watched.
- Collect materials from these laboratory courts to show how each innovation should be used (e.g., contents of juror notebooks, procedure for jury questions, instructions on discussions of evidence before deliberations, procedures of interim summation)
- Assemble panel of state and federal trial judges to suggest model procedures (and Trial Agreements) on each innovation
- Have the judges involved conduct seminars for other trial judges to demonstrate these model procedures in use
- Publicize the results