Changing the Rules for Jurors

The American Bar Association is recommending, and many states are accepting, new ways for jurors to do their work. Among the changes are allowing jurors to take notes, allowing them to talk among themselves about the case before deliberations and allowing them to suggest questions for witnesses.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

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And I'm Robert Siegel.

The American Bar Association has devoted this year to studying the American jury system. As part of the project, the ABA has developed a list of principles for juries and jury trials. Some of these suggestions are rather untraditional. All day today on NPR News programs, NPR's Ari Shapiro has been looking at the state of the American jury. Here's his report on how the ABA proposals reflect changing attitudes about the role of the juror.

ARI SHAPIRO reporting:

Historically, jurors have been regarded as passive participants in a trial, empty vessels. The idea is that jurors enter the courtroom with clear minds, then they gradually acquire evidence and testimony. And once the vessels are full, the jurors deliberate and reach a conclusion. That idea is losing popularity.

Mr. ROBERT GREY (President, American Bar Association): De Tocqueville said that the jury was the best classroom in America.

SHAPIRO: The concept of courtroom as classroom has replaced the empty vessel idea for American Bar Association President Robert Grey and others. In some states, research about how kids learn best in schools is being applied to jury trials.

Mr. GREY: If somebody said to you, `Listen, I want you to sit in this class. I don't want you to take any notes. I don't want you to ask any questions. I don't want you to read any material, but I still want you to make an A in this class when I give you a test,' that's basically what we're doing to jurors, and it needs to change.

SHAPIRO: Letting jurors take notes and ask questions was revolutionary not long ago. Now those practices are being endorsed by the ABA in narrowly tailored ways. Phoenix attorney Patricia Refo chaired the ABA's American Jury Project, which created a new set of principles for juries and jury trials.

Ms. PATRICIA REFO (Phoenix Attorney; Chair, American Jury Project, American Bar Association): The judicial system is extremely slow to change, and that is, in most instances, a very good thing. But we have a couple of hundred years of jury trial experience under our belt now.

SHAPIRO: She says some jurisdictions have been allowing jurors to ask questions and take notes for a few years now.

Ms. REFO: And we have plenty of real-life experience using those in real courtrooms to prove that they don't cause any harm and, in many instances, may help the jurors do their job better.

SHAPIRO: Nobody wants jurors shouting out questions in the courtroom. The ABA principles recommend allowing them to submit written questions through the judge with the approval of lawyers on both sides. Tom Munsterman of the Center for Jury Studies has conducted a survey of courtrooms where jurors were allowed to ask questions. He says in most cases, jurors just want clarification.

Mr. TOM MUNSTERMAN (Center for Jury Studies): Sometimes, it's terminology. I remember one was, `What's a Big 5 accounting firm?' They were talking about a guy drinking some liqueur, and the person just didn't know what it was.

SHAPIRO: In situations where jurors submit questions that are too aggressive, Munsterman says it's the judge's job not to allow them into the case.

Not all of the ABA's principles have been uniformly embraced. As far as jurors taking notes, for example, Vince Buzard, president of the New York State Bar Association, is not enthusiastic.

Mr. VINCE BUZARD (President, New York State Bar Association): I'm a terrible note-taker, so if I have to rely on my memory and to say, `Well, this is what I remember,' and somebody's got it written down wrong in their notes in the jury room, the person with the piece of paper may have a greater credibility.

SHAPIRO: That said, Buzard says he's tried cases in courts where the jurors were allowed to take notes.

Mr. BUZARD: It's a little disconcerting when they're taking notes while you're getting clobbered, but it is a way for people to remember key points, and on balance, in the judge's discretion, is probably OK.

SHAPIRO: Note-taking was more than OK for Oscar Criner. He was foreperson of the jury that convicted accounting firm Arthur Andersen on charges relating to the Enron scandal. The Supreme Court recently overturned the jury's decision, faulting the judge for giving them bad instructions. Criner says he and his fellow jurors may not have been able to reach a conclusion at all if they had not been allowed to take notes in the courtroom.

Mr. OSCAR CRINER (Jury Foreperson, Arthur Andersen Trial): The notes probably were the saving grace of the trial, because without the notes, you would not have been able to reconstruct the time line. You would not have been able to go back and get to certain points.

SHAPIRO: That, he says, is why deliberations in the case took 10 days. The jurors spent the first five days just reconstructing the sequence of events from their notes.

Mr. CRINER: It's important, I think, very important for the modern juries to be given modern tools to work with. And the idea of a jury from the 16th century being able just to sit there and listen and come up with a verdict is long past.

SHAPIRO: Since Criner served on the Arthur Andersen jury, he's become an outspoken advocate, so much so that he even recorded his own radio spots to promote jury duty.

(Soundbite of radio spot; music)

Mr. CRINER: Did you know that even today, 95 percent of the world's jury trials are held here in America? Juries are one of the ways American society guarantees the rights of citizens on trial. It may not be perfect, but it's the best the world has to offer, unless you don't answer your jury summons.

Unidentified Man: Has the jury reached a verdict?

SHAPIRO: Jurors do not traditionally have advocacy groups, which Munsterman of the Center for Jury Studies says may be why the system has gone largely unreformed for so long.

Mr. MUNSTERMAN: People have said, `Who speaks for the jury system, and who's lobbying for the jury system?' And probably no one. You know, we don't have an association of former jurors. We don't have anyone beating down doors.

SHAPIRO: So when radical change does happen, it can be unsettling. Vince Buzard of the New York State Bar Association is personally uncomfortable with the ABA's recommendation that jurors be allowed to talk about the case during breaks in the trial.

Mr. BUZARD: We repeatedly charge jurors not to do that.

SHAPIRO: His fear is that jurors will reach a conclusion before they've heard all the evidence. Patricia Refo say that concern is unfounded.

Ms. REFO: We taped 50 trials here in Arizona, taping both the trial and the jury room. And the social scientists who have studied those tapes of actual trials tell us that the only fear, which is the fear that juries would reach their verdict too early in the process, is not substantiated.

SHAPIRO: Since these principles were adopted in February, judges have begun implementing them in courtrooms across the country, and that will no doubt come as a relief to jurors who, for decades, have had nothing to talk about with their colleagues but the quality of the cupcakes in the deliberation room. Ari Shapiro, NPR News, Washington.

SIEGEL: You can find the ABA's principles for jury trials at npr.org. And while you're there, you can take a quiz to test your jury knowledge.

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