Posted Dec 22, 2004 08:50 am CST
Those are among the more controversial of 19 standards likely to be recommended by the American Jury Project–a 22-member committee of judges, academics, lawyers and others for the House of Delegates to consider adopting as ABA policy at the February midyear meeting in Salt Lake City.
The effort would reform and unify three separate sets of standards currently in place that were developed by the ABA’s Judicial Division and the sections of Criminal Justice and Litigation. Because of the sweeping nature of some of the proposed changes and the wide variation in statutes and rules among the states, the standards probably will include a preamble explaining that they are aspirational goals. In addition, lengthy commentary will be added.
“We’re trying to articulate what we think the gold standard should be,” says Patricia Lee Refo, a Phoenix lawyer who chairs the American Jury Project and is immediate- past chair of the Litigation Section. “If you limited them to things that are permissible everywhere under current law, you wouldn’t have any standards.”
The committee began its work following the ABA Annual Meeting in August and has received input from a wide range of sources, including the trial and defense bars, government officials and academics.
In October, ABA President Robert J. Grey Jr. convened a symposium at his alma mater, the Washington and Lee University School of Law in Lexington, Va. It was the only public session for comment on the draft proposals before they are revised for the House of Delegates. Written comments, however, continue to come in.
The effort is a signature project for Grey, who also created a blue-ribbon Commission on the American Jury for outreach to the public in promoting what he calls “the great democratic tradition of trial by jury.” The commission’s honorary chair is Justice Sandra Day O’Connor and one of its three co-chairs is New York Court of Appeals Chief Judge Judith S. Kaye.
The jury project and the commission comprise a two-pronged approach to address concerns about the jury system. An ABA-sponsored public opinion poll last summer found that most people believe jury duty is a privilege rather than a burden, and that more than three-fourths of them would rather have juries than judges decide their cases.
The greatest need, grey says, is to remove barriers to effective jury service. The proposed standards call for curtailment of overly long trials and improvement of compensation for jurors’ out-of-pocket expenses. They also address ways to deal with juror privacy, which has become a growing problem in high-profile trials.
The October symposium, which drew more than 100 interested lawyers, judges, academics, bar leaders and others, featured vigorous questioning from participants who pointed out problems with draft proposals that were at variance with procedures in their own states. Such gatherings often come after draft proposals are firmly set, but the committee significantly reworked some of them after this one.
For example, symposium participants overwhelmingly criticized a proposal calling for trials to be limited, except in extraordinary circumstances, to six months. By a show of hands, participants agreed that specifying six months as a limit would likely create a floor rather than a ceiling–shorter trials might be stretched to that limit.
The committee’s draft proposal now calls for judges to work with the parties in coming up with reasonable predictions of time needed for trial.
“One of the good things about the symposium is that we got rid of the six-month limit,” says Shari S. Diamond, a project committee member and a professor at the Northwestern University School of Law, as well as research fellow with the American Bar Foundation. “It could become an anchor.”
The committee is being specific, however, in its proposed standard calling for 12-person, unanimous juries. Discussion at the symposium made it clear that many are of the opinion the Supreme Court was mistaken in a series of cases in the 1970s that determined smaller juries and non-unanimous juries were not violations of 6th Amendment and 14th Amendment rights to trial by an impartial jury and to due process. “Those decisions were mistakes,” according to Stephan Landsman, the committee’s reporter and a professor at DePaul University College of Law. “We’re trying to rehabilitate damage that’s been done by them over the past 30 years.”
Research, including that done separately by Landsman and Diamond, has shown that larger juries deliver fewer erratic verdicts. And when unanimous verdicts are not required, jurors who disagree with the majority can be mar- ginalized and told their votes don’t count, cutting deliberations short and thus eliminating some of the diversity and representativeness expected of juries.
“That’s a terrible blow to the system and the notion of democracy,” Landsman says. “This is the direction we believe the bar needs to go, and we know we’re not going to get there tomorrow.”
Some members of the committee were surprised at the amount of criticism from participants concerning jurors taking notes. Also controversial are proposals that would permit jurors to discuss testimony and evidence, in the jury room, throughout the trial rather than only at its conclusion, and another that would permit them to ask questions in writing.
Some jurisdictions allow some or all of those practices, but they are not widespread.
“It’s interesting to me how many expressed serious concerns about note taking and questions,” says Louraine C. Arkfeld, a vice chair of the project, municipal court judge in Tempe, Az., and chair of the ABA Judicial Division. “Being from Arizona where this has been standard practice for so long, I was startled at the response. But that’s part of the beauty of being in the ABA and being exposed to something besides your own way.”
The committee also recommends that jurors “should ordinarily” be permitted to ask questions in civil trials. And in light of disputes within the committee and among symposium participants, it will recommend several categories or situations in which the practice would be prohibited.
Another proposed standard says that jurors are allowed to discuss evidence among themselves in the jury room during recesses from trial, with instruction to reserve judgment until completion.
The symposium included presentations by people who have served on juries, and some told of having discussed cases despite the judges’ admonitions. “That was one of the more interesting parts of the symposium,” says Arkfeld. “We can sit on the bench and theorize what they’re thinking or doing, but here they told us. The reality is that this is going to happen anyway. At least this way we can have structure and some rules.”
The committee’s effort concerning jury privacy was driven by one member who is a former journalist and has reported extensively on various problems with the jury system. “There’s a movement in the court system–and sentiment on this committee–to do more to protect jurors, and that’s not a bad thing,” says Mark Curriden, now a lawyer and media strategist with a Houston law firm. “But to shield juries from public view and keep them anonymous would itself undermine public confidence in the jury system.”
The proposed standard for jury privacy calls for openness, but with mechanisms by which judges can protect jurors when needed. Secrecy may be allowed, for example, when there are attempts to threaten jurors or to reveal damaging personal information. Concluding the symposium, Grey told the gathering that the committee needs to work out the proposed standards in a way that is acceptable to various jurisdictions and constituencies before taking them to the House of Delegates.
“I want us to speak with a unified voice,” Grey told them. “It’s going to be easy to take shots at something this big.”