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Criminal Justice Magazine
Spring 2005
Volume 20 Number 1

Jury Reform for the 21st Century: A Judge's Perspective

By Arthur L. Burnett, Sr.

Hon. Arthur L. Burnett, Sr., a senior judge on the Superior Court of the District of Columbia, is currently on sabbatical, serving as the national executive director of the National African American Drug Policy Coalition—a group of African American professional organizations that have come together to develop programs and practices to prevent and reduce drug and alcohol abuse in African American communities nationwide and to increase drug treatment facilities and resources for persons currently addicted, thus reducing related crime and juvenile delinquency in America.

Jury service in our federal and state judicial systems is absolutely essential to ensure the proper functioning of our democracy, just as important as our voting for our elected officials. Every citizen 18 years of age and older should deem the right not to be unlawfully discriminated against in the process of being selected for jury service as being a fundamental constitutional right. Citizens should also recognize jury duty as a vital responsibility for assuring the integrity of our judicial system. To those ends, President Robert J. Grey, Jr. of the American Bar Association (ABA) recently has spearheaded two efforts to highlight the importance of jury service in our nation: the American Jury Project and the Commission on the American Jury. The former has been charged with producing a single set of modern jury principles that the ABA can propose as a model for courts across the country. These ABA Principles Relating to Juries and Jury Trials were unanimously adopted by the ABA House of Delegates at the 2005 Midyear Meeting. (See the sidebar “Principles”on page 37.) Meanwhile, the Commission on the American Jury has been actively involved in reaching out to the public, the legal profession, and the courts. Its mission is to encourage appreciation of the American jury system, to persuade the public to participate in the process, and to engender reform by the bar and the courts in hopes of improving the experience of serving on juries.
The ABA’s initiative is but the latest effort at seriously considering the means to revise the jury system so that it is more responsive to citizen needs. Various jurisdictions have been experimenting with reform for about 30 years, with high-profile efforts occurring in Arizona, New York, and several other states in the last eight to 10 years. We have seen the reduction of jury sizes from 12 to six, the acceptance of verdicts that are not unanimous, the computerization of jury summonses and the ability of citizens to respond by phone through interactive voice recognition technologies, the upgrading of juror facilities so that they are more comfortable and can be worked in more easily, and even a great reduction in the excusals from jury service because of official status or position. For example, in New York and the District of Columbia, judges, other public officials, law enforcement officers, priests, ministers, doctors, nurses, lawyers, and persons in other professional fields all are required to serve. One of the ABA’s new jury principles, Principle 10, Standard 10(C)(1), also recommends this approach, directing that all automatic excuses or exemptions from jury service be eliminated.
During the more than 30 years I have been on the bench, when orienting and instructing a jury panel in my courtroom, I have explained to the potential jurors that they have the opportunity to perform a core function of ensuring that true justice is done. Those who become petit jury members become judges of the facts and of the credibility of the witnesses in determining the outcome of cases handled in the court system. I explain that, to that extent, they indeed exercise more power than I do as judge. My job is to assure that the trial is conducted with the proper procedures and pursuant to the rules of evidence, and that jury members are given the proper instructions of the law to be applied to the facts that they may find to be established at the end of the case. However, they ultimately decide whether the prosecutor in a criminal case has proven the person accused of a crime to be guilty beyond a reasonable doubt. I have emphasized that they become a part of the judicial system to ensure its quality control, so that the public will accept and respect its orders and judgments. I have also emphasized that they are valuable contributors to the concept of maintaining the rule of law by striking a balance between the power of government and its prosecuting authorities and the protection of the rights and liberties of all people as enunciated by the U.S. Constitution and its Bill of Rights.
It becomes imperative that we change the attitude of American citizens toward being jurors. Jury service is not to be avoided or shirked but rather to be embraced and exercised as one of the most important civic responsibilities of our adult citizens. Indeed, all of our citizens have a constitutional right not to be subject to unlawful discrimination in the process of jury selection to serve on juries. To put it rather simply, we must change the culture of the American people toward rendering jury service in this nation. Jury service should be considered a patriotic obligation of citizenship.


Increasing the pool of jurors in the venire


While perhaps a radical suggestion, I would propose that all citizens be required to register for jury duty at the age of 18, unless a person can show a lack of mental or intellectual capacity or other disability that would disqualify him or her for jury service. This would be similar to registering for service in the military at 18 years of age, just as many of our male citizens have been required to do in the past. Perhaps several states could attempt this experiment to determine if it would produce a sizable pool of citizens for jury service—and that such a pool would be a representative cross-section of the populations of these entire states and include adequate representation of minorities and of persons of lower socioeconomic status.
However, it may be wise to exempt the elderly from jury service after the age of 70, as conditions of health may make it difficult for them to sit through long jury trials. Their inability to travel and to get around easily in courthouses may also justify not requiring them to serve. According to a recent state court organization report by the U.S. Department of Justice, 24 states currently have age exemptions to jury service, ranging from 65 to 75. Arizona recently encountered difficulties when it legislatively mandated that senior citizens obtain proof of inability to serve from their doctors. Seniors complained the requirement was economically burdensome, entailed hardship in traveling to the doctor and then to the courthouse with exemption letters, and caused them embarrassment during voir dire. (Seniors Rail at Jury Crackdown, NAT’L L.J., Aug. 23, 2004, at 4.) Such complications may suggest that blanket exclusion is the better policy.
To turn, then, to the more immediate question: In the absence of a law requiring compulsory registration, how can we achieve the objective of getting more adults into the venire of people available for jury service? ABA Principle 10 urges courts to use open, fair, and flexible procedures to select a representative pool of prospective jurors. Standard 10(A) provides that juror source pools should be assembled so as to assure representativeness and inclusiveness. Standard 10(A)(1) recommends that the names of potential jurors be drawn from a jury source list compiled from two or more regularly maintained source lists of persons residing in the jurisdiction. These lists should be updated at least annually because of the high mobility of the American population. Lists frequently used are voter registration lists and drivers’ license lists. Many jurisdictions also issue identification cards to persons requesting them for identity purposes and in connection with employment. This could also be a source list.
Standard 10(A)(3) provides that a jury source list and the assembled jury pool should be representative and inclusive of the eligible population in the jurisdiction. To be representative, the percentages of cognizable group members on the source list and in the venire jury pool should be reasonably proportionate to the corresponding percentages in the population of the jurisdiction. This does not mean that each cognizable group must be represented in a chosen jury and in a percentage proportion equivalent to the percentage of its members in the general population. (See Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946).) Nonetheless, we must assiduously avoid forming a jury pool that consists predominantly of retired persons, the affluent, and older Caucasian persons, excluding or including only a very small percentage of blue collar and low-income employees who are racial or ethnic origin minorities, where the number of these people who are included in the jury pool is a substantially smaller percentage than their respective percentages in the general population. As many of them may not register to vote or need to obtain a driver’s license, those responsible for creating jury pools must develop and implement alternative means of getting an adequate list of these people. This is difficult because they are frequently renters and people who may be transient, moving several times a year. However, many of them have school-age children. One creative way of obtaining the names of students’ parents would be to enact a law permitting access to the records of the parents of children in each of the schools within a given jurisdiction for the purpose of supplementing the standard source lists now used for compiling the roll of potentially available jurors.
One means of encouraging people in the lower socioeconomic bracket—that is, those earning less than $30,000 per year per family—to make themselves available to serve on juries is to enact statutes providing for their compensation at a rate that would minimize their financial hardship when serving as jurors. Oftentimes, their employers are not financially able to pay them when they are serving on juries instead of working. In other instances, low-income persons are self-employed and cannot sustain the loss of income or the results of closing up shop for an unknown quantity of time. Statutes allowing for more equitable jury payment could be the answer and could be patterned on those currently existing in Connecticut and Massachusetts. (See CONN. GEN. STAT. § 51-247; MASS. GEN. LAWS, ch. 234A, §§ 48 and 49.)
Rather than merely concentrating on jury pools and representativeness, courts need to educate the public about jury service by developing and implementing strong community outreach programs. Addressing civic associations and other adult groups in the community can help to counterbalance the general public’s negative attitudes about jury service. The statistics regarding jury avoidance are sometimes astounding. Nationally, only 40 percent of people summoned for jury duty show up at the courthouse, meaning that a significant majority do not. We find figures like those in Miami-Dade County, Florida, where fewer than 13 percent who were summoned actually reported for jury duty in fiscal year 2003-04. (Fla. High Court Asks Public for Jury Reform Ideas, NAT’L L.J., Jan. 10, 2005, at 6.) A study of Dallas County, Texas, reports that about 80 percent of the people who received jury summons ignored them. (Joyce Howard Price, Courts Crack Down on Jury Duty Shirkers, WASH. TIMES, Oct. 5, 2004, at A11.) Other jurisdictions across the country report similar numbers, from Los Angeles to Washington, D.C. Judges need to help turn the tide. They can inform and educate members of the public of the importance of jury service in order to improve the administration of justice. Further, through community outreach programs to students in our junior and senior high schools on how courts function and the importance of the role of juries, judges can inculcate in students a sense of civic responsibility and participation. Chief judges, administrative judges, and other judges can write opinion articles for publication in newspapers and magazines about improving the administration of justice. They can agree to interviews by members of the news media to educate and inform the public of the important and critical role jurors perform in the justice system in America. Court improvement organizations likewise can publish studies and reports promoting positive attitudes toward jury service and encourage citizens to respond affirmatively to jury summonses. They should endeavor to obtain favorable press coverage of these studies and reports. Finally, we can urge colleges and universities to stress the importance of jury service in the courses involving government, political science, criminal justice, law enforcement, and in related areas so that those persons with college educations can then exert a positive influence on their peers and associates and on the people they serve in their professions or with whom they associate in their work setting.
Voir dire
When a jury venire panel is sent to a judge’s courtroom, the judge should initially give the panel an orientation on the jury selection process that is about to commence. He or she should explain the questioning process and note that neither judge nor counsel is trying to pry needlessly into the potential jurors’ private lives or to embarrass anyone. He or she should clarify that asking sensitive and delicate questions may become necessary to assure that the jurors finally selected can be completely fair and impartial in deciding the case. The judge can make clear that he or she will first ask a number of general questions, the answers to which would not normally needlessly invade anyone’s privacy or be confidential in nature. Before starting the general questioning, the judge should give instructions that a juror may merely give his or her juror number if he or she feels uncomfortable answering a question in the presence of the other jurors. If that occurs, the judge will denote the question and the juror number for follow-up during individual questioning outside of the presence of the jury panel. After initial questioning by the judge, counsel for each party will have the opportunity to question the jurors as a panel.
The new ABA juror guidelines seek to streamline the voir dire process by utilizing written questionnaires instead of verbal questioning in court. Standard 11(A) provides that before voir dire begins the court and the parties, through appropriate written questionnaires, should be provided with data pertinent to the eligibility of the jurors and to some general matters ordinarily raised during voir dire. Standard 11(A)(1) recommends that in appropriate cases the court should consider using a specialized written questionnaire addressing particular issues that may arise in the case. Standard 11(A)(3) recommends that all completed questionnaires be provided to the parties in sufficient time to enable them to review the information adequately before the start of the oral examination.
As a presiding judge in many jury trials, I have found that potential jurors are far more forthcoming and candid when questioned individually in a private room, outside of the presence of the jury panel, with only the judge, the lawyers, and the parties present. Many jurors fear that even if talking to the judge, the lawyers, and the parties at the bench in hushed tones, they will still be overheard by other potential jurors sitting in the courtroom. Another potential benefit of private room interviews is that the demeanor and body language of potential jurors may be more revealing there than in open court. Where there is reason to believe that a potential juror may have been previously exposed to information about the case or, for other reasons, is likely to have preconceptions, these matters are better explored in private.
The ABA principles address many of these privacy issues. Standard 7(A)(3) provides that judges should ensure that jurors’ privacy is reasonably protected and that the questioning is consistent with the purpose of the voir dire process. Standard 7(A)(6) notes that courts should inform jurors that they may answer sensitive questions privately to the court and the parties. Standard 7(A)(7) recommends that jurors be examined outside the presence of other jurors with respect to questions of prior exposure to potentially prejudicial material. Finally, Standard 11(B)(4) provides that counsel for the parties should be given liberal opportunity to question the jurors individually about the existence and extent of each such juror’s knowledge and preconceptions.


Acting on challenges for cause


During the course of voir dire, potential jurors will give answers that will lead counsel for a party to move to excuse the juror for cause. For example, a juror may have a medical problem that makes it difficult for him or her to sit for more than a half-hour without access to a restroom. He or she may have symptoms of a mental illness or show signs of dementia or Alzheimer’s disease. A juror may know a party in the case, a witness, or one of the lawyers personally. Standard 11(C)(2) provides that, at a minimum, a challenge for cause to a juror should be sustained if the juror has an interest in the outcome of the case, may be biased for or against one of the parties, is not qualified by law to serve on a jury, has a familial relation to a participant in the trial, or may be unable or unwilling to hear the subject case fairly and impartially. The provision explicitly provides that the number of challenges for cause should be unlimited.
In ruling on a challenge for cause, the judge should evaluate both the substantive response of the challenged juror and the juror’s demeanor. Standard 11(C)(3) provides that if the court determines that there is a reasonable doubt that the juror can be fair and impartial, then the court should excuse him or her from sitting as a juror. The court should make a record of the reasons for the ruling, including whatever factual findings are appropriate. A juror’s preconceived notions or opinions about a case or the law do not necessarily render the juror incompetent to fairly and impartially sit in a case if the juror genuinely, after an explanation by the court, states that he or she can comply with the law as the court states it and base his or her decision on the evidence presented. If the juror can lay aside his or her lay opinion on an issue of law and follow the instructions of the court, his or her initial opinions do not require that he or she be dismissed for cause. (See, e.g., State v. Purcell, 18 P.3d 113 (Ariz. 2001).)
Where a judge denies a challenge for cause, the counsel asking for it may then decide to exercise a peremptory challenge. Even assuming that the trial judge erred in denying the challenge for cause, the forcing of the lawyer to exercise a peremptory challenge to remove that juror from the potential of being on the jury does not give the defendant a right to have his conviction reversed if the resulting jury that convicted him was in fact impartial and fair. (Georgia v. McCollum, 505 U.S. 42 (1992).) While noting that the peremptory challenge has a venerable historic past, Justice Blackmun, writing for the U.S. Supreme Court, observed that peremptory challenges are not constitutionally protected fundamental rights. They are but one state-created means to the constitutional end of obtaining an impartial jury and a fair trial. Blackmun noted that the defendant has the option of allowing the juror to be seated who was not struck pursuant to his challenge for cause, and preserving the issue for appeal, or he can use his peremptory challenge to cure the potential error by the judge. This instantaneous ability to cure the error comports with the reality of the jury selection process, where challenges for cause and rulings upon them are fast paced, made on the spot and under pressure. He concluded that in such a setting counsel and the court must be prepared to decide often between shades of gray in very short intervals of time. Since the peremptory challenge is not mandated as a constitutional requirement, and the defendant received a verdict from a fair and impartial jury, the interests of justice have been served and a defendant would not be entitled to a reversal of his conviction and a new trial.


Peremptory challenges


After handling challenges for cause, a judge should carefully monitor the exercise of peremptory challenges by counsel for the parties to assure that no unlawful discrimination occurs against a potential juror on the grounds of race, gender, or religion. It is significant to note that ABA Standard 2(b) states that “[e]ligibility for jury service should not be denied or limited on the basis of race, national origin, gender, age, religious belief, income, occupation, disability, sexual orientation, or any other factor that discriminates against a cognizable group in the jurisdiction . . . .” This aspiration goes beyond the current constitutional case law as manifested in Batson v. Kentucky, 476 U.S. 79 (1986), regarding race discrimination, and J.E.B. v. Alabama, 511 U.S. 127 (1994), regarding gender discrimination.
Batson established a three-step process for a peremptory challenge. First, a lawyer makes the peremptory challenge. Second, the opponent objects on the basis of a prima facie case that the proponent has engaged in a pattern of strikes or is striking people of one group and not another group, although the facts about them are the same. Third, the proponent is then called upon by the judge to furnish an explanation for the strike. If the judge finds the reason acceptable, the peremptory challenge will be allowed. All too often cases on appeal have presented records in which the trial judge has allowed the peremptory challenge, notwithstanding an objection on grounds of unlawful discrimination, without requiring the proponent of the challenge to amplify his or her reasons for the challenge to meet the objection and to convince the trial judge that the reason given was not simply a pretext for unlawful discrimination.
In reviewing the numerous appellate cases decided since Batson and J.E.B., the reason given by the lawyer exercising the peremptory challenge frequently has been summary in nature or based on an assumption about a person, stereotyping that individual as belonging to a group or category. Confirmation from the actual questioning of that person as to whether he or she belongs to a group, or adheres to the tenets and teachings of that group, is often lacking. Thus, no factual foundation has been established on the record that would justify an inference that the person would not comply with the instructions of law furnished by the trial judge and would not be impartial and objective in the case. In substance, the lawyer’s peremptory challenge has been based on assumption, conjecture, and speculation. (See, e.g., Miller-El v. Cockrell, 537 U.S. 322 (2003); United States v. DeJesus, 347 F.3d 500 (3d Cir. 2003), cert. denied, 124 S. Ct. 2811 (2004); United States v. Nelson, 277 F.3d 164, 207-08 (2d Cir. 2002); Card v. United States, 776 A.2d 581, 594-95 (D.C. 2001).)
An exceptionally well-reasoned case involving this problem is State v. Fuller, 812 A.2d 389 (N.J. Super. App. Div. 2002), reversed, 862 A.2d 1130 (N.J. 2004). The majority in the intermediate appellate court had held that the prosecutor had properly exercised peremptory challenges against (1) a potential black juror who wore clothing associated with a religious group and (2) a potential juror who had indicated during voir dire that he had worked as a missionary. When asked the basis for his peremptory challenges, the prosecutor responded that he had excused the potential jurors because they were “demonstrative about their religions” and that, in his experience, such persons “tend to favor defendants to a greater extent than do persons who are, shall we say, not as religious.” (Id. at 393.) The New Jersey Supreme Court, in a unanimous opinion written by Chief Justice Deborah Poritz that reversed the conviction and remanded the case for a new trial, observed that the prosecutor had noted about the potential black juror that the “gentleman who came in wearing head to toe black and a skull cap is obviously Muslim, M U S L I M.” (862 A.2d at 1133.) The record, however, did not indicate that on voir dire this man had ever identified himself as a Muslim, had ever discussed his religious convictions, or had said that he anticipated any difficulty in serving fairly and impartially. The Supreme Court explicitly stated that such assumptions about group bias are not acceptable and that the explanation provided by counsel for the peremptory challenge must provide a statement of situation-specific bias. It further stated that, “[p]ut simply, the prosecutor’s ‘belief’ that demonstrably religious persons are all alike in sharing defense-minded sympathies ‘sweep so broadly as to attenuate [its] validity’ by subverting ‘valid trial-related reasons . . . to approximate presume group bias itself’” (Id. at 1146-47 (citing State v. Gilmore, 511 A.2d 1150 (N.J. 1986)).) Indeed, in my experience, many deacons and trustees in churches have been law enforcement officers, worked in courts, or in other career fields indicating that they were very supportive of law and order and capable of being unbiased and objective jurors.
Thus, trial judges should insist that counsel make a sufficiently detailed factual proffer of the reasons for the exercise of a peremptory challenge whenever challenged on the grounds of unlawful discrimination, rather than making a summary assertion. Where the peremptory challenge is based on assumptions or stereotyping, the judge should direct counsel to engage in further questioning of the prospective juror to make sure that the assumption about the juror and the potential for bias or prejudice can be factually supported before the judge rules on the objection to the exercise of the peremptory challenge and allows the potential juror to be excused. Such an approach would go far in reducing the number of appeals and new trials based on issues of alleged unlawful discrimination in the process of selecting jurors to serve in our courts. It would also greatly promote the integrity of the jury system and the appearance and reality of fairness in the administration of justice in our courts.
In the rare case in which the potential challenged juror in question has been excused as well as the remaining potential jurors in the panel originally sent to the court for voir dire, but before the jury has been officially sworn, a judge, when a belated Batson issue is raised, may consider summoning the potential challenged juror and the excused potential jurors back to court. The case can be recessed overnight to allow service of summons on them to reappear the next morning, thus reopening the jury selection process. This approach is almost certain to be far less costly than an appeal, a reversal, and a new trial, or a postconviction attack by a defendant that will result if the judge does not address the issue because of it being raised after the challenged potential juror and the remaining members of the jury panel have been excused. A day’s delay is far less costly and more efficient than the burden imposed on the judicial system by an appeal, reversal, and a new trial.
A host of other issues have been raised in critiques of peremptory challenges, too numerous and detailed to delineate here. They will be discussed in a follow-up to this article, to be published in Criminal Justice in an upcoming issue.


Orienting the jury at the trial’s beginning


Once the jury has been empanelled and sworn, the trial judge should give its members orientation instructions in plain English regarding the role of the trial judge during the trial and their role as jurors, namely, to determine the facts and the credibility of witnesses. These instructions should also cover how a trial is conducted, what constitutes evidence in a case, and the nature of the offenses involved in the indictment. Before giving such instructions, prudence dictates that the judge consult with counsel to obtain their input, especially regarding what the court will say about the nature of the offenses involved and what defenses may be raised. The judge should tell the jurors that they have a duty to remain impartial and neutral in the case, that they should keep an open mind until they have heard all of the evidence, and that they should not allow anyone to talk with them about the facts of the case except from the witness stand. Nor should they visit the crime scene to investigate or confirm factual representations made by witnesses, “surf” the Internet or read newspapers, or check other media for alleged facts about the case. They should be informed that such conduct by a juror could cause a mistrial. The trial judge should emphasize that if any juror is approached by a person during the trial providing information or otherwise attempting to influence that juror, he or she should not discuss it with the other jurors. Instead, he or she should write a confidential note to the judge, who will take up the matter with counsel and decide on an appropriate course of action. If it becomes necessary during trial to dismiss a juror, the judge can replace that juror with an alternate. If such a contact occurs during jury deliberation, the same process should be followed and the juror could be dismissed. The court could proceed to allow the 11 remaining jurors to reach a verdict, provided they have not been exposed to the information or conduct that led to the dismissal of the juror. For further discussion of related matters, see the section on handling matters during trial, below.
The jurors need to be told that they must follow the instructions of the law as the trial judge gives it to them. To prevent the potential that any juror may engage in jury nullification, the trial judge should instruct the jury that if, during the trial, any juror concludes that he or she cannot follow the court’s instructions of law, then that juror should write a note to the judge stating this and he or she will be excused. The judge can further instruct that if any juror hears another juror state that he or she will not follow the court’s instructions of law, that juror should write a note to the judge, who can then decide what course of action to take.
In a case involving multiple defendants, the judge should explain that he or she may give the jurors instructions during the trial about the use to be made of certain evidence, and that it may be admissible against one defendant but not another. The court should explain that there may be some evidence that would be admitted but limited solely to a particular purpose, or that there may be other qualifications and restrictions as to certain evidence about which they will be told when that occurs during the course of the trial. The judge should emphasize that jurors will be required to follow the instructions of the court as to its evaluation and use of that evidence when such specific instructions are given.
The trial judge may also allow jurors to take written notes about the testimony they hear and the evidence presented. Jurors may be allowed to write questions to the judge, who will evaluate whether they should be asked of a witness. If note-taking and questions will be allowed, the judge should also orient the jurors regarding them. It should be recognized that different persons have different capacities to concentrate when taking notes. Opponents to this procedure have argued that jurors become distracted when taking notes and may not follow the testimony. Proponents suggest that the act of taking notes aids jurors to focus and to follow evidence that is entered into the record more easily. ABA Standard 13(A)(1) provides that jurors should be instructed that they may, but are not required to, take notes to aid their memory of the evidence. It also recommends that jurors should receive appropriate cautionary instructions on note-taking and note use. The standard cautions that jurors should be told that, after they have reached their verdict, all juror notes will be collected and destroyed. Standard 13(A)(2) directs that jurors should ordinarily be permitted to use their notes throughout the trial and during deliberations. Standard 13(A)(4) provides that the court should collect all juror notes at the end of each trial day until the jury retires to deliberate. Some court observers suggest that a trial judge personally should not see or read these notes during trial. Rather, a trusted deputy courtroom clerk should collect them, taking care not to read the notes or to communicate their contents to the judge, to the lawyers, or to any other person. The judge should tell the jurors that at the end of the case their collective recollection of the evidence will control. However, if a dispute arises regarding the testimony of any witness during deliberations, the court can arrange for a court reporter to read back that testimony or to play back a tape recording of it, if available.
Regarding juror questions for judicial consideration, the judge should tell the jurors that he or she must review their questions first and discuss them with counsel because of the rules that apply under the Constitution and those that apply to evidence in criminal cases, and especially regarding burden of proof. Certain questions may not be proper under the law or rules applicable in criminal cases. Similarly, as a matter of trial strategy, counsel may decline or refuse to have a specific juror question asked of a witness during the course of trial. Standard 13(C) provides that, in deciding whether to permit jurors to submit written questions in criminal cases, the court should consider the historic reasons why courts in a number of jurisdictions have discouraged juror questions and the experience in those jurisdictions that have allowed it. Standard 13(C)(2) recommends that, upon receipt of a written question, the court should make it part of the court record and disclose it to the parties, outside the hearing of the jury. Counsel for the parties should be given the opportunity—again outside the hearing of the jury—to interpose objections and suggest modifications to the question. The trial judge should tell the jurors that the prosecutor has the burden of proving the defendant guilty beyond a reasonable doubt and that the defendant has no burden to prove his innocence, and that under the constitutional right against self-incrimination, he cannot be required to testify, nor communicate to the prosecutor any facts that would help convict him of the offense or offenses charged. Jurors should be clearly and unequivocally told that the defendant has a constitutional right to decline to take the witness stand and that they cannot draw any adverse inference that he is guilty of the crime(s) charged because he did not take the witness stand and give testimony.


Handling matters during trial


Frequently, incidents occur during trial involving jury management and issues arise that necessitate excusing a juror and replacing him or her with an alternate juror. Examples might include a juror becoming ill or a death in a juror’s family. Perhaps, after hearing some evidence about a sexual assault in the case, a female juror may decide that it is too close to a previous personal experience that she can no longer remain impartial and free of bias. For a trial expected to last more than three days, I always make it a practice to seat two alternate jurors. I do not let the jurors know who the alternates are, so that all 14 persons seated in the jury box will pay equal attention to the evidence. Even before the jurors are seated, I have the lawyers designate the two seats to be occupied by the alternates. Thus the lawyers and I know the alternates, but the jurors themselves do not.
If, during the trial, a juror writes a note to the judge indicating an ethnic animus or bias, which if known before trial could have been a basis for excusing the juror for cause or perhaps even a peremptory challenge, the judge has the responsibility to take action. An ideal approach would be for the judge to question the juror out of the presence of the remaining jury members, with counsel present and on the record. If, for example, the juror had indicated in his note that he had a concern as to whether one of the two defendants was a Muslim, he could be questioned as to whether this concern meant that he could not be impartial and objective in the case. If he confirmed that he was not sure whether he could remain impartial, then he should be excused and replaced with an alternate juror. It would also be prudent to ask whether he had expressed his concern to the other jurors. If he stated that he had not, the court could provisionally accept that answer during the trial, with defense counsel reserving a motion for mistrial should the jury return a verdict of guilty. After the jury has rendered its verdict, if it is guilty, then the trial judge could question the jurors individually as to whether there had been any discussion prior to the excused juror’s dismissal about one of the defendants being Muslim. If one or more jurors confirmed that such discussion and speculation had arisen, the trial judge could then decide whether the jury verdict should be vacated and whether he should grant the pending motion for mistrial and order a new trial. If the remaining jurors confirmed under oath that the excused juror had not mentioned the apprehension about one of the defendants being a Muslim, then the jury verdict of guilty would stand. (Cf. United States v. Omar Fazal, 61 Fed. Appx. 289, 2003 U.S. App. LEXIS 4775 (7th Cir. 2003).)
At the close of the presentation of evidence, the trial judge should review with counsel the final version of the proposed comprehensive jury instructions to be given to the jurors as they retire to begin their deliberations. This is necessary to give counsel the opportunity to state their objections to any of the instructions the court deems necessary, and thus to protect the record for any appeal. It also provides guidance to counsel as to the contours of closing arguments. I prefer that closing argument precede the giving of final instructions as I want the instructions of the law to be the last thing the jury hears before beginning their deliberations.
Once the review with counsel has been completed outside the presence of the jury, the agreed-upon instructions should be typed up in final version. In addition to being orally delivered to the jury by the judge in the courtroom, copies could thus be available for jurors to take with them to the jury room during deliberation. Another approach that I use as a trial judge is to have a tape recorder on the bench, recording literally word by word my jury instructions as actually given. I then give the recorder and the tape to the jury to play and replay in the deliberation room as much as necessary to aid them in their deliberations. I find that this practice almost totally eliminates the need to give further instructions while the jury is deliberating, unless the instruction is to deal with a matter unanticipated when the jury was initially given the case. Even here, to prevent jury nullification from occurring, the trial judge can reemphasize in the final jury instructions the duty of the jurors to follow the instructions of law as given to them, in the course of telling them again that they are the judges of the facts and of the credibility of the witnesses, and that it is permissible for them to draw such reasonable inferences from the evidence as common sense and their experience indicate is proper.


Confronting jury nullification


During deliberations, if a juror sends out a note that one or more jurors are engaged in juror misconduct or have indicated that they will not follow the judge’s instructions on the law, the judge has three options. First, the judge can call the jury in and provide a further general instruction on the duty of the jurors to obey their oath and to apply the law as the court has instructed. (See United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988); see also Ford v. United States, 759 A.2d 643 (D.C. 2000).) Second, the judge can make a reasonable investigation and conduct interviews, in counsel’s presence, of the reporting juror and perhaps even of the alleged offending juror. If the judge concludes that the juror has engaged in misconduct or has refused to comply with the court’s instructions of law, he or she can dismiss that juror, and in federal and District of Columbia practice allow a jury verdict to be returned by 11 jurors. (United States v. Geffrard, 87 F.3d 448, 451-52 (11th Cir. 1996).) In Williams v. Florida, 399 U.S. 78 (1970), the Supreme Court held that the Constitution did not require a jury verdict by 12 persons and that a state could provide for a jury trial even with a jury of six persons. Historically, the requirements for 12 persons and a unanimous decision has been imposed by statute and court rule. In 1983, Federal Rule of Criminal Procedure 23(b) was amended to permit the taking of a verdict from 11 jurors if there was a finding of just cause to do so.
However, if the judge’s inquiry results in probing into how the jurors are evaluating the evidence and the credibility of witnesses, then the judge has no choice but to take the third option: granting a mistrial and ordering a new trial. Thus, a trial judge must be extraordinarily careful to differentiate between possible jury nullification and a situation where one juror merely sees the evidence and credibility of the witnesses differently than the complaining jurors. While appellate courts have worded the test differently, if there is “any possibility” (United States v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1987)), “any substantial possibility” (United States v. Abbell, 271 F.3d 1286, 1302-04 (11th Cir. 2001)), or “any reasonable possibility” (Shotikare v. United States, 779 A.2d 335 (D.C. 2001); see also (Thalia) Brown v. United States, 818 A.2d 179 (D.C. 2003); United States v. Symington, 195 F.3d 1080 (9th Cir. 1999)) that a recalcitrant juror is not simply refusing to follow the judge’s instructions of the law, but is also basing his or her reluctance to agree to a verdict based on his or her evaluation of the case on the merits and the credibility of witnesses, then the judge cannot dismiss the alleged offending juror and must allow jury deliberations to continue or declare a mistrial and order a new trial. Thus, in a case where it is not clear whether a recalcitrant juror is taking the position that he or she will not believe any police officer or that he or she does not believe the police officers who testified in the case under consideration, the trial judge would err if he or she dismissed that juror on the grounds of jury nullification and of failure of the juror to follow the instructions of law given by the court. (Braxton v. United States, 852 A.2d 941, 948 (D.C. 2004).)
In a society committed to the rule of law, jury nullification is not to be encouraged or allowed. The courts have the authority and the responsibility to prevent jury nullification if they can do so without intruding or probing into the deliberations of the jury on the merits of the particular case. A federal judge’s own oath of office requires that the judge “faithfully and impartially discharge and perform all the duties incumbent upon the judge under the Constitution and the laws of the United States.” The same applies to District of Columbia judges and to judges in the states. Thus a judge may not ignore colorable claims that a juror is acting on the basis of improper considerations and intends to nullify the application of the law, whether based on race, ethnicity, religion, political disagreement with the government or the prosecuting authority, or simply disagreement with the law itself.


Conclusion


The legal analysis of the judicial precedents discussed in this article and my personal views and comments are intended to supplement the ABA Principles Relating to Juries and Jury Trials, as approved by the ABA House of Delegates, as applicable to criminal cases and to add to the debate of what reforms are needed in the jury system in America to bring about real improvements in our justice system. If the rule of law and democracy are to have a more complete meaning in our increasingly heterogeneous society in the 21st century, we must involve many more of our citizens in serving as jurors. This especially means including persons of lower socioeconomic status and members of racial, national origin, and ethnic backgrounds who have been the victims of unlawful discrimination in the past. We must adopt compensation laws that will pay jurors in the lower socioeconomic income bracket the equivalent of what they would have earned daily if not serving on a jury, assuming their employers are financially unable to pay them while they are serving on a jury. This would avoid the imposition of a financial burden as a condition of juror service. We must make serving on the jury a more invigorating experience by allowing note-taking and the submission of written questions to be asked of witnesses, where appropriate. We must encourage judges to give clear and plain English instructions to the jury, so that its members fully understand the explanations of the law. Finally, we should encourage judges to monitor juries more carefully to ensure that jurors do not engage in jury nullification. At the same time, when judges do make inquiries, they must not intrude upon the cherished secrecy of jury deliberations as to the merits of a particular case. We are capable of making these improvements and we must proceed to do so.

Editor’s Note: Judge Burnett thanks Kassra Goudarzi, the current law clerk to the senior judges of the Superior Court of the District of Columbia, Sherell Daniels, a former law clerk to the senior judges group, and Adrienne Freeman, a Howard University School of Law student, for their extensive legal research and review of case materials for this article and a follow-up article by Judge Burnett on peremptory challenges that is scheduled for publication in an upcoming issue of Criminal Justice.

----------------------------- Principles Relating to Juries and Jury Trials----------------------------
The ABA House of Delegates endorsed the efforts of the select panel of 22 persons chosen to formulate the ABA’s Principles Relating to Juries and Jury Trials by adopting them unanimously in February 2005 at the Midyear Meeting. These principles, as stated in the preamble to the work, “define our fundamental aspirations for the management of the jury system. Each principle is designed to express the best of current-day jury practice in light of existing legal and practical constraints.”
The 19 general principles are supplemented by highly detailed standards that enunciate the specifics that the ABA would propose as a model for courts throughout the land. We list only the basic principles below. To see the entire document, visit www.abanet.org/juryprojectstandards/principles.pdf. To find out more about the ABA’s American Jury Initiative and to become involved in reform efforts, visit www.abanet.org/jury/.
Principle 1: The right to a jury trial shall be preserved
Principle 2: Citizens have the right to participate in jury service and their service should be facilitated
Principle 3: Juries should have 12 members
Principle 4: Jury decisions should be unanimous
Principle 5: It is the duty of the courts to enforce and protect the rights to jury trial and jury service
Principle 6: Courts should educate jurors regarding the essential aspects of a jury trial
Principle 7: Courts should protect juror privacy insofar as consistent with the requirements of justice and the public interest
Principle 8: Individuals selected to serve on a jury have an ongoing interest in completing their service
Principle 9: Courts should conduct jury trials in the venue required by applicable law or the interests of justice
Principle 10: Courts should use open, fair and flexible procedures to select a representative pool of prospective jurors
Principle 11: Courts should ensure that the process used to empanel jurors effectively serves the goal of assembling a fair and impartial jury
Principle 12: Courts should limit the length of jury trials insofar as justice allows and jurors should be fully informed of the trial schedule established
Principle 13: The court and parties should vigorously promote juror understanding of the facts and the law
Principle 14: The court should instruct the jury in plain and understandable language regarding the applicable law and the conduct of deliberations
Principle 15: Courts and parties have a duty to facilitate effective and impartial deliberations
Principle 16: Deliberating jurors should be offered assistance when an apparent impasse is reported
Principle 17: Trial and appellate courts should afford jury decisions the greatest deference consistent with law
Principle 18: Courts should give jurors legally permissible post-verdict advice and information
Principle 19: Appropriate inquiries into allegations of juror misconduct should be promptly undertaken by the trial court

 

 

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