As other authors in this edition of The Judges’ Journal have pointed out, state constitutions provide important protections to citizens even where the federal Constitution does not. One such constitutional right, first enshrined in state constitutions and later in the federal Bill of Rights, is the right to trial by jury.
Before the adoption of the federal Constitution in 1787, some states had already adopted constitutions that provided a jury trial right to their own citizens. Massachusetts provides one example. Its constitution, drafted primarily by John Adams and adopted in 1780 even before the Revolutionary War had ended, granted citizens of that Commonwealth the right to trial by jury in both criminal and civil cases. When it was ratified seven years later, the federal Constitution did not mention a right to trial by jury in civil cases. That development had to await the adoption of the Bill of Rights, which established the right to jury trials in federal civil cases in the Seventh Amendment, and enshrined and elaborated on the jury trial right in criminal cases in the Sixth Amendment. While the Seventh Amendment has not been incorporated to require the states to provide a jury in civil cases, all states include that guarantee in their constitutions or statutes.
The American Bar Association (ABA) has long been interested in ensuring that jury trial rights, both state and federal, are fully protected and are administered in a manner that respects not only the rights of litigants to fair jury decisions but also the rights of citizens to participate in their democracy by serving as jurors. Thus, the ABA established a Commission on the American Jury, composed of judges and lawyers experienced in the jury trial arena, that it tasked with adopting best practices for jury trials and, more generally, with issues related to jury management. One way the Commission carries out its task is by preparing and publishing the American Bar Association Principles for Juries and Jury Trials (the Principles). As the Preamble to the Principles puts it, “The American Bar Association recognizes the legal community’s ongoing need to refine and improve jury practice so that the right to jury trial is preserved and juror participation enhanced. What follows is a set of twenty Principles that define our fundamental aspirations for the management of the jury system.”
The Principles themselves are general aspirations about best practices. Each Principle is accompanied by Commentary, which generally discusses the evolution of that particular Principle, and variations in how that Principle is applied in practice in the different jurisdictions and in different circumstances. The Commentary includes helpful citations to caselaw and academic studies that support and explain each Principle.
The Preamble further notes that the law, constitutional and otherwise, evolves, as do practices for dealing with juries. Updates to the Principles, therefore, will be necessary. Over the past two years,
the Commission has done exactly that, modifying the Principles themselves, as well as the Commentary, for the first time since 2016.
Much has changed in the world, both inside and outside the courthouse, since 2016. The purpose of this article is to highlight some of the updates made by the Commission to the Principles. Space limitations make it impossible to describe all of the updates. Any judge, lawyer, or citizen who cares about the implementation of state and federal constitutional jury trial rights should certainly take a look at them. In the meantime, to whet the appetite, this article will briefly describe a few of the more important developments covered in the recent update.
To illustrate the interplay between the Principles themselves and their Commentary, we begin with an important constitutional-law development about the unanimity of jury verdicts. Principle 4 suggests a best practice about the number of votes necessary for a jury to deliver a verdict: “Jury decisions should be unanimous.” The Commentary to Principle 4 then explains that unanimity is the ideal but is not required by all state constitutions or in all circumstances.
When the Principles were last updated in 2016, the state constitutions and laws of Louisiana and Oregon permitted less than unanimous verdicts, even in criminal cases. But, as the Commentary explains, the Supreme Court recently overrode those state law provisions in Ramos v. Louisiana, holding that the federal Constitution’s Sixth Amendment jury trial guarantee requires unanimity in criminal trials whether in federal court or state court. (The Commission likes to think that its longstanding Principle 4 finally convinced the Supreme Court to adopt this suggested best practice as a federal constitutional right.)
But the Commentary does not stop at reporting this important recent development in the law. It goes on to discuss how some state constitutions and practices do not require unanimity in civil trials, citing to relevant caselaw. The Commentary also discusses the minimum number of juror votes necessary for a non-unanimous verdict; best practices for voluntary waivers of unanimity; and academic studies that show, for instance, how the unanimity requirement actually does not result in very many additional hung juries.
The most remarkable change in the world since 2016 has been the pandemic and its effect on how we conduct activities of every sort. The courts, like most other institutions, had to adapt to changed circumstances, including how they conducted jury trials. Some courts experimented with conducting portions of trials, or even entire trials, virtually. But as the pandemic waned, so too did such court experimentation So, while the Commission discussed these issues, its consensus was that there is not yet sufficient data or anecdotal evidence to support recommended procedures for virtual jury trial proceedings.
The Commission acknowledged, however, that certain once-experimental virtual jury practices may be here to stay. Recognizing that remote jury selection may be useful where the jury pool is drawn from a large geographic area, the Commission amended Principle 2, which concerns the right of citizens to participate as jurors. Here, the Commission added a new Principle 2.C.3: “Courts that use remote technologies during jury selection should make accommodations for prospective jurors who lack internet access or appropriate devices and should establish clear expectations concerning jurors’ conduct during jury selection.” At the other end of the trial, Principle 15 now reminds us that if jurors are permitted to deliberate virtually—a question on which the Commission took no position—they should be provided with the exhibits in virtual format, just as they would have those exhibits in hand in an in-person deliberation.
One jury trial topic that has risen to prominence lately concerns peremptory challenges. The Principles address this issue in Principle 11 and its Commentary.
Principle 11 states, “Courts should ensure that the process used to impanel jurors effectively serves the goal of assembling a fair and impartial jury.” Two subdivisions of Principle 11 deal specifically with peremptory challenges. Subdivision 11.D says, “Peremptory challenges should be available to each of the parties.” Subdivision 11.F says, “No party should be permitted to use peremptory challenges to dismiss a juror for constitutionally impermissible reasons.” These suggested best practices recently became more controversial when, in a court rule that went into effect on Jan. 1, 2022, the Arizona Supreme Court eliminated the use of peremptory challenges in both criminal and civil trials.
This issue arises from Batson v. Kentucky, where the Court declared unconstitutional the use of peremptory challenges to discriminate against potential jurors based on their race, ethnicity, or gender. In his concurrence in Batson, Justice Thurgood Marshall advocated the abolition of peremptory challenges altogether. His view, and apparently that of the modern-day Arizona Supreme Court, is that there is no way to protect against discriminatory use of peremptory challenges, so they should simply not be permitted.
No other state courts have gone so far as to eliminate peremptory challenges altogether. But, as the Commentary to Principle 11 now points out, several state courts and legislatures have instituted, or are considering implementing, less dramatic changes aimed at protecting the fair use of peremptory challenges that, some believe, Batson failed to achieve. For instance, the Washington Supreme Court has made it easier to challenge the use of a peremptory by holding that a prima facie case of discrimination has been made if a party strikes the last member of a racially cognizable group. By statute that went into effect in 2022 for criminal cases and will go into effect in 2026 for civil cases, California has eliminated the requirement that a successful Batson challenge can result only if the attorney has engaged in purposeful discrimination in deciding to excuse the juror, instead disallowing a peremptory challenge if an “objectively reasonable person” would view membership in a protected class as a factor motivating its exercise. The new Commentary points the reader to changes in the law, already adopted or proposed in other states, and to a useful law review article on this topic.
After much thought-provoking discussion, the Commission was not able to reach a consensus on one related question: In states that decide not to follow Arizona’s lead in eliminating peremptory challenges altogether, how many peremptory challenges should be allowed? A tension exists between giving the parties to a lawsuit enough challenges so that they can shape the jury—constitutionally, of course—and making jury empanelment an efficient process. The Commission left the Principle and the Commentary silent concerning the appropriate number of challenges, leaving state courts and legislatures to work through this question without numerical advice from the Commission.
How about the expansion of constitutional protections to groups beyond Batson’s original protected categories of race, ethnicity, and gender? The Commentary points to one such recent expansion: In Commonwealth v. Carter, the highest court in Massachusetts has ruled unconstitutional the exercise of peremptory challenges based on the sexual orientation of the prospective juror.
Rapidly expanding use of the internet, both as a research resource and as a communications medium, has led to increasing instances of jurors improperly turning to their cell phones or computers while serving as jurors. Principle 6.D, and particularly its Commentary, have been updated to address the twin issues of jurors doing independent research and communicating with the outside world about the trial on which they are serving as jurors.
Principle 6 states this best practice: “Courts should educate jurors regarding the essential aspects of a jury trial.” Because one essential aspect of a jury trial is that jurors must decide the case based only on what they hear in the courtroom, Subsection D.2 of Principle 6 has long advised judges to include in their preliminary instructions a general prohibition on both communications and research outside the courthouse: “The court should advise jurors that . . . they must consider only the applicable law and evidence presented in court, and must refrain from communicating about the case with anyone outside the jury room. . . . The court should also instruct jurors that they may not themselves investigate the facts of the case, the law governing the case, or the parties, lawyers, or judges in the case.” To reinforce the breadth of the rule about outside communications and to put it in more easily understandable terms, the Commission has now specifically identified in the text of Principle 6.D some of the forbidden forms of electronic communication about the trial, such as “instant messaging applications, internet posts, . . . [and] social media platforms such as Facebook or Twitter. . . .” The ongoing march of technology being what it is, at least one aspect of this instruction, the reference to “Twitter,” is already outdated—which simply proves the point that judges must stay on top of how improper outside-the-courtroom information can reach jurors during the trial.
As the Commentary explains, juror communications with those outside the courtroom raise the risk of someone giving the juror extraneous information about the case or even attempting to persuade the juror to reach a particular verdict. A juror’s social media post about a trial greatly expands the universe of individuals who could contaminate the juror in this fashion. Similarly, a juror conducting independent research on the internet may then decide the case based on information not presented to all the jurors and to the parties in the courtroom.
The new Commentary emphasizes that jurors may be more inclined to comply with the prohibition on outside communications and research if the judge explains the rationale for these rules. One effective way of obtaining juror buy-in is to ground these rules in terms of fairness to the parties. The Commentary suggests that a judge might explain that the parties are counting on the jurors to decide the case based solely on what they hear and see in the courtroom, but if the jurors learn something outside the courtroom, the parties and their lawyers will not know about it and cannot respond to that information. For example, a lawyer cannot cross-examine an out-of-court Facebook friend about the reliability or the relevance of information that has been provided to a juror.
In the 2016 version, the Principles numbered 19. In preparing its recent update, the Commission saw the need for a 20th best practice, concerning “Safeguarding the physical safety and the psychological well-being of jurors.”
As for physical safety, new Principle 20 suggests, among other things, that the court designate a staff member to be the point of contact for the jury to address any safety concerns and that the court should have procedures in place to address safety concerns both during and after the trial. On the psychological side, Principle 20 makes it a best practice to provide jurors, after their jury service, with tools to address the potential psychological impact of service and to consider offering court-provided counseling services in cases that have been particularly difficult for the jurors.
Again, the Commentary elaborates, using examples from the trials of Al Capone and Derek Chauvin, among others. The Commentary cites cases in which judges have dealt with outside threats, express or implied, to the physical safety of jurors, as well as intimidation by fellow jurors during the deliberation process. Steps to safeguard the jurors physically and psychologically can be as simple as referring to jurors only by number and not name, prohibiting photographs of the jurors, and keeping their identities, or at least their addresses, under seal where the law permits.
As the Commentary notes, jurors are very much out of their element as semi-voluntary participants in our judicial system. Judges should make it a point to acknowledge this fact by talking to the jurors informally after any trial to thank them for the important role they have played, to answer their questions, and, after trials concerning particularly horrific events, to offer available counseling resources. The Commentary describes specific resources available to jurors in the federal courts and in a selection of state courts as well.
Concerning where trials should be held, Principle 9 suggests two alternatives: “Courts should conduct jury trials in the venue required by applicable law or the interests of justice.” In most cases, there is no controversy about venue, and the case is tried in the jurisdiction in which it was filed. As the Commentary notes, the most common reason for civil trial changes of venue is the convenience of the parties and the witnesses. The Commentary now quotes both federal and state “applicable law” on civil case venue.
A change of venue of a criminal trial raises additional issues under “applicable law,” namely the defendant’s Sixth Amendment right to a fair and impartial jury. A defendant may argue that this right can only be protected if the trial is held in a venue far from the location of the alleged crime.
The most common basis for such arguments by criminal defendants is, of course, that pretrial publicity has tainted the jury pool so that fair and impartial jurors cannot be found locally. As the Commentary notes, this pretrial publicity problem also can exist, although less frequently, as to civil trials in cases involving celebrities or highly publicized events. This leads us to the second venue alternative suggested in Principle 9: a transfer to a different jurisdiction in “the interest of justice.”
In updating the Principles, the Commission greatly expanded the Commentary concerning changes of venue in “the interest of justice” based on pretrial publicity, citing both caselaw and academic studies. The Commentary suggests that the best practice is to try any case in the jurisdiction where the relevant events occurred and that it is often possible to do so, even in the face of extensive pretrial publicity, by taking much care in the selection of jurors. The Commentary points to recent cases subject to widespread publicity in which appellate courts have upheld convictions after the trial judge denied a change of venue motion, including prosecutions of the Boston Marathon bomber and the killer of the chief executive officer of Enron.
The Commentary also discusses cases in which changes of venue have been granted, not just because of extensive pretrial publicity but for other reasons as well. For example, in the Oklahoma City bombing case, one reason for a change of venue was the substantial likelihood that the members of the jury pool might know one or more of the many victims. Another circumstance in which a change of venue might be desirable is when jurors become aware that a particular verdict may result in violence within the community. The expanded Commentary now includes a discussion of caselaw from 1932 to 2022 treating these issues.
An alternative to changing the venue of the trial is a “change of venire,” that is, using a jury selected from outside the jurisdiction that is brought to the original jurisdiction for trial. Principle 9 has long recognized this alternative. However, the Commission has now amended Principle 9 to state that a jury selected in a different jurisdiction should be used only “[i]n rare cases.” An additional amendment to Principle 9 says that, before selecting a jury elsewhere and bringing it to the original venue for trial, a court should carefully consider “whether the original venue would be a better location to conduct the trial due to facilities; security; the convenience of the parties’ victims, witnesses, and court staff; and the burdens on jurors having to travel from their home venue.” New Commentary on this point includes a citation to a recent study by the National Center for State Courts cautioning that because a change of venire puts the bulk of the burden on the jurors rather than on the court and the parties, this technique should be, and is, “used extremely sparingly.”
Implicit bias of jurors and others is a subject that has recently received much attention. The drafters of the 2016 version of the Principles were prescient enough to have treated this concept briefly in Principle 6.D, which named the problem and encouraged judges to instruct jurors “to resist making decisions based on personal likes or dislikes or gut feelings that may be based on attitudes toward race, national origin, gender, age,” and other irrelevant personal characteristics. But the 2016 version did not include any Commentary elaborating on this basic Principle.
The latest revisions fill that gap. The Commentary now refers the reader to journal articles from 2020 through 2023 that explore how juror attitudes on certain topics can suggest an underlying implicit bias that can significantly influence juror perceptions and decisions. These articles may well prove useful to judges as they consider what questions lawyers should be permitted to ask prospective jurors during empanelment, to ask lawyers as they construct their image of the ideal juror for their case, and to ask both judges and lawyers as they try to make jurors more aware of their own implicit biases.
To protect robust juror deliberations and the finality of verdicts, judges have traditionally been reluctant to conduct post-verdict inquiries into what happened in the jury room. Principle 19.A treats this issue as follows: “Only under exceptional circumstances may a verdict be impeached upon information provided by jurors.” This suggested best practice is consistent with Rule 606(b) of the Federal Rules of Criminal Procedure, which bars the judge from hearing from jurors about juror mental processes, the effect of anything on any juror’s vote, or “any statement made or incident that occurred during the jury’s deliberations.”
But what if a juror makes a clear statement that indicates they were influenced by racial stereotypes or animus in convicting a criminal defendant? Such a case reached the Supreme Court one year after the 2016 revisions to the Principles. In Pena-Rodriguez v. Colorado, the Court held that “the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement” of racial or ethnic bias “and any resulting denial of the jury trial guarantee.”
Acknowledging that the Supreme Court had now created a constitutional exception to the rule against impeaching jury verdicts with evidence provided by the jurors themselves, the Commission has modified Principle 19.A. That Principle now states that one of the “exceptional circumstances” that permit such impeachment is when “bias or misconduct is alleged that is so extreme that, almost by definition, the jury trial right would be abridged.” In addition, the Commission has expanded the Commentary to Principle 19 to trace the common law path that led to Rule 606(b)’s adoption and the Supreme Court’s ultimate creation of the constitutional exception in Pena-Rodriguez.
This aspect of Principle 19, like Rule 606(b) and Pena-Rodriguez, concerns impeachment of jury verdicts by inquiry into the contents of the deliberations themselves or the thought processes of the jurors. But there may be other bases for challenging a verdict: extraneous information reaching the jury, jury decisions by lot, and clerical mistakes in recording a verdict, among other things. Principle 19 suggests best practices for post-verdict inquiries into these and similar subjects, and the Commentary has been expanded to discuss these topics in more depth. The Commentary now also touches on the impeachment of jury verdicts based on factors not explicitly mentioned in Principle 19, such as juror dishonesty during empanelment, premature deliberation by the jury, external interference with the jury, and jurors sleeping during the trial. The reader will now find useful caselaw in the Commentary on these and related subjects concerning attacks on jury verdicts.
The steady advance of constitutional law, state and federal, caused the Commission to make some of the revisions described above. Others were sparked by changing circumstances in the world in which we try jury cases or by advances in our understanding of the workings of the human mind.
The law and the world are not static. So, in a few years, the Commission will undoubtedly revisit the Principles and their Commentary to make further updates. In the meantime, the newly updated Principles set out the current vision of the American Bar Association about the best practices that courts should follow as they make real the constitutional right to trial by jury. The Commission commends the Principles to judges and lawyers intent on carrying out the jury system’s twin goals: achieving justice for the litigants and allowing our fellow citizens to participate in our system of justice by making decisions of great importance in our courthouses every day.
