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The nearly universal rule against jurors talking about a case until they begin deliberations can safely be junked, at least in civil cases, a study of 50 trial juries in action says. In fact, the Arizona study, based on videotapes, found that jurors do a better job when they talk among themselves as a trial unfolds. Among the findings: Jurors who talk about what they’ve seen and heard don’t tend to make premature final judgments. Midtrial discussions in complex trials help jurors understand the evidence. When jurors are forbidden to talk about evidence before it’s all in, they often do so anyway. The study in effect endorses one of a series of broad changes made in Arizona over the past decade and under consideration elsewhere. “When courts contemplate changes in the conduct of a jury trial, it is refreshing to take the approach that Arizona did, to actually test the effects of their innovation,” said Shari Seidman Diamond, a principal author of the study. At least half of the states have been studying changes in rules that govern juries. Some have adopted less controversial changes than Arizona’s, such as allowing jurors to question witnesses and take notes. The unique Arizona rule allows jurors to discuss evidence among themselves in the jury rooms of civil trials during recesses when all are present, as long as they reserve judgment until deliberations commence. Conducted in Tucson, the study was financed by the State Justice Institute, the National Science Foundation, the American Bar Foundation and the law schools of Northwestern and Duke universities. The authors of the study wrote an article about it last year for Arizona Law Review. 45 Ariz. L. Rev. 1. Arizona changes The Arizona rule changes go back to 1993. In that year, the state Supreme Court established the Committee on More Effective Use of Juries chiefly to address “the lack of jury representativeness in an increasingly diverse society, enforced juror passivity during trials and unacceptably low levels of juror comprehension of the evidence and the court’s instructions.” On the committee were judges, lawyers, ex-jurors, jury administrators and academics. It made 55 recommendations, not all of which were adopted. A rejected idea was letting juries in criminal trials discuss cases freely. Similar committees have since been established in 26 other states. They were formed, in part, because jurors are being asked to decide ever more complex matters such as DNA evidence, products liability and corporate fraud. No state has been as innovative as Arizona, jury experts say. Judges typically-and wrongly-see jurors as passive vessels to be filled with information, said B. Michael Dann, a former Superior Court judge in Phoenix who chaired the committee. The result, he said, is jurors who don’t understand the evidence and are bored and distracted. “Active learners make better learners,” Dann said. “Imagine what student reaction and their experience would be if you told them they couldn’t take notes, ask questions of their instructors, talk to each other about a lecture, won’t know the rules until the very end and will have no opportunity for feedback.” Since 1995, Arizona jurors in civil cases have been allowed to: Discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations begin. Submit written questions for witnesses or the court. Lawyers may object to questions out of the jury’s presence. Take notes and have notebooks given to them that sometimes contain documents and exhibits. Jurors have access to notes and notebooks during recesses, discussions and deliberations. If a jury reaches an impasse, the “court may in the presence of counsel, inquire of the jurors, whether and how the court and counsel can assist them,” and the judge can direct further proceedings. Jurors are given preliminary substantive jury instructions and may, at a judge’s discretion, get final instructions before final argument. The study Past jury studies have typically relied on post-trial questionnaires, interviews and jury simulations. The fly-on-the-wall Arizona study allowed the researchers to view the process firsthand. Diamond, a Northwestern University law professor, and Neil Vidmar, a Duke University law professor, videotaped 50 Pima County Superior Court civil trials of various types, lengths and complexities from 1998 to 2001. In 13 of them, juror discussions weren’t allowed. In the rest, they were. Seventy-eight percent of chosen litigants refused to participate in the study for various reasons. Only 5% of jurors refused. The study set out to test common grounds for opposing jurors’ discussions. One is the fear that they encourage jurors to make judgments before all the evidence is in and before jurors are instructed on the law. Early hardening of positions, it’s often said, would favor plaintiffs because they go first. Proponents of free discussion say it improves comprehension and recollection of evidence, helps jurors collaborate on questions they want to ask and makes the whole experience more rewarding. Besides, it’s argued, jurors often speak to one another despite being told not to. The study found much evidence of some of the predicted positive characteristics and little of the negatives. Jurors did not prematurely make up their minds, and no jury took a vote before deliberating, the researchers wrote. When jurors did indicate early positions-on liability, for example-it was usually after at least one defense witness had testified. These positions tended to favor defendants, but only sometimes reflected jurors’ positions during deliberations, the study said. There was evidence that jurors understood complex cases better when they could discuss them. Not counting trials that produced only one comment by one juror comment before deliberations, which were removed from the sample, 89% of the juries allowed to discuss their cases did so. The talks were extensive and increased as the evidence accumulated, which points to jurors’ having open minds, the study said. In the handful of cases in which juries were prohibited from talking, 42% did so anyway, but the discussions tended to be brief and perfunctory, Diamond said. Often one juror would remind the rule-breakers of the rule, cutting off the talk. When it came to discussing a case with family and friends, there was no statistically significant difference between those who were allowed and those who were prohibited from discussing their cases, according to post-trial questionnaires. Between 10% and 15% of jurors did it despite the admonition not to. Likewise, there was no significant difference in the number of questions jurors operating under either set of rules asked of witnesses and the court. Since the trial was taped, investigators were able to compare actual testimony with the discussion of it. The study concluded that the worst fears of the rule’s detractors were unfounded and in some cases juror discussion was helpful. Improved accuracy In three intensive case studies within the overall study, jurors got the facts right about 90% of the time in complex cases when they were allowed to discuss them during trial, improving each other’s accuracy of recall. There were indications that discussion aided juror comprehension in less complex trials, too, but those results were less conclusive, Diamond said, because of the small size of the study. The study’s authors suggest a few ways to prevent violations of the rule. The admonishment not to make early statements about final verdicts ought to be posted on the jury room wall, they said, even though such statements didn’t seem to affect outcomes. The rule that all jurors be present for any discussion should also be posted, the study said. Dann, the former Phoenix judge, said that requiring all jurors to be together when any of them talk about the case is unrealistic and he has always opposed it. “If you use the traditional approach, studies show that up to 40% talk about it anyway, in part because it’s a natural human tendency . . . ” he said. “ And someone is always going to need to go to the bathroom during a recess, or have a cigarette and negate jurors’ opportunities to talk.” A dissenter Juror liberation hasn’t won over everybody. Attorney Daryl Williams opposes discussions before deliberations, although he said that it has worked both for and against him. Williams, a partner at Baird, Williams & Greer in Phoenix, has petitioned the court to abrogate the rule as well as the one that allows jurors to ask questions. In the Matter of Rules 39(b)(10) and 39(f), No. R-03-0010 (Ariz. 2003). The petition is pending. Williams said he’s sympathetic to jurors who are put to sleep by boring lawyers. But he said making them feel they’re a part of the process doesn’t justify sacrificing ideals. He worries that leaders will take control of juries early in trials, which, he said, is worse than if it happens after all the jurors have made up their minds independently. “Jurors don’t weigh the evidence,” he said. “They decide who’s telling the truth and rationalize evidence that doesn’t seem to fit. I would rather have eight people doing that independently.” Post’s e-mail address is [email protected].

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