Greater engagement sought through release of new jury rules by Supreme Court

by Cynthia Price
and from the Supreme Court

Jurors can ask questions of witnesses, take notes and use them during deliberations, and take trial exhibits into the jury room, under a comprehensive jury rule package announced by the Michigan Supreme Court. The new rules are aimed at “giving jurors the tools they need for their very demanding job: seeking the truth,” said Chief Justice Robert P. Young, Jr.

“Traditionally, the legal system has been somewhat conflicted about juries,” Young said. “On the one hand, lawyers and judges tell jurors how important they are to the justice system and how much we value their service. Then we proceed to tie their hands – they can’t take notes, ask questions, or talk to other jurors about the evidence while it’s still fresh in their minds. We ask them to make tremendously important decisions and then take their decision-making tools away. The last time any of us were expected to learn while sitting quietly like jurors was in kindergarten.”

By contrast, the new rules “permit jurors to be truly involved, rather than sitting in enforced passivity,” Young explained.

The Supreme Court has proclaimed July Juror Appreciation Month, noting that “The right to trial by jury is fundamental in American democracy” and “Through jury service, American citizens participate directly in the justice system and in democracy.” Young said the Court is grateful to Michigan jurors for their service. “People make sacrifices to serve on juries – time away from family, time away from work,” he said. “Those of us in the court system owe it to them to make their service as meaningful as possible, and that includes freeing them to be more actively engaged in the trial process.”

As indicated by newest Supreme Court Justice Brian Zahra in the Grand Rapids Legal News for May 25, 2011, the Supreme Court began working on jury
reforms in 2005, publishing a proposed rule package for public comment and then, in 2008, authorizing a two-year pilot program involving 12 courts.
Muskegon County courts participated in the pilot. In surveys, jurors who participated in the pilot program strongly favored the reforms. For example, 91 percent of jurors who participated in the survey agreed that being able to discuss the evidence before final deliberations helped them understand the case, focus on and recall the evidence, and reach a correct verdict.

Features of the jury reform package include:

—Jurors can, with the judge’s permission, submit questions to witnesses through the judge. Criminal procedure rules already contained such a provision, but the new rule includes jurors in civil cases as well.

—Jurors can, if permitted by the judge, take notes during trial and use those notes during deliberations.

—The jury can request to view “property or … a place where a material event occurred.”

—In civil cases, the judge “may instruct the jurors that they are permitted to discuss the evidence among themselves in the jury room during trial recesses,” as long as all jurors are present.

—After the jury is sworn, the judge “shall provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case,” covering “the duties of the jury, trial, procedure, and the law applicable to the case ….” The rule also requires the court to give jurors copies of the instructions.

—The judge may “authorize or require” attorneys to provide jurors with “a reference document or notebook,” which would include a list of witnesses, relevant provisions in statutes, and copies of any documents at issue. Other items, such as preliminary jury instructions, trial exhibits, “and other admissible information,” can also be added to the notebook.

—The judge may require attorneys to prepare “concise, written summaries of depositions” for the jury instead of having the full deposition read aloud.
—In addition to making opening and closing statements, attorneys may, “in the court’s discretion, present interim commentary at appropriate junctures of the trial.”

—Court can schedule expert testimony to assist jurors’ understanding  – for example, by having expert witnesses testify sequentially. Another option is to allow each expert to be present for the opposing expert’s testimony, so the expert can “aid counsel in formulating questions to be asked of the testifying expert on cross-examination.”

—Judges may “fairly and impartially sum up the evidence” after closing arguments, but also remind jurors that they must decide fact issues for themselves. The rule bars judges from commenting on a witness’s credibility or stating a conclusion “on the ultimate issue of fact before the jury.”

—Judges are required to give the jury a copy of the final jury instructions to take into the jury room for final deliberations. In addition, judges must invite jurors to ask any questions they may have to clarify the instructions.

—The judge may permit the jurors to take reference documents, any exhibits and writings admitted into evidence into the jury room.

—The judge “may not refuse a reasonable request” from jurors to review evidence or testimony as they deliberate.

—If the jury appears to reach an impasse during deliberations, the judge “may invite the jurors to list the issues that divide or confuse them in the event
that the judge can be of assistance in clarifying or amplifying the final instructions.”

The jury reform rules go into effect on Sept. 1, 2011. Justice Diane M. Hathaway, in a written dissent statement included with the Supreme Court order, stated, “These new rules contain procedures, such as expanded jury note taking and asking questions, which if properly used, have a valid place in our judicial system.  However, they also contain multiple procedures that are highly controversial and are likely to prove problematic, particularly when litigants are forced to use them by a trial judge...such as using deposition summaries in lieu of testimony, interim jury deliberations, and interim commentary by attorneys.  I agree with the overwhelming majority of public comments that oppose most of these procedures. Those comments were submitted by a broad spectrum of the legal community, and reflect a host of valid, practical and legal issues that have not been resolved.” Justice Stephen J. Markman supported the rules, and said in his included statement, “These new rules constitute a comprehensive package of juror reforms drawn largely from the experience of other states and the federal judicial system,” and thanked the 12 courts who participated in the pilot program.

The Court plans to review the rules and their impact in the Fall of 2014.