CHRONOLOGICAL JURY MARKERS: POINTS AT WHICH A JURY EVENT/ISSUE MAY ARISE Venire Summons What are the procedures used in the trial courts: Who is in the pool, who is not included? Statutes, Rules Local Court Rules Previous Challenges to the Venire Process Demographics of the Judicial District: Whose faces should we see?) Latest Census Figures Method of Notifying Juror Information Feeders: Driver s Licenses, Voting, Other Methods Age of Information (How often is it refreshed?) What procedures does the judicial district use to summons potential jurors for jury duty? telephone call-ins methods used to create sub-pools for specific trials internet, court web sites timing of summons relative to the trial No-shows: What happens when a citizen does not respond to a summons and what are the court rules about what should happen? % that do not show up demographics of those who do not show up addresses that commonly do not show up court procedure to contact people that do not show up punishment available for willfully failing to show up re-sending summons What information is included with the summons? (brochures, pamphlets, suggestions, web-cites) The jurors who actually arrive in our courtrooms are skewed by the selection process. Interviewing the Jury Commissioner is an excellent place to start: What are they doing now? Many jury commissioners have appropriate ideas about what they need to do a better job and what is blocking them from following the rules. Whether the venire you get is legally appropriate will always depend upon your ability to show on the record that the folks who show up do not look like the folks who reside in the judicial district. Hence, the value of the most recent censes. The local Chamber of Commerce has excellent statistics for businesses on who lives in that community. The poorest people in a community move most often, hence they often no longer live at the last address, or do not show up in a telephone directory, or do not have a driver s license. An advocate has the right to request that more ways of including names be used, in order to fairly represent the face of the community currently. The failure of courts to follow their own rules when it comes to jurors who ignore the summons has long been neglected by trial advocates. 1. First get a copy of the statute and the court rule governing what the procedures and penalties are for failing to show up for jury duty, once summoned. 2. Second, interview the jury commissioner to find out what they are doing now. 3. File a motion challenging the venire, if you discover that appropriate follow up and the resending of unanswered summons does not occur. 4. Have a hearing at which you call the jury commissioner and offer recent community profiles.
Pre-Trial Exposure to Information Early Non-judicial Excusals Exposure to Information in the Jury Assembly Room What information on this trial, legal issues, facts have potential jurors been exposed to? media, films, television, radio, magazines, newspapers internet, blogs person-to-person information what does the summons itself look like/say/contain? prior jury service, subsequent interviews Which citizens who were summoned were subsequently excused by someone at the courthouse other than the trial judge? Who handles early requests to be excused? What written information/guidelines does the Chief Judge give to the Jury Commissioner s Office? [expression delegation] What written information/guidelines does the Jury Commissioner give to staff? What types of excusals are handled ex parte (without the presence of either party)? What are local court variances from judicial district rules? What are the statistics on excusals from the original venire for the last 6 months, 12 months, 3 years? What is a potential juror exposed to in the jury assembly room? Orientation Films Slides Brochures Off-hand Comments Posters Staff Outside Persons (who is allowed in?) Researchers Magazines Newspapers Television Jurors may have been tainted before they get to the courtroom. Hence, you must gather the taint and request appropriate remedies before the trial starts. The frequency, content, and number of alternate media containing prejudicial information will be needed to support a motion for change of venue, for extensive questionnaire inquiry, or for one-on-one juror voir dire. It turns out that jury commissioners and their staff may be routinely excusing the jurors you need for reasons that are not appropriate: age, distance from courthouse, pregnancy, being a student, having a vacation planned, to name a few. You cannot represent a client without knowing how this works and how it worked on your case. When you look at a jury panel, know that there are many faces missing. You have no record of this unless you file a pre-trial motion asking that every citizen s request for delay or excusal be on the record. The easiest, yet most neglected, investigation that judges and attorneys should be doing is a visit to the jury assembly room. Many things that jurors are told or read are appropriate for some civil trials, but not others; for civil cases, but not criminal cases. Other things are just plain wrong. Assembly room clutter includes anything a bored juror might read. Visit the jury assembly room and clean it up (cooperatively, by motion, or by request). Jurors may be watching news shows about your trial (or one just like it). Pre-Trial What requests has either party made to the court concerning jurors Advocates should ask more often for corrections in Motions by before the trial begins? advance of the event. Trial courts are more likely to join in
Parties Format: Written or oral? Timing: When made? Request for all excusals of potential jurors to be on the record Motion for Change of Venue Request specific # to be summoned Request specific # for jury Challenge to Venire Challenge to Ex Parte Excusals Request for Alternates (specific numbers, use of peremptories) Request for Individually-Sequestered Voir Dire Request for Alternating Voir Dire Clarification of Scope of Voir Dire Questions Time Limits Multi-party roles in voir dire Issues regarding sequestration of jurors Issues regarding voir dire conditions/limitations Request for additional peremptory challenges Issues regarding co-plaintiffs, co-defendants and jury selection Issues regarding the court s legal instructions Issues regarding reading of charges Length of trial (predictions, requests) Issues regarding press Issues regarding public/family presence during jury selection Who gets to sit at the tables (assistants, consultants, investigators)? Gag orders Requests for early list of jurors Restrictions on pre-investigation of jurors Discussion/Motions regarding court s procedure for exercise of challenges Issues regarding courtroom security Issues regarding custodial parties (criminal defendants, witnesses) Issues regarding press/public trial Special needs of jurors a cure than declare a mistrial for a cure that was not requested. Appellate courts are more likely to reverse based upon the same logic. What would make this a better trial for my client? Would I rather guess at how a judge is going to proceed or find out ahead of time? What specific discussions have the parties had with the trial judge about a written questionnaire? Written questionnaire the judge usually uses. Separate questionnaires proposed by the parties. Pre-Trial Discussion of Questionnaire Judges have procedures that make sense to them and use questionnaires that have worked in the past. Your client has a different case.
Jointly-proposed questionnaires by the parties. Supplemental questions proposed on certain issues. Challenges to proposed questions. Timing of questionnaire. Administrative issues: copying of questionnaire, time to review the answers. Record on objections to denied proposed questions. Use of new ABA rules to support additional questions. Clearly and with specificity ask for the questions your client needs. Always attempt to put together an agreed-upon questionnaire that both parties present to the trial judge. Less is more. Attorneys have many questions on questionnaires that do not predict juror behavior on their case and that they do not have time to read, let alone rank order. Be willing to trade fewer questions in order to get the ones you really need. First Appearance of Potential Jurors in Courtroom Initial Court Instructions and Introductory Comments How is the judge going to create an opportunity for citizens to voice their concerns about serving? Citizens requests to be excused: hardship, publicity, bias Immediate concerns and requests Concerns arising after hearing about the case, witnesses, issues Subsequent concerns that develop during jury selection Standards for going into chambers Legal instructions to jurors about the use of their questionnaires How does the trial judge generally define hardship? What evidence of media publicity, to justify publicity questions? How will the parties be introduced? What will the jurors be told about witnesses? What ADA accommodations are needed? (disability, hearing, eyesight, access, locomotion, breaks) What legal disqualifications will be read to the jurors? How will questionnaires be distributed? What orientation does the judge intend to give to the courtroom or the case? Time estimates given to jurors? How will deputies or security be explained to jurors? What limits will be placed on potential jurors? How will parties and attorneys be introduced? What badges are available and when must they be worn? The moment jurors arrive in the courtroom they are observing things that are affecting their perceptions about your client, you, the case. In order to understand a juror s world, understand it from the moment they walk into the door. Understand that humans walk in the door, with pains, needs, confusions, illusions, shynesses, and anger and propose compassionate ways of finding out what those are. What instructions are jurors given at the outset of jury selection? Instructions regarding length of trial Restrictions Instructions for breaks, recess Instructions regarding confidentiality How to request going into chambers Attorneys frequently spend more time on closing instructions that opening, even though intuition tells us that what a juror is told at the outset may have greater persuasive power. This is also true with what a juror is not told at the outset of a trial.
Jury Selection Definition of hardship and jury duty Reimbursement Instructions regarding the issues, charges, presumptions Special instructions requested by one of the parties Instructions on discussions with one another during jury selection Instructions about media, internet, publicity Restrictions on conversations, including what they may tell family or employers What will be the court s procedures for talking with potential jurors, reviewing their questionnaires, and exercising challenges? How will the first citizens be selected to sit in the jury box? How will alternates be selected? What will be the boundaries in terms of topics or time? What voir dire will the court do and what requests have parties made to ask the court to inquire on specific case issues? Under what conditions will they go into chambers? How will the record be made, including bench conferences? How can citizens communicate with the court? Will jurors be talked to in groups, individually, or in panels? How will publicity and hardship be handled? How will objections be handled? When will questionnaires be distributed? How will time-limits be tracked, counted, and enforced? How will be court handle excusals, hardship, publicity, jointlyagreed, statutory disqualifiers, challenges, requests for additional challenges, misconduct, language difficulties, illness How will the court handle running out of jurors? What are the judge s rules and understanding of the law? How will the court handle challenges that either party is improperly exercising peremptory challenges to skew the composition of the jury or exclude cognizable groups of citizens? What procedure will the court entertain if they run out of jurors, based on excusals or bias or hardship? If there are multiple parties, including multiple plaintiffs or defendants, how will the court handle disagreement about peremptory challenges? How will the court ensure that the same jurors are present in court each time a break or recess is taken? How will the court ensure that jurors are healthy, not in pain, able to hear at all times? Myriad instructions are not being given that, in reality, jurors need. Any instruction a juror is expected to follow should always be in writing and given to each juror. Be specific about how each event will occur and, in advance, be specific about alternative suggestions. The best advocates team with the trial judge at this stage to make useful suggestions in advance of the event. The more an attorney knows about how a judge intends to proceed, the better choices the attorney can make about the record needed on appeal to offer objections or remedies. My judge would never let me do X during jury selection is more often a product of this truth: No one has ever requested X, well in advance of trial, with the appropriate authorities and offering these alternatives. Judges change their minds when they get new authorities and time to think about it.
During jury selection, can members of the public, relatives of the parties, witnesses, or the press be present? If so, with what restrictions, including seating restrictions? May jurors take notes during jury selection? What breaks will be given? Are citizens seated in the farthest areas of the courtroom able to hear what is said in the front of the courtroom, by the judge, attorneys, and fellow citizens? How will the court reporter keep a complete record of jury selection, including hand-raising? Oaths Behavior of Jurors What legal oaths must be given after jury selection? Jurors What oaths are given to the jurors selected? Are alternate jurors given different oaths? Is the oath in writing or oral? How will jurors remember it? Have either of the parties made objections to the oath or requested additional promises? When does jeopardy attach? Can a trial judge intentionally delay the swearing in of a jury to affect double jeopardy? Bailiff What oath is given to courtroom staff? If bailiffs rotate, what oath is given to incoming staff? Is the oath in writing (how will they remember it)? Have attorneys been given an opportunity to object or make additional requests? Sheriff If deputies will be present in the courtroom for security or because a party or witness is in custody, should they receive instructions? How will deputies bring a custodial party to court so jurors cannot see? Is anyone armed? Should they be? Will the jurors know that? What contact or communication can sheriff deputies have with jurors? What is the plan in order to ensure that jurors do not commit misconduct or violate the rules? What if they do commit misconduct, how will the court find out? In the Courtroom Notetaking by jurors Get a copy of the oath, in writing. Consider relevant objections. Offer specific additional requests. Make sure the person taking the oath has a copy of it. What other promises need to be made in order to secure a fair trial? Anticipate common misconduct and discuss it: with jurors during jury selection with the judge during pretrial motions with appellate attorneys to make a better record
Question-asking by jurors Notebooks for jurors Juror notes to the court during trial Breaks Expressing premature opinions Instructions to disregard evidence Instructions limiting the use of specific evidence Questioning of jurors (specific issues that arise) Juror Misconduct Tardiness Illness Intoxication Sleeping Replacing jurors with alternates Outside the Courtroom Sequestration violations Publicity Juror Investigations Exposure to Inadmissible or Prejudicial Information Internet Searches Reading newspapers, magazines Listening to reports of case on TV Talking or Listening to Family or Friends Talking or Listening to Co-Workers Blogging Journaling What instructions will be read to the jurors after they are sworn in? How will the judge ensure that each juror understands the instructions are the time they are given? How will jurors be able to indicate that they do not understand the instruction? During Trial: Limiting instructions, instructions to disregard, cautionary instructions, legal principles, burdens of proof, presumptions Close of Trial: Legal instructions, definitions, presumptions, selection of bailiff, verdict Reading Legal Instructions to Jurors During Deliberations: Deadlock, alternates, use of evidence, requests for transcripts, at breaks or recesses, at the start of each Another good time to partner with an appellate attorney: Consider that the instructions at the outset of trial may be inappropriate, missing essential concepts, or unintelligible. Example: Many capital trials have been giving jurors instructions for years at the outset off trial about the Guillt Phase and the Penalty Phase, which is contrary to the presumption of innocence during the substantive trial. Pay attention. Listen. Do both before the trial starts.
deliberation After Deliberations: Who they can talk to, what happens to their notes, how they can report violations, TV interviews, writing books, questions about the trial, attending sentencing, what happens to the verdict awarded, appeals Legal Instructions to Alternate Jurors What are alternates who never served told and are they present in the courtroom at the time of the jury s discharge? Replacing Jurors Physical Evidence Given to Jurors What is the law about the circumstances under which a juror may be replaced? During Trial During Deliberations Who must be talked to? Can a juror be saved by taking a break in the trial, providing accommodations, or creating less coercive conditions in the juryroom? What does it mean to commence deliberations again and how should this specifically be explained to jurors? During complex/lengthy trials it is anticipated that jurors will be excused and others substituted. Hence, the correct procedure should be prepared in advance of trial. Do not allow jurors to come up with their own version of commencing deliberations again with an alternate they will summarize. Visualize what new deliberations should look like. Then describe that to them. Visualize what a failure to start deliberations again would look like. Then tell them they cannot do those things. In some trials it will be impossible to commence deliberations again, but it is up to the trial attorney to point out specifically why this would be impossible. Rule: Every juror gets to hear everything. Consider polling. Whenever we are asking a jury to do something that they may not be able to do, ask: What difficulties would you have in starting over? Do you believe it could be done? Why or why not? What evidence, if any, goes into the juryroom at the outset of deliberations? Transcripts Physical Evidence Drugs, Guns, Dangerous Evidence Demonstrative Exhibits Videos, Audio Tapes Why would a court allow physical evidence, but not testimony? Are jurors allowed to play and reply videos, but will have to remember testimony? Who insured that evidence that was not admitted does not go into the jury room? Should the jury have to request any evidence before it is provided? General evidence rule: All evidence is considered equal in form; no greater weight is given any evidence because it was oral, documentary, or demonstrative.
Deliberations Deadlock Verdict Discharge of Jurors How will issues that arise during deliberation be handled and what requests have been made by attorneys concerning the events or conditions of deliberations? Selection of Foreperson Notes from jury/juror Replacing juror with alternate Issues regarding the jury room Communicating with Bailiff Reporting of juror misconduct Reporting of Illness Extraneous information in jury room Issues regarding length of deliberations, hours, breaks, meals Issues regarding sequestered deliberations Deadlock Coercion What if some jurors complain about the behavior of other jurors? What if a juror wants to be excused? How will the court handle receiving a question or information from the juror that they cannot agree on a verdict? When can any form of deadlock or dynamite instruction be given? When can the judge inquire about the voting? When can the judge offer the jury help in the deliberation? When must a mistrial be declared? When must jurors be talked to individually? Is the information oral or in writing? When can or should the jury be brought into open court? What is the effect of time or complexity of the case on how long a jury should be asked to continue deliberating? What if some jurors want to continue deliberating and others do not? What procedures will the court use after the jury claims to have a verdict? polling of individual jurors juror changing mind juror crying final instructions of court partial verdicts What restrictions can be placed on jurors or parties after a verdict has been received? Step into a juror s deliberative world and imagine what is needed and what might go wrong. Teach them how to report it or ask for it. It is difficult under the rules of evidence to interview jurors after a verdict in support of misconduct or coercion. See detailed discussion, 10-2, Deadlock Phobia, PRACTICAL JURY DYNAMICS. SEE ALSO, 12-1, Emotional Persuasion, 12-4, Emotional Argument, PRACTICAL JURY DYNAMICS If you see a juror who is emotionally upset during polling, stop everything, whether you are a judge or a lawyer. This is the time for an in chambers hearing. Are jurors frightened? Are they likely to be approached by the press? Are they requesting escorts to their cars?
Disposal of Juror Notes/Notebooks Talking to Discharged Jurors Impeaching Verdicts What requests can parties make concerning the notes, voting slips, or notebooks of jurors? What is the law concerning communication with a juror after a verdict: Contact initiated by juror Contact by media Contact by publishers Contact by parties, attorneys Contact by researchers Snitches 1 : Fellow jurors reporting about other jurors When can a party or person on behalf of a party contact a juror in support of motion for new trial? What effects do these anticipated events have on your client s case, if the verdict was not in your favor? What juror protections do you want if the verdict favored your client? The record on appeal requires that all notes, voting slips, notebooks be preserved. See above. It is easier to find out during misconduct from jurors before a verdict. Teach them how to communicate. 1 Tanner v. United States, 483 U.S. 107 (1987) actually pointed out that juror peer snitching is appropriate: Moreover, jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict.