In trial courts across America, jurors are skipping jury duty. One third of citizens in major California counties like Los Angeles and San Diego fail to serve. In Texas, the two counties surrounding Houston, Harris and Montgomery County, have had no-show rates of 75 percent and 86 percent, respectively. In Philadelphia, 200,000 of 600,000 citizens failed to show up, leading city officials to create a “scofflaw court” for recalcitrant jurors. And in Idaho, Florida, and North Carolina, the “no-show” problem continues to frustrate local courts.
Juror apathy degrades justice. In Youngstown, Ohio and Natchez, Mississippi judges had to postpone murder trials because not enough jurors showed up to serve. Meanwhile, citizens who do appear face an additional burden, as they are summoned more frequently than if the duty was equitably shared.
How can courts address this civic apathy? Federal Judge Mark W. Bennett, a 20-year veteran of picking juries has an idea: a juror bill of rights.
In his Arizona State Law Review article, Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW—What Would Jurors Want?—A Federal Trial Judge’s View, Judge Bennett proposes a jury-centric approach that spans everything from cup-holders for jurors’ drinks, stretch breaks, and fresh baked cookies, to substantive legal changes like clear jury instructions, interim summaries of arguments, and the elimination of most of the lawyerly gamesmanship that interferes with the timely administration of trials.
These innovations are particularly noteworthy coming from a sitting federal judge. The juror bill of rights therefore is both radical because it challenges the long-standing practice of federal and state courts, and obvious, because it treats jurors with respect. As proposed, Bennett’s bill of rights includes the following five pillars listed and explained below.
Jurors Have the Right Not to Have Their Time Wasted by Judges, Lawyers, Witnesses, and Unnecessary, Cumulative, and Excessive Evidence
One of the main complaints about jury service is the perceived waste of jurors’ time. Jurors wait to be selected, wait during legal arguments, wait during breaks, and then wait some more. To be fair, trials present difficult logistical challenges. For example, witnesses, lawyers, and judges have scheduling conflicts, and unexpected legal issues can arise. That’s not to say that time isn’t wasted when lawyers call a large pool of witnesses, ask repetitive questions, and seemingly value the jurors’ time less than their own. Bennett’s response therefore is to streamline the process—a strategy he’s put in practice in his own courtroom.
Bennett’s trials begin promptly at 8:30 a.m. and go until 2:30 p.m., with all other scheduling matters moved until the afternoon. After extensive pretrial conferences, he also imposes hard time limits on lawyers (fixed times for the presentation of evidence on both sides), and has a chess clock (the kind used for calculating the time between moves) to measure a lawyer’s progress through the case. He prohibits sidebar conferences (the times when lawyers approach the bench to make arguments while the jury waits in the jury box). And, he streamlines the voir dire process to make jury selection more efficient. The result is a trial that prioritizes the jurors’ time over the lawyers’ time, and the jurors’ experience over the lawyers’ tactics. And, somewhat counter-intuitively trial lawyers have embraced the changes, finding that efficient trials are actually better for their cases and their clients, according to Bennett’s article.
Jurors Have the Right in Jury Selection in Every Civil Case to be Told Exactly How Long the Trial Will Last—Minus Deliberations
Another common complaint is the uncertainty of when jury duty ends. Even “one day, one trial systems” do not clarify how long the “one trial” lasts, which causes anxiety among jurors unsure what the impact will be on their other life obligations. Civil trials can last a few days or a few months. Bennett, therefore, in consultation with the parties establishes a fixed timeframe at the outset for how the trial will proceed, which then gives jurors the opportunity to plan ahead and gain a measure of control over their civic obligation. Since no judge can control how long deliberations will last, the rest of the trial can at least be managed with an eye toward efficiency and certainty.
Jurors Have the Right in Every Trial to Their Own Set of Plain English “Final” Jury Instructions Prior to Opening Statements
Jurors wield an amazing amount of legal power. They’re entrusted with life and death decisions, and billion dollar verdicts. But that power and trust can be undercut by the disempowering feeling of having to comprehend complicated jury instructions filled with important, but incomprehensible legal jargon. Worse, jurors are only provided instructions on how to consider evidence after all the evidence has been presented. It’s similar to playing a game without being told the rules of the game before you start. The upshot is that non-lawyer jurors must decipher legalese, and only after they have heard all the facts. Bennett’s proposal responds to both problems. First, he has drafted his own plain English jury instructions written for jurors, not lawyers. Second, he provides the instructions at the beginning of the case, so jurors know what to focus on before they hear the evidence.
Jurors Have the Right to Have Their Trial Judge Thoughtfully Consider Innovations That Enhance Their Experience and Improve the Fairness of the Trial
The institution of the jury trial has been remarkably resistant to innovation. Many courts use paper and pencil for voir dire questions, provide paper copies of exhibits, prevent jurors from asking questions, and ban summaries of evidence (even in lengthy cases). While some federal and state courts have begun experimenting with high-tech courtrooms that use video feeds and electronic displays, many trial procedures haven’t changed for decades. Bennett argues that judges should recognize that jurors’ technological expectations have shifted and different jurors, like millennials and retirees, have very different learning styles. Visual learners, for example, might process information differently than those who learn by listening. To that end, courts should instruct by adopting all types of teaching tools. Among other innovations, Bennett suggests a visual voir dire using Powerpoint, and electronic evidence for deliberations. In his own courtroom, he also allows jurors to ask questions in all civil cases.
Jurors Have The Right To Juror Creature Comforts
The jury box is not known for its comfort. While offices around the country have designed ergonomic workspaces and comfortable learning pods, both the jurors’ seats and the deliberation rooms share more in common with a bureaucratic waiting room than a seat of justice. And jurors are required to remain in those chairs for long periods of time without the option to stand up, stretch, or eat a snack. Bennett suggests that jury service be designed with the comfort of the juror in mind. Comfortable seats, stretch breaks, and plentiful snacks, all add to the sense that the court cares about the jurors’ well-being. Taking his proposal to practice, Bennett bakes homemade cookies for jurors in lengthy trials.
Will a juror bill of rights impact juror absenteeism? If courts remember that jurors are repeat players in the justice system, the answer is likely yes. Jurors treated with respect become ambassadors for the court system, reporting on their positive experience and encouraging others to serve. While Bennett’s innovations have not been proven to change attitudes about jury duty, they do suggest a simple answer to what seems to be a neglected question: What would jurors want? Jurors want respect and a system that acknowledges their important role in the American justice system. Homemade cookies are just a bonus.
This article was originally published at http://www.theatlantic.com/politics/archive/2015/09/the-juror-bill-of-rights/404833/