Researching Jury Participation: Jurors in new study encouraged to take notes, questionwitnessesAuthor(s): Bruce MaxwellSource: ABA Journal, Vol. 75, No. 12 (DECEMBER 1989), p. 36Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760797 .

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News

Researching Jury Participation Jurors in new study encouraged to take notes, question witnesses

A few judges started experi menting with allowing jurors to take notes a century ago, and cases where jurors were permitted to ask ques tions date back at least to the 1890s.

Yet neither practice has become popular, a situation that two re searchers hope to change with the largest study ever conducted of note taking and question asking by jurors.

The study is aimed at dispelling some concerns that many lawyers and judges have about allowing ju rors to get more involved in trials, ac

cording to researchers Larry Heuer, a

post-doctoral fellow at Northwestern University's Dispute Resolution Re search Center, and Steven Penrod, a law professor at the University of

Minnesota.

Most states do not bar judges from permitting jurors to take notes or ask questions; at the same time, though, few actively encourage the practices.

Heuer and Penrod hypothesize that allowing notes and questions

could help jurors understand and re member the evidence and the judge's instructions, and assist attorneys in determining what jurors are thinking and which issues need to be clarified.

They acknowledge, however, that judges and attorneys have real concerns that the procedures will cause them to lose control of the trial, encourage jurors to become advo cates for one side and result in jurors asking inappropriate questions that could lead to a mistrial.

500 Trials "Frankly, in many respects the

most important part of the research is to rule out the negatives, because that's what really is a deterrent for

most people," said Penrod. Heuer and Penrod hope to study

500 state and federal trials from around the country. Judges who par ticipate are randomly assigned to permit one of the following: both note taking and questions, one or the other, or neither. Judges are encour

aged to select complex trials for the experiment.

At the end of the trial, the judge, attorneys and jurors fill out question naires seeking their opinions about the procedures that were used. Heuer and Penrod hope to get responses from 450 judges, 700 attorneys and 4,800 jurors.

Results of the study should be available by spring. The researchers expect the findings will mirror those of an earlier study they conducted of 67 trials in Wisconsin. That study identified three advantages: Taking notes increased jurors' satisfaction with the trial, and asking questions helped relieve their doubts about the testimony and provided lawyers with information about how jurors per ceived the trial.

As part of the study, Heuer and Penrod will develop a handbook with guidelines to help judges overcome any problems associated with allow ing jurors to take notes and ask ques tions. For example, letting jurors blurt out questions in open court could quickly lead to mistrials; a better pro cedure would require jurors to sub mit written questions, with the judge ruling on the admissibility of each after hearing objections from both at torneys.

The current lack of guidelines dissuades many judges from using in novative jury procedures because they fear being reversed, said Circuit Court Judge Arthur Snyder of Flori da's 11th Judicial Circuit, who re cruited 17 colleagues for the study. "The only thing a judge has got going against him when he runs for re-elec tion is how many times he has been reversed," Snyder said.

But as the kinks get worked out in the procedures and judges increas ingly see their colleagues using them

without reversal, more and more

judges are likely to allow jurors to take notes and ask questions, said Tom Munsterman, director of the Center for Jury Studies of the Na tional Center for State Courts. "When a judge hears that another judge does it, that's pretty good evidence," he said. ?Bruce Maxwell

Steven Penrod:

Ruling out the negatives with

new juror research.

ABAJ/BRUCE CHRISTIANSON

36 ABA JOURNAL / DECEMBER 1989

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