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T H E J O U R N A L O F T H E A M E R I C A N J U D G E S A S S O C I A T I O N

Volume 41, Issue 1Spring 2004Court ReviewCourt Review

Volume 41, Issue 1Spring 2004

SPECIAL ISSUEON JURY REFORMSPECIAL ISSUE ON JURY REFORM

PRESIDENTJudge Michael McAdamKansas City Municipal Court1101 LocustKansas City, MO 64106Tel: (816) 513-3842

PRESIDENT-ELECTJudge Gayle NachtigalCircuit Court of Washington Co.Washington County CourthouseHillsboro, OR 97124Tel: (503) 846-4562

VICE PRESIDENTJudge Michael CicconettiPainesville Municipal CourtP.O. Box 6017 Richmond StreetPainesville, OH 44077-0601Tel: (440) 392-5872

SECRETARYJudge Steve LebenJohnson County District Court100 North Kansas Ave., Div. 8Olathe, KS 66061Tel: (913) 715-3822

TREASURERJudge Harold V. FroehlichOutagamie County Circuit Court320 South WalnutAppleton, WI 54911Tel: (920) 832-5602

IMMEDIATE PAST PRESIDENTJudge Francis X. Halligan, Jr.P.O. Box 1279Island Heights, NJ 08732-1279Tel: (732) 244-2500

DISTRICT IJudge Irwin Lampert

Moncton, New BrunswickJudge John R. Maher

Kingston, New HampshireJudge Morton Minc

Montreal, Quebec

DISTRICT IIJudge Anthony Bentley

New York, New YorkJudge John W. Carter

New York, New YorkJudge Robert M. Reagan

New York, New York

DISTRICT IIIJudge Bruce Campbell

Ewing, New JerseyJudge Ron Garvin

Washington, DC

DISTRICT IVJudge Ray Dezern

Norfolk, VirginiaJudge Eileen Olds

Chesapeake, Virginia

DISTRICT VJudge Andy Buster

Miami, FloridaJudge Jerry L. Fielding

Talladega, AlabamaJudge Steven Leifman

Miami, Florida

DISTRICT VIJudge John E. Conery

Franklin, LouisianaJudge David Gorbaty

Chalmette, LouisianaJudge Toni Higginbotham

Baton Rouge, Louisiana

DISTRICT VIIJudge James Heupel

Fredericksburg, TexasJudge Sherry Jackson

Texarkana, TexasJudge Nathan E. White, Jr.

McKinney, Texas

DISTRICT VIIIJudge Lorenzo Arredondo

Crown Point, IndianaJudge Leon Ruben

Nashville, TennesseeJudge Karen Thomas

Newport, Kentucky

DISTRICT IXJudge Larry Allen

Willoughby, OhioJudge Howard H. Harcha

Portsmouth, OhioJudge W. Milton Nuzum III

Marietta, Ohio

DISTRICT XJudge Leo Bowman

Pontiac, MichiganJudge Gus Cifelli

Bloomfield Hills, MichiganJudge Stephen Cooper

Southfield, Michigan

DISTRICT XIJudge Kevin S. Burke

Minneapolis, MinnesotaJudge W. M. McMonigal

Berlin, WisconsinJudge John Williams

Kansas City, Missouri

DISTRICT XIIJudge Lynda Howell

Phoenix, ArizonaJudge Denise M. Lightford

Phoenix, ArizonaJudge David Orr

Moose Jaw, Saskatchewan

DISTRICT XIIIJudge Pedro Hernandez

Billings, MontanaJudge Richard Kayne

Medical Lake, Washington

DISTRICT XIVJudge Bert Brown

Las Vegas, NevadaJudge Jay Dilworth

Reno, NevadaJudge Tam Nomoto Schumann

Orange, California

COURT OF APPEALSJudge Robert Burgess

Mansfield, LouisianaJudge Mary Celeste

Denver, ColoradoJudge John A. Mutter

East Providence, Rhode IslandJudge Lidio Rainaldi

Gallup, New MexicoJudge Leon Ruben

Nashville, Tennessee

PAST PRESIDENTSJudge William H. Burnett, 1960-62*Judge George T. Martin, 1962-63, 1964-65*Judge Claude M. Owens, 1963-64Judge Samuel M. Chertoff, 1965-66*Judge E. B. Lee, 1966-67*Judge G. Randall Whitmeyer, 1967-68*Judge Maynard B. Golt, Q.C., 1968-69*Judge M. Michael Gordon, 1969-70*Judge David L. Golden, 1970-71*Judge Philip M. Fairbanks, 1971-72Judge Joseph A. Zingales, 1972-73Judge George G. Crawford, 1973-74Judge Verne C. Boewe, 1974-75*Judge George C. Inglehart, Jr., 1975-76Judge Edmund A. Jordan, 1976-77*Judge Rodney D. Parrott, 1977-78Judge Michael J. Donohue, 1978-79Judge Allan R. Market, 1979-80Judge Patrick H. McCauley, 1980-81Judge Charles V. Johnson, 1981-82Judge Rupert A. Doan, 1982-83Judge James B. Kelly, 1983-84Judge Robert C. Anderson, 1984-85*Judge Oliver S. Delery, 1985-86Judge Barbara T. Yanick, 1986-87*Judge Robert H. Wahl, 1987-88*Judge Jerome A. Gertner, 1988-89Judge Thomas C. Nurre, 1989-90Judge Leslie G. Johnson, 1990-91Judge Richard Lee Price, 1991-92Judge Joseph Burtell, 1992Judge Thomas A. Clark, 1992-94Judge John A. Mutter, 1994-95Judge Martin Kravarik, 1995-96Judge Jeffrey Rosinek, 1996-97Judge Shirley Strickland-Saffold, 1997-98Judge Paul Beighle, 1998-99Judge Gerald T. Elliott, 1999-2000Judge Chris Williams, 2000-01Judge Bonnie Sudderth, 2001-02*Deceased

American Judges Association300 Newport Avenue

Williamsburg, VA 23185-4147(757) 259-1841

Directory of Officers and Board of Governors, 2003-2004AMERICAN JUDGES ASSOCIATION

Court ReviewT H E J O U R N A L O F T H E A M E R I C A N J U D G E S A S S O C I A T I O N

ARTICLES

4 Jury Trial Innovations: Charting a Rising Tide

Gregory E. Mize and Christopher J. Connelly

12 Recent Evaluative Research on Jury Trial Innovations

B. Michael Dann and Valerie P. Hans

20 Jurors’ Unanswered Questions

Shari Seidman Diamond, Mary R. Rose, and Beth Murphy

30 Recent Criminal Decisions of the United States Supreme Court:

The 2003-2004 Term

Charles H. Whitebread

DEPARTMENTS

2 Editor’s Note

3 President’s Column

44 The Resource Page

EDITORJudge Steve LebenJohnson County, Kansas

EDITORIAL BOARDJudge B. Michael DannNational Institute of Justice

Julie Kunce FieldFort Collins, Colorado

Professor Philip P. FrickeyUniversity of California at Berkeley

Mark D. HinderksOverland Park, Kansas

Judge Leslie G. JohnsonMississippi Judicial College

Professor Steven LubetNorthwestern University

Judge Gregory E. MizeWashington, D.C.

Professor Reginald L. RobinsonUniversity of Kansas

C. Robert Showalter, M.D.Harrisonburg, Virginia

Professor Jacqueline St. JoanUniversity of Denver

Professor Charles H. WhitebreadUniversity of Southern California

STUDENT EDITORBrandon Bauer

NATIONAL CENTER FOR STATE COURTS STAFF

Charles F. CampbellManaging Editor

T A B L E O F C O N T E N T S

Volume 41, Issue 1Spring 2004

One of the challenges faced by a journal serving a specialized audience,like judges, is to balance general-interest articles with ones on a sin-gle topic. Some topics are of sufficient significance, though, that we

will devote most or all of an issue of Court Review to that topic. When we dothis, we work hard to find authors who are in the forefront of work in that area.For this issue on jury reform, we think you’ll be pleased with the result. Theauthors who have contributed to this issue are unquestionably among the topexperts in the field.

In the first article, Greg Mize and Chris Connelly provide an overview ofjury reform in the United States today. They include information on a nationalprogram now underway to increase use of effective jury reform methods. Mizecochaired the District of Columbia Jury Projectfrom 1996-1998 and remains active today inthe jury reform movement.

Our second article, by Mike Dann andValerie Hans, reviews the most recent empiricalevaluations of several jury trial innovations,including note taking, questions from jurors,preliminary substantive instructions, and jurordiscussions of evidence during trial. Dannchaired the Arizona Jury Trial ReformCommittee in 1993; Hans has written twobooks and numerous articles on juries and juryreform.

Our third article, by Shari SeidmanDiamond, Mary Rose, and Beth Murphy, reviews the practice of letting jurorsask questions during trial. They focus on an in-depth look at a single question:what are the effects when jurors are allowed to ask questions, but the judgedoesn’t ask one of the questions submitted? These researchers were able toobserve unanswered questions in 39 jury trials. They provide an excellentoverall review of the value of letting jurors ask questions and whether any neg-ative effects arise when that is done. Seidman Diamond is one of the leadingexperts on juries, with dozens of published articles. Rose has conductedempirical research on juries for many years. And Murphy has been previouslypublished in Court Review on ways to improve jury deliberations.

We appreciate the effort of each of these authors in making this a special andvaluable issue. We also acknowledge the help of Paula Hannaford-Agor at theNational Center for State Courts in helping to recruit some of the authors; andof Greg Mize and Shari Seidman Diamond in making suggestions for theResource Page: Focus on Jury Reform on page 42.

As always, we hope you’ll take a moment while reading the issue to look atthe Resource Page section, which starts on page 44. And, as you come acrossinformation that you believe might be appropriately listed on the ResourcePage or otherwise of interest to other judges, please let us know.—SL

Court Review, the quarterly journal of the AmericanJudges Association, invites the submission of unsolicited,original articles, essays, and book reviews. Court Reviewseeks to provide practical, useful information to theworking judges of the United States, Canada, and Mexico.In each issue, we hope to provide information that will beof use to judges in their everyday work, whether in high-lighting new procedures or methods of trial, court, orcase management, providing substantive informationregarding an area of law likely to encountered by manyjudges, or by providing background information (such aspsychology or other social science research) that can beused by judges in their work. Guidelines for the submis-sion of manuscripts for Court Review are set forth on page26 of the Summer 2003 issue. Court Review reserves theright to edit, condense, or reject material submitted forpublication.

Court Review is in full text on LEXIS and is indexed in theCurrent Law Index, the Legal Resource Index, andLegalTrac.

Letters to the Editor, intended for publication, are wel-come. Please send such letters to Court Review’s editor:Judge Steve Leben, 100 North Kansas Avenue, Olathe,Kansas 66061, e-mail address: [email protected] and suggestions for the publication, notintended for publication, also are welcome.

Advertising: Court Review accepts advertising for prod-ucts and services of interest to judges. For information,contact Deloris Gager at (757) 259-1864.

Photo credit: Mary S. Watkins ([email protected]). The cover photo is of the Cape MayCounty Courthouse in Cape May Court House, NewJersey.

© 2004, American Judges Association, printed in theUnited States. Court Review is published quarterly by theAmerican Judges Association (AJA). AJA membersreceive a subscription to Court Review. Non-member sub-scriptions are available for $35 per volume (four issuesper volume). Subscriptions are terminable at the end ofany volume upon notice given to the publisher. Prices aresubject to change without notice. Second-class postagepaid at Williamsburg, Virginia, and additional mailingoffices. Address all correspondence about subscriptions,undeliverable copies, and change of address toAssociation Services, National Center for State Courts,Williamsburg, Virginia 23185-4147. Points of view oropinions expressed in Court Review are those of theauthors and do not necessarily represent the positions ofthe National Center for State Courts or the AmericanJudges Association. ISSN: 0011-0647.

2 Court Review - Spring 2004

Court ReviewT H E J O U R N A L O F T H E A M E R I C A N J U D G E S A S S O C I A T I O N

E D I T O R ’ S N O T E

Volume 41, Issue 1 Spring 2004

My travels this year have given me the opportunity to spread

the word about the benefits of AJA membership. My message

has been simple: Every judge needs to belong to a national

judges’ organization that represents all judges, not just a nar-

row section or division of judges and not just a bar association

with a small minority of judge members. Those kinds of orga-

nizations have a role to play, but they can’t speak beyond their

narrow focus or with one voice. The AJA can do both.

The reception I’ve received to this message has been positive

but we, as an organization, need to do more. Toward that end,

last spring our Executive Committee voted to suspend indefi-

nitely the first-year-free membership that we had offered for

many years and replace it with a new “Member-Get-

a-Member” campaign. The details of this program

have been sent to you in the mail and in Benchmark.

The point I want to make here is simply that all of us

can spread the word about the benefits of AJA mem-

bership as we attend our local and state judicial con-

ferences and as we communicate with our judicial

colleagues on a daily basis. You, as an AJA member,

are the best ambassador we have.

The AJA has a critical role to play in the coming national

battles over judicial independence, selection and retention of

judges, and salaries and benefits for judges. These issues are

critical to the future independence of our courts. But that role

is diminished if our numbers are declining. Membership in a

state association is vital, but I’ve learned in my year as your AJA

president that judges have key national allies with which state

judicial organizations may not have open lines of communica-

tion. I’ve also discovered that attacks on the courts take famil-

iar forms, whether in different states or even in Canada.

Therefore, a national judicial organization is needed to educate

the public and media about the necessity for an independent

judiciary. Toward this end, the AJA sought and obtained a grant

from the Joyce Foundation of Chicago to put on the National

Forum on Judicial Independence at our annual conference in

San Francisco.

AJA involvement in substantive national issues must con-

tinue. In the past year, I appointed Judge Leo Bowman of

Michigan to serve on the joint committee of CCJ/COSCA deal-

ing with problem-solving courts. He also served as the AJA rep-

resentative on “A National Survey of the Court’s Capacity to

Provide Protection Orders” established by the National

Institute of Justice. Judge Lynda Howell of Arizona and I par-

ticipated in an expert panel on “The Judge’s Role in the

Reduction of Impaired Driving,” an ongoing educational pro-

ject funded by the National Highway Traffic Safety

Administration and administered by the National Center for

State Courts. Your next AJA president, Judge Gayle Nachtigal of

Oregon, has developed a program of education for presiding

judges and those who aspire to such administrative judicial

positions, which is scheduled for our next annual conference.

These initiatives put the AJA “brand” name on

important educational efforts to train judges and

court personnel.

When I became AJA president last year, I

expressed as a goal the need to continue the AJA’s

tradition of providing solid educational programs

at our annual and midyear conferences, along with

strong social events at each to facilitate the meeting

and making of friends and colleagues from across

the nation. I also wanted to strengthen our ties with other

judicial organizations. Our joint midyear meeting in Savannah

with the National Association for Court Management (NACM)

was a success in all three respects. NACM put on an excellent

educational program that had relevance to judges, court

administrators, and clerks. The joint nature of the meeting

made it possible for AJA members to share concerns of com-

mon interest with the members of NACM. And, of course, the

social program was top notch, particularly the fabulous Super

Bowl party. This is just an example of the kind of partnership

the AJA can benefit from with other national judicial organi-

zations.

This past year has been exciting and exhausting. I wouldn’t

have missed it for anything. I thank all AJA members for your

good wishes and your wise counsel. I thank the scores of judges

who volunteered their time and energy to make this year a suc-

cessful one. Your involvement and support of the AJA and its

many important activities is the indispensable ingredient for its

continued success.

Spring 2004 - Court Review 3

President’s ColumnMichael R. McAdam

Footnotes1. Trial by Jury: Reforms Are Needed to Stabilize the Pool, COLUMBUS

DISPATCH, Sept. 6, 1999, at 8A.

2. G. THOMAS MUNSTERMAN, PAULA L. HANNAFORD & G. MARC

WHITEHEAD, JURY TRIAL INNOVATIONS 1 (1997).

Recently the United States Supreme Court has instructedus that any contested fact, other than a prior conviction,that increases the penalty for a crime must be deter-

mined by a jury. In addition, the highest court for theCommonwealth of Virginia has determined that, in capitalcases, a claimed defense of mental retardation raises a juryquestion. Whether it is a case prompted by these high courtrulings, one of the many accounting fraud prosecutions inNew York, or scientific evidence presented in a products liabil-ity action in the Midwest, the American jury is repeatedlybeing called upon to make findings in new and complex mat-ters. Unfortunately it is common for jurors to perform theseweighty tasks in unfit conditions and without the learningtools that we take for granted in school. While computers andinteractive technology are becoming commonplace in ourclassrooms, juror note-taking and questioning of expert wit-nesses have customarily been discouraged in courtrooms.

Moreover, despite the wellspring of pride in our democraticideals after September 11, 2001, corrosive myths and misgiv-ings about the jury trial still abound. In this regard we needonly reflect upon several notorious jury verdicts in the 1990s.Laymen and litigators, who fix upon those cases, think juriestoo often get it wrong. In addition, there is the recently recur-ring diminishment of governmental funding for trial courts andwidespread citizen reluctance to respond to summonses forjury duty. For example, in many large, urban court systems, theresponse rate to jury summoning is about 20%. Is it any won-der that citizens are dodging jury service in record numbers?

There is good news, though. A growing number of courtsare taking steps to perform at a higher level with respect to jurytrials. As shown below, a movement started in Arizona hastaken hold in a growing number of states. Creative courtadministrators, courageous judges, and inspired bar leaders arejoining together to bring our cherished institution of trial byjury into the 21st century. Articles included in this issue ofCourt Review show how members of the legal academy are test-ing and demonstrating the dynamics of jury trial innovationsthat are founded on principles long recognized by the socialsciences and business communities. Indeed, as described inthis article, there now exists a National Program to IncreaseCitizen Participation in Jury Service Through JuryInnovations. Before long, there will be an encyclopedic collec-tion of uniform data called the “State of the States” that will tellus how every state operates each aspect of its jury trial systems.Importantly, the State of the States will provide court leaders

with information about how to contact persons in other partsof the country who have undertaken and implemented suc-cessful jury trial innovations.

THE RECENT HISTORY OF JURY TRIAL INNOVATIONEFFORTS

On September 6, 1999, the Columbus Dispatch reported onan alarming occurrence in Ohio. The column asked thepointed question, “What is being done to get a prospectivejuror to respond affirmatively to a summons?” While mostpeople may believe this to be a non-issue, the article went onto detail the story of Lucinda Whiting, whose arson case couldnot begin for one simple reason: only 11 jurors could be foundto sit for her case after the conclusion of voir dire. The quotedwords of the judge to the jurors who arrived in the courtroomwere: “This is important, and maybe it’s because some of yourfellow citizens did not recognize how important this was thatyou and I spent the day here and accomplished nothing.’’1

The reported example raises the issue: how do we ensurethat jurors report for service? For many states, a solution hasbeen to look toward innovations in their jury systems to makethe process work more effectively, efficiently, and convenientlyfor citizens and legal professionals alike. These efforts havebeen multifaceted, ranging from reforms that seek to increasejuror comprehension of evidence and testimony to those thatprovide greater compensation for service.

Serious discussions about jury trial innovation got under-way in the early 1990s with the 1992 publication of Charting aFuture for the Civil Jury System by the Brookings Institution.This paper reported the results of a symposium held inCharlottesville, Virginia, in the same year. The three-day con-ference, organized by Brookings and the Section of Litigationof the American Bar Association, “developed recommenda-tions to improve civil jury procedures based both on theirunique perspectives and on the findings of commissionedpapers that were presented at the conference.”2 The gatheringmarked what some have considered the birth of organized jurytrial innovations. Because such endeavors in innovation ulti-mately reside in the hands of affected jurisdictions, we mustlook at the innovative practices within the states. To this end,eyes must first turn to Arizona.

The Arizona Supreme Court Committee on More EffectiveUse of Juries began working on its system in 1993. The com-mittee, chaired by Judge B. Michael Dann, advocated changingprocedures to make the trial an educational process for jurors


Gregory E. Mize and Christopher J. Connelly

Jury Trial Innovations:Charting a Rising Tide

3. ARIZ. S. CT. COMM. ON MORE EFFECTIVE USE OF JURIES, JURORS: THE

POWER OF 12 (1994), available at http://www.supreme.state.az.us/jury/Jury/jury.htm (last visited Aug. 29, 2004).

4. See, e.g., Paula Hannaford, Valerie P. Hans, & G. ThomasMunsterman, Permitting Jury Discussions During Trial: Impact ofthe Arizona Reform, 24 LAW & HUMAN BEHAV. 359 (2000); JundaWoo, Arizona Panel Suggests Package of Reforms to EmpowerJuries, WALL ST. J., October 25, 1994, at B1; Jeff Barge, ReformersTarget Jury Lists, A.B.A.J. , Jan. 1995, at 26; Abraham Abramovsky

& Jonathan I. Edelstein, Cameras in the Jury Room: AnUnnecessary and Dangerous Precedent, 28 ARIZ. ST. L.J. 865.(1996).

5. See Jury Reform ’95: Challenges and Changes, Ariz. S. Ct. Educ.Svcs. (Nov. 1995).

6. PAULA HANNAFORD & G. THOMAS MUNSTERMAN, MASSACHUSETTS

PROJECT ON INNOVATIVE JURY TRIAL PRACTICES: FINAL REPORT (2002). 7. Id.8. Id.

and to give jurors a more active voice in the proceedings.3 TheArizona Supreme Court eventually approved numerous reforms,including granting jurors in civil trials the opportunity to dis-cuss evidence among themselves before final deliberations. Thiswas an effort to improve comprehension, especially in complexproceedings. Arizona was the first state in the country to adoptthis and many other juror-empowering policies.

Arizona continued to demonstrate leadership on jury trialissues throughout the 1990s. Many of those efforts have beenstudied and reported in professional publications.4 The bannerissues raised in Arizona include improvements in judicial com-munications with jurors during trial, jury note taking, jurorquestions to witnesses, and increasing responsiveness to theneeds of deliberating juries.5 What followed was a multitudeof similar efforts across the country.

To date, research indicates that 30 states have undertakenformal steps to analyze their jury trial systems and establishsome innovations. These efforts have included state-organizedcommissions, jury innovation conferences, and written reportsand studies. In general, most states’ efforts follow a “top-down”format. In these instances, the judiciary creates a statewide ini-tiative dedicated to jury innovation efforts. The initiative oftenproduces recommendations leading to varying degrees ofimplementation, as state rules and procedures are alteredaccordingly. However, there have also been “bottom-up” juryinnovation efforts. “Bottom-up” innovation can be consideredmore of a grassroots movement, in which some trial judgesintroduce innovative procedures in their own courtrooms,without instruction or recommendation from a central hub.Although rarer, “bottom-up” innovation efforts put new pro-grams into practice more immediately. Not surprisingly, theycan have narrower impact and be more difficult to study.

One noteworthy way some states have generated improve-ments is the use of pilot programs. Under this methodology, astatewide commission commonly enlists the support of volun-teer judges to test certain practices in their courtrooms. Thevolunteers report back to the commission about the effective-ness of the innovations before they are instituted on astatewide basis. In other words, this is a combination of the“top-down” and “bottom-up” approaches. The states that havefollowed this procedure have been able to obtain very usefulinformation about the effect of jury innovations. For a taste ofthese benefits, we look to Massachusetts, Colorado, NewJersey, Hawaii, and the Columbus Dispatch’s home state of Ohio.

In November 1997, Massachusetts hosted a conference onjury trial innovations, during which judges from the trialcourts met to hear presentations on jury innovations. Thetwo-day conference led to 16 judges’ participation in a two-

year demonstration study, during which they introduced thereforms discussed at the conference into their own court-rooms. It is important to note that this effort was not orga-nized by the state administration—it was a grass-roots reformeffort that brought together likeminded individuals concernedwith reforming the jury system. Sixteen innovations weretested, including juror note-taking, juror questions to wit-nesses, “plain English” jury instructions, pre-instructing thejury on the law, post-verdict meetings between jurors and thejudge, and others.6 Judges and jurors were both asked to givetheir opinions of these reforms.7 Questionnaires were col-lected from judges and jurors in 150 cases, 66% of whichcame from criminal trials. Responses were received from1,264 jurors.

These innovations were tested with varying frequency. Forexample, juror note-taking was tested in 95% of the trials inwhich surveys were returned, whereas permitting jurors tosubmit questions to witnesses was tested in 41% of the cases.Judges overwhelmingly recommended certain innovations,including note-taking, pre-instruction on the law, and post-verdict meetings between judges and jurors. With respect toimposing time limits on parties’ time at trial and providingwritten copies of instructions to the jury, there was little nega-tive feedback about the effectiveness of these methods inimproving the jury process. Some judges recommended everyinnovation that they tested. One commented that “[a]ll of thepractices used in the project seem to involve the jury moreactively in the learning process necessary to a rational deci-sion. Jurors in my experience have reacted very favorably tothe practices. I have found virtually no drawbacks in or con-traindications to using these practices.”8

Since the completion of the Massachusetts pilot project,


STATES ACTIVE REGARDING JURY TRIAL INNOVATIONS (IN GRAY)

9. Bryant jury may submit questions to witnesses, Associated Press,June 16, 2004, available at http://www.katv.com/news/sto-ries/0604/153729.html (last visited Aug. 29, 2004).

10. Colorado Jury Reform Implementation Committee,Implementation Plan: Jury Reform in Colorado (March 12, 1998),available at http://www.courts.state.co.us/supct/committees/juryreformdocs/98_jury_imp.pdf (last visited Aug. 29, 2004).

11. Id. at 1-4.12. MARY DODGE, SHOULD JURORS ASK QUESTIONS IN CRIMINAL CASES? A

REPORT SUBMITTED TO THE COLORADO SUPREME COURT’S JURY SYSTEM

COMMITTEE (Fall 2002), available at http://www.courts.state.co.us/supct/committees/juryreformdocs/dodgereport.pdf (last vis-ited Aug. 29, 2004).

13. Id. at 1.14. Id. at 580.15. AOC State of New Jersey Jury Subcommittee, Report on Pilot

Project Allowing Juror Questions, Available at: http://www.judiciary.state.nj.us/jurypilot/jurypilot.htm

innovative procedures have been fine-tuned by way of bar CLEprograms and judicial conferences.

While programs in Massachusetts may have gone largelyunnoticed by the national media, it has been hard to miss theattention given to Colorado’s jury reform projects due to thetrial of a certain basketball superstar. The Kobe Bryant sexualassault case drew attention to the new criminal trial procedurein Colorado that enables jurors to ask witnesses written ques-tions. “When Kobe Bryant goes on trial later this year,”according to an Associated Press story, “jurors will be allowedto submit questions for witnesses in the sexual assault case inwhat is believed to be the first rule of its kind.”9 Though thenational media has focused on juror questions to witnesses, itis simply one reform that has resulted from Colorado’s innova-tion efforts.

The reform effort resulting in juror questions at criminal tri-als was the result of a long history of jury reform recommen-dations in Colorado, beginning with the adoption of reformssuggested in the February 1997 report, “With Respect to theJury: A Proposal for Jury Reform.” After the ColoradoSupreme Court “adopted in principle the recommendations”contained in this report, the chief justice “appointed a JuryReform Implementation Committee . . . and charged that com-mittee with developing specific proposals to implement thevarious recommendations in this Report, and reporting back tothe Court.”10 In 1998, the Committee reported back, subdi-viding their recommendations into seven areas relevant to dif-ferent areas of possible improvements, including reworkingColorado’s jury instructions, statutory revisions to clarify rulesand procedures, and administrative changes such as publiceducation, revision of the master juror list, addressing the needfor juror debriefing, and standards for excusing jurors.Additionally, they recommended commencement of pilot pro-grams to test the success of various innovations, specificallyrelating to pre-deliberation discussion among jurors in civilcases, and the now famous reform regarding juror questions incriminal cases.11

The juror questions pilot program was the first to be com-pleted, resulting in the 61-page “Dodge Report” in Fall 2002.12

The report conveyed results and recommendations relating to“the presence or absence of allowing jurors to submit ques-tions . . . randomly assigned to 239 District and County Courtcriminal trials.” The study began in September 2000 whenChief Justice Mary Mullarkey “authorized a statewide pilotstudy to evaluate the effects of permitting jurors to submitwritten questions during criminal trials.”13 The study obtainedfeedback from judges, attorneys, and jurors by means of post-trial questionnaires. Juror questions were permitted in 118 tri-

als, while not permitted in 121. Surveys were collected fromboth samplings. The resulting data included the reasons jurorsasked questions and assessments by judges and attorneysabout the quality of the juror questions. Findings were over-whelmingly in favor of the innovation, with 93% of the jurorssurveyed reporting that it should be allowed in future trials.Ultimately, the report supported questioning with judicialsupervision, stating that it “will have positive effects with fewdetrimental results.”14

Similarly, New Jersey has focused its efforts on jurorinquiries to witnesses. But unlike Colorado, their emphasishas been on juror questions in civil trials. In 1998, a pilot pro-gram to investigate this innovation in civil trials was approvedby the New Jersey Supreme Court, though it did not beginuntil nearly two years later. From January 2000 through June2000, 11 judges were commissioned to allow jurors to posewritten questions to witnesses. The effort was chaired byJudge Barbara Byrd Wecker. It covered 147 civil trials, fromwhich surveys were obtained from attorneys, judges, andjurors. New Jersey based parts of their effort on theMassachusetts program, using it to build their own testingground for the use of juror questions in civil cases. As with theMassachusetts study, the results showed that “it was apparentthat jurors and judges were reacting very favorably, whereasattorney reaction was mixed . . . . [T]he jurors virtually allloved it . . . . [T]he judges . . . were very pleased . . . [and] theattorneys’ responses were measured.”15 The pilot recom-mended that the state adapt their rules to allow juror questionsaccordingly.

Following the completion of this pilot, the New JerseySupreme Court approved the pilot’s recommended changes,and the revisions went into effect on September 3, 2002. Inaddition to adopting these rules, the Conference of CivilPresiding Judges initiated a follow-up project to focus on thespecific procedures that judges may use when allowing jurorsto ask questions. Chaired by Judge Maurice Gallipoli, the goalof this ongoing project is to perfect the process of question ask-ing. The areas of inquiry include whether judges modify ques-tions, whether attorneys ask follow-up questions of witnesses,and how much additional trial time is required for theallowance of questions. The inquiry period lasted six monthsand involved surveys of both judges and juries. “The jury isstill out” regarding the results of this study. The findings of theproject are expected to be completed in the fall of 2004.

Though Colorado and New Jersey have focused largely onthe field of juror questions, Hawaii has taken the idea of pilotprograms further. On June 22, 1993, the Hawaii SupremeCourt established their Committee on Jury Innovations for


16. For background materials on the Hawaii committee’s work, seeFinal Report of Hawaii Committee on Jury Innovations for the21st Century (Jan. 1999); and Supplemental Report of HawaiiCommittee on Jury Innovations for the 21st Century (Nov. 1999).

17. Supplemental Report, supra note 16, at 3.18. See Hawaii Committee on Jury Innovations for the 21st Century,

Proposed Order (Jan. 1999), available at http://mano.icsd.hawaii.gov/jud/juryor.htm (last visited Aug. 29, 2004).

19. Order Concerning Jury Innovations, HI Orders LEXIS 2000-6(May 5, 2000).

20. Ohio Supreme Court Task Force on Jury Service, Report and

Recommendations (Feb. 2004), available at http://www. sconet.state.oh.us/publications/juryTF/jurytf_proposal.pdf (last visitedAug. 29, 2004).

21. Id., App. B.22. See Court System Launches Second Phase of Jury Reform in New

York (news release, June 17, 2004), and COMMISSION ON THE JURY,INTERIM REPORT OF THE COMMISSION ON THE JURY TO THE CHIEF

JUDGE OF THE STATE OF NEW YORK (June 2004), both available athttp://www.jurycommission.com/pr2004_11.pdf (last visitedAug. 29, 2004).

the 21st Century with the mission to “study and obtain infor-mation about jury trial innovations considered or adopted byother states.”16 At its first meeting, the group decided that apilot program, to involve five circuit court judges (the num-ber was later increased to six), would be beneficial in testingthe effectiveness of innovations in the civil and criminalcourts. The Hawaii Supreme Court authorized this pilot pro-gram upon request of the committee and set the window of itsactivity to be July 1, 1998 through October 15, 1999. In thecourse of this 15-month period, “judges participating in thepilot project . . . conducted seventy-seven criminal trials andten civil trials.” A key clause in the Hawaii Supreme Courtorder gave the six judges involved discretionary power overthe innovations that they tested in the courtroom, thus leav-ing the ultimate responsibility for the test in the hands of sixindividuals.

These six judges ended up testing ten different innovations,including allowing jurors to take notes, juror questions to wit-nesses in civil and criminal trials, jury instructions prior toclosing arguments, and others. Courts that took part in thestudy responded to surveys regarding their experiences, result-ing in 1,063 responses in criminal cases and 136 in civil cases.The responses largely supported innovative procedures. Forexample, 88% of attorneys in civil trials and 90% of attorneysin criminal trials stated that none of the innovations negativelyimpacted the trial. In addition, they found “statistically signif-icant evidence supporting the proposed advantages of bothjuror note-taking and question asking . . . both innovationswere found to be supported by jurors, whether they used theopportunities afforded them or not.”17 In the end, all but oneof these innovations was recommended by the committee.18

The singular exception concerned pre-deliberation juror dis-cussion of evidence in civil trials. As a result of this report, theHawaii Supreme Court issued an order, effective July 1, 2000,that altered the court rules related to jury innovations, makingvirtually all of the changes recommended by the committee’sreport.19

It would be mere speculation to state the Hawaii changesmay have impacted the previously mentioned case of LucindaWhiting had it occurred in the Aloha State. Rather, the ques-tion becomes, what did Ohio do to correct the problems illus-trated by the Columbus Dispatch? In July 2002, Chief JusticeThomas Moyer appointed a jury task force to study the jurysystem in Ohio and to recommend relevant innovations. Thegroup was independent from the Supreme Court. The taskforce split itself into two subcommittees, with one focusing on

trial practice and the other on jury administration. While thejury administration subcommittee focused in on survey resultson jury administration and previous research, the trial practicecommittee “used initial surveys to determine what practicesare currently in use in Ohio courts and subsequently engagedvolunteer judges to participate in pilot projects testing innov-ative courtroom practices to enhance jurors’ understanding ofcases and their satisfaction with service.”20

The pilot projects began in April 2003 and were modeled onthe Massachusetts pilot. The pilots were conducted until mid-November 2003. Judges from across the state volunteered totake part in the project. Up to 13 innovations were tested at thediscretion of participating judges. Again, like Massachusetts,judges, attorneys, and jurors completed surveys to measure theusefulness of the innovations, resulting in “a total of 1,855questionnaires . . . completed and analyzed, including 146 judi-cial questionnaires, 289 attorney questionnaires and 1,420juror questionnaires.” The analysis, performed by Dr. JamesFrank of the University of Cincinnati, showed that each inno-vation tested “was well received by jurors, judges and, to aslightly lesser extent, attorneys.” The conclusion of the reportsummarized the findings, stating “judges, attorneys and jurorswere generally supportive of the courtroom activities . . . .[T]his support manifested itself in survey responses . . . .[O]verall, the innovations examined appear to be helpful to theproceedings and the majority of courtroom participants haveresponded positively to the processes in general.”21 The reportwas released in February 2004.

While the foregoing pilot programs have given some vitalinformation as to the successes of innovative efforts, it isonce again important to note that these programs are not theonly innovation efforts that have occurred in the UnitedStates. New York, for example, has done extensive work onjury reform, though not relying exclusively on pilot pro-grams. A standing Commission on the Jury has held publichearings throughout the state in order to obtain wide citizeninput on the present and prospective conditions of the jurytrial in the Empire State. Through the efforts of that stand-ing commission, there were new recommendations issuedand changes enacted with respect to jury trials as recently asJune 17, 2004.22 New York also keeps detailed informationon their jury selection processes which provides an invalu-able data base regarding the efficiency of the court regardingjuries.

In contrast, the initiative for jury innovations inWashington, D.C. began in the private sector. There, a non-


profit corporation, the Council for Court Excellence gainedfoundation grants to fund the D.C. Jury Project, a top-to-bot-tom study of the jury trial systems in the District of Columbia.The final recommendations for improvements took the form ofa 1997 report, “Juries for the Year 2000 and Beyond.” The D.C.Jury Project was unique in that it was totally funded by private-sector contributions and its recommendations were received—and acted upon—by both the federal and state-type trial courtsin our nation’s capitol.

It is evident the 30 states that have done some type of workon jury innovation have each gone about it in ways uniquelytheir own. Many states have performed studies. Many othershave carefully organized steps to implement jury trial innova-tions. And as depicted above, many have utilized pilot pro-grams. However, the data on what actually is being done isoften difficult to come by. In those states that have not per-formed exhaustive studies or formulated reports, it can be adaunting task to fathom the landscape. This lack of knowledgebegs for answers to several questions. What is the state of thejury trial system in every state? How can trial judges andlawyers communicate with each other about jury trial issuesand improvements? How can court leaders in states that havenot undertaken a study of their jury trial systems come to learnvaluable lessons from their colleagues in the other state courts?

THE FUTURE: A NATIONAL JURY TRIAL INNOVATIONSPROGRAM

In this context, it is fitting that a National Program toIncrease Citizen Participation in Jury Service Through JuryInnovations (“the Program”) has been launched. TheProgram builds on momentum from the first-ever NationalJury Summit in 2001, led by the National Center for StateCourts and Chief Judge Judith Kaye of the New York UnifiedCourt System.

The purpose of the Jury Summit was to bring together rep-resentatives from across the nation to examine the state ofAmerica’s jury system, share innovative practices, and plan forcontinued improvement. Over 400 persons from 45 statesattended, including state and federal judges from the trial andappellate benches, court administrators, clerks, attorneys, rep-resentatives from community-based organizations, and evenjurors. The legacy of the Jury Summit was to encourage statesto expand efforts to improve the jury system nationwide. Theresults have been encouraging.

Following the basic themes of the National Jury Summit,the Program centers on citizen outreach and improving theconditions of jury service. Citizen outreach about the glory ofthe jury system and civic responsibility are hollow, however, ifcitizens who report are treated poorly—in terms of the facili-ties, or lack of respect for their time (and that of their employ-ers), or compelled hardship to themselves or their families. Tothese people, Thomas Jefferson’s statement that “serving on ajury is more important than voting” is entirely lost.Consequently the Program is designed to provide courts withmethods to improve citizen attitudes toward jury service. Itwill provide a service package that explains how several juris-dictions have developed outreach programs to promote com-munity appreciation of trial by jury. The Program will alsomake technical assistance available to help jurisdictions thatare interested in making the jury trial itself a more informa-tion-centered endeavor.

The National Center for State Courts leads these effortsthrough its Center for Jury Studies. It is joined by two othercourt assistance organizations, the Council for CourtExcellence (Washington, D.C.) and the Maricopa County TrialCourt Leadership Center (Phoenix, Ariz.).

Employing well-established business management prac-tices, the Center is undertaking a sequence of tasks. First, it issystematically gathering a compendium of current state jurymanagement practices known as the “State of the States.”Upon completion, it will establish the first-ever, baseline mea-sure of the statutes, rules, customs, and practices that definejury systems across the country. The State of the States docu-mentation will span an operational spectrum ranging from ini-tial summoning to final dismissal after verdict.Contemporaneously, prescriptive packages are being devel-oped to describe practices that have proven to be highly effec-tive in states that have already undertaken jury trial renova-tions. The “best practices” packages will cover four priorityareas: (1) improving citizen response to jury summonses, (2)comprehensibility of jury instructions, (3) model legislationand rules to anchor jury reforms,23 and (4) jury managementworkshops for urban courts. The prescriptive packages will beused as technical assistance tools and made widely available

A national project to increase use of effective jury reformmethods and to improve the conditions of jury service hasbegun. It is a joint project of the National Center for StateCourts’ Center for Jury Studies, the Council for CourtExcellence (Washington, D.C.), and the Trial CourtLeadership Center of Maricopa County (Phoenix, Ariz.).

The project—officially the “National Program to IncreaseCitizen Participation in Jury Service Through JuryInnovations”—seeks to increase citizen awareness of posi-tive aspects of jury service and to improve conditions of juryservice. The project will deliver tools and technical assis-tance needed by judges, attorneys, and court administratorsto meet these objectives.

Major projects planned are (1) providing technical assis-tance to state and local courts to implement innovative jurypractices, (2) compiling a “State of the States” database ofjury practices throughout the United States, and (3) provid-ing a series of “prescriptive packages” to improve responseto jury summonses, comprehension of jury instructions,and effective jury management in urban courts.

A descriptive brochure summarizing the plans of theNational Program to Increase Citizen Participation in JuryService Through Jury Innovations can be found at http://www.ncsconline.org/Juries/04-050046%20Jury%20Trends-Flyer.pdf. For more information about the program, contactTom Munsterman, Director of the National Center’s Centerfor Jury Studies, by phone (703-841-5620) or by e-mail([email protected]).

NATIONAL JURY REFORM PROJECT LAUNCHED


through the National Center, the National Judicial College,and state judicial education programs.

To begin implementation, a “to-be-determined” number ofcourts will be selected. The chief justice and state courtadministrator will be approached and involved to the fullestextent in each case. When the court selections are made, pro-gram staff will work directly with the courts to establish anindividualized plan of action from a full menu of jury innova-tions. Depending on what stage a selected jurisdiction is at inthe process of jury system renovation, the technical assistancewill follow one of several established paths described below.

For a jurisdiction just getting started, the Program wouldsuggest that the state supreme court appoint a broad basedcommittee to examine many aspects of the state jury system.This committee or task force would report back to the courtwith recommendations. The National Center staff wouldguide and assist all along the way.

If a state has already begun a renewal effort that has stalled,the Program staff will help the state re-ignite its innovationactions. In states where reform implementation is discre-tionary with individual trial judges, the Program will offer areplication of the successful approach undertaken inMassachusetts.

Clearly, the National Program will create crucial benefits forstate courts. Measurable results include: the increased use ofinnovative practices by judges, reduced burden upon jurorsand employers, reduced citizen non-response to summonses, agreater proportion of our population actually serving on juries,less juror waiting time in court, fewer questions asked bydeliberating juries, and a more well-trained judiciary. Therewill also be more instances of juries being representative of thecommunity in terms of age, education, occupation, and pro-fession. Across our land we should see more efficient and cost-effective jury systems. Trial jurors will be better informed. In

other words, juror decision-making and satisfaction will beenhanced. Importantly, there should be greater public trustand confidence in jury verdicts and the courts.

Gregory A. Mize currently serves as a consultantto the National Center for State Courts’ Centerfor Jury Studies. Before that, he served as ajudge on the Superior Court of the District ofColumbia from 1990 to 2002. While there, Mizepresided over hundreds of jury trials, both civiland criminal, and also conducted more than 800settlement conferences. In 1997 and 1998, he

co-chaired the D.C. Jury Project, which issued its nationally recog-nized recommendations in 1998. From 1983 to 1990, he served asgeneral counsel to the District of Columbia City Council. Hereceived his A.B. in philosophy from Loyola University in Chicagoand his J.D. from Georgetown University Law Center; he hasserved as an adjunct professor at the Georgetown University LawCenter and the University of Virginia School of Law.

Christopher J. Connelly is a court research ana-lyst for the National Center for State CourtsCenter for Jury Studies in Arlington, Virginia.Before joining the Center for Jury Studies,Connelly worked as an intern in the NationalCenter’s Knowledge and Information ServicesDivision in Williamsburg, Virginia. He receiveda B.A. in history and government from the

College of William and Mary in 2004.

23. The American Legislative Exchange Council has developed modeljury legislation to facilitate jury service. The model law is referredto as “The Jury Patriotism Act.” See Victor E. Schwartz, Mark A.Behrens, & Carey Silverman, The Jury Patriotism Act: Making Jury

Service More Appealing and Rewarding to Citizens, STATE FACTOR

(April 2003), available at http://www.alec.org/meSWFiles/pdf/0309.pdf (last visited Aug. 29, 2004).


This article will describe the methods used to study juries andjury trials and present recent data now available for each of themajor proposed innovations. We also draw on new findingsfrom our own recent research testing the comparative advan-tages of jury innovations for understanding complex scientificevidence.

METHODS USED TO STUDY JURY INNOVATIONSResearchers have taken a variety of approaches in studying

the effects of jury innovations. Some involve using the scien-tific method of experimentation.6

Mock Jury Experiments: Many jury researchers, partic-ularly psychologists, use mock jury experiments to testthe impact of an innovation. The experimentalapproach has been used in many scientific studies.Participants are asked to assume the role of jurors,hear trial evidence, and reach a verdict in a mock trial.To examine the effects of a specific trial reform such asjury note taking, some participants are randomlyassigned to take notes and others are not. The perfor-mance and decisions of the people taking notes arecompared to the participants in the control group toassess the impact of note taking. Most mock juryexperiments take place in university research laborato-ries.

Field Experiments: Field experiments take advantageof the scientific power of random assignment. Butinstead of using people from the community or evencollege students and asking them to assume a hypo-thetical role, the field experiment takes place in the

During the past decade, state jury reform commissions,many individual federal and state judges, and jury schol-ars have advocated the adoption of a variety of innova-

tive trial procedures to assist jurors in trials. These includereforms as prosaic as allowing juror note taking and furnishingjurors with copies of written instructions, through more con-troversial changes, such as allowing jurors to ask questions ofwitnesses or permitting them to discuss the case together dur-ing breaks in the trial. Accounts of the nature and purpose ofthe innovations and the pace of change are found in this issueof Court Review1 and elsewhere.2 These innovations are nowcatalogued in convenient form, accompanied by practical guid-ance for judges.3

Many jury trial reforms reflect growing awareness of bestpractices in education and communication as well as researchdocumenting that jurors take an active rather than a passiveapproach to their decision-making task.4 Traditional adversaryjury trial procedures often appear to assume that jurors areblank slates, who will passively wait until the end of the trialand the start of jury deliberations to form opinions about theevidence. However, we now know that jurors quite activelyengage in evidence evaluation, developing their opinions as thetrial progresses. It makes sense to revise trial procedures so theytake advantage of jurors’ decision-making tendencies andstrengths.5

Although reform groups have endorsed many of these inno-vations, until recently there was only modest evidence abouttheir impact in the courtroom. Now, substantial research on theeffects of most of the reforms on juror comprehension and jurorsatisfaction with the trial has been completed and reported.Data are now available to judges and others seeking reliableempirical support for the changes to the traditional jury trial.


FootnotesResearch and writing on this article were supported by NIJ Grant No.2002-IJ-CX-0026 awarded to B. Michael Dann by the NationalInstitute of Justice, Office of Justice Programs, U.S. Department ofJustice. The opinions expressed here do not necessarily represent thepolicy of the National Institute of Justice, the Office of JusticePrograms, or the U.S. Department of Justice.

1. E.g., Gregory E. Mize & Christopher J. Connelly, Jury TrialInnovations—Charting a Rising Tide, Spring 2004 COURT REVIEW at4. See also G. Thomas Munsterman, A Brief History of State JuryReform Efforts, 79 JUDICATURE 216 (1996).

2. Phoebe C. Ellsworth, Jury Reform at the End of the Century: RealAgreement, Real Changes, 32 U. MICH. J. L. REFORM 213 (1999).

3. G. THOMAS MUNSTERMAN, PAULA L. HANNAFORD, & G. MARC

WHITEHEAD eds., JURY TRIAL INNOVATIONS (National Center for StateCourts 1997). A helpful guidebook for court leaders wishing to

pursue jury trial reforms is also available. See ENHANCING THE JURY

SYSTEM: A GUIDEBOOK FOR JURY REFORM (American JudicatureSociety 1999).

4. B. Michael Dann, “Learning Lessons” and “Speaking Rights”:Creating Educated and Democratic Juries, 68 IND. L.J. 1229 (1993);Valerie P. Hans, U.S. Jury Reform: The Active Jury and the AdversarialIdeal, 21 ST. LOUIS L. REV. 85 (2002).

5. Vicki L. Smith, How Jurors Make Decisions: The Value of TrialInnovations, in JURY TRIAL INNOVATIONS (1997), supra note 3, at 5.

6. Robert MacCoun, Inside the Black Box: What Empirical ResearchTells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING

THE CIVIL JURY SYSTEM (Litan, ed., Brookings Institution/AmericanBar Association 1993) at 137, 140-47. MacCoun also discussesarchival analyses, in which researchers analyze jury cases and theiroutcomes for patterns, but that has not been employed much instudies of the impact of jury innovations.

Recent Evaluative Research onJury Trial Innovations

B. Michael Dann and Valerie P. Hans


real world. To test a jury innovation, actual jury trialsare randomly assigned to be conducted with a particu-lar innovation or not. Just as with mock jury experi-ments, jurors in the experimental and control condi-tions are compared to determine the impact of the juryinnovation.

Non-Experimental Studies. Many states have tested theeffects of jury reforms in systematic ways, althoughthese studies do not include random assignment andexperimentation. Our article describes state pilot pro-grams and other efforts to assess trial participants’views and reactions to new jury trial procedures. Onecommon approach is to survey or interview trial partici-pants, including jurors, following a trial, collectingtheir perceptions about jury innovations used duringthe trial. So, for example, in a trial in which a judgepermitted jurors to ask questions, the judge, thelawyers, and the jurors might all be surveyed aboutwhat they thought about the reform and how itaffected the jury’s work.

Each of these methods has characteristic strengths and lim-itations. Interviews and surveys rely on trial participants beingable to report accurately how an innovation affected them.Mock jury experiments can present a more controlled environ-ment, but participants are not really deciding someone’s fate.Field experiments appear to be an ideal marriage of scientificpower and the reality of jury decision making, but they are rare.Some judges are reluctant to use random assignment withactual jury trials. Pilot programs could reflect the unique situ-ation of particular jurisdictions. Thus, it is necessary to employall of these divergent approaches to studying the effects of juryreforms, looking for a convergence of findings. Below wedescribe how research using these methods has discoveredvaluable information about the operation and impact of jurytrial innovations.

RECENT EMPIRICAL EVALUATIONS OF JURY TRIALINNOVATIONS

Eight innovations have attracted the most attention of juryresearchers and state reform groups: juror note taking, ques-tions from jurors intended for witnesses, discussions of the evi-dence by jurors during civil trials, pre-instructing jurors on theapplicable law, providing jurors with juror notebooks, instruct-ing the jury before closing arguments, providing each jurorwith a copy of the instructions, and offering suggestionsregarding jury deliberations.

NOTE TAKINGIn some states, judges are required to inform jurors that they

may take notes if they desire and to furnish jurors with the nec-

7. Lynne ForsterLee & Irwin Horowitz, The Effects of Jury-AidInnovations on Juror Performance in Complex Civil Trials, 86JUDICATURE 184 (2003).

8. Id., at 188-89.9. David L. Rosenhan, Sara L. Eisner, & Robert J. Robinson,

Notetaking Can Aid Juror Recall, 18 L. & HUM. BEHAV. 53 (1994).10. B. Michael Dann, Valerie P. Hans, & David H. Kaye, Testing the

Effects of Selected Jury Trial Innovations on JurorComprehension of Contested mtDNA Evidence (Final TechnicalReport to National Institute of Justice, Washington, D.C. 2004).

essary materials. Trial judgesin most other state and federalcourtrooms may permit jurornote taking, or not, at thejudge’s discretion. More aredoing so, but many still do not.

Research on juror note tak-ing has been undertaken bothwith mock juries in controlledsettings and actual juries infield experiments. Both lines ofresearch find no evidence ofany risk to juror note taking. The field studies show wide-spread support among trial participants for permitting jurorsto take notes. Jurors themselves routinely report that note tak-ing is helpful. Some studies show significant improvement injuror comprehension and memory.

Researchers Lynne ForsterLee and Irwin Horowitz con-ducted a series of mock trials of complex tort cases using jury-eligible adults.7 They report that experience with note takingimproved jurors’ performances at several levels, includingmemory and understanding of the evidence and overall satis-faction with the trial process.

We found that note-taking juries were able to betterorganize and construct the evidence and, importantly,this in turn led to improved and more efficient(focused on the evidence) deliberations. . . . Note-tak-ing juries believed they were more efficient, and theyexpressed greater satisfaction with the trial process ascompared to their non note-taking jury counterparts.Lastly, note-taking juries were more likely to recognizecase-related facts and reject “lures” (statements thatwere not actually in the trial) than were non note-tak-ing juries.8

In another mock jury experiment involving 128 college stu-dents, Rosenhan and his colleagues also found statistically sig-nificant evidence that note taking increased recall of trial infor-mation and enriched note takers’ subjective experiences.9

Note takers had better recall of the trial evidence than non-note takers. Compared to non-note takers, note takers ratedthemselves as more attentive, more involved in the trial, andmore able to keep up with the proceedings.

Most recently, in a research project funded by the NationalInstitute of Justice, the authors of this article conducted aseries of 60 mock jury trials to test the effects of four jury trialreforms on juror understanding of contested DNA presenta-tions.10 Of the 400 jurors instructed they could take notes dur-ing trials of an armed robbery case, fully 89% responded thatnotes helped them remember or understand the evidence. Asexpected, there was an “education effect”; those jurors with

[N]ote takersrated themselvesas more attentive,more involved in

the trial, and more able to keep up with

the proceedings.


more formal educationwere more likely to takenotes. Juror satisfactionwith verdicts was higheramong note takers. Mockjurors were very supportiveof allowing juror note tak-ing during actual trials;89% indicated they favoredjury note taking. Jurors’responses to objectiveknowledge questions about

the DNA evidence did not establish that note taking alone pro-duced significantly better comprehension compared to a con-trol group, though. There was some evidence that when notetaking is combined with another innovation, such as jury note-books or DNA checklists, performance was enhanced.

Juror note taking has also been studied in field settings. Ayearlong pilot program in Massachusetts tested a number ofinnovations in civil and criminal trials. 11 Data were collectedfrom 1,590 participants. Almost all of the jurors (96%)responded that note taking was somewhat to very helpful.There was a general consensus among participating judges thatjurors in all Massachusetts trials ought to be able to take notes.

Ohio’s Jury Service Task Force conducted a pilot studyinvolving 31 counties, 49 judges, and 1,420 jurors from civiland criminal trials.12 Ninety-eight percent of the pilot programjudges who were surveyed about their experiences supportednote taking. The 289 attorneys polled agreed, adding therewere no significant negatives. A solid majority of the jurorsfound note taking helpful.

A similar pilot project in Tennessee undertaken as part ofthat state’s jury reform effort surveyed judges and jurors from45 trials.13 All of the participating judges supported note tak-ing by jurors. Eighty percent of jurors said their notes werehelpful during jury deliberations.

One of the most ambitious projects was a set of two fieldexperiments in which jury trials were randomly assigned todifferent jury innovations or a control group.14 Jury note tak-ing and juror questions were the innovations studied. Theinvestigators, jury researchers Larry Heuer and Steven Penrod,compared juries that were allowed or not allowed to takenotes, but found no strong effects either for or against notetaking. Two-thirds of the jurors took notes, and they weresomewhat more satisfied with the trial than other jurors, butthere was no clear evidence that their memory for trial factswas superior because they had taken notes. On the other hand,the experiment did not bear out the disadvantages of note tak-

ing advanced by opponents of the innovation. Note taking wasnot a distraction. The notes were generally accurate, did notfavor one side over the other, did not give note takers an unfairadvantage over non-note takers during deliberations, and didnot extend deliberations.

In sum, the recent research on juror note taking demon-strates that jurors believe the innovation enhances memoryand understanding of the evidence, that judges and jurorsstrongly support the procedure, and that scant evidence existsof significant downsides to the innovation. There is somemodest objective evidence that jury note taking significantlyimproves recall or comprehension.

ALLOWING JURORS TO ASK QUESTIONS AT TRIALThe practice of permitting juror questions of witnesses

(submitted to the judge in writing for screening) is growingand is increasingly authorized by court rule or case law. A2004 decision of the Supreme Court of Vermont observed thatthe vast majority of states and all ten federal circuits that haveconsidered the issue permit juror questions of witnesses incriminal cases at the discretion of the trial judge.15 Still, jurorsare not permitted to submit their questions in a high percent-age of today’s courtrooms.

Like note taking, permitting jurors to put questions to thewitnesses has received substantial attention from researchers.

In their 1997 article reporting on their field study of actualtrials in which note taking and juror questions were tested,Heuer and Penrod concluded that juror questions enhancedjuror satisfaction with the trial process and jurors’ confidencethat they had enough information to decide the case, and thatthe process created some useful feedback for the attorneys.16

Nevertheless, there was insufficient evidence to support theclaims that the process will uncover important evidence orlead to greater overall juror satisfaction with the trial.Conversely, the data did not bear out the concerns that per-mitting juror questions would be unduly disruptive, wouldprolong the trial, would unfairly surprise the lawyers, wouldburden the judge or staff, or that jurors’ questions would beinappropriate.

In an extensive study involving juror questions in 239 crim-inal trials in Colorado, researchers administered question-naires to the judges, attorneys, and jurors who participated.They concluded: “Overall, the results reveal that juror ques-tioning has little negative impact on trial proceedings and may,in fact, improve courtroom dynamics.”17 Regarding the oft-heard complaint that juror questions will help the prosecutionmeet its burden of proof, only 16% of judges and 23% of attor-neys felt that jurors’ questions assisted in meeting the burden

11. Paula L. Hannaford & G. Thomas Munsterman, Final Report forthe Massachusetts Project on Innovative Jury Trial Practices(National Center for Citizen Participation in the Administrationof Justice 2001).

12. James Frank & Tamara Madensen, Survey to Assess and ImproveJury Service in Ohio, Appendix B to Report andRecommendations of the Supreme Court of Ohio Task Force onJury Service (2004).

13. Neil P. Cohen & Daniel R. Cohen, Jury Reform in Tennessee, 34

MEMPHIS L. REV. 1 (2003).14. Steven Penrod & Larry Heuer, Tweaking Commonsense: Assessing

Aids to Jury Decision Making, 3 PSYCHOL. PUB. POL’Y. & L. 259(1997).

15. State v. Doleszny, 844 A.2d 773 (Vt. 2004).16. Penrod & Heuer, supra note 14.17. Mary Dodge, Should Jurors Ask Questions in Criminal Cases? A

Report to the Colorado Supreme Court’s Jury System Committee(2002).

The practice of permitting juror

questions of witnesses . . . isgrowing and is

increasingly authorized by court

rule or case law.

of proof. Almost three-fourths of both groups answered “No”or “No Opinion” to the question. Almost 80% of judgesfavored jury questioning in criminal cases. Prosecutors anddefense counsel were divided: 90% of prosecutors favoredallowing jury questions; only 30% of defenders did so. Note,however, that opposition to the procedure decreased by 50%among defense counsel after their experience in the pilot pro-gram.

A 1999 pilot project in Los Angeles County Superior Courtin which judges experimented with a number of jury innova-tions reported that 92% of the jurors told they could ask ques-tions had very positive opinions about the procedure.18 Theoverwhelming majority of jurors felt that being allowed to puttheir questions to witnesses improved their role as decisionmakers and made them feel more involved in the trial. Ninety-three percent of the judges said the process did not unduly pro-long trials.

Following the Massachusetts pilot of juror questions, 96%of the judges who received juror questions thought the proce-dure was helpful and worthwhile.

Over 88% of the Ohio judges who participated in its pilotprogram testing the procedure approved of allowing jurors toask questions.19 None of the purported risks of allowing jurorsto put questions materialized. Over three-fourths of surveyedjurors reported that question asking helped them remain atten-tive, and 63% said that the answers to their questions aidedtheir decision making.

After a six-month pilot program of allowing juror questionsin New Jersey civil trials, the committee recommended that theNew Jersey Supreme Court approve the procedure by rule,concluding:

No study of actual trials can measure the resultsagainst the theory in any scientifically reliable way.However, the questionnaires completed by the jurors,judges, and attorneys gave us significant informa-tion—including the fact that out of 127 trials con-ducted by 11 judges in as many counties, no one sug-gested that the process had an unfair effect on the out-come of the trial. . . . It is our perception that thereneed be no tension between the goal of a trial as asearch for justice, and the method of the adversarialprocess.20

The participating New Jersey judges, who received a mediannumber of nine questions per trial (77% of which were put toa witness), unanimously favored the procedure, as did theoverwhelming number of jurors. Trials were lengthened by 30minutes, but jurors reported that answers to their questionsshortened the time required for deliberations. Almost 60% of

the pilot project attorneys alsosupported adoption of theeventual rule.

The Tennessee pilot pro-gram of allowing juror ques-tions in trials reported similarjuror support for the proce-dure—89%.21

In our mock jury experi-ment, 160 of the 480 mock jurors were instructed they couldsubmit written questions to the expert DNA witnesses.22 Atotal of 49 relevant questions (average of 2.45 per trial) werereceived and answered. Most questions sought further expla-nations or elaborations of technical DNA evidence presentedby the expert witnesses. Jurors who had taken more scienceand mathematics courses were more likely to ask questions.There was only a weak correlation between education and sci-ence or math job experience and the likelihood of asking ques-tions. Support for the innovation among those in the ques-tion-asking conditions was very high—97%. When asked howthe question procedure helped, almost 75% of jurors answeredthat the procedure helped them better understand the evi-dence. No objective differences in comprehension werefound, however.

At least one other researcher has completed a study of alarge number of juror questions to discover what jurors areasking.23 Nicole Mott conducted a content analysis of 2,271juror questions from 164 actual trials, both criminal and civil.A median number of seven questions were asked per trial. Sheconcluded that jurors used their questions to clarify previoustestimony of both lay and expert witnesses and to inquireabout common practices of unfamiliar professions. Mottfound that jurors exercised the privilege of asking questions inresponsible ways to enhance the quality of decision making.She concluded that the process was not detrimental to theadversarial trial. These latter conclusions coincide with theearlier findings from a national study by the AmericanJudicature Society.24

Finally, this issue of Court Review features an article analyz-ing jurors’ attitudes and reactions when their questions gounanswered.25

PRELIMINARY JURY INSTRUCTIONS ON THEAPPLICABLE LAW

In most jurisdictions, the trial judge has the discretion toinclude in the court’s preliminary jury instructions at least someof the law that will govern the case. Some states now require itby court rule; many individual judges in other jurisdictions aredoing so on their own. The available research focuses on theadvantages to jurors who hear and read a legal “road map” they

18. Jacqueline A. Connor, Los Angeles Trial Courts Test JuryInnovations, 67 DEF. COUNSEL J. 186 (2000).

19. Frank & Madensen, supra note 12.20. Report on Pilot Project Allowing Juror Questions 2 (New Jersey

Supreme Court’s Civil Practice Committee 2001)21. Cohen & Cohen supra note 13.22. Dann et al., supra, note 10.

23. Nicole L. Mott, The Current Debate on Juror Questions: “To Ask orNot to Ask, That Is the Question,” 78 CHI. KENT L. REV. 1099(2003).

24. TOWARD MORE ACTIVE JURIES: TAKING NOTES AND ASKING QUESTIONS

(American Judicature Society 1991).25. Shari Seidman Diamond, Mary R. Rose, and Beth Murphy, Jurors’

Unanswered Questions, Spring 2004 COURT REVIEW at 20.

[A]lmost 75% ofjurors answered

that the procedurehelped them better

understand theevidence.


26. ForsterLee & Horowitz, supra note 7.27. Cohen & Cohen, supra note 13. See, in addition, Neil P. Cohen,

The Timing of Jury Instructions, 67 TENN. L. REV. 681 (2000). 28. Connor, supra, note 18. See also Final Report: Task Force on Jury

System Improvements 68 (Judicial Council of California 2004).29. Frank & Madensen, supra note 12.30. Hannaford & Munsterman, supra note 11.31. E.g., Neil P. Cohen, Better, Happier Juries: Jury Reform in Tennessee,

39 TENN. BAR J. 16 (2003); Peter Lauriat, Judicial Perspectives onthe Presentation of Medical Evidence, 36 NEW ENG. L. REV. 615

(2002); Gregory P. Joseph, Innovative Comprehension InitiativesHave Enhanced the Ability of Jurors to Make Fair Decisions, 73 N.Y.ST. BAR J. 14 (2001); and Nancy S. Marder, Juries and Technology:Equipping Jurors for the 21st Century, 66 BROOK. L. REV. 1257(2001).

32. Nicole L. Mott, How Civil Jurors Cope with Complexity: Definingthe Issues 167, 188-89 (2000)(doctoral dissertation; copies on filewith authors).

33. Dann et al., supra note 10.34. Connor, supra note 18.

will be expected to follow atthe outset of the case insteadof having to wait until theconclusion of trial, whenlegal instructions are tradi-tionally given.

In their work involvingmock jury trials of complextort cases, ForsterLee andHorowitz demonstrated thatpre-instructed jurors scoredsignificantly better on recall

and comprehension measures.26 They concluded: “[S]ubstan-tive pre-instruction provided jurors with a framework, orschema, that enabled them to organize the trial facts accordingto legal guidelines as they were being presented. The advan-tage of substantive pre-instruction was apparent.” The authorsadded, “[J]urors made better decisions when they had a coher-ent framework to organize the initial processing and subse-quent recall of the trial evidence.” Combining note taking andpre-instruction on at least some of the law the jury will beexpected to enhance juror cognition still further.

In the Tennessee pilot project testing various reform pro-posals, some of the juries in the 45 trials received substantivepreliminary instructions.27 Almost all the juror participants(98%) found the early instructions helpful; 81% reported theywere “very helpful.” Attorneys in the same cases were “virtu-ally unanimous” that they considered the preliminary instruc-tions on the law helpful.

The pilot study in Los Angeles County Superior Court alsotested substantive preliminary instructions.28 Ninety-eightpercent of the 200 reporting jurors gave a “very positive” rat-ing to the procedure, adding that the law provided in advanceof evidence enabled them to focus better during the trial andenhanced their comprehension of the evidence.

In Ohio, where preliminary instructions on the law weregiven to some of the juries in that state’s study, 75% of thejudges agreed that they helped jurors follow the evidence; only7% disagreed.29

Finally, in the Massachusetts jury project, 94% of the jurorswho participated in the trials where substantive preliminaryinstructions were given said they were somewhat to very help-ful.30 The vast majority of attorneys agreed that the prelimi-nary instructions provided jurors with a better understandingof the legal issues and facilitated better juror focus during trial.Three-fourths of the trial judges reported that substantive pre-liminary instructions helped jurors to follow the evidence.

JUROR NOTEBOOKS IN LENGTHY AND COMPLEXTRIALS

Given recent anecdotal reports from judges and attorneysand a recent spate of journal articles on the technique, provid-ing jurors with individual multipurpose notebooks for theiruse during the trial and their deliberations appears to bebecoming more popular, especially in complex cases andlengthy trials.31

Research regarding the value of juror notebooks wasextremely limited until recently. As their use has increased, sohas the empirical data.

In her research on jury trial complexity, Nicole Mott askedjurors who had used notebooks about their experiences.32 Inaddition to noting the utility of having copies of the importantdocuments in evidence and a seating chart of trial principals,jurors expressed concerns that the tendency to place too muchinformation in the notebooks can make them impractical touse if not overwhelming.

In the authors’ research testing the effects of four jury trialinnovations on juror recall and understanding of contestedDNA evidence, multipurpose notebooks were provided tojurors in 20 of the 60 mock trials.33 The notebooks containeda glossary of DNA terms, a checklist tailored to the DNA evi-dence, a list of witnesses in the case, copies of the experts’slides and blank paper for note taking. Ninety-two percent ofthe jurors supplied notebooks reported that they used them toreview the contents; 90% found them somewhat or extremelyhelpful. When asked how the notebooks helped, 79% of jurorsreported that the notebooks’ contents enhanced their under-standing and recall of the evidence. Fully 93% of the jurorsfavored the use of notebooks in trials. Jurors who were pro-vided with notebooks scored significantly higher on the JurorComprehension Scale than those not supplied with notebooks.Further, those supplied with the notebook and instructed theycould take notes during trial outperformed those only permit-ted to take notes.

The states that have investigated the effects of supplyingjurors with notebooks have reported similar results.

California: Responses of 200 jurors in the Los Angeles Countypilot study made clear that notebooks containing copies of keyexhibits, among other things, made it easier to locate neededinformation during deliberations.34

Ohio: Among the surveyed judges and jurors that participatedin the pilot study trials where notebooks were furnished jurors,72% of jurors found notebooks helpful and 50% “very help-


Three-fourths of the trial judgesreported that substantive preliminary

instructions helpedjurors to follow the evidence.

35. Frank & Madensen, supra note 12.36. Cohen & Cohen, supra note 13.37. Hannaford & Munsterman, supra note 11.38. Valerie P. Hans, Paula L. Hannaford, & G. Thomas Munsterman,

The Arizona Jury Reform Permitting Civil Jury Trial Discussions:The Views of Trial Participants, Judges, and Jurors, 32 U. MICH. J. L.REF. 349 (1999).

39. Paula L. Hannaford, Valerie P. Hans, & G. Thomas Munsterman,Permitting Jury Discussions During Trial: Impact of the Arizona

Reform, 24 LAW. & HUM. BEHAV. 359 (2000). 40. Shari Seidman Diamond & Neil Vidmar, Jurors Discussions

During Civil Trials: A Study of Arizona’s Rule 39(f) Innovation(State Justice Institute/National Science Foundation 2002); alsoreported at Shari Seidman Diamond, Neil Vidmar, Mary Rose,,Leslie Ellis, & Beth Murphy, Juror Discussions During Civil Trials:Studying an Arizona Innovation, 45 ARIZ. L. REV. 1 (2003).

41. Id., at iv.

ful.”35 Sixty-seven percent of the judges thought the note-books helped the parties’ presentations; 72% said the note-books assisted jurors in understanding exhibits.

Tennessee: When 418 jurors were asked about multipurposenotebooks, 90% responded that they were useful in performingtheir tasks. All attorneys in the same cases, with just oneexception, gave the notebook experience a positive rating.36

Massachusetts: All of the judges who oversaw preparation ofnotebooks and furnished notebooks to jurors reported thatthey were helpful and worthwhile.37

Thus, recent research and judicial experience with jury note-books, particularly in complicated cases, provide support fortheir use.

STRUCTURED JUROR DISCUSSIONS OF EVIDENCEDURING CIVIL TRIALS

The innovation considered the most radical and controver-sial is the one that turns on its head the traditional rule swear-ing civil jurors to silence during the entire trial, no matter howlong, complex, or stressful. Jurors are instructed prior to civiltrials that they may discuss the evidence during the trial, butonly among other jurors; only in the privacy of the jury room;only when all jurors are present to participate; and only oncondition that they reserve judgments about the ultimateissues until they have heard all of the evidence, the court’s finalinstructions on the law, and the arguments of counsel. Thereform, adopted by rule in Arizona and subjected to evaluationby independent jury experts, is being watched closely by otherjurisdictions and judges who favor reform generally. Theresearch reveals strong support by judges and jurors. Onlymodest evidence was found supporting the assertions of pro-ponents that discussions will enhance juror memory and com-prehension. Little evidence was cited that validates the critics’fears that such discussions would lead to premature judgmentsregarding the outcomes of cases.

The first study of this innovation was by a team ofresearchers that included one of this article’s authors, ValerieHans. Together with Paula Hannaford and G. ThomasMunsterman of the National Center for State Courts, Hansconducted a field experiment in Arizona to study the effects ofcivil jurors’ trial discussions. In approximately 160 Arizonacivil jury trials in four counties, the researchers used randomassignment of the cases to “Discuss” and “No Discuss” condi-tions. Trial participants were quite supportive of the reform.38

Support for the change ran very high among judges and jurors

particularly: three-fourthsor more of each groupresponded positively to thenew procedure. Attorneysfavored the new practice,but at the lower rate of 51%.Attorney support increasedas they gained more experi-ence with jurors being ableto discuss the evidence dur-ing their trials.

Hannaford, Hans, andMunsterman analyzed thedata collected regarding theeffects of the change permit-ting juror discussions in civil cases.39 Jurors who discussed theevidence during the trial reported that the discussions werevery helpful in resolving confusion about the evidence.However, the jurors’ self-reports about how well they under-stood the evidence overall, and the degree that judges agreedwith the jury verdicts, were not affected by the opportunity todiscuss the evidence.

The researchers also found that jurors in the two conditionsdid not differ in the timing of opinion formation about out-come issues. The data belied a principal fear voiced by skep-tics of the new rule, that permitting such discussions amongjurors would lead to premature judgments on the merits of thecase. No such pattern was detected.

The most recent field study of structured discussions of evi-dence by Arizona jurors, conducted by Shari SeidmanDiamond and Neil Vidmar, closely examined 50 civil trialsafter videotaping the trials, all juror discussions during breaksin the trial, and all juror deliberations.40 The investigatorsdescribed what jurors discuss when instructed in accordancewith the new rule:

During discussions jurors sought information about thetestimony from one another to assist them in recallingtestimony, obtain needed clarification, or provide mean-ing to facts. They also discussed questions that theyhad submitted to the court or that they planned to sub-mit, and they talked about evidence that had not yetbeen presented that they would like to have. Case stud-ies in the complex cases examining the correspondencebetween the trial evidence and the answers that jurorsgave when their fellow jurors sought information dur-ing discussions revealed that discussion did result inmore accurate understandings of trial evidence.41


The innovation considered the

most radical andcontroversial is the

one that turns on itshead the traditionalrule swearing civil

jurors to silence during the entire

trial . . . .

42. Hannaford & Munsterman, supra note 11.43. MUNSTERMAN ET AL., JURY TRIAL INNOVATIONS, supra note 3, at 161;

Cohen, supra note 26, at 694-95; Dann, supra note 4, at 1258-59. 44. Cohen & Cohen, supra note 13.45. Frank & Madensen, supra note 12.46. ForsterLee & Horowitz, supra note 7.47. MUNSTERMAN ET AL., JURY TRIAL INNOVATIONS, supra note 3, at 171;

Christopher N. May, “What Do We Do Now,” 28 LOYOLA L.A. L.

REV. 869 (1995); Dann, supra note 4.48. Dann et al., supra note 10.49. Frank and Madensen, supra note 12.50. Sample instructions and other helpful materials: MUNSTERMAN ET

AL., JURY TRIAL INNOVATIONS, supra note 3, at 257; BEHIND CLOSED

DOORS: A GUIDE FOR JURY DELIBERATIONS (American JudicatureSociety 1999) (to order free copies, go to http://www.ajs.org/cart/storefront.asp).

The authors found onlymodest evidence that the inno-vation positively affected jurorcomprehension or recall of thetrial evidence or law. Withsome recommendations for pro-cedural changes in the Arizonapractice, they concluded thatstructured juror discussionsbefore formal deliberations canassist juries hearing complexcases. Like the researchers whohad gone to Arizona before tostudy the same practice,Diamond and Vidmar did notfind evidence that jurors

allowed to discuss the evidence during trial pre-decide the mer-its of the cases they heard at any earlier stage than their coun-terparts repeatedly sworn to silence: “No jury arrived at agroup decision on the verdict in the course of discussions.”

Some other state reform groups have taken a “wait-and-see”attitude toward this uniquely Arizona reform; others haverejected it outright. Some states have experimented with theprocedure and collected and assessed the resulting data.

For example, the Massachusetts pilot program involvingvarious trial innovations tested the juror discussion procedureas well.42 All of the judges that experimented with the inno-vation thought it was helpful. Of the jurors, 93% found theopportunity to discuss the evidence during the trials helpful.Only 2% of jurors said the opportunity the court offered themwas not helpful.

FINAL INSTRUCTIONS BEFORE AND AFTER CLOSINGARGUMENTS

The advantages of giving the substantive final instructionson the law before closing arguments by counsel, rather thanafter, with the important procedural and “housekeeping” mat-ters reserved until after counsel conclude, have been discussedmore at length elsewhere.43 Among other things, hearing theapplicable law from the judge before counsel argue gives thejurors a reliable legal context to follow when they hear theattorneys sum up on the facts and the law. In addition, this pro-cedure relieves counsel from having to “preview” the law forthe jurors, sometimes a risky task that provokes objections andargument. Besides, jurors ought to hear an organized andcoherent statement of the applicable legal rules from an author-itative and neutral source—the judge, not the adversaries.

Data generated by recent research demonstratesupport for this modest change:

After a test of the procedure in several Tennessee tri-als, the participating judges unanimously endorsedinstructing on the law prior to closing arguments.44

Almost all of the attorneys (93%) approved, and 85%of jurors said it was helpful in understanding the argu-ments of counsel.

In a similar project in Ohio,45 most judges (80%) andattorneys (68%) agreed that instructing on the lawbefore closing arguments was more helpful to juriesthan the traditional order.

In any event, the recommended practice calls for thejudge addressing the jury after counsel finish, sincethere are important procedural matters remaining.46

SUGGESTIONS FROM THE JUDGE REGARDINGDELIBERATIONS

This commonsense idea springs from the simple facts thatso few members of a given jury have likely served beforethrough to verdict and most are strangers to the deliberationprocess. Studies on the matter demonstrate that jurors wel-come and benefit from some helpful suggestions (as opposedto directions) from the judge regarding the important tasks ofchoosing a presiding juror and conducting of deliberations,voting, etc.47

Again, the most recent research has been done at the behestof state jury reform committees:

In Massachusetts, 88% of jurors who received suchinstructions from their trial judges found them help-ful.48

Jurors in Ohio who received suggestions from thecourt regarding their choosing a foreperson, conduct-ing deliberations, conducting votes, and resolving dis-agreements were similarly enthusiastic about receiv-ing help. They agreed, at rates of 81% to 92%, that thesuggestions were helpful.49

Readily adaptable resources are available for judges wishingto offer such help to juries about to embark on deliberations.50

WRITTEN COPIES OF INSTRUCTIONS FOR ALLJURORS

Finally, furnishing each juror with a copy of court’s instruc-tions before the instructions, so jurors can follow along as theyare read by the judge and have access to them during closingarguments and deliberations, is another simple, thoughtful


Diamond andVidmar did not

find evidence thatjurors allowed to discuss the

evidence duringtrial pre-decide the merits . . . at any earlier

stage than their counterparts . . . .

51. MUNSTERMAN ET AL., JURY TRIAL INNOVATIONS, supra note 3, at 174;Dann, supra note 4, at 1259; ABA REPORT: JURY COMPREHENSION IN

COMPLEX CASES (Lit. Sec. 1989) (jurors unanimously found copieshelpful during deliberations).

52. Hannaford & Munsterman, supra note 11.

53. Connor, supra note 18.54. Cohen & Cohen, supra note 13.55. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,

J., dissenting).

innovation. The proponents of furnishing copies to each jurorcontend that individual copies accommodate jurors’ differentlearning styles, enhance comprehension, and reduce the num-ber of questions about the instructions from deliberatingjurors.51

According to recent polling of judges, attorneys, and jurors,support for individual written copies of instructions runs high.

Massachusetts: 98% of judges using the innovationfound it helpful. Jurors who did not have individualcopies of the instructions asked 78% more questionsconcerning the legal charge than jurors who were givenindividual copies.52

California: jurors in the pilot program furnished withindividual copies of the instructions sent out no ques-tions about them during deliberations and 94% favoredthe practice (80% were “strongly positive”).53

Tennessee: Deliberating jurors made an average num-ber of 4.78 references to their copies, and 99% foundthe instructions “clear,” and 87% “very clear.” Judgesreport no significant problems in preparing and fur-nishing each juror a copy.54

CONCLUSIONMany years ago, United States Supreme Court Justice Louis

Brandeis praised the value of experimentation: “It is one of thehappy incidents of the federal system that a single courageousState may, if its citizens choose, serve as a laboratory; and trynovel social and economic experiments without risk to the restof the country.”55 This survey of work on innovations to thetraditional jury trial underscores Justice Brandeis’s point. Thecombined insights from pilot programs, field experiments, andlaboratory research on jury trial innovations show the benefitsthat can derive from systematic evaluation of proposed trialreforms.

The willingness, if not the insistence, that changes in the tra-ditional jury trial format intended to benefit the decision mak-ers be subjected to evaluations demonstrates wisdom and con-fidence. Jury reforms have the best chance to succeed andbecome part of a new tradition if subjected to the kind of sys-tematic studies summarized here. Today’s jurors deserve noless if they are to have the tools they need to better understandand decide today’s cases.

B. Michael Dann, an Arizona trial judge for 20years, chaired the Arizona Jury Trial ReformCommittee and has spoken in over 35 states andin four other countries in support of the kinds oftrial innovations and reforms adopted and usedin Arizona. He received the 1997 RehnquistAward for Judicial Excellence at the U.S.Supreme Court for his national work in jury

trial reform. After he retired from the trial bench in 2000, heaccepted a visiting fellowship at the National Center for StateCourts, where his work focused on jury trial and judicial selectionreforms and on science and law issues. In 2003, he began a fel-lowship at the National Institute of Justice, U.S. Department ofJustice, where he is conducting research on ways to improve jurorcomprehension of DNA trial presentations. Dann received hisundergraduate education at Indiana University and his lawdegrees at Harvard Law School (LL.B.) and the University ofVirginia Law School (LL.M.).

Valerie P. Hans has investigated factors affect-ing jury decision making for more than threedecades. Her writings on the jury include twobooks—Judging the Jury (1986), coauthoredwith Neil Vidmar, and Business on Trial: TheCivil Jury and Corporate Responsibility(2000)—as well as numerous articles appear-ing in social science journals and law reviews.

She collaborated with Judge Dann on the mtDNA jury projectdescribed in the current article. Professor Hans received a Ph.D. insocial psychology from the University of Toronto in 1978, andjoined the Sociology and Criminal Justice faculty at the Universityof Delaware in 1980, where she continues to teach courses aboutthe criminal courts, psychology and the law, and jury decisionmaking.


This research was supported, in part, by research grants from theState Justice Institute (Grant SJI-97-N-247), the National ScienceFoundation (Grant SBR9818806), and the American Bar Foundation.The authors received additional support from NorthwesternUniversity Law School and Duke University Law School. The video-taping project was made possible by the interest of the Arizona judi-ciary in examining juries with an eye toward optimizing the jury trial.Initiated by Judge Michael Brown, then presiding judge of PimaCounty Superior Court, the project also owes a debt of gratitude toJudge Kenneth Lee, presiding judge of the civil division of the PimaCounty Superior Court; Judges Michael D. Alfred, Raner C. Collins,Edwin M. Gaines, Jr., Charles Harrington, John Kelly, John Malloy,Richard McAnally, Lloyd Rabb, Charles S. Sabalos, Gilbert Veliz,Stephan Villarreal, and Nanette Warner; the jurors, the attorneys andthe litigants who took part in the research; Jury Commissioner KathyBrauer; Paula Nailon, who shepherded the project through its earlystages; and Judge Gordon T. Alley, the presiding judge in Pima Countywhen data collection ended. Professor Richard Lempert provided veryimportant insights to our project in its early stages, as did other mem-bers of our advisory committee, including Judge Bernard Velasco,Barry Davis, Andrew C. Dowdle, Thomas A. Mauet, BruceMacDonald, and G. Thomas Munsterman. We are also very grateful toRobert Burns, Judge Michael Brown, Judge Michael Dann, and NicoleWaters for their expert input on this article. Our thanks also go toMelissa Fitzpatrick, Kim Francis, Betsy Judelson, Andrea Krebel,Monica Quinn, and Alix Rosenbaum, in addition to the other studentsacknowledged in Shari S. Diamond, Neil Vidmar, Mary Rose, LeslieEllis & Beth Murphy, Jury Discussions During Civil Trials: Studying anArizona Innovation, 45 U. of Arizona Law Rev 1 (2003); their work inpreparing and coding the data for the Arizona Filming Project wascrucial. Finally, we remain indebted to Neil Vidmar for his contribu-tions to the development, execution, and analysis of the Project.Naturally, any errors or omissions are ours alone.

Footnotes 1. 1 M. HALE, THE HISTORY OF THE COMMON LAW OF ENGLAND 164 (C.

Gray ed. 1971)(1st ed. 1713) (“[b]y this Course of personal and

open examination, there is Opportunity for all Persons concerned,viz. The Judge, or any of the Jury . . . to propound occasional ques-tions, which beats and boults out the Truth”).

2. See Ohio v. Fisher, 99 Ohio St. 3d 127, 130-132; 789 N.E.2d 222,226-228 (2003) for a review of federal and state cases.

3. See, e.g., M. Michael Dann, “Learning Lessons” and “SpeakingRights”: Creating Educated and Democratic Juries, 68 IND. L. REV.1229, 1253 (1993).

4. See, e.g., N. Randy Smith, Why I Do Not Let Jurors Ask Questions inTrial, 40 IDAHO L. REV. 553 (2004).

5. Ohio v. Fisher, 99 Ohio St. 3d 127, 131; 789 N.E.2d 222, 226(2003).

6. We use the word “permit” to refer to the practice of letting jurorssubmit questions during trial; we use the word “allow” to refer to thedecision to answer a juror’s question or let a witness to answer it.

7. See, e.g., Smith, supra note 4, at 564 (“When questions are notasked after being formulated by a juror, he/she may become upsetwith one of the parties, especially the one objecting to his/her ques-tions [even though] the objections to the questions are made out-side of the jury’s presence”).

8. The Arizona rule authorizing the practice of juror questioning incivil cases specifies that “Jurors shall be permitted to submit to thecourt written questions directed to witnesses or the court.Opportunity shall be given to counsel to object to such questionsout of the presence of the jury. Notwithstanding the foregoing, forgood cause the court may prohibit or limit the submission of ques-tions to witnesses.” Ariz. R. Civ. P. 39(b)(10). Consistent with thislanguage, the standard practice in Arizona is to permit juror ques-tions and jurors were so instructed in all 50 of the cases we studied.

9. The Arizona Supreme Court authorized the taping of jury discus-sions and deliberations in these 50 trials as part of an evaluation ofanother jury innovation: permitting jurors to discuss the case inthe course of the trial. The results of that evaluation are reportedin Shari S. Diamond, Neil Vidmar, Mary Rose, Leslie Ellis, & BethMurphy, Jury Discussions During Civil Trials: Studying an ArizonaInnovation, 45 U. ARIZ. L. REV 1 (2003).

American courts have rediscovered what was familiar atcommon law.1 A majority of modern courts now sanc-tion the practice of permitting jurors to submit ques-

tions during trial.2 A procedure that permits jurors to submitquestions is consistent with the view that juror questions canpromote juror understanding of the evidence3 and fits withother jury innovations, like note taking and written juryinstructions, that aim at optimizing juror comprehension andrecall. Nonetheless, the practice of permitting juror questionshas not received unanimous endorsement and adoption.4 Evenin jurisdictions that authorize juror questions during trial, theultimate decision as to whether or not to permit them is gen-erally left to the discretion of the trial court,5 and it is unclearhow pervasive the practice actually is across jurisdictions inwhich juror questions are authorized.

Some judges have been reluctant to permit juror questionsbecause of concerns that jurors will frequently submit inad-

missible questions that the judge cannot answer or allow6 awitness to address, that the jurors may be offended when theirquestions are not answered,7 and that jurors may come up withtheir own answers that will unfairly prejudice one party or theother. A unique opportunity allowed us to examine the fre-quency and nature of jurors’ unanswered questions and toassess how jurors responded. We collected all of the questionsthat jurors submitted during 50 civil trials in Arizona, wherejurors are regularly permitted to submit questions duringtrial.8 A distinctive feature of the research is that we were ablenot only to identify the questions that the judge declined toallow, but also to observe juror reactions during trial and delib-erations as the jurors learned that their question would not beallowed.9 This examination both addresses the concernsraised about unanswered juror questions and gives judges whohave not yet permitted juror questions a preview of the kind ofquestions jurors are likely to submit that judges may not be

Jurors’ Unanswered QuestionsShari Seidman Diamond, Mary R. Rose, and Beth Murphy


10. Larry Heuer & Steven Penrod, Juror Notetaking and QuestionAsking: A National Field Experiment, 18 LAW & HUM. BEHAV. 121(1994)

11. Id. at 142-143, Table 13.12. Mary Dodge, Should Jurors Ask Questions in Criminal Cases? at

40 (unpublished report submitted to the Colorado SupremeCourt’s Jury System Committee, 2002).

13. See, e.g., Warren D. Wolfson, An Experiment in Juror Interrogationof Witnesses, CBA REC. 12 (Feb. 1987).

14. Howard Ross Cabot & Christopher S. Coleman, Arizona JuryReform: A View From the Trenches, ARIZ. J. (July 12, 1999).

15. See, e.g., Mark Frankel, Jurors Questioning Witnesses, 60 WISC. BAR

BULL. 23 (Feb. 1987).

16. See, e.g., Leonard B. Sand & Steven A. Reiss, A Report on SevenExperiments Conducted by District Court Judges in the SecondCircuit, 60 N.Y.U. L. REV. 423, 476, Appendix D (1985); for acomprehensive review of findings in several studies, see GregoryE. Mize & Christopher J. Connelly, Jury Trial Innovations:Charting a Rising Tide, Spring 2004 COURT REVIEW at 4, 5-6.

17. Larry Heuer & Steven Penrod, Increasing Juror Participation inTrials Through Note Taking and Question Asking, 79 JUDICATURE 256(1996).

18. See supra note 7.19. See, e.g., Heuer & Penrod, supra note 17.20. For a detailed description of these procedures, see Diamond et al.,

supra note 9, at 17.

able to allow witnesses to answer. Before turning to this analysis of the unanswered questions,

we briefly review the claimed advantages and disadvantages ofpermitting juror questions in light of the available evidence.

ADVANTAGES AND DISADVANTAGES OF JUROR QUESTIONS

The primary claim made in favor of permitting juror ques-tions is that it promotes juror understanding of the evidence.To the extent that jurors are like students in their attempts tounderstand the material being presented to them at trial,answers to juror questions, like those given to students in aclassroom, offer the opportunity to correct sources of confu-sion, clarify misunderstandings, and improve comprehensionand recall. Some support for this proposition comes from anational field experiment in which 160 cases in 33 states wererandomly assigned to permit or not permit juror questions.10

Jurors who were permitted to submit questions rated them-selves as better informed than those who were not permitted tosubmit questions.11 Similarly, in a Colorado field experimentinvolving 239 criminal trials, jurors who were permitted tosubmit questions were more likely to agree that they had suffi-cient information to reach a correct decision.12

Another potential advantage of juror questions is that theycan signal counsel, as they do an instructor in a classroom, thatsome issues need to be addressed further. It is unclear howoften this occurs, but judges who have permitted juror ques-tions13 and attorneys who have tried cases in which questionswere permitted14 report instances in which the juror questionsassisted attorneys in presenting their cases clearly. Similarly,judges report that jurors appear more attentive and involvedwhen questions are permitted.15

Judges who have experimented with juror questions havegenerally become more enthusiastic about permitting jurorquestions after trying out the procedure.16 Jurors too reportsatisfaction with the opportunity to submit questions.17

Critics of juror questioning have suggested that permittingjuror questions might upset court decorum and consumeunnecessary court time. Judges who permit juror questionsgenerally address those concerns by instructing jurors at thebeginning of the trial that they can write down a question andsubmit it to the judge through the bailiff. The judge then con-sults with the attorneys out of the presence of the jury, usuallyat a sidebar, and determines whether to ask the witness thejuror’s question. If proper, the judge puts the question to the

witness. Attorneys are per-mitted to ask any necessaryfollow-up questions. Thisprocedure handles juror ques-tions efficiently, minimizingthe additional time that jurorquestions may require.

A separate set of concerns,and our focus in this article, ison juror reactions to the ques-tions they submit that are notanswered.18 Do jurors reactunfavorably if their questionsare not answered, taking offense or experiencing unnecessaryembarrassment? Are questions rejected because jurors becomeargumentative, losing their objectivity and becoming advo-cates? Do jurors draw inappropriate inferences when the courtdoes not allow a juror question? Juror surveys find no evi-dence to support these concerns,19 but these self-reports aboutsocially undesirable reactions may not fully capture whatoccurs in the jury room. The Arizona Filming Project made itpossible for us to examine the questions that jurors submittedduring trial that the judge was unable to allow and to assesshow jurors actually handled the lack of a response. We beginby briefly describing the Arizona Filming Project and then turnto the unanswered juror questions.

THE ARIZONA FILMING PROJECTThe Pima County Superior Court, with the endorsement

and support of the Arizona Supreme Court, approved a novelexperiment in Tucson to evaluate the Arizona innovation thatpermits jurors to discuss the evidence among themselves dur-ing the trial. The study involved videotaping discussions anddeliberations. The project required an elaborate set of permis-sions and security procedures.20 In each case in the study, weobtained permission from the judge, jurors, litigants, andattorneys. For each case, the entire trial was videotaped fromopening statements to closing arguments and jury instruc-tions. In the jury rooms two unobtrusive cameras and micro-phones were mounted at ceiling level. An on-site techniciantaped the conversations in the jury room whenever at least twojurors were present. We drew on the trial videotapes to developa detailed “road map” for each trial. Quasi-transcripts were cre-ated for all juror discussion periods and transcripts were pre-pared for all deliberation periods. They allowed detailed


[W]e were able not only to identifythe questions thatthe judge declinedto allow, but alsoto observe jurorreactions during

trial and deliberations . . . .

21. Nicole M. Waters of the National Center for State Courts providedfigures for all completed jury trials in Pima County, Arizona dur-ing the year 2001: 62% were motor vehicle cases, 8% medical mal-practice, 23% were other tort cases, and 6% were contract cases.The plaintiff win rate was 64%. Awards ranged from $2,009 to$2,472,163 with a median award of $31,165.

22. Wolfson, supra note 13, at 17 (“the great majority of questionswere serious, to the point, and relevant”) (Feb. 1987); Frankel,supra note 15, at 24 (“the questions asked are thoughtful, perti-nent, respectful and to the point”). For a researcher’s analysis ofjuror questions submitted during trials and deliberations, seeNicole L. Mott, The Current Debate on Juror Questions: “To Ask orNot to Ask, That Is the Question,” 78 CHI.-KENT L. REV. 1099 (2003).

23. Larry Heuer & Steven Penrod, Increasing Jurors’ Participation inTrials: A Field Experiment with Jury Notetaking and QuestionAsking, 12 LAW & HUM. BEHAV 231, 252 (1988) (83 percent);Heuer & Penrod, supra note 17, at 141, Table 12 (72 percent incivil cases, 86 percent in criminal cases); Paula Hannaford & G.Thomas Munsterman, Final Report for the Massachusetts Projecton Innovative Jury Trial Practices at 4 (2001)(77 percent); Neil P.Cohen & Daniel R. Cohen, Jury Reform in Tennessee, 34 U. MEM.L. REV. 1 (2003)(“judges reported that jurors’ questions were ‘gen-erally appropriate.’. . . [and] propounded them to the witness ‘as

is’ most of the time.”); AOC State of New Jersey JurySubcommittee, Report on Pilot Project Allowing Juror Questions(unpublished AOC Report, 2000) (over three-quarters of thequestions were asked), reported in Mott, supra note 22, at 1104-1105 (2003); Dodge, supra note 12, at 22 (judges in a pilot studyallowed 76 percent of the questions submitted by jurors).

24. The length of the trial was the sum of the number of hours foreach day of trial from the time the trial began to the time the trialended for the day until jurors began their deliberations.

25. (p<.01). This correlation is based on the 47 cases for which wehave both the allowed questions and the disallowed questions.For three cases, we did not have access to the files of jury ques-tions and therefore could identify only the juror questions thatthe judge allowed a witness to answer.

26. We will focus on the questions that judges allowed witnesses toanswer in another article.

27. The correlation between number of disallowed questions andlength of trial was .34 (p<.05); for allowed questions and lengthof trial the correlation was .54 (p<.01).

28. Jurors instructed that they could discuss the case during trial sub-mitted an average of 4.11 disallowed questions, and jurorsadmonished not to discuss the case submitted an average of 4.5disallowed questions (t = 0.25, p<.82).

analyses of the content of jurordiscussions and deliberations.We also obtained copies of allquestions submitted during thetrial or during deliberations,including those that the judgedid not answer or allow a witness

to answer.The sample of 50 cases consisted of 26 (52%) motor vehicle

cases, 17 (34%) non-motor vehicle tort cases, 4 (8%) medicalmalpractice cases, and 3 (6%) contract cases, a distributionthat is nearly identical to the breakdown for civil jury trials forthe Pima County Superior Court for the 1996-97 fiscal yearand the 2001 calendar year. The tort cases varied from thecommon rear-end collision with a claim of soft-tissue injury tocases involving severe and permanent injury or death.Plaintiffs received an award in 65% of the cases. Awardsranged from $1,000 to $2.8 million dollars, with a medianaward of $25,500.21

The Questions that Jurors Submit Judges in other jurisdictions who permit juror questions

report that the questions jurors submit are generally appropri-ate.22 Nonetheless, the rules of evidence bar a variety of ques-tions on grounds of relevance and form as well as more tech-nical bases. It would be astounding indeed if laypersons lim-ited their inquiries to legally acceptable grounds and alwaysexpressed their inquiries in legally acceptable terms. Severalsurveys and experiments with juror questions indicate thatjudges typically allow witnesses to answer between 72% and86% of jurors’ questions, leaving 14% to 28% unanswered.23

In the Arizona Filming Project, jurors submitted questionsduring 48 of the 50 trials. In half of the trials, they submitted10 or fewer questions, with an average of 17.5 per trial. Acrossall cases, jurors submitted an average of less than 1 question(.76) per hour of trial.24 The number of questions submitted

by the jurors during a trial increased with the length of the trial(r = .54).25 One jury submitted 110 questions, almost twicethe number submitted in any other trial. Significantly, the trialin which this occurred was 77.5 hours in length, amounting toan average of 1.4 questions per hour.

Judges allowed answers to 76% of the jurors’ 820 questions.The questions that the judges allowed were consistent with theobservations from previous reports that jurors generally submitappropriate and relevant questions. For example, the jurorsdirected nearly half of their questions to expert witnesses, typ-ically attempting to clarify their testimony or to understand thebases for their opinions.26 The juror questions that judgesallowed ranged from simple questions about definitions, suchas “What is a tear of the meniscus?” (for a physician) and“What does the ‘reasonable psychological probability’ mean?”(for a psychologist who testified using the phrase), to morecomplex attempts by jurors to understand the inferences madeby the witness, such as “Is his post-traumatic stress a result ofthe confrontation, or a result from his childhood? Specifically,could his breakdown be from another accident?” and “Notknowing how he was sitting, or his weight, how can you be surehe hit his knee?” (for an engineer testifying about an accidentreconstruction). But what about the questions that the judgedid not answer or permit the witness to answer? We turn nowto an analysis of those unanswered questions and to jurors’reactions when no response was forthcoming.

Disallowed Juror QuestionsIn 39 of the 50 trials, judges were presented with at least

one question that they did not allow a witness to answer. Inhalf the cases, judges rejected 2 or fewer juror questions dur-ing trial. Both allowed and disallowed questions occurredmore frequently in longer trials.27 The opportunity to discussthe evidence during trial did not significantly influence therate of submitting either allowed or disallowed questions.28

After examining all of the questions that jurors submitted,


Judges allowedanswers to 76%

of the jurors’820 questions.

29. Two coders independently categorized the questions, making useof 15 total categories. Overall reliability for these categorizationswas modest, weighted kappa = .67 (1.0 indicates perfect reliabil-ity, zero indicates pure chance agreement). This value increasedas the two coders gained experience and after they discussed dis-agreements part-way through coding (weighted kappa on a sub-set of 56 questions coded post-discussion = .74). For the cate-gories listed in Table 1, the coders typically agreed more oftenthan they disagreed: just two had percent agreement rates below50% (Definitions/Miscellaneous facts, Parties’ mental state).

30. Judges allowed witnesses to answer all juror questions in three

categories that are not represented in Table 1. The questions inthese categories were generally directed toward the experts andinvolved 1) extent of injury or damage, 2) basis for diagnosis ortreatment, and 3) credentials or experience of the expert.

31. See also Mott, supra note 22, at Table 3, 1125 (identifying a simi-lar set of juror questions, which she labeled “common practices”).

32. Shari S. Diamond & Neil Vidmar, Juror Ruminations on ForbiddenTopics , 87 VA. L. REV.1857 (2001).

33. Id. at 1909; jurors do not intuitively recognize the collateralsource rule.

we identified 15 types of questions. 29 The breakdown for the12 categories that produced instances of disallowed questionsappears in Table 1.30

Many of the questions that the judges disallowed reflectcommonsense ways of reasoning based on information that isexcluded under the rules of evidence. Thus, a number of thesequestions centered on a search for a comparison that couldassist the juror in evaluating the plausibility of the plaintiff’sclaims. The first and most frequent category consisted of whatwe termed “Standards”—questions that sought information onhow others might view the present circumstances, essentiallyinviting witnesses to give jurors a standard by which to judgethe case (n = 43 questions).31 We subdivided this category intorequests for legal and other standards. Examples of requests forlegal standards were inquiries such as, “Who was cited in thisaccident?” or “Is the defendant required to have his vision andhearing tested in order to renew his driver’s license, and has hedone so?” In all such questions, jurors sought to know whetherone of the parties had done something legally improper thatbore a relationship to the conflict being decided. Examples ofother standards asked witnesses about how the same or similar

circumstances affected peopleother than the plaintiff whowere, or could have been,involved in the incident thatled to trial. Thus, several jurorquestions asked about whetherother passengers in a plaintiff’svehicle were also injured (orwhether the defendant wasinjured). Likewise, in a caseinvolving an alleged inflictionof emotional distress, jurorsasked a non-party witness howthe defendant treated otherpeople with whom he came incontact. These two types of standards questions accounted forabout one-fifth of all disallowed questions.

A second frequent type of excluded question concernedjurors’ attempts to obtain information on the character and/orcredibility of the witness. Although jurors are charged withevaluating the credibility of witnesses and jurors asked manyquestions bearing on credibility that the judge allowed wit-nesses to answer, the jurors also asked disallowed questionsthat could produce potentially prejudicial information, e.g.,“Has [the plaintiff] been in any other lawsuit considering thenumber of accidents he has been involved in?” (directed to theplaintiff) or called for hearsay, e.g., “Does the [Plaintiff] haveany idea why his employer had an Independent MedicalExamination conducted [on him]?” Some disallowed ques-tions asked witnesses to offer opinions or to answer questionswhen no foundation had been laid that the witness had first-hand knowledge or asked the witness to draw conclusions thatthe jury was charged with making: e.g., “There are differencesbetween your testimony and that of the plaintiff. Which oneis telling the truth?”

Charged with compensating the plaintiff in a civil case,jurors sometimes interpreted their mandate more broadly thanthe law envisions and posed questions that attempted toexplore legally irrelevant financial considerations. Consistentwith prior analyses of this data set, jurors in civil cases wereinterested in the insurance status of both the plaintiff and thedefendant.32 For example, jurors may express concern aboutovercompensating plaintiffs who have already received pay-ments from insurance companies33 or they may wonderwhether the defendant will be paying any award out of pocket.Insurance questions alone constituted 12% of all disallowedquestions, with jurors posing 23 questions in 12 trials; in 4 of


Question Type N

Percent (of total notallowed)

StandardsLegal standardsOther standards

432716

2214

8

Character or credibility of witness

24 12

Legally irrelevant financial issuesInsurance coverageAttorneys fees

2523

2

1312

1

Litigation management 13 7

Definitions and miscellaneous facts 27 14

Cause of the injury 24 12

Parties’ mental state 18 9

Predictions about future injury 6 3

Other topics or unclear 17 9

TABLE 1: TYPES OF QUESTIONS JUDGES DISALLOWED

Many of the questions that thejudges disallowedreflect common-sense ways of

reasoning basedon informationthat is excluded

under the rules ofevidence.

34. We did not have access to the sidebar conversations in which theattorneys had the opportunity to voice objections, and we havenot attempted to identify the rationale for excluding each of thedisallowed questions. We note, however, that the judges were

typically generous in permitting witnesses to answer juror ques-tions even when the wording of the question was somewhat awk-ward or unartful. We suspect that such instances occurred whenthe question did not draw an objection from either attorney.

these trials, jurors submittedmultiple inquiries (2 questionsin two cases, 4 in one case, 7 inanother), sometimes askingessentially the same questionin different guises (e.g., “Doesthe plaintiff have insurancecoverage?” and “Who paid thechiropractor bill?”). Jurorsalso occasionally asked aboutattorneys’ fees, generally recog-nizing that the plaintiff wouldnot receive the full amount ofany compensatory award theymade.

A fourth source of disallowed questions consisted ofinquiries about how the lawsuit itself had been or was beingmanaged (n = 13 questions, 7% of all disallowed)—for exam-ple, “When did you initiate this lawsuit?” and “How did youcome up with your damage figure?” (directed at plaintiffs indifferent cases).

We also identified instances of questions close to the centralcontroversies in the cases (i.e., establishing what happened,negligence, liability, damages, etc.), but which, for a variety ofpossible reasons, the judge did not allow. Fourteen percent ofquestions asked a witness for definitions or to explain somefact about what happened (e.g., “Was the impact in a forwardor rearward direction?”; “How many people were in eachcar?”), but were not allowed, presumably because no founda-tion had been laid that the witness had firsthand knowledgeand, thus, was competent to answer the question. In 24 cases(12%), jurors asked for information that might illuminate thecause of the plaintiff’s injuries (e.g., “Can we see a picture ofwhat the plaintiff looked like before the accident?” or “Whatpercent of your current problems are a result of this acci-dent?”); and in 18 cases, their questions touched on the men-tal state of the parties, including questions about potential neg-ligence, recklessness, or intent (e.g., “How long did the plain-tiff wait at the intersection before entering?” or whether adefendant had posted a sign warning of a potentially danger-ous condition). In 6 cases, the jurors asked witnesses to fore-cast what the plaintiff’s injuries would be like in the future(e.g., how long it might take a psychotherapist to relieve ananxiety disorder).

A variety of reasons in addition to those we noted abovemay explain why some questions were not posed to wit-nesses.34 In some instances, the question was asked too late ortoo early so that it was offered at the end of testimony by thewrong witness. When a later witness testified who couldaddress the issue, one of the attorneys generally followed up.Other disallowed questions called for speculation; wereexpressed in a form that made them objectionable, e.g., “Areyou being paid to testify here today?” (asked of an expert); or

were simply unclear about what the juror was asking, e.g., ajuror wanted to know “What does ‘bodiar’ the witness entitlethe lawyer to do?” (The juror probably meant “voir dire” butwas unable to accurately repeat the phrase he had just heardand wanted to understand.) In other instances, the questionwould have been appropriate for one witness, but not foranother, and it was not clear when the question was submittedand which witness was the target of the question. Finally, ona few occasions, the question was directed to an appropriatewitness and submitted at the appropriate time and the ques-tion appeared to be admissible, but the witness was notallowed to answer it. For example, in one case a juror wantedto ask the plaintiff how long he was stopped at the stop signbefore the collision occurred. The plaintiff had already testi-fied that he had come to a stop and an issue in the case washow fast he had been going when the collision took place.

When No Immediate Answer Was GivenWe turn now to the aftermath of these questions: how the

judge and the jury responded to the questions that the judgedid not allow the witness to answer.

Judicial Responses: The judge formally acknowledged lessthan a third (32%) of the 197 juror questions that were disal-lowed (see Figure 1). The tendency to acknowledge or notacknowledge questions was typically, but not always, consis-tent within the same trial. In 14 trials, the judge acknowl-edged no juror question (range: 1 to 16 questions); in 11 cases,the judged acknowledged all of the questions in some way(range: 1 to 6 questions); and in 14 trials the judge acknowl-edged some but not others (e.g., in one case, the judgeexplained that insurance was not relevant to the jurors’ deci-sion but said nothing when jurors wanted to know if anyoneelse in the plaintiff’s vehicle had been injured).

Acknowledgment of the jurors’ questions took many forms.Judges sometimes said only, “Some questions were objected tofor one reason or another,” or “Some questions cannot beanswered.” In several instances, the judge informed the jurythat one of the submitted questions would be more appropri-ate for a later witness or would be addressed in later testimony.In another instance when jurors asked a witness to solve a con-flict between his testimony and that of another witness, thejudge explained that it was the jury’s job to make decisionsabout such conflicts. Finally, judges also explicitly cited thelaw in explaining why a question would not be permitted, say-ing, for instance, that a given issue was not “relevant” or, inone case, that the “Federal Rules of Evidence” did not allowthe question. Explanations about legal constraints on ques-tions could be short (e.g., “The jury cannot consider insurancein its decision”), but occasionally involved lengthy recapsabout the specific issues the jury was to solve (e.g., who was“legally obligated to make payment for [the plaintiff’s] medicalbills and . . . repair of the vehicle”), including reminders thatwho paid the bills was “outside your relevant area of inquiry as


[T]here may be some valuefrom the jurors’point of view in

providing at leasta perfunctory

acknowledgmentof each

unansweredquestion . . . .

35. We coded as follows: 1 = no discussion; 2 = explicit acknowl-edgment that the information is unnecessary or irrelevant; 3 =wistful or begrudging acceptance of the lack of information (e.g.,acknowledging they were unlikely to get an answer but still want-ing to know—we combined this category with no. 2 to describethe jurors as accepting the non-answer); 4 = explicitly negativereactions (e.g., explicit annoyance, complaint, or statementsinsisting the information is relevant); 5 = attempts to give or sug-gest an answer to the question (including by not countering an

answer developed during a previous discussion period—to count,the answer or its relevance to the case had to be undisputed byother jurors). Two coders demonstrated high reliability in assign-ing text to these categories, weighted kappa = .79.

36. F (1, 157) = 2.77, p<.10. This test statistic reflects controls for thefact that cases differed in the extent to which judges acknowl-edged juror questions (“non-independence of observations” instatistical parlance).

37. The case is discussed in more detail in the text at note 39.

far as the decision that you have to make in this case.”The judicial tendency not to acknowledge disallowed juror

questions explicitly or to explain why they were not beingposed to the witness may be attributable to two factors. First,the judges in all of these cases gave the jurors a pre-instructionon juror questions, warning them that not all of their questionscould be addressed:

If I decide the question is proper, an answer will beprovided at the earliest logical opportunity. Keep inmind, however, that the rules of evidence or other rulesof law may prevent some questions from being asked.I will apply the same legal standards to your questionsas I do to the questions asked by the lawyers.

Jurors were thus on notice that some of their questionswould not be answered. In addition, an explicit response to anirrelevant question might unnecessarily require the judge toexpose the rest of the jury to that question. As we shall see,there may be some value in providing at least a perfunctoryacknowledgment of each unanswered question when the occa-sion arises.

Jurors’ Reactions When Questions Were Disallowed: After anissue is raised by a juror and the juror’s question is notanswered, the issue may simply be dropped and not discussedamong the jurors at all, or it may receive further attention fromthe jurors. That further attention can take one of three forms.First, a juror may mention having posed a question, note that

there was no answer, and accept the lack of an answer withoutcomplaint or even with understanding (e.g., by asserting thatthe issue must, in fact, be irrelevant). Second, consistent withthe worries of those apprehensive about juror questions, thejury may chafe at the non-response, casting the judge’s decisionin a negative light. Finally, jurors not given an answer to theirquestion may consider what the answer actually is. We codedall responses into categories to reflect these responses.35 Figure1 describes the frequency of these responses.

The most common reaction from jurors was no reaction atall, either during the trial itself or during deliberations. Jurorsreferred, in one way or another, to only 38% of their disallowedquestions. Jurors were somewhat more likely to discuss a ques-tion that the judge acknowledged than to discuss a questionwhen the judge had said nothing: 45% of acknowledged ques-tions received some mention, whereas only 34% of unacknowl-edged questions did so.36 In most instances, however, whetheror not the juror’s question was acknowledged, any discussionthat followed was limited. Typically, conversations lasted nomore than 10 “turns” (a turn ends when another juror speaks).The exceptions arose when the topic was insurance or attor-neys fees, when conversation continued for up to 80 turns. Oneadditional case that drew an extended discussion occurredwhen the jurors submitted several questions on the same topicwithout receiving an answer.37

When jurors did mention an unanswered question, almosthalf (49%) of the time the jury either explicitly accepted the


FIGURE 1: JUROR REACTIONS WHEN A QUESTION IS DISALLOWED

38. Twenty-five (25) of these occasions occurred during discussionperiods and 11 during deliberations.

39. The legal issue was not dealt with in the jury instructions at theend of the trial, and the jurors discussed it during deliberations as

well as during the trial.40. Jurors were able to answer three additional unanswered insurance

questions by examining bills that were included among the caseexhibits.

lack of response or expressedno complaint and swiftlyturned to other topics for dis-cussion.38 In some of thesereactions, jurors remindedothers that the judge said theinformation was not relevantor pointed out, as one jurordid, that “it doesn’t do anygood to guess.” In others,they explained to their fellowjurors why they had submit-ted a question but thenexpressed neither satisfactionnor dissatisfaction or com-mented in some other neutral

way. In short, all such jurors appeared to “move on,” irrespec-tive of whether they might have preferred to have an answer.

Overt annoyance or displeasure with the judge’s failure topose the question was exceedingly rare (see Figure 1): weidentified just seven responses (4%) from three cases as explic-itly negative; four of these seven complaints came from a sin-gle jury and involved a single issue; two others came from adifferent jury; and the remaining one from a third jury. Thejury expressing four complaints was deciding a case involvingthe potential negligence of a business. The jurors wanted toknow if the law required the business to post a sign in theestablishment and whether a sign had been posted, believingthat the answers might signal negligent behavior. The judgedid not acknowledge the jurors’ two related questions, eitherthe first time or the second time they were submitted.Although persistent, the “complaints” were phrased in mildterms (e.g., one juror said that she was “shocked” that thejudge would not answer the questions).39 In both of the othercases involving juror complaints, a single juror simplyexpressed the belief that the information that had beenrequested was relevant, even if the judge had ruled otherwise.For example, a juror asked if either of the two motoristsinvolved in a collision had received citations, and the judgesaid that the question was not relevant. A juror expressed theopinion that it would be pertinent to find who’s at fault. Thedisagreement here may be with the terminology. Arguably, acitation in the accident is relevant, but is excluded because itis both hearsay and potentially prejudicial.

Finally, we identified a number of instances in which jurorsattempted to answer a question the judge had not allowed. Wefound 31 such occurrences (involving 16% of all disallowedquestions). In 12 instances, jurors suggested answers bydrawing reasonable inferences directly from the evidence. Forexample, one case involved someone seated in the rear of avehicle who claimed he was injured in an accident after hittingthe car’s front seat. A juror submitted a question aboutwhether it was likely that the other passenger riding in the

back would also have hit the front seat. When this juror men-tioned the unanswered inquiry to her fellow jurors during dis-cussion, another juror informed her that the laws of physics(to which experts had testified) applied equally to all passen-gers. Jurors drew on their own experience or beliefs to address10 additional unanswered questions about insurance or attor-ney’s fees. 40 For example, a juror who submitted an unan-swered question about insurance speculated that the plaintiffprobably did not pay much for the accident because he proba-bly had disability insurance.

The remaining answers to inquiries came from jurors’ per-sonal experiences or expertise or from a combination of per-sonal expertise and reasoning based on what they had heard incourt. For example, the judge in one case did not allow a wit-ness to answer a question about the muscular side effects of asteroidal medication a plaintiff had been taking. Later in delib-erations, when the juror who submitted the question reintro-duced it, mentioning that it had been left unanswered, anotherjuror explained that the steroid in question was an anti-inflam-matory, not an agent that affected muscle tone. In a fewinstances, jurors’ guesses about answers reflected conclusionsone of the parties likely wished to avoid. For example, a jurorin one case asked why a plaintiff was no longer working in thearea in which she had been trained; the juror later wondered ifthe reason was because the plaintiff had done “something bad”in her prior job. Nearly all (30 of 31) of the unanswered ques-tions that jurors discussed involved the kinds of issues andresponses that naturally occur during deliberations even if ajuror has not submitted a question on the topic. In only oneinstance did a juror draw a conclusion from the fact that thejudge did not answer the juror’s question. In an automobileaccident involving claims for both personal and property dam-age, a juror asked whether the plaintiff’s vehicle had a particu-lar design feature and the judge did not acknowledge the ques-tion. The juror said, “I got no answer, so evidently it’s not [partof the design].” No acknowledged juror question, whether theacknowledgment was perfunctory or more complete, producedthis kind of inference.

Juror attempts to address the unanswered questions variedsubstantially across the types of questions posed. When jurorsdiscussed unanswered questions they had submitted aboutstandards, jurors attempted to answer only 15% of them. Incontrast, when they discussed unanswered insurance ques-tions, jurors attempted to answer 79% of them (11 of the 14they discussed at all). Jurors also suggested answers to both ofthe inquiries about attorney fees (concluding in one case thatattorneys “usually” got half the award, and in the other that itcould be anywhere between 25% and 45%). These responsesto questions on legally irrelevant financial topics account foralmost half of the answers (42%) that jurors offered oneanother when a question was disallowed. As we have previ-ously observed, talk and speculation in the jury room aboutthe insurance of the parties are common even when jurors do


Although jurorsappreciate theopportunity to

submit questions,they rarely expressdisappointment or

even surprisewhen the judgedoes not supplythem with an

answer.

41. See Diamond & Vidmar, supra at note 32.42. Id. at 1910 for a description of potential jury instructions on the

topic of insurance.43. Jurors are told: “If a particular question is not asked, do not guess

why or what the answer might have been.” 44. Again, it is significant that almost half of the answers jurors

offered concerned the topic of insurance or attorneys’ fees. Seegenerally Diamond & Vidmar, supra at note 32.

45. Civil Trial Practice Standard Part One: The Jury, Standard 4(1998).

46. Id. at 4b. (i), (ii), and (iii).47. Id. at 4b x.

not submit questions about insurance,41 reinforcing the notionthat jurors should be specifically instructed on the irrelevanceof insurance in tort cases.42

Summary of FindingsAs our survey of juror questions during trial indicates, more

than three-quarters (76%) of the questions that the jurors sub-mit are legally appropriate. Jurors not only appreciate theopportunity to submit questions, but also formulate relevantquestions to assist them in evaluating the evidence. Our analy-sis of the questions jurors submit that judges do not allowunder current evidentiary rules reveals that those questions arelikely to concern topics like legal standards and insurance, top-ics that reflect commonsense ways of reasoning and commonknowledge but that evidentiary rules preclude jurors fromobtaining information about in reaching their verdicts.

Although jurors appreciate the opportunity to submit ques-tions, they rarely express disappointment or even surprisewhen the judge does not supply them with an answer. Thepreliminary instruction that judges in Arizona use informsjurors that they will not always be able to receive answers tothe questions they submit, and popular lay understanding ofhow trials work probably prepared the jurors to accept thatoutcome for most of their unanswered questions. Thus, theconcern with juror reactions to unanswered questions did notmaterialize. We did observe a few occasions when jurorsexpressed annoyance with the failure to respond to a jurorquestion. Significantly, only one instance of expressed annoy-ance occurred when the judge gave even a perfunctory non-specific acknowledgment that the question could not beallowed. Although jurors were somewhat more likely to dis-cuss an unanswered question when the judge acknowledged it,that discussion was generally brief, except when the topic wasinsurance or attorneys’ fees.

Finally, when the judge did not allow the jurors to obtain ananswer directly, a minority of the juries did attempt to answertheir own questions. In doing this, the jurors technically vio-lated the pre-instruction admonition not to attempt to answerquestions that the judge declined to allow.43 Importantly,many of the same questions and answers that jurors suppliedmay have emerged even in the absence of a juror question for-mally submitted by a juror during the trial (i.e., during thenormal course of deliberations in which jurors regularly useone another to resolve sources of ambiguity).44

Implications for Procedures Used When Juror Questions ArePermitted

The procedures used when jurors are permitted to submitquestions generally give counsel the opportunity to object to ajuror question outside the hearing of the jury and permit attor-neys to ask appropriate follow-up questions when a juror ques-

tion is answered. There is alsoagreement that the jurorsshould be told in advance thatit will not be possible to allowsome of their questions to beasked. As the results hereshow, jurors generally under-stand and accept the legiti-macy of these procedures.

Cautionary Instructions:Less agreement exists on thestandards for the instructionsthat jurors should receiveabout how and when theyshould submit their questions,other than the question should be submitted in writing. A cur-rent Standard of the American Bar Association45 supports jurorquestions for witnesses, but suggests that a series of cautionaryinstructions be given, including a warning that “Questionsshould be reserved for important points only”; that “The solepurpose of juror questions is to clarify the testimony, not tocomment on it or express any opinion about it”; and that“Jurors are not to argue with the witness.”46 The instructionsreceived by the jurors we studied did not include any of thesewarnings. The 820 questions we reviewed in these 50 cases,including the 197 that the judge did not allow, provided noinstances of jurors submitting frivolous questions and only afew that could be characterized as argumentative. (E.g., a jurorsubmitted a question for the plaintiff asking how he wouldwork full-time after the trial. The plaintiff was claiming thatthe accident had temporarily impaired his ability to work andthe jurors were skeptical about that claim.) Indeed, almost allof the questions appeared to reflect serious attempts to under-stand the evidence and to help the jurors assess how it couldassist them to evaluate the competing claims of the parties.

Even without such cautionary admonitions, jurors censoredtheir own potential questions. On average, the jurors dis-cussed almost 2 potential questions per case (1.7) that theythen decided not to submit. Their restrained behavior suggeststhat jurors need not be cautioned that they should limit theirinstructions to important ones. The danger of including suchcautionary instructions is that they will have a chilling effecton jurors’ questions, discouraging jurors from attempting toresolve the areas of confusion that the opportunity to submitquestions was designed to help them deal with. A similar issuealso arises with the recommendation from the Civil TrialPractice Standards that juror questions be signed.47 InArizona, jurors are instructed not to sign their name when theysubmit a question on the assumption that jurors should nothave to worry about appearing ignorant when they are experi-encing some confusion.


The 820 questionswe reviewed . . .

provided noinstances of

jurors submittingfrivolous questions

and only a fewthat could be

characterized asargumentative.

48. Judicial silence led to an unwarranted inference in one casedescribed supra at p. 26.

49. Diamond & Vidmar, supra note 32, at 1884.50. Id. at Section V for a full description of collaborative jury instruc-

tions.

Acknowledging Juror Questions: One decision that judgeswho permit juror questions must make is what if anything tosay to a jury in response to a question that cannot be answered.As we have seen, judges often rely primarily on their pretrialinstruction informing jurors that “the rules of evidence orother rules of law may prevent some questions from beingasked” and say nothing further to the jurors. That approachavoids exposing the other members of the jury to a questionthat is irrelevant or otherwise improper. Although jurors gen-erally do not complain about this implicit rejection of a ques-tion, jurors do seem to appreciate it when judges offer even aperfunctory acknowledgment that a submitted question can-not be addressed without describing the question itself.Moreover, that response prevents a juror from drawing aninference about the answer to the question from the judge’ssilence.48 In a few other instances, a series of questions sub-mitted on the same topic stimulated the judge to be moredirect and specific. For example, jurors in one case submittedseveral questions asking who owned the property where theinjury occurred. After the third question was submitted, thejudge told the jurors, “A couple of you, Ladies and Gentlemen,asked questions concerning [the location]. Although these arethings you may wonder about, for the purpose of what youhave to decide today, it doesn’t make any difference.” Thejurors never referred to these questions in their discussionsduring trial or during their deliberations. The approach that

this judge adopted recognizes that the jurors can be givenassistance in identifying relevant information. In other situa-tions, jurors may need further assistance in understanding whya question cannot be addressed.

An Ancillary ValueAre unanswered jury questions merely an incidental cost of

permitting jurors to submit questions? Some additional obser-vations suggest that even the disallowed questions have someancillary value. In one case, the jurors’ early questions sug-gested that they were trying to assess the negligence of thedefendant when the defendant had already conceded negli-gence. The jurors’ questions provided an occasion for thejudge to correct that misimpression in the course of denyingthe jurors’ request for the irrelevant information. Thus, eventhe unanswered questions, which the judge shares with theattorneys in deciding whether the question will be allowed,can signal potential sources of juror confusion that the judgeor the attorneys may be able to address.

Similarly, the natural interest of jurors in insurance ariseswhether or not jurors pose a question about it.49 A juror ques-tion about insurance, however, provides a natural occasion for acollaborative instruction from the judge that recognizes the rea-sonableness of the jurors’ interest and helps jurors understandwhy they should not be focusing on insurance.50 A full collab-orative instruction would accurately explain why insurance is


Peter M. Tiersma, Jury Instructions in theNew Millenium, Summer 1999 COURT

REVIEW at 28.Linguist and law professor PeterTiersma provides practical guidanceon making jury instructions under-standable. The article includes ahelpful list of legal words often usedand words that could be more appro-priately used with a jury.

Robert G. Boatright & Beth Murphy, HowJudges Can Help Deliberating Juries: Usingthe Guide for Jury Deliberations, Summer1999 COURT REVIEW at 38.

Boatright and Murphy explain, basedon research in 12 jury trials, howjurors can benefit from additional

background information about howto go about the work they are toexpected to do.

A FEW, FINAL ARTICLES

Symposium Issue: The Jury at aCrossroad: The American Experience,CHICAGO-KENT L. REV., Vol. 78, No. 3(2003).http://lawreview.kentlaw.edu/articles/78-3/CONTENTS%2078-3.html

This symposium issue contains 10articles discussing the role of thejury—past, present, and future.Topics covered include social scienceresearch on race and juries, ways toimprove the voir dire process, and the

jury’s historic and present role instatutory interpretation.

Shari Seidman Diamond, Neil Vidmar,Mary Rose, Leslie Ellis & Beth Murphy,Jury Discussions During Civil Trials:Studying an Arizona Innovation, 45 U.ARIZ. L. REV. 1 (2003).http://www.law.duke.edu/fac/vidmar/AzLR.pdf

This article provides an in-depth eval-uation of the Arizona innovation per-mitting juries to discuss the evidenceduring the trial. The evaluation wasbased on an experiment that involvedthe videotaping of actual jury discus-sions and deliberations.

irrelevant (e.g., it tells nothing about negligence or how muchdamage was caused) and would let jurors know that any specu-lation about how much insurance the parties have, or evenwhether or not they have any insurance, would be inaccurate.51

CONCLUSIONMost of the recent innovations in jury trials recognize that

jurors are active decision makers and adjust trial procedures toreflect that reality. Whether or not jurors are permitted to sub-mit questions during trial, we know that questions are occur-ring to them as they try to understand the evidence in antici-pation of being charged with reaching a verdict. Permittingjurors to submit their questions during trial provides theopportunity to learn what those juror questions are and toaddress them when possible. As this research indicates, evenwhen judges tell the jury that they cannot allow a witness toanswer a juror’s questions, the jurors generally accept the deci-sion easily and move on. The need to leave some juror ques-tions unanswered offers no justification for missing the oppor-tunity to assist jurors in reaching well-grounded decisions.

Shari Seidman Diamond is the Howard J.Trienens Professor of Law and Professor ofPsychology at Northwestern University LawSchool, and a senior research fellow at theAmerican Bar Foundation. She received herPh.D. in social psychology from NorthwesternUniversity and her J.D. from the University ofChicago. She has published extensively in law

reviews and behavioral science journals and has testified as anexpert on juries, trademarks, and deceptive advertising. Her writ-ings on juries and on surveys have been cited by the United StatesSupreme Court. She also practiced law (1985-87) at Sidley &Austin, served as editor of the Law and Society Review (1989-91),was president of the American Psychology Law Society (1987-88),received the 1991 Award for Distinguished Research Contributions

in Public Policy from the American Psychological Association, andwas a member of the National Academy of Sciences Panel on theEvaluation of Forensic DNA Evidence (1994-96). She has servedon advisory groups for the National Center for State Courts, theFederal Judicial Center, and the American Bar Association. Her e-mail address is s-diamond @law.northwestern.edu.

Mary R. Rose has been an assistant professor ofsociology and law at the University of Texas atAustin since 2002. Between 1999 and 2002, shewas a research fellow at the American BarFoundation. Professor Rose’s empirical researchon juries concerns both juror decision makingas well as the process of selecting juries. Inaddition, her work examines the social psychol-

ogy of justice perceptions, such as how people conceptualize fair-ness in different settings and how people respond to perceivedunfairness. She is an editorial board member of the Law andSociety Review, serves on the Board of Trustees for the Law andSociety Association, and is a reviewer for several law and socialscience journals. She received her A.B. in psychology fromStanford University in 1991 and her Ph.D. in social psychologyfrom Duke University in 1998. She can be reached via email [email protected].

Beth Murphy is the project coordinator for theArizona Jury Project at the American BarFoundation. Previously with the AmericanJudicature Society, she directed the studyBehind Closed Doors: A Resource Manual toImprove Jury Deliberations, which produced aJury Deliberation Handbook that is usedwidely by courts throughout the country. She

also coauthored Enhancing the Jury System: A Guidebook forJury Reform. Ms. Murphy has a master’s degree in sociology fromthe University of Illinois.

51. Id.


Resource Page: Focus on Jury Reform continued from page 42.

The United States Supreme Court this term reassertedthe rule of law in the context of the detainees in the waron terrorism. At the same time, this was a term of

unanswered questions. The Court handed down several deci-sions that had far-reaching implications that were notaddressed by the Court’s opinions. Two cases with the greatestpractical input on the day-to-day administration of justice werecriminal cases: Crawford v. Washington,1 concerning the admis-sibility of hearsay at criminal trials, and Blakely v. Washington,2

regarding the proper role of judges and juries in determiningaggravating factors that justify harsher sentences. Each opin-ion left many unresolved issues that will require further courtinterpretation in future cases.

In this article, we review the Court’s decisions in criminalcases and in habeas corpus actions challenging criminal con-victions. In the next issue of Court Review, we will review thepast term’s cases involving civil rights, the First Amendment,federalism, presidential power, and civil statutory interpreta-tion.

FOURTH AMENDMENTIn United States v. Banks,3 Justice Souter, writing for a unan-

imous Court, determined that a 15- to 20-second wait betweenthe time the officers knocked on the door and announced theirpresence to execute a drug-trafficking search warrant and theirforced entry was not unreasonable under the FourthAmendment. Several officers arrived at respondent’s apartmentto execute a drug-trafficking warrant. The officers at the frontof the building knocked and announced themselves loudlyenough to be heard by the officers at the back. Unbeknownstto the officers, respondent was at home, but was in the showerand did not hear the officers. After waiting between 15 to 20seconds, the officers forced entry into the apartment. The offi-cers found drugs and weapons during their search and respon-dent sought to have them excluded from evidence on theground that the officers had waited an unreasonably short timebefore forcing entry. The Court concluded that between thetime the officers knocked on the door and the time they forcedentry, exigent circumstances arose because “15 to 20 secondsdoes not seem an unrealistic guess about the time someonewould need to get in a position to rid his quarters of cocaine.”

The Court applied a “totality analysis,” specifically rejectingthe Ninth Circuit’s attempts to create a set of “sub-rules” togovern what constitutes a reasonable amount of time. To reachits conclusion, the Court relied on Wilson v. Arkansas4 andUnited States v. Ramirez.5 In Wilson, the Court held “the com-mon law knock-and-announce principle is one focus of the rea-sonableness inquiry; and we subsequently decided thatalthough the standard generally requires the police toannounce their intent to search before entering closedpremises, the obligation gives way when officers ‘have a rea-sonable suspicion that knocking and announcing their pres-ence, under the particular circumstances, would be dangerousor futile or . . . would inhibit the effective investigation of thecrime by, for example, allowing destruction of evidence.’”Ramirez stated that in exigent circumstances, officers may dam-age the premises as is necessary for a forced entry.

In Maryland v. Pringle,6 Justice Rehnquist delivered the opin-ion for a unanimous court, which upheld the arrest of all threeoccupants of a car in which cocaine was found after each haddenied ownership of the drugs. Respondent was one of threeoccupants in a car, which was stopped by an officer for a trafficviolation. The officer noticed a large amount of cash in theglove compartment and a subsequent search of the vehicle“yielded $763 from the glove compartment and five glassinebaggies containing cocaine from behind the back-seat armrest.”All three occupants of the car denied ownership of the cocaineand money and were arrested. After being given Miranda warn-ings, respondent stated that the money and cocaine were hisand that the other occupants knew nothing about it. At trial,respondent moved to suppress the evidence on the groundsthat the officer had no probable cause to arrest him.

The Court first noted that “[i]t is uncontested . . . that theofficer, upon recovering the five plastic glassine baggies con-taining suspected cocaine, had probable cause to believe afelony had been committed.” Thus, the only question remain-ing is “whether the officer had probable cause to believe thatPringle committed that crime.” The Court said that “[t]o deter-mine whether an officer had probable cause to arrest an indi-vidual, we examine the events leading up to the arrest, and thendecide ‘whether these historical facts, viewed from the stand-point of an objectively reasonable police officer, amount to’


Recent Criminal Decisions of theUnited States Supreme Court:

The 2003-2004 TermCharles H. Whitebread

Footnotes

1. 124 S.Ct. 1354 (2004).2. 124 S.Ct. 2531 (2004).3. 124 S.Ct. 521 (2003).

4. 514 U.S. 927 (1995).5. 523 U.S. 65 (1998).6. 124 S.Ct. 795 (2003).

probable cause.” The Court then analyzed the facts of the casebefore it: (1) Pringle was one of the three men riding in the carduring the early hours of the morning; (2) there was $763 ofrolled-up cash in the glove compartment directly in front ofPringle; (3) five plastic glassine baggies of cocaine were foundin a place accessible to all three men; and (4) all three menfailed to offer any information with respect to the ownership ofthe cocaine or money. Given these facts, the Court concludedthat it was “an entirely reasonable inference . . . that any or allthree of the occupants had knowledge of, and exercise domin-ion and control over, the cocaine.” Therefore, a reasonable offi-cer could conclude “that there was probable cause to believePringle committed the crime of possession of cocaine, eithersolely or jointly.”

Justice Breyer, writing for a six-person majority in Illinois v.Lidster,7 concluded that a checkpoint stop to obtain informa-tion from motorists about a hit-and-run accident, not likelycommitted by any of the motorists who were stopped, did notviolate the Fourth Amendment. An unknown motorist struckand killed a 70-year-old bicyclist; about one week later, policeimplemented a highway checkpoint “to obtain more informa-tion about the accident from the motoring public.”Respondent was stopped at the checkpoint, arrested, and even-tually convicted for driving under the influence of alcohol. Hechallenged his conviction, arguing that the government hadobtained much of the relevant evidence through use of a check-point stop that violated the Fourth Amendment.

The Court disagreed. It concluded that the checkpoint herediffered from the one the Court found unconstitutional inIndianapolis v. Edmund,8 because, unlike in Edmund, the “pur-pose was not to determine whether a vehicle’s occupants werecommitting a crime, but to ask vehicle occupants, as membersof the public, for their help in providing information about acrime in all likelihood committed by others.” The Court states,Edmund aside, the Fourth Amendment would not “have usapply an Edmund-type rule of automatic unconstitutionality tobrief, information-seeking highway stops of the kind nowbefore us.” First, “[t]he Fourth Amendment does not treat amotorist’s car as his castle.” Therefore, “special law enforce-ment concerns will sometimes justify highway stops withoutindividualized suspicion.” Like certain other forms of policeactivity, i.e., crowd control or public safety, “an information-seeking stop is not the kind of event that involves suspicion, orlack of suspicion, of the relevant individual.” Further, theCourt noted, “information-seeking stops are less likely to pro-voke anxiety or to prove intrusive.” Although “the importanceof soliciting the public’s assistance is offset to some degree bythe need to stop a motorist to obtain that help . . . [t]he differ-ence . . . is not important enough to justify an Edmund-type rulehere.” The Court’s analysis did not end there; it also concludedthat the checkpoint stop was reasonable: (1) the Court foundthat “[t]he relevant public concern was grave;” (2) it concludedthat “[t]he stop advances this grave public concern to a signif-icant degree;” and (3) “[m]ost importantly, the stops interfered

only minimally with liberty ofthe sort the Fourth Amendmentseeks to protect.”

Justice Stevens delivered theopinion of a 5-4 Court in Grohv. Ramirez.9 It held that a war-rant that fails to describe withparticularity the things or per-sons to be seized is faciallyinvalid, even if the applicationfor the warrant, which was notincorporated by reference, diddescribe these things in detail. It also concluded that the offi-cer in charge of the search was not entitled to qualified immu-nity because he drafted the warrant and no reasonable officercould believe that the warrant was valid. Petitioner Jeff Groh,an agent with the Bureau of Alcohol, Tobacco, and Firearms(ATF), was informed that Ramirez had “a large stock ofweaponry” at his ranch. The application for the warrantdescribed with particularity the items to be seized, but the war-rant form submitted with the application, and signed by themagistrate judge, did not. Nor did the warrant incorporate byreference the application. Petitioner and other officers exe-cuted the warrant and did not find any illegal weapons.Ramirez filed suit under Bivens v. Six Unknown Fed. NarcoticsAgents10 for violation of his Fourth Amendment rights.

The Fourth Amendment requires that a warrant must par-ticularly describe the persons or things to be seized. In thiscase, the actual warrant completely lacked any description ofthe items to be seized. Furthermore, the Court concluded thatthe more specific application did not save the warrant: “TheFourth Amendment by its terms requires particularity in thewarrant, not in the supporting documents.” The Court did notdecide, however, whether a detailed application that is incor-porated by reference into the warrant would save the warrantbecause that was not done in this case. Finally, the Court deter-mined that in light of these facts, the petitioner did not havequalified immunity: “The answer depends on whether the rightthat was transgressed was ‘clearly established’—that is,‘whether it would be clear to a reasonable officer that his con-duct was unlawful in the situation he confronted.’” The Courtconcluded that there was no way petitioner could have believedthe warrant was sufficient.

The Court, in a unanimous opinion delivered by JusticeRehnquist, held in United States v. Flores-Montano11 that thegovernment’s authority to conduct suspicionless inspections atthe border includes the authority to remove, disassemble, andreassemble an automobile’s gas tank. Respondent was stoppedat the United States-Mexico border and delayed while customsinspectors requested that a mechanic under contract with thegovernment come to the border station to remove respondent’sgas tank. The mechanic then disassembled the gas tank, andthe inspector found 37 kilograms of marijuana bricks con-cealed in the gas tank. Respondent moved to suppress the evi-


7. 124 S.Ct. 885 (2004).8. 531 U.S. 32 (2000).9. 124 S.Ct. 1284 (2004).

10. 403 U.S. 388 (1971).11. 124 S.Ct. 1582 (2004).

The Court concluded thatthere was no

way petitionercould have

believed the warrant was

sufficient.

dence, arguing that it wasobtained in violation of hisFourth Amendment rightsbecause the inspectors did nothave sufficient probable causeto conduct a search of his gastank. However, according tothe Court, “the reasons thatmight support a requirementof some level of suspicion inthe case of highly intrusivesearches of the person—dig-nity and privacy interests ofthe person being searched—simply do not carry over tovehicles.” Thus “[c]omplex

balancing tests to determine what is a ‘routine’ search of a vehi-cle, as opposed to a more ‘intrusive’ search of a person, have noplace in border searches of vehicles.” In support of its deter-mination, the Court said that the “Government’s interest in pre-venting the entry of unwanted persons and effects is at itszenith at the international border.” The Court has continu-ously determined that the “longstanding right of the sovereignto protect itself” renders searches of persons and things rea-sonable “simply by virtue of the fact they occur at the border.”This interest is illustrated by the seizure of the drugs in thiscase.

In Thornton v. United States,12 the Court determined that anofficer may search the passenger compartment of an automo-bile, pursuant to New York v. Belton,13 even if he first makescontact with the occupant after he or she has recently exitedthe vehicle. In this case, the officer, who noticed that peti-tioner’s license tags did not match the vehicle petitioner wasdriving, was not able to stop petitioner until the latter hadexited his vehicle. Petitioner, who was acting nervously, con-sented to a pat-down search and the officer discovered twoindividual plastic baggies containing marijuana and crackcocaine. Petitioner was arrested, handcuffed, and placed in thesquad car. The officer then performed a search of petitioner’sautomobile and found a gun beneath the driver’s seat.Petitioner moved to suppress the firearm as fruit of an uncon-stitutional search.

Chief Justice Rehnquist, writing for the five-person majority,began the opinion with a synopsis of the Court’s decision inBelton. The Court, in Belton, had determined that “‘when apoliceman has made a lawful custodial arrest of the occupant ofan automobile, he may, as a contemporaneous incident of thatarrest, search the passenger compartment of that automobile.’”In Belton, the Court relied on two justifications as set forth inChimel v. California:14 (1) the need to remove any weapon thearrestee might possess or seek to use to avoid arrest; and (2)“the need to prevent the concealment or destruction of evi-dence.” The Court concluded that when it articulated the rulein Belton, it placed no reliance “on the fact that the officer in

Belton ordered the occupants out of the vehicle, or initiatedcontact with them while they remained within it.”Furthermore, it did not find these factors relevant: Belton’srationale provides no basis “to conclude that the span of thearea generally within the arrestee’s immediate control is deter-mined by whether the arrestee exited the vehicle at the officer’sdirection, or whether the officer initiated contact with himwhile he remained in the car.” According to the Court, for allpractical purposes, “the arrest of a suspect who is next to avehicle presents identical concerns regarding officer safety andthe destruction of evidence as the arrest of one who is insidethe vehicle.”

Justice Scalia concurred in the judgment but believed thatthe reasoning in Chimel and Belton was inappropriate here:petitioner was handcuffed and in the police car when thesearch occurred and, therefore, the possibility that he wouldgrab a weapon to escape or destroy evidence was “remote in theextreme.” Instead, he would find the search lawful under amore general interest: that “the car might contain evidence rel-evant to the crime for which he was arrested.” Justice Stevens,dissenting, believed Belton veered away from the principlesstated in Chimel, solely for the purpose of establishing a bright-line rule, and that it should be narrowly applied. For anyonewho is not an actual occupant of a car, “Chimel itself providesall the guidance that is necessary.”

In Hiibel v. Sixth Judicial District Court,15 Justice Kennedy,writing for a 5-4 Court, held that Nevada’s “stop and identify”statute did not violate the Fourth or Fifth Amendments. Anofficer responded to a call regarding a possible assault andencountered petitioner, who was standing next to a parkedtruck with a woman still inside the truck. It was apparent thatthe truck had been stopped quickly and that petitioner wasdrunk. Petitioner refused to give the police officer his nameand was arrested and prosecuted under Nevada’s “stop andidentify” statute, which makes it a misdemeanor for a person torefuse to identify himself if stopped by an officer under “suspi-cious circumstances surrounding his presence abroad.” TheCourt granted certiorari on direct appeal to address petitioner’scontention that his conviction under Nevada’s statute violatesthe Fourth and Fifth Amendments.

The Court began with the statement that “’interrogationrelating to one’s identity or a request for identification by thepolice does not, by itself, constitute a Fourth Amendmentseizure.’” In Terry v. Ohio,16 the Court “recognized that lawenforcement officers’ reasonable suspicion that a person may beinvolved in criminal activity permits the officer to stop the per-son for a brief time and take additional steps to investigate fur-ther.” The Court’s subsequent decisions make clear that “ques-tions concerning a suspect’s identity are a routine and acceptedpart of many Terry stops” and, furthermore, serve importantgovernmental interests, i.e., whether the suspect is wanted foranother crime or has a history of mental disorder. The FourthAmendment “does not impose obligations on the citizen butinstead provides rights against the government.” Therefore,


12. 124 S.Ct. 2127 (2004).13. 453 U.S. 454 (1981).14. 395 U.S. 752 (1969).

15. 124 S.Ct. 2451 (2004).16. 392 U.S. 1 (1984).

[T]he Court determined that anofficer may search

the passengercompartment . . .

even if he firstmakes contact

with the occupantafter he . . . has

. . . recently exitedthe vehicle.

while “the Fourth Amendment cannot require a suspect toanswer,” it does not necessarily prevent a state from compellinga person to identify himself during a Terry stop. According tothe Court, “[t]he principles in Terry permit a State to require asuspect to disclose his name in the course of a Terry stop.” Asfor petitioner’s Fifth Amendment claim, the Court concludesthat it need not address whether the Nevada statute’s require-ment that a person identify himself compels a “testimonial”communication. It concludes that petitioner’s argument mustfail because “in this case disclosure of his name presented noreasonable danger of incrimination.”

Justice Stevens dissented. He concluded that the statute wasdirected only at a specific class of persons, essentially, thosethat are “targets of a criminal investigation.” These people canbe prosecuted for crime if they do not identify themselves.Under his view, the Fifth Amendment has no exception, includ-ing this narrow one, to its “right to remain silent.” JusticeBreyer, also dissenting, wrote because he believed a limit to aTerry stop, which “invalidates laws that compel responses topolice questioning,” obviously invalidates Nevada’s law. InTerry, the Court set forth conditions to a Terry stop, what hasbecome known as the “reasonable suspicion” standard. It iswell established that a Terry detainee need not answer anyquestions posed to him by a police officer and Justice Breyersaw no compelling reason to “reject this generation-old state-ment of the law.”

FIFTH AMENDMENTIn a 5-4 decision, the Court, in Yarborough v. Alvarado,17

decided that consideration of age and inexperience when deter-mining whether an individual is in custody for the purposes ofMiranda is inappropriate because the test is objective and thesefactors introduce a subjective element. Respondent, a 17-year-old, agreed to help his friend steal a car in a parking mall. Hisfriend pulled a gun and shot and killed Francisco Castaneda,who refused to relinquish possession of his vehicle.Respondent was taken to the police station by his parents foran “interview” and questioned for two hours outside their pres-ence. He was not given warnings pursuant to Miranda v.Arizona18 and eventually told the entire story to the officer,including his role in the botched car-jacking. Several monthslater, respondent was charged with first-degree murder andmoved to suppress his statements made during the interview,claiming he was in custody for the purposes of Miranda and,therefore, entitled to warnings.

The case was before the Court on a petition for a writ ofhabeas corpus pursuant to 28 U.S.C. section 2254; therefore,the Court first recognized that it could reverse only if the lowercourt applied “clearly established law” in an objectively unrea-sonable manner. The Court concluded that the lower court’sdetermination under clearly established law that respondentwas not in custody for Miranda purposes was not objectivelyunreasonable. In Thompson v. Keohane,19 the Court had articu-lated a two-step analysis to determine whether an individualwas in custody for the purposes of Miranda: “first, what were

the circumstances surround-ing the interrogation; and,second, given those circum-stances, would a reasonableperson have felt he or she wasnot at liberty to terminate theinterrogation and leave.” TheCourt concluded that in thecircumstances of the presentcase, respondent was not incustody: respondent was notput under arrest; respondent’s parents, rather than the police,had brought him to the station; the parents remained at the sta-tion; and respondent was asked at least twice if he wanted totake a break. The Court also concluded, in the first instance,that respondent’s age and inexperience were not factors thatshould be considered in its analysis. It said, “There is animportant conceptual difference between the Miranda custodytest and the line of cases from other contexts considering ageand experience”: “the Miranda custody inquiry is an objectivetest,” the others are not. The Court did not wish to change thenature of this test because the objective standard is “designedto give clear guidance to the police, while consideration of asuspect’s individual characteristics—including his age—couldbe viewed as creating a subjective inquiry.”

Justice Breyer, dissenting, believed it was clear that respon-dent was in custody: a reasonable person in respondent’s cir-cumstances would not believe he was free to leave.Furthermore, Justice Breyer argueds that respondent’s youthdid add to his interpretation of the situation and should be con-sidered: “[A] 17-year-old is more likely than, say, a 35-year-old,to take a police officer’s assertion of authority to keep parentsoutside the room and as an assertion of authority to keep theirchild inside as well.” Justice Breyer viewed the respondent’sage and inexperience as objective circumstances, which wereknown to the police.

In Missouri v. Seibert,20 the Court determined that warnedstatements obtained directly after an interrogation in whichMiranda warnings were not given were not admissible.Respondent’s son, Jonathon, who had cerebral palsy, died in hissleep and respondent was afraid she would be charged withneglect because he had bed sores. In the presence of respon-dent, respondent’s other sons devised a plan to incinerateJonathon’s body by burning down their mobile home, thusdestroying any evidence that might have been used to proveneglect. They decided to leave Donald Rector, a mentally illteenager living with the family, in the home when they startedthe fire so it would not appear that Jonathon had been left unat-tended. Donald died in the fire. Police officers questionedrespondent for about 30 to 40 minutes without issuing herMiranda warnings. After the police elicited inculpatory state-ments, they gave respondent her Miranda warnings and ques-tioned her again, receiving the same inculpatory responses.This interrogation technique is taught at numerous policeacademies nationwide and is referred to as “question-first.”


17. 124 S.Ct. 2140 (2004).18. 384 U.S. 436 (1966).

19. 516 U.S. 99 (1995).20. 124 S.Ct. 2601 (2004).

The Court also concluded . . . thatrespondent’s ageand inexperience . . . should not beconsidered in its

analysis.

Under this technique, officersinterrogate a person in succes-sive unwarned and warnedphases, only providingMiranda warnings after theofficers have elicited inculpa-tory statements.

Justice Souter, writing for aplurality that included JusticesStevens, Ginsburg, and Breyer,determined that exclusion ofboth the warned andunwarned statements was nec-essary under the Fifth

Amendment. The plurality recognized that “[j]ust as ‘no talis-manic incantation [is] required to satisfy [Miranda’s] stric-tures,’ . . . it would be absurd to think that mere recitation ofthe litany suffices to satisfy Miranda in every conceivable cir-cumstance.” It concluded that “unless the warnings couldplace a suspect who has just been interrogated in a position tomake such an informed choice, there is no practical justifica-tion for accepting the formal warnings as compliant withMiranda, or for treating the second stage of the interrogation asdistinct from the first, unwarned and inadmissible segment.”

Justice Breyer concurred, but believed the Court shouldapply the “simple rule” and “exclude ‘fruits’ of the initialunwarned questions unless the failure to warn was in goodfaith.” Justice Kennedy also concurred, concluding “[t]heinterrogation technique used in this case is designed to cir-cumvent Miranda.” However, he concluded that when the fail-ure to warn is not “deliberate” and when “curative measures”are taken, the second statements should be admissible. JusticeO’Connor dissented on grounds that the Court specificallyrejected the subjective-based tests it applied in this case inOregon v. Elstad.21 In her view, since respondent’s statementswere voluntary, they were admissible.

The Court decided in United States v. Patane22 that Mirandav. Arizona23 did not require the suppression of physical evi-dence obtained in connection with unwarned but voluntarystatements. In this case, two officers went to respondent’shome to arrest respondent for violation of a restraining order.One officer began to give respondent Miranda warnings butwas stopped by respondent before he finished. Without com-pleting the warnings, the officer, who had been tipped thatrespondent illegally possessed a firearm, then questionedrespondent about the firearm. Respondent eventually con-fessed to having the firearm and permitted the officer toretrieve it from the apartment. Respondent sought to excludethe firearm from evidence.

A three-justice plurality, in an opinion written by JusticeThomas, determined that the fruit of the poisonous tree doc-trine did not apply in these circumstances. Fifth Amendmentprophylactic rules, like Miranda, sweep beyond the Self-Incrimination Clause and, therefore, “any further extension of

these rules must be justified by its necessity for the protectionof the actual right against compelled self-incrimination.”According to the plurality, “the Miranda rule ‘does not requirethat the statements [taken without complying with the rule]and their fruits be discarded as inherently tainted.’” The plu-rality made clear that “a mere failure to give Miranda warningsdoes not, by itself, violate a suspect’s constitutional rights oreven the Miranda rule.” Instead, the “nature of the right pro-tected” is a “fundamental trial right.” This right only relates tothe exclusion of testimonial evidence. Therefore, the pluralityconcluded that it follows then that “police do not violate a sus-pect’s constitutional rights (or the Miranda rule) by negligentor even deliberate failures to provide the suspect with the fullpanoply of warning prescribed by Miranda.” The violationoccurs “only upon the admission of unwarned statements intoevidence at trial.”

Justice Kennedy, joined by Justice O’Connor, concurred. Hefound it “unnecessary to decide whether the detective’s failureto give respondent the full Miranda warning should be charac-terized as a violation of the Miranda rule itself, or whether thereis ‘anything to deter’ so long as the unwarned statements arenot later introduced at trial.” Instead, he relied on Oregon v.Elstad,24 in which the Court held that evidence obtained fol-lowing an unwarned interrogation was admissible. JusticeSouter dissented, stating that the Court’s conclusion that “theFifth Amendment does not address the admissibility of nontes-timonial evidence [is an] overstatement that is beside thepoint.” The issue was whether the application of the fruit ofthe poisonous tree doctrine should be applied “lest we create anincentive for the police to omit Miranda warnings . . . beforecustodial interrogation.”

SIXTH AMENDMENTIn Crawford v. Washington,25 the Court held the only indica-

tor of reliability that satisfies the Sixth Amendment’sConfrontation Clause is confrontation, meaning an out-of-court statement by a witness is only admissible if (1) the wit-ness is unavailable and (2) the accused had a prior opportunityto cross-examine the witness. Justice Scalia wrote for a seven-person majority; Chief Justice Rehnquist, joined by JusticeO’Connor, filed a concurring opinion. Petitioner was arrestedfor assault and attempted murder and the State sought to intro-duce at trial his wife’s tape-recorded statements previouslymade to police during an interrogation. The state could nototherwise have her testify because of the state marital privilege,“which generally bars a spouse from testifying without theother spouse’s consent.” The privilege does not apply, however,to a spouse’s out-of-court statements admissible under ahearsay exception. To argue the tape-recorded statements wereadmissible, Washington relied on Ohio v. Roberts,26 which heldthat the constitutional right to confront witnesses “does not baradmission of an unavailable witness’s statements against a crim-inal defendant if the statement bears ‘adequate indicia of relia-bility.’” To meet this requirement, the evidence must either


21. 470 U.S. 298 (1985).22. 124 S.Ct. 2620 (2004).23. 384 U.S. 436 (1966).

24. 470 U.S. 298 (1985).25. 124 S.Ct. 1354 (2004).26. 448 U.S. 56 (1980).

In Crawford v.Washington, theCourt held the

only indicator ofreliability that

satisfies the . . .Confrontation

Clause is confrontation . . . .

“[1] fall within a ‘firmly rooted hearsay exception’ or [2] bear‘particularized guarantees of trustworthiness.’”

The Sixth Amendment requires that “‘in all criminal prose-cutions, the accused shall enjoy the right . . . to be confrontedwith the witness against him.’” The Court previously deter-mined in Roberts that this “bedrock procedural guarantee” wassafeguarded even if it allowed into evidence a witness’s out-of-court statements “so long as it has adequate indicia of reliabil-ity—i.e., falls within a ‘firmly rooted hearsay exception’ or bears‘particularized guarantees of trustworthiness.’” In this case,however, the Court determined that Roberts was wronglydecided. To reach its conclusion, the Court turned to the his-tory of the Sixth Amendment and concluded that it “supportstwo inferences about the meaning of the Sixth Amendment:” (1)“the principal evil at which the Confrontation Clause wasdirected was the civil-law mode of criminal procedure, and par-ticularly its use of ex parte examinations as evidence against theaccused;” and (2) “that the Framers would not have allowedadmission of testimonial statements of a witness who did notappear at trial unless he was unavailable to testify, and thedefendant had had a prior opportunity for cross-examination.”The Court identified a “core class of ‘testimonial statements,’”and concluded “interrogations by law enforcement officers fallsquarely within that class” of testimonial hearsay with whichthe Sixth Amendment is concerned. The Court also concludedthat the “text of the Sixth Amendment does not suggest anyopen-ended exceptions from the confrontation requirement tobe developed by the courts.” The only exceptions to theaccused’s right to confront those witnesses against him are thosethat existed at the “time of the founding.” As history illustrates,the admission of prior “examinations” is conditioned on“unavailability and a prior opportunity to cross-examine.”

Chief Justice Rehnquist wrote a concurring opinion, inwhich he “dissent[ed] from the Court’s decision to overrule[Roberts].” He believed the Court’s distinction between testi-monial and nontestimonial statements “is no better rooted inhistory than our current doctrine.” His own analysis of the his-tory of the Sixth Amendment revealed that there existed a lessconcrete common-law rule regarding confrontation. He arguedthat “[e]xceptions to confrontation have always been derivedfrom the experience that some out-of-court statements are justas reliable as cross-examined in-court testimony due to the cir-cumstances under which they were made.” He would, how-ever, reverse the judgment based on existing law.

In Blakely v. Washington,27 a 5-4 Court determined that acourt cannot impose an “exceptional” sentence that exceedsthe “ordinary” maximum sentence, but not the statutory max-imum, based upon a judicial determination of aggravating fac-tors. Petitioner reached a plea agreement with respect tocharges for second-degree kidnapping, involving domestic vio-lence and use of a firearm. During sentencing, the judge, pur-suant to Washington law, imposed a sentence of 90 months,which was above the “standard range” of 59 to 53 months,upon finding “‘substantial and compelling reasons justifying anexceptional sentence.” The sentence, however, still fell within

the statutory maximum of tenyears. The findings uponwhich the judge relied to sup-port the “exceptional sen-tence” were not those used tosupport the underlying sen-tence.

Justice Scalia, writing forthe Court, determined thatthe imposition of theenhanced sentence violatedpetitioner’s Sixth Amendmentright to a trial by jury as setforth in Apprendi v. NewJersey.28 Apprendi states that“[o]ther than the fact of aprior conviction, any fact thatincreases the penalty for a crime beyond the prescribed statu-tory maximum must be submitted to a jury, and proved beyonda reasonable doubt.’” In Ring v. Arizona,29 the Court extendedApprendi to capital sentencing. As in Apprendi, the Court con-cluded that “the defendant’s constitutional rights had been vio-lated because the judge had imposed a sentence greater thanthe maximum he could have imposed under state law withoutthe challenged factual finding.” In Blakely, the Court extendedApprendi to circumstances where a judge has found aggravatingfactors and imposed a sentence above the “standard range,”even though it still falls within statutory maximum. Inresponse to the dissents, the Court said why it followedApprendi: “Our commitment to Apprendi in this context reflectsnot just respect for longstanding precedent, but the need togive intelligible content to the right of jury trial.” Under theconstitution, “a jury trial is meant to ensure [the people’s] con-trol of the judiciary.” The Court’s rule in Apprendi “carries outthis design by ensuring that the judge’s authority to sentencederives wholly from the jury’s verdict.”

Justice O’Connor dissented, focusing most of her opinion onthe perceived ill-effects of the decision. She concluded: “WhatI have feared most has now come to pass: Over 20 years of sen-tencing reform are all but lost, and tens of thousands of crimi-nal judgments are in jeopardy.” Justice Kennedy agreed, butwrote to add one more criticism: “The Court . . . disregards thefundamental principle under our constitutional system that dif-ferent branches of government ‘converse with each other onmatters of vital common interest.’” Sentencing guidelines areone example where case-by-case judicial determinations havebeen “refined by legislature and codified into statutes or rulesas general standards.” Because of the Court’s decision,“[n]umerous States that have enacted sentencing guidelinessimilar to the one in Washington State are now commanded toscrap everything and start over.” Justice Breyer, also dissenting,categorized Apprendi as an “impulse,” easily understood as theCourt’s attempt to control widely disparate sentences. Hewrote that the purpose of the Sixth Amendment’s right to a jurytrial is for “fairness and effectiveness of a sentencing system.”


27. 124 S.Ct. 2531 (2004).28. 530 U.S. 466 (2000).

29. 536 U.S. 584 (2002).

In Blakely v.Washington, a 5-4Court determined

that a court cannot impose

an “exceptionalsentence” . . .based upon

a judicial determination of

aggravating factors.


In his view, however, theCourt’s Blakely decision “pre-vents the legislature fromseeking sentencing systemsthat are consistent with, andindeed may help to advance,the Constitution’s greater fair-ness goals.”

In Fellers v. United States,30

Justice O’Connor, writing for aunanimous Court, held thatstatements “deliberately

elicited” by police officers after an individual has been indictedby a grand jury violate his Sixth Amendment right to counsel;therefore, any fruits analysis must be conducted under theSixth Amendment as opposed to the Fifth Amendment. Fellerswas indicted by a grand jury. When police officers went toFellers’s home to arrest him, they questioned him prior toadvising him of his rights under Miranda v. Arizona31 andPatterson v. Illinois,32 the latter having extended Miranda to theSixth Amendment right to counsel. Petitioner made inculpa-tory statements, which were repeated later at the jailhouse afterhe received the proper warnings. He sought to exclude all thestatements from evidence.

The Court began its opinion by stating that Fellers’s SixthAmendment right to counsel was triggered when the grand juryissued the indictment. Under the Sixth Amendment, to deter-mine whether the right to counsel has been violated, the Court“consistently applie[s] the deliberate-elicitation standard.” Inthis case, it concluded that the statements taken from Fellers athis home were “deliberately elicited” and, therefore, obtainedin violation of his Sixth Amendment rights. Furthermore, as tothe jailhouse statements, the Court concluded that a fruitsanalysis should not be conducted under the Fifth Amendment.In Oregon v. Elstad,33 the Court determined that “‘[t]houghMiranda requires that the unwarned admission must be sup-pressed, the admissibility of any subsequent statement shouldturn in these circumstances solely on whether it is knowinglyand voluntarily made.’” However, the Court has not yet deter-mined “whether the rationale of Elstad applies when a suspectmakes incriminating statements after a knowing and voluntarywaiver of his right to counsel notwithstanding earlier policequestioning in violation of Sixth Amendment standards.”Therefore, it remanded the case to allow the lower courts “toaddress this issue in the first instance.”

Justice Ginsburg delivered the opinion for a unanimousCourt in Iowa v. Tovar,34 which held that the Sixth Amendmentdoes not require a trial court to admonish the defendant, beforeaccepting a guilty plea, that by waiving counsel (1) defendantwill not obtain an independent opinion whether it is wise toplead guilty and (2) defendant risks overlooking a viabledefense; the Sixth Amendment only requires that waiver ofcounsel be knowing and intelligent and during pretrial pro-ceedings the warnings required to meet that standard are less

rigorous than if an accused is waiving his right to trial counsel.Tovar was arrested numerous times for operating a motor vehi-cle while under the influence of alcohol. Under Iowa law, hislast and third offense was a “class ‘D’ felon[y].” Tovar arguedhis first OWI “could not be used to enhance the December2000 OWI charge from the second-offense aggravated misde-meanor to a third-offense felony” because “his 1996 waiver ofcounsel was invalid—not ‘full knowing, intelligent, and volun-tary’—because he was ‘never made aware by the court . . . of thedangers and disadvantages of self-representation.’” The trialcourt conducted a “guilty plea colloquy” as required by Iowacriminal procedure. The Iowa Supreme Court, however, deter-mined that the following elements were also necessary to sat-isfy the Sixth Amendment: (1) “‘that there are defenses to crim-inal charges that may not be known by laypersons and that thedanger in waiving the assistance of counsel in deciding whetherto plead guilty is the risk that a viable defense will be over-looked;’” (2) that the defendant “‘will lose the opportunity toobtain an independent opinion on whether, under the facts andapplicable law, it is wise to plead guilty;’” and (3) “‘the defen-dant understands the nature of the charges against him and therange of allowable punishments.’” While the trial court cov-ered the last point, it did not warn Tovar about the first two.

The Court determined that the specific warnings set forth bythe Iowa Supreme Court were not necessary. While a plea hear-ing qualifies as a “critical stage” in the criminal process, trig-gering the Sixth Amendment, the Court has not previously“prescribed any formula or script to be read to a defendant whostates that he elects to proceed without counsel.” Instead, itonly requires that waiver of counsel be intelligent, i.e., the“‘choice is made with eyes open.’” Therefore, while a trialcourt’s warning for waiver of trial counsel “must be‘rigorous[ly]’ conveyed,” “at the earlier stages of the criminalprocess, a less searching or formal colloquy may suffice.” TheCourt concluded that in this case, “Iowa’s plea colloquy sufficesboth to advise a defendant of his right to counsel, and to assurethat his guilty plea is informed and voluntary.” The Court alsodetermined that in order to decide this case, it need not“endorse the State’s position that nothing more than the pleacolloquy was needed to safeguard Tovar’s right to counsel.”The question is narrower: “‘Does the Sixth Amendment requirea court to give a rigid and detailed admonishment to a pro sedefendant pleading guilty of the usefulness of an attorney, thatan attorney may provide an independent opinion whether it iswise to plead guilty and that without an attorney the defendantrisks overlooking a defense?’” The Court answered the ques-tion in the negative and concluded that these two specificadmonishments were not required by the Sixth Amendment.

CRIMINAL STATUTORY INTERPRETATIONJustice Souter delivered the eight-justice majority opinion in

United States v. Dominguez Benitez,35 which held that “a defen-dant who seeks reversal of his conviction after a guilty plea, onthe ground that the district court committed plain error under

30. 124 S.Ct. 1019 (2004).31. 384 U.S. 436 (1966).32. 487 U.S. 285 (1988).

33. 470 U.S. 298 (1985).34. 124 S.Ct. 1379 (2004).35. 124 S.Ct. 2333 (2004).

The Court determined that

the specific warnings set

forth by the IowaSupreme Court

were not necessary.

36. 535 U.S. 55 (2002).37. 124 S.Ct. 1941 (2004).

38. 124 S.Ct. 786 (2003).

Rule 11, must show a reasonable probability that, but for theerror, he would not have entered the plea.” After lengthy nego-tiations, respondent entered into a plea agreement regardingcharges of possession and conspiracy to possess methamphet-amine. As part of the plea, it was also agreed that the govern-ment would stipulate that respondent “would receive what isknown as a safety-valve reduction of two levels.” Whenaccepting the plea, the District Court gave most of the warn-ings under Rule 11, but “failed to mention that [respondent]could not withdraw his plea if the court did not accept theGovernment’s recommendations.” However, this admonitionwas set forth in the written plea agreement. It was later dis-covered that respondent was not eligible for the safety valveand was sentenced to the mandatory minimum. Respondentappealed, claiming “that the District Court’s failure to warnhim, as Rule 11(c)(3)(B) instructs, that he could not withdrawhis guilty plea if the court did not accept the Government’s rec-ommendations, required reversal.” The Court disagreed.Although Rule 11 requires a court to instruct a defendant thathe may not withdraw his guilty plea if the court does notexcept the government’s recommendation, it also instructs that“not every violation of its terms call for reversal of convictionby entitling the defendant to withdraw his guilty plea.” TheCourt, in United States v. Vonn,36 “considered the standard thatapplies when a defendant is dilatory in raising Rule 11 error,and held that reversal is not in order unless the error is plain.”The Court did not, however, “formulate the standard for deter-mining whether a defendant has shown, as the plain-errorstandard requires . . . an effect on his substantial rights.” Inthis case, the Court concluded that a prejudicial standardapplies, relying on three reasons: (1) “the standard shouldenforce the policies that underpin Rule 52(b) generally, toencourage timely objections and reduce wasteful reversals bydemanding strenuous exertion to get relief for unpreservederror;” (2) the standard “should respect the particular impor-tance of the finality of guilty pleas;” and (3) at least in thiscase, “the reasons are contemplated by the fact, worth repeat-ing, that the violation claimed was of Rule 11, not dueprocess.”

Justice Scalia concurred in the judgment, but wrote sepa-rately because he disagrees that “respondent need not showprejudice by a preponderance of the evidence.” He writes,“this Court has adopted no fewer than four assertedly differentstandards of probability relating to the assessment of whetherthe outcome of trial would have been different if error had notoccurred, or if omitted evidence had been included.” JusticeScalia believed the only “serviceable standards are the tradi-tional ‘beyond a reasonable doubt’ and ‘more likely than not.’”

In Sabri v. United States,37 Justice Souter delivered the opin-ion of the Court, which held that Congress had the power toenact a federal bribery law, which provides criminal penaltiesfor anyone who attempts to bribe or bribes a state or local offi-cial of an entity receiving federal funding, under the Necessaryand Proper Clause of Article I of the Constitution. JusticeSouter was joined in full by six justices, with Justices Scalia

and Kennedy concurring inthe judgment and in part.Justice Thomas concurred inthe judgment. 18 U.S.C. sec-tion 666(a)(2) imposes federalcriminal penalties for anyonewho bribes an individual ifthat individual is part of anorganization, government, oragency that receives, in anyone-year period, benefits in excess of $10,000 from the federalgovernment. Petitioner was convicted for offering three sepa-rate bribes to a city councilman, Brian Herron, who also servedas a member on the Board of Commissioners for theMinneapolis Community Development Agency, in connectionwith a real estate development project. Petitioner challengedhis indictment on the grounds “that [section] 666(a)(2) isunconstitutional on its face for failure to require proof of aconnection between the federal funds and the alleged bribe, asan element of liability.”

The Court concluded that Article I power does not requireproof of a connection between federal money as an element ofthe offense. Under Article I, Congress has the power under theSpending Clause to “appropriate federal monies to promotethe general welfare.” Under its corresponding authority in theNecessary and Proper Clause, Congress has the power “to seeto it that taxpayer dollars appropriated under that power are infact spent for the general welfare, and not frittered away ingraft or on projects undermined when funds are siphoned offor corrupt public officers are derelict about demanding valuefor dollars.” According to the Court, section 666(a)(2)“addresses these problems at the sources of bribes, by rationalmeans, to safeguard the integrity of the state, local, and tribalrecipients of federal dollars.” The Court recognized that notevery bribe covered by section 666(a)(2) will be traceable fromfederal funds or constitute a quid pro quo for some derelictionin spending of a federal grant. However, “this possibility por-tends no enforcement beyond the scope of federal interest, forthe reason that corruption does not have to be that limited toaffect the federal interest.”

FEDERAL HABEAS CORPUSJustice Breyer, joined by seven other justices, delivered the

opinion of the Court in Castro v. United States,38 resolving asplit among the circuits. It held that a court cannot recharac-terize a pro se litigant’s motion as the litigant’s first motionunder 28 U.S.C. section 2255 unless the court: (1) informs thelitigant of its intent to recharacterize the motion; (2) warns thelitigant that the recharacterization will subject subsequent sec-tion 2255 motions to the law’s “second or successive” restric-tions; and (3) provides a litigant with the opportunity to with-draw or amend the filing. In 1994, petitioner filed a motionwith the district court, which he classified as a Rule 33 motion.In its decision, the district court referred to the motion as botha Rule 33 and a section 2255 motion. The Eleventh Circuit


The Court recognized that

not every bribe . . . will be

traceable fromfederal funds . . . .

39. 124 S.Ct. 2441 (2004).40. 455 U.S. 509 (1982).

41. 124 S.Ct. 1256 (2004).42. 373 U.S. 83 (1967).

affirmed the district court’sdismissal of the motion. In1997, petitioner filed a section2255 motion and the govern-ment sought to have it dis-missed on the ground thatpetitioner had failed to com-ply with section 2255’s restric-tive “second or successive”conditions. The Court deter-mined that the 1997 motionwas not a “second or succes-

sive” motion because the 1994 was not properly reclassified asa second 2255 motion. The Court recognized that courts maysometimes recharacterize pro se motions, but when a courtdecides to recharacterize a motion as a section 2255 motion,because of section 2255’s restrictions, it must give the warn-ings set forth above. The Court noted that even the govern-ment suggested that the Court has the power to create such arule based on the following grounds: (1) under the FederalRules of Appellate Procedure 47, (2) under its authority to“regulate the practice through ‘the exercise’ of our ‘supervisorypowers’ over the federal judiciary,” and (3) because it “is likelyto reduce and simplify litigation over questions of characteri-zation, which are often quite difficult.”

Justice Scalia wrote separately, concurring in the judgmentand in only the first two parts of the majority’s opinion. Hedisagreed with “the Court’s laissez-faire attitude toward rechar-acterization.” He believed the Court had erred by promulgat-ing a new rule without placing limitations on when recharac-terization can occur, including the fact that the Court hasfailed to provide a pro se litigant the opportunity “to insist thatthe district court rule on his motion as filed.” He argued thatwhen, as here, there is nothing to be gained by recharacteriza-tion, a district court should not be allowed to recharacterize amotion. In this case, Castro’s Rule 33 motion was “valid as aprocedural manner, and the claim it raised was no weaker onthe merits when presented under Rule 33 than when presentedunder [section] 2255.” Therefore, the recharacterization wasimproper.

In Pliler v. Ford,39 Justice Thomas delivered the opinion ofthe Court, which held that a district court is not required toissue the following warnings to a pro se habeas petitioner: (1)the court can stay the petitioner’s motion only if he chooses todismiss the unexhausted claims from a mixed petition and (2)that the one-year statute of limitations under the Antiterrorismand Effective Death Penalty Act (AEDPA) will bar refiling ofthe petition if he dismissed the action to exhaust the non-exhausted claims. Respondent filed two pro se federal peti-tions for habeas corpus five days before the statute of limita-tions ran under the AEDPA. Some of the claims in each of thepetitions had not been exhausted in state court. The districtcourt gave petitioner three options: (1) the petitions could bedismissed without prejudice and respondent could refile afterexhausting the unexhausted claims; (2) the unexhausted

claims could be dismissed and respondent could proceed withonly the exhausted claims; or (3) respondent could contest themagistrate judge’s finding that some of the claims had not beenexhausted. Respondent chose to exhaust his nonexhaustedclaims. When he sought to refile after exhausting his non-exhausted claims, his petitions were dismissed because theone-year statute of limitations had run.

Under Rose v. Lundy,40 “federal district courts must dismissmixed habeas petitions.” To avoid statute of limitations prob-lems, the Ninth Circuit had adopted the “stay-and-abeyance”procedure, which involves three steps: (1) “the dismissal ofany unexhausted claims from the original mixed petition,” (2)“a stay of the remaining claims, pending exhaustion of the dis-missed unexhausted claims in state court,” and (3) “amend-ment of the original petition to add the newly exhausted claimsthat then relate back to the original petition.” In this case, theNinth Circuit concluded that the district court was required toadvise respondent that it could only consider petitioner’s staymotions if petitioner dismissed the nonexhausted claims andthen “renewed the prematurely filed stay motions.” It alsoconcluded that the district court committed prejudicial errorby failing to inform respondent that the one-year statute oflimitations had run. The Court, without addressing the NinthCircuit’s stay-and-abeyance procedures, determined that a dis-trict court is not required to give the warnings set forth by theNinth Circuit. Rose only requires that the district court dis-miss mixed petitions, which results, of course, in the prisonerbeing obligated to follow one of the two paths. However, noth-ing in Rose obligates that these “options be equally attractive,much less suggests that district court give specific advisementsas to the availability and wisdom of these options.”

Justice Ginsburg delivered the opinion of the Court inBanks v. Dretke,41 which held that discovery and an evidentiaryhearing is authorized in a federal habeas corpus proceedingwhen the state has concealed exculpatory or impeaching evi-dence and the petitioner has met the requirement of Brady v.Maryland.42 Furthermore, the Court concluded, in a pre-AEDPA habeas proceeding, Rule 15 of the Federal Rules ofCivil Procedure applies and the state may waive by its actionsprocedural default and exhaustion remedies. Petitioner wasconvicted of first-degree murder. The prosecution used thetestimony of a paid police informant, Robert Farr, in both itscase-in-chief and in the penalty phase of the trial, without dis-closing the fact that Farr was a paid police informant, althoughthat information was requested and the state indicated that itwould disclose all necessary information. The prosecutionalso used the testimony of another witness, Charles Cook, inits case-in-chief, who stated many times on cross-examinationthat he had not “talked to anyone about his testimony.” Thiswas a misrepresentation that was not corrected by the prose-cution. In 1996, Banks filed a petition for a writ of habeas cor-pus, asserting: (1) “that the State had withheld material excul-patory evidence ‘revealing Robert Farr as a police informantand Mr. Banks’ arrest as a set-up” (“Farr Brady claim”); and (2)“that the State had concealed ‘Cook’s enormous incentive to


The prosecutionused the testimony

of a paid policeinformant . . .

without disclosingthe fact that [he]was a paid policeinformant . . . .

43. 527 U.S. 263 (1999). 44. 124 S.Ct. 1347 (2004).

testify in a manner favorable to the [prosecution]’” (“CookBrady claim”). In June 1998, “Banks moved for discovery andan evidentiary hearing to gain information from the State onthe roles played and trial testimony provided by Farr andCook.” The magistrate judge allowed limited discovery forCook, but denied it as to Farr, stating Banks had not providedsufficient justification. In 1999, Banks renewed his request fordiscovery and an evidentiary hearing, “[t]his time, . . . [prof-fering] affidavits from both Farr and Cook to back up hisclaims that, as to each of these two key witnesses, the prose-cution had wrongly withheld crucial exculpatory andimpeaching evidence.” The magistrate judge then ordered dis-covery and, for the first time, two things were disclosed: (1)Cook had been extensively coached prior to his testimony atBanks’s trial and (2) “that Farr was an informant and that hehad been paid $200 for his involvement in the case.”

In the first part of its opinion, the Court addressed Banks’sFarr Brady claim. The Court determined that Banks hadexhausted his state remedies because his state-court applica-tion alleged “the prosecution knowingly failed to turn overexculpatory evidence involving Farr in violation of Banks’s dueprocess rights.” However, because Banks failed to produce anyevidence to support his claim, he must “show cause for his fail-ure to develop the facts in state-court proceedings and actualprejudice resulting from that failure.” In Strickler v. Greene,43

the Court set forth the three essential elements to establish aBrady prosecutorial misconduct claim: (1) the evidence atissue must be favorable to the accused, either because it isexculpatory or is impeaching, (2) the “evidence must havebeen suppressed by the State, either willfully or inadvertently,”and (3) “prejudice must have ensued.” The Court said that“‘[c]ause and prejudice’ in this case ‘parallels two of the threecomponents of the alleged Brady violation itself.’” It also con-cluded that Banks satisfies the three requirements. First, thesuppressed evidence “qualifies as evidence advantageous toBanks.” As to “cause,” the Court determined that “Banks’s fail-ure to develop the facts in state-court proceedings is informedby Strickler.” In Strickler, as in this case, the prosecutor toldthe defense it would open the state files and there was no needfor a formal Brady motion. However, the file was missing sev-eral important documents. In Strickler, the Court determinedthat the “petitioner has shown cause for his failure to raise aBrady claim in state court,” relying on three factors: (1) “‘theprosecution withheld exculpatory evidence;’” (2) petitionerreasonably relied on the prosecution’s “open-file” policy; and(3) “‘the [State] confirmed petitioner’s reliance on the open-filepolicy by asserting during state habeas proceedings that peti-tioner had already received everything known to the govern-ment.’” The Court concluded that this case was “congruentwith Strickler in all three respects.”

In the second part of the opinion, the Court addressedBanks’s Cook Brady claim. The Fifth Circuit determined thatBanks had failed to develop the facts underpinning the claimin his 1992 state petition, making the evidentiary hearingordered by the magistrate judge unwarranted. It denied thecertificate of appealability “apparently” because it regarded

Rule 15(b) as inapplicable in afederal habeas proceeding. Rule15 states in part that “whenissues not raised by the plead-ings are tried by express orimplied consent of the parties,they shall be treated in allrespects as if they had beenraised in the pleadings.” TheCourt states that “[w]e havetwice before referenced Rule15(b)’s application in federalhabeas proceedings,” and have concluded that it applies. Inthis case, there is no “reason why an evidentiary hearingshould not qualify [for Rule 15(b) purposes] so long as therespondent gave ‘any sort of consent’ and has a full and fair‘opportunity to present evidence bearing on the claim’s resolu-tion.’” The Court did not believe, as the Fifth Circuit cau-tioned, that such a rule would “undermine the State’s exhaus-tion and procedural default defenses.” Pre-AEDPA, “there wasno inconsistency between Rule 15(b) and those defenses”because “exhaustion and procedural default defenses could bewaived based on the State’s litigation conduct.” Because Bankscould have “‘demonstrate[d] that jurists of reason could dis-agree with the district court’s resolution of his constitutionalclaims or that jurists could conclude the issues presented areadequate to deserve encouragement to proceed further,’” theCourt concluded a certificate of appealability should haveissued.

In an 8-1 decision, the Court, in Baldwin v. Reese,44 held thata state prisoner does not satisfy the “fair presentation” require-ment of 28 U.S.C. section 2254 when a state court must readbeyond the petition, brief, or other papers to be alerted to thefederal nature of the claims. Respondent’s petition for reviewin the Oregon Supreme Court did not allege “his separateappellate ‘ineffective assistance’ claim violated federal law.”After review was denied, respondent brought a petition for awrit of habeas corpus in federal court, raising the claim. Thedistrict court dismissed the claim because respondent hadfailed to “fairly present” it in highest state court. A dividedpanel of the Ninth Circuit reversed and found that Reese hadfairly presented the claim because the Oregon Supreme Court“had ‘the opportunity to read . . . the lower court decisionclaimed to be in error before deciding whether to grant discre-tionary review.’” Justice Breyer, writing for the majority,reversed. The Court held that “to say that a petitioner ‘fairlypresents’ a federal claim only by reading lower court opinionsin the case is to say that those judges must read the lower courtopinions—for otherwise they would forfeit the State’s oppor-tunity to decide that federal claim in the first instance.”Federal habeas law does not impose such a requirement. TheCourt also concluded that the federal claim was not “fairly pre-sented” because the state and federal claims were virtuallyidentical.

Justice Stevens, dissenting, said “[i]t is appropriate to disre-gard this Court’s Rule 15.2 and permit respondents to defend a


[T]he prosecutortold the defense

it would open thestate files . . . .

However, the filewas missing

several importantdocuments.

45. 124 S.Ct. 1847 (2004).46. 477 U.S. 478 (1986).47. 505 U.S. 333 (1992).48. 124 S.Ct. 2562 (2004).

49. 492 U.S. 302 (1989) (Penry I).50. 124 S.Ct. 2504 (2004).51. 486 U.S. 367 (1988).

judgment on grounds notraised in the brief in opposi-tion when the omitted issueis ‘predicate to an intelligentresolution of the questionpresented.’” In thisinstance, he would considerReese’s last argument and,since there is “no significantdifference between” thestate and federal claims,find that “the state courts

did have a fair opportunity to assess [Reese’s] federal claim.”In Dretke v. Haley,45 a 6-3 Court determined that when faced

with a claim of actual innocence, whether of a sentence or acrime charged, a court must first address all non-defaultedclaims for comparable relief and other grounds for cause toexcuse the procedural default. Respondent was convicted oftheft and under a habitual offender statute, even though he didnot meet the elements necessary for the habitual offenderstatute. Respondent did not, however, challenge his convic-tion based on actual innocence until his petition for habeasrelief in state court. The state court denied his claim becauseit was not raised on direct appeal, but on federal habeas review,the Fifth Circuit reversed, “holding narrowly that the actualinnocence exception ‘applies to noncapital sentencing proce-dures involving a career offender or habitual felony offender.’”

The Court has recognized “an equitable exception to the barwhen a habeas applicant can demonstrate cause and prejudicefor the procedural default.” Because the “cause and prejudice”standard is not a “perfect safeguard,” the Court, in Murray v.Carrier,46 recognized “a narrow exception to the cause require-ment where a constitutional violation has ‘probably resulted’ inthe conviction of one who is ‘actually innocent’ of the sub-stantive offense.” Sawyer v. Whitley47 extended this exceptionto capital sentencing errors. In the case before it, the Courtdeclined to extend this “narrow exception” to noncapital sen-tencing, stating “that a federal court faced with allegations ofactual innocence, whether of the sentence or of the crimecharged, must first address all nondefaulted claims for compa-rable relief and other grounds for cause to excuse proceduraldefault.” The Court finds that this avoidance principal was“implicit” in Carrier. In this case, Petitioner “has conceded. . . that respondent has a viable and ‘significant’ ineffectiveassistance of counsel claim.” Therefore, this claim should beaddressed first.

Justice Stevens dissented, finding that “[t]he unendingsearch for symmetry in the law can cause judges to forgetabout justice.” In his view, this was a simple case: “because theconstitutional error clearly and concededly resulted in theimposition of an unauthorized sentence, it also follows thatrespondent is a ‘victim of a miscarriage of justice.’” JusticeKennedy, in his own dissenting opinion, added that “[t]he case

also merits this further comment concerning the larger obliga-tion of state or federal officials when they know an individualhas been sentenced for a crime he did not commit.” Hebelieved the state should have taken steps to “vindicate” theseinterests in the first place and not attempt to keep Haley incar-cerated for a crime he did not commit.

In a 6-3 decision, written by Justice O’Connor, the Court, inTennard v. Dretke,48 held that the only question to be answeredin determining whether to issue a certificate of appealability iswhether a reasonable juror could find the determination of thedistrict court debatable or wrong; a petitioner need not make athreshold showing that he suffered from a “uniquely severepermanent handicap” or show a nexus between his impairedintellectual functioning and the crime committed to satisfyPenre I and obtain a certificate of appealability. Petitioner wasconvicted by a jury of capital murder in 1986. During thepenalty phase of the trial, defense introduced evidence ofTennard’s low IQ, which the prosecution argued was irrelevant.Tennard sought post-conviction relief, arguing that in light ofthe instructions given to the jury, his death sentence “had beenobtained in violation of the Eighth Amendment as interpretedby this Court in Penry I.” In Penry v. Lynaugh,49 the Court held,in invalidating the very same instructions that were given toTennard’s jury, that it was not enough to give mitigating evi-dence to the sentencer, “‘[t]he sentencer must also be able toconsider and give effect to that evidence in imposing sen-tence.’” The Court of Appeals for the Fifth Circuit concludedTennard was not entitled to a certificate of appealability for tworeasons: (1) “evidence of low IQ alone does not constitute auniquely severe condition,” and (2) “even if Tennard’s evi-dence was mental retardation evidence, his claim must failbecause he did not show that the crime he committed wasattributable to his low IQ.” In reversing and remanding, theCourt determined the Fifth Circuit “invoked its own restrictivegloss on Penry I”: “Neither Penry I nor its progeny screenedmitigating evidence for ‘constitutional relevance’ before con-sidering whether the jury instructions comported with theEighth Amendment.” The proper analysis of Tennard’s claimasks whether “Tennard [has] ‘demonstrate[d] that reasonablejurists would find the district court’s assessment of the consti-tutional claims debatable or wrong?’” The Court concludedthat reasonable jurists could conclude that low IQ was relevantmitigating evidence and that “the Texas Court of CriminalAppeals’ application of Penry to the facts of Tennard’s case wasunreasonable.” The Court concluded that “[i]mpaired intel-lectual functioning has mitigating dimensions beyond theimpact it has on the individual’s ability to act deliberately.”

HABEAS CORPUS – NEW RULESJustice Thomas delivered the opinion of a 5-4 Court in

Beard v. Banks.50 It held the Court’s decision in Mills v.Maryland,51 which forbids a state from imposing a requirementof unanimity before a mitigating factor can be considered in a


Justice Stevensdissented, finding

that “[t]he unendingsearch for

symmetry in thelaw can cause

judges to forgetabout justice.”

52. 489 U.S. 288 (1989).53. 438 U.S. 586 (1978).54. 124 S.Ct. 2519 (2004).55. 536 U.S. 584 (2002).

56. 530 U.S. 466 (2000).57. 489 U.S. 288 (1989).58. 392 U.S. 631 (1968) (per curiam).59. 391 U.S. 145 (1968).

sentencing decision, does not apply retroactively. Respondentwas convicted of murder and sentenced to death prior to theCourt’s decision in Mills. Under Teague v. Lane,52 to determinewhether a constitutional rule of criminal procedure applies toa case on collateral review, a court must: (1) “determine whenthe defendant’s conviction became final;” (2) “ascertain the‘legal landscape’ as it then existed,” and (3) “ask whether theConstitution, as interpreted by the precedent then existing,compels the rule.” As to the last step, the court essentiallymust determine whether the rule is “new.” If it is “new,” thecourt must consider “whether it falls within either of the twoexceptions to nonretroactivity.” Teague’s bar on retroactivitydoes not apply if: (1) it is a rule “forbidding punishment ‘ofcertain primary conduct [or . . . ] . . . prohibiting a certain cat-egory of punishment for a class of defendants because of theirstatus or offense,’” or (2) it is a “‘watershed rule of criminalprocedure implicating the fundamental fairness and accuracyof the criminal proceedings.’” The Court concluded that it wasclear that respondent’s conviction became final prior to itsdecision in Mills. It also concluded that the rule announced inMills was new, finding that existing precedent, i.e., Lockett v.Ohio,53 and its progeny, did not mandate the rule in Mills.Because the Court summarily concluded that the first non-retroactive exception in Teague did not apply, it only discussesthe second, stating that it has “repeatedly emphasized the lim-ited scope of the second Teague exception, explaining that ‘it isclearly meant to apply only to a small core of rules requiringsome observance of those procedures that . . . are implicit inthe concept of orderly liberty.’” The Court has yet to find a rulethat falls within this exception and found that the Mills rulenot to be the first one. While recognizing that Mills helpsavoid the “potentially arbitrary impositions of the death sen-tence,” “the fact that a new rule removes some remote possi-bility of arbitrary infliction of the death sentence does not suf-fice to bring it within Teague’s second exception.” Howeverlaudable, “‘it has none of the primacy and centrality” necessaryfor it to fall under the exception.

In Schriro v. Summerlin,54 a 5-4 Court, in an opinion writtenby Justice Scalia, determined that its decision in Ring v.Arizona,55 which requires a jury determine the existence ofaggravating factors used to impose a death sentence, was a pro-cedural rule, but not a “watershed rule of criminal procedure”that requires retroactive application. While respondent’s casewas pending on federal habeas review, the Court decidedApprendi v. New Jersey,56 which “interpreted the constitutionaldue-process and jury-trial guarantees to require that, ‘[o]ther

than the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximummust be submitted to a jury, and proved beyond a reasonabledoubt,’” and Ring, which applied Apprendi’s rule to a death sen-tence. Respondent challenged his death sentence by arguingthat the judge, not the jury, found the existence of aggravatingfactors. The Court determined that the rule announced in Ringwas procedural and, therefore, the rules regarding retroactiveapplication as expressed in Teague v. Lane apply.57 It does not,however, believe Ring announced a “watershed rule of criminalprocedure,” thereby falling into one of the exceptions forretroactive application. The purpose behind Ring was theCourt’s determination that it is the jury’s, and not the judge’s,role to decide whether aggravating factors exist. However,there is no unequivocal evidence to suggest that a judge is aless accurate factfinder than a jury, meaning that a determina-tion by a judge carries an “’impermissibly large risk’” of pun-ishing conduct the law does not reach. The Court turned to itsdecision in DeStefano v. Woods58 for support. In DeStefano, theCourt “refused to give retroactive effect to Duncan v.Louisiana,59 which applied the Sixth Amendment’s jury-trialguarantee to the States.” The Court here said that in decidingDeStefano, it had determined “that, although ‘the right to jurytrial generally tends to prevent arbitrariness and repression[,]. . . [w]e would not assert . . . that every criminal trial—or anyparticular trial—held before a judge alone is unfair or that adefendant may never be as fairly treated by a judge as he woulda jury.’”

Charles H. Whitebread (A.B., PrincetonUniversity, 1965; LL.B., Yale Law School,1968) is the George T. and Harriet E. PflegerProfessor of Law at the University of SouthernCalifornia Law School, where he has taughtsince 1981. Before that, he taught at theUniversity of Virginia School of Law from 1968to 1981. He is found on the web at

http://www.rcf.usc.edu/~cwhitebr/. Professor Whitebread grate-fully acknowledges the help of his research assistant, HeatherManolakas.


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