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TCL > February 2000 Issue > Colorado Jury Reform

The Colorado Lawyer
February 2000
Vol. 29, No. 2 [Page  21]

© 2000 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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Features

Colorado Jury Reform
by Rebecca Love Kourlis, John Leopold

Jury reform is in place. We now have one year of experience with the rule changes that became effective January 1, 1999,1 and more experience in those districts where judges adopted or piloted procedures that pre-dated or extended beyond the rules. With a few exceptions, the reforms have met with great success, and even some initial skeptics are now advocates.

Background

The major components of jury reform in Colorado consist of note-taking, juror notebooks, non-argumentative mini-opening statements (before voir dire) and, in civil cases, juror questions and pre-deliberation discussion (through a pilot project). There are many more subtle changes concerning the information provided to jurors prior to their service and on their arrival at the courthouse, as well as the use of and respect for jurors' time.

Citizens reporting for jury duty display attitudes ranging from eagerness to anxiety to annoyance. When jurors believe that the courts respect the sacrifice they are making by appearing for jury service, they are more likely to be willing participants. If the courts are able to improve the quality of information that jurors receive, both before and during the trial, the jurors are better prepared to make a decision.

Some attorneys approached the reforms with real doubts and concerns. Although there was little, if any, resistance to note-taking, many attorneys did not support juror questions and the pre-deliberation discussion pilot project in civil trials. By the end of 1999, a majority of the attorneys who had participated in trials with full jury reform endorsed the entire package, albeit with varying degrees of enthusiasm (see chart below).

Experience of the Eighteenth Judicial District

For purposes of illustration, we use the 18th Judicial District as the focus of our discussion on jury reforms throughout this article. Trials in that district encompassed a wide variety of claims, including personal injury (automobile accident), medical malpractice, and business transactions. Juries heard cases in both Arapahoe and Douglas Counties.

The trial judges debriefed all jury panels after the jury reached its verdict. Virtually all jurors embraced the reforms. Many jurors who had previously served in cases when none of the reforms were in place were among the strongest proponents of the new procedures.

Note-taking was the least controversial feature and received almost unanimous support. The only panel that expressed reservations did so because an attorney had obtained a partial transcript of a witness' testimony and had referred to it during closing argument. Counsel's rendition was at variance with some of the jurors' notes.

Juror notebooks were not prepared in the 18th Judicial District until 1999 because the binders were not yet available. However, in some of the complex cases tried in 1998, counsel made greater use of overhead displays and highlighted exhibits. Jurors reported that these approaches helped them to focus on the critical issues of the case and to avoid boredom. When the notebooks did come into use in 1999, the jurors were delighted with them.

We would not be candid if we did not observe that attorneys and judges are not uniformly supportive of juror notebooks. The mechanics of creating the notebooks and filling them with the proper materials have posed problems. Particularly in high-volume criminal courtrooms, the notebooks are not being used to their greatest advantage due to the difficulty of compiling them.

In each of the civil cases tried in the 18th Judicial District, jurors posed questions during trial varying in number from several to many. Although counsel worried about the amount of additional time the questioning process would consume, no such problem materialized. Even in two three-week medical malpractice cases (with very complex issues and hundreds of exhibits), the juror questions added no more than one hour to the entire trial.

The questions did reveal that jurors were focused on the case, the testimony, and the credibility of the witnesses and exhibits. Several jurors demonstrated that they had become facile with medical terminology and causation issues. Very few of the proposed questions clearly could not be asked,2 and the integrity of the trial was never jeopardized by the juror questions. In fact, attorneys who initially had reservations about juror questions became strong supporters of the process. Some attorneys indicated that the questions helped them shape examinations of subsequent witnesses. At least an equal number felt that the questions assisted them in preparation of closing arguments.

Almost every juror who has asked questions appeared to be pleased to have been able to do so. In the debriefings, jurors expressed satisfaction at being able to gain clarification of issues. Most indicated that their questions were formulated as a result of their exposure to particular evidence or witnesses in the case and not as a result of any preconceived viewpoints.

Jurors who participated in civil jury pre-deliberation discussion pilot project cases also were virtually unanimous in their support of the practice. Most stated that it helped them "bond" as a jury and to focus more directly on their task once formal deliberations began. All jurors assured the judge that no juror had formed any final opinions about the merits of the case during this pre-deliberation discussion.

In the 18th Judicial District, jurors were given a more detailed instruction about pre-deliberation discussions than that contained in Colo. CJI-3rd. In certain instances, they heard the pattern instruction after having delivered their verdict. Most jurors felt that the more detailed instruction was helpful to them in focusing on what can and cannot be the subject of pre-deliberation discussions.

Shortly after the pilot project began, a jury panel requested that the court give the instruction concerning pre-deliberation discussions to jurors, in writing, at the beginning of the trial. That instruction has since been included in juror notebooks.

In addition, some of the attorneys spoke with jurors in the post-trial debriefing. Most counsel reported satisfaction with what they learned about pre-deliberation discussion; none voiced any specific opposition or objection. According to anecdotal observations from judges, most of the new procedures have worked well. Practical problems concerning juror notebooks (what materials to include and who will insert those items) remain to be addressed.

Recently, 18th District Chief Judge Kenneth K. Stuart prepared an "Order for Preparation for Jury Trial." All of the civil divisions in Arapahoe County are utilizing this order. The order sets specific deadlines for case orientation statements, contents of juror notebooks (including witness lists, exhibit lists, excerpts or exhibits, and a glossary of terms), and final jury instructions. This order has assisted judges and counsel in providing a more streamlined trial presentation for the jury.

One interesting development is the use of Colo. CJI-4th 4:2(A). This instruction tells the jury that, should they have any questions about the instructions, evidence, or exhibits, the foreperson should present it in writing. After discussion with counsel, the court will provide a response, if possible, or state that he or she cannot answer the question. The experience to date is that the jurors have submitted fewer in-deliberation questions than was the case before the jury reform program began. At this point, because we have insufficient data, we cannot determine whether some or all of the jury reform components have lead to this reduction in questions from deliberating jurors.

Civil Jury Pre-deliberation Discussion
Pilot Project: Selected Results

For one year, a pilot program authorized by Colorado Supreme Court Chief Justice Mary Mullarkey has permitted jurors in civil cases in selected courtrooms to discuss the evidence being presented during the trial and before formal deliberations. The purpose of the pilot study was to evaluate the procedure and provide answers to commonly asked questions, such as the following: Does informal discussion among jurors during the trial help jurors better understand the evidence? Does it lead to juror questions and clarification of confusion about the evidence? Are all jurors' views considered during these informal discussions? Do informal discussions help make formal deliberations better or more effective? Do informal discussions encourage some jurors to make up their minds early, before all the evidence is presented? (See the Appendix on pages 24 and 25 for a statistical report of responses.)

Fifty-three civil jury trials, 13 judges, and 11 different jurisdictions were involved in the study. The jurors involved in the pilot overwhelmingly supported this jury reform. Ninety-three percent of the jurors found that informal, pre-deliberations discussions helped them better understand the evidence and resolve confusion about the evidence during trial. Ninety-four per cent believed that the information discussions improved formal deliberations. Only 6 percent of the jurors reported that all jurors' points of view were not thoroughly considered during informal discussions. Fourteen percent of the jurors believed that informal discussions encouraged jurors to make up their minds before all the evidence was presented, although 62 percent strongly disagreed with this conclusion.

The support of the judges involved in the pilot also was very strong. Based on their experience, only 7 percent expressed opposition to the reform, while 33 percent were neutral, and 60 percent were strongly supportive. Attorneys involved in the pilot were less enthusiastic than the jurors and the judges, but strong support increased from 19 percent before any experience with the reform to 32 percent after the attorneys' involvement in a pilot trial.

Jurors, attorneys, and judges who participated in the pilot project submitted responses to specific questions about their experience. Selected results are highlighted in the Appendix below. These results include data from eleven district courts that participated in the project, including Arapahoe and Douglas Counties.

Conclusion

Jurors were the intended beneficiaries of jury reform, and, indeed, they are enthusiastic and united in their support of the reforms. If for no other reason than that we are making jury service easier, more pleasant, and more effective for jurors, jury reform is a success. Additionally, attorneys and judges are beginning to recognize the benefits of dealing with a jury that feels honored by the trial process-a jury that is well-informed and empowered to make good decisions based on competent information.

We are not finished. Jury reform is an ongoing process that has just begun. As we move into the second year of the reforms, we must refocus on what we are trying to achieve and do it even better. We are trying to ensure that citizens who appear for jury service are treated with respect and courtesy, that they are given the information they need to serve and render verdicts, and that their role as a pivotal part of the trial process is both appreciated and underscored. Jurors are not spectators at the trial. They are the decision-makers who will determine the outcome. They are, indeed, pivotal to our system of justice.

NOTES

1. For example, C.R.C.P. 16(c) and 47 and C.R.Crim.P. 16, Part IV(e) and (f) and 24.

2. Examples include questions about the insurance or tax consequences of a damages award and other acts of an individual that had been deemed inadmissible pursuant to CRE 404(b).


This article is written by Justice Rebecca Love Kourlis of the Colorado Supreme Court and Judge John P. Leopold, District Court Judge of the 18th Judicial District. The authors would like to thank Cathlin Donnell and John Doerner for their contributions.


APPENDIX

Most questions included a response format, ranging from a low value of 1 to a high value of 7. For simplicity of presentation, values of 1 and 2, 3 to 5 and 6 and 7 have been grouped together.

 

JURORS' RESPONSES


Did the pre-deliberation discussions help you to better understand the evidence?
1 & 2 Little Help 7% Mean Median
3 to 5 Somewhat Helpful 39% 5.36 5.69
6 & 7 Very Helpful 54%

How helpful were the pre-deliberation discussions for resolving confusion about the testimony or evidence presented during the trial?
1 & 2 Little Help 7% Mean Median
3 to 5 Somewhat Helpful 38% 5.40 5.71
6 & 7 Very Helpful 55%

In your opinion, did other jurors make a decision during the pre-deliberation discussions about the final outcome of this case?
Yes 14.20%
No 85.80%

During the pre-deliberation discussions, did you make a decision about the final outcome of this case?
Yes 13.80%
No 86.20%

Do you think the pre-deliberation discussions helped to make the formal deliberations better or more effective?
1 & 2 Little Help 6% Mean Median
3 to 5 Somewhat Helpful 29% 5.67 6.08
6 & 7 Very Helpful 65%

What is your personal view about jurors holding pre-deliberation discussions about the evidence during the course of the trial?
1 & 2 Strongly Oppose 3% Mean Median
3 to 5 Neutral 14% 6.31 6.75
6 & 7 Strongly Support 83%

Do you agree that permitting the jury to discuss evidence during a trial improves juror understanding of the evidence?
1 & 2 Strongly Disagree 2% Mean Median
3 to 5 Neutral 13% 6.44 6.80
6 & 7 Strongly Agree 85%

Do you agree that permitting juries to discuss evidence during a trial results in jurors making up their minds early on, before all the evidence and the law has been presented?
1 & 2 Strongly Agree 14% Mean Median
3 to 5 Neutral 24% 2.73 1.99
6 & 7 Strongly Disagree 62%

ATTORNEYS' RESPONSES


Prior to this trial, what was your personal view of jurors discussing evidence during a trial?
1 & 2 Strongly Oppose 24% Mean Median
3 to 5 Neutral 57% 3.97 4.03
6 & 7 Strongly Support 19%    

What is your personal view of jurors discussing evidence during this trial?
1 & 2 Strongly Oppose 22% Mean Median
3 to 5 Neutral 46% 4.38 4.55
6 & 7 Strongly Support 32%    

Do you agree or disagree that permitting jurors to discuss evidence during the trial improves juror understanding of the evidence?
1 & 2 Strongly Disagree 20% Mean Median
3 to 5 Neutral 46% 4.47 4.69
6 & 7 Strongly Agree 34%    

Do you agree or disagree that permitting jurors to discuss evidence during the trial encourages jurors to make up their minds before all evidence and law is presented?
1 & 2 Strongly Disagree 12% Mean Median
3 to 5 Neutral 50% 4.69 4.61
6 & 7 Strongly Agree 37%    

JUDGES' RESPONSES


In general, what is your personal view of jurors discussing evidence during trial?
1 & 2 Strongly Oppose 7% Mean Median
3 to 5 Neutral 33% 5.62 6.07
6 & 7 Strongly Support 60%    

Do you agree or disagree that permitting jurors to discuss evidence during the trial improves juror understanding of the evidence?
1 & 2 Strongly Disagree 5% Mean Median
3 to 5 Neutral 28% 5.80 6.28
6 & 7 Strongly Agree 67%    

Do you agree or disagree that permitting jurors to discuss evidence during the trial encourages jurors to make up their minds before all evidence and law is presented?
1 & 2 Strongly Disagree 45% Mean Median
3 to 5 Neutral 45% 3.10 2.75
6 & 7 Strongly Agree 10%    

© 2000 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2000.


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