My last blog discussed the Reiber and Weinburg study of jurors that revealed a potential problem with our current juror system: lay jurors struggle to comprehend factually and procedurally complex cases. The blog also questioned the suggestions for professional juror reform because of the lack of empirical evidence demonstrating professional jurors comprehend complex cases better than lay jurors. Furthermore, my last blog did not even discuss the logistical, political, and constitutional hurdles that a professional juror reform would face. Today’s blog will discuss whether there are alternative jury reforms that can improve juror comprehension at a fraction of the cost and complication of implementing professional jurors.
First, there are jury reforms that could improve juror comprehension with nothing more than reorganizing the structure of the trial. A very common sense reform involves providing thorough jury instructions before argumentation begins. One commentator has likened receiving jury instruction after hearing argumentation to being asked to score a foreign sporting event but not learning the rules of the game until after you observe the match. Another intuitive reform would be to provide for interim summations of the evidence and interim deliberations for the jurors. The benefits of hearing interim summation would be multiple chances to hear the same information, thereby improving the odds of comprehension. Furthermore, interim deliberations could prevent help prevent information cascades because the interim session would allow jurors to discuss evidence and then come out of the deliberation room and hear further evidence. (Information cascades occur in groups: when individuals lack information, each individual will choose in line with the other individuals on the rationale that the other individual had information informing her decision).
Second, there are jury reforms that could improve juror comprehension by providing pedagogical aids to jurors. One reform has already been implemented in some jurisdictions and involves nothing more than allowing jurors to take notes in all civil cases. The empirical evidence indicates that note-taking leads to better recollection, which could improve comprehension and help avoid what economists and social psychologists refer to as information cascades. Other reforms calling for pedagogical aids are more controversial than allowing jurors to take notes. One reform would allow jurors to submit written questions to expert witnesses. Both the questions and the answers could be filtered by the court to ensure that they comply with rules of evidence. Some commentators also suggest appointment of someone educated in the subject matter as an adviser to the jury. In theory these reforms would assist the jury with comprehension, but concerns arise regarding how to phrase the answers to the jury’s questions and how to select the adviser. Litigants in complex civil cases are almost sure to disagree over the phrasing of the court’s response to a written question from the jury to an expert and the jury reform would need to set forth a dispute resolution standard and procedure.
Another group of reforms could attempt to mitigate remaining comprehension problems that other reforms could not correct. For example, procedural complexity in cases could be resolved by submitting a granulated verdict form to juries. Although the jury reforms highlighted in this blog seem mundane and even common sense, the fact that they are simple does not mean that they will be ineffective. These reforms that attempt to reconcile the civil trial process with empirical research about human comprehension should be implemented before any professional jury system.