What Is One Day One Trial and Why It Should Be Standard for All Courts

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One Day/One Trial jury duty service systems are becoming increasingly common across the United States. Dallas County, for instance, was one of the first jurisdictions to implement the system for jury duty[1]. It started even earlier in Harris County, Texas in the 1970s[2], but some jurisdictions had not implemented this system heading into the 21^st Century.[3] One Day/One Trial (sometimes referred to as ODOT) is a jury selection process where if you are not selected to serve on a jury the day you report for jury duty, you will be released to go home unless the trial court instructs you to return.[4] One Day/One Trial, and shorter jury services in general, can benefit both the juror and the justice system as a whole.

Benefits to the Juror

One Day/One Trial system benefits both employees serving on juries and employers. Employees will lose less potential income because they will have a definitive and shorter time frame they will be serving as a juror for.[5] Likewise, employers will have an easier time finding a substitute for that employee.[6] In this way, the One Day/One Trial system expands representation on juries by making it easier for everyone to serve as a juror because barriers like taking time off work and losing income are lowered.[7]

Jurors also benefit from the One Day/One Trial by having more opportunities to serve on the jury, which can be a positive and educational act of civil service.[8] A study done in the late 1980s showed that, while more people were significantly more likely to sit on only one voir dire in a One Day/One Trial system, there was only a slight decrease in the number of people who were selected to sit on a jury – meaning that more people overall had the opportunity to serve as jurors.[9]

Benefits to the Justice System

One of the primary benefits of the One Day/One Trial system is the increased diversity of jury pools that it offers.[10] As mentioned earlier, One Day/One Trial systems ease the burden of taking off work and allow more people a chance to be on a jury.[11] It also captures a broader cross-section of the workforce because it allows sets a certain time that potential jurors can schedule to be off.[12] A diverse jury pool and diverse juries are broadly recognized to lead to a healthier, fairer justice system.[13]

A One Day/One Trial system also increases the overall effectiveness of the justice system. First, despite some concerns from critics, One Day/One Trial systems have actually been shown to keep overall costs down and costs per juror down – even though more jurors are being summoned.[14] Costs are lowered both overall and per juror, because costs associated with summoning and training jurors are lower than costs associated with continually covering maintaining jurors who are serving, like parking or travel, food, lost wages, etc.[15]

But more than that, jurors have reported being more engaged and attentive during the process and are more likely to appear when summoned because jurors know they will only be held for one day or one trial.[16] While concerns over losing ‘veteran jurors’ have been raised in an argument against the One Day/One Trial system, fresh jurors are often less cynical, more cooperative, and approach trials they are placed on with a fresh perspective unaffected by the last trial.[17]

Overall, a One Day/One Trial system brings many benefits with it while having little downside. A One Day/One Trial system can increase diversity in the jury pool by lowering barriers to serving on juries, like lost wages and time. The One Day/One Trial system can also increase juror engagement and satisfaction during the process while keeping costs to the justice system down. The benefits stand for themselves, and every jurisdiction could likely benefit from using the One Day/One Trial system.

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[1] Dallas County, Jury System, (last visited March 15, 2022).

[2] G. Thomas Munsterman, Evaluation of One Day/One Trial Term of Jury Service, National Center for State Courts (February 7, 1990) at 1.

[3] Hon. Jacqueline Connor (ret.), What One Day One Trial Means to You, CAALA Advocate Magazine (Oct. 2007).

[4] Dallas County, Jury System, (last visited March 15, 2022).

[5] Stephen Michael Tow, Fact Sheet: One Day or One Trial Jury Service, Judicial Council of California (January 2022; Originally created January 2016).

[6] Id.

[7] Terry F. Holtrop, An Evaluation of the One-Week, One-Trial Juror Term of Service for 17^th Circuit Court for Kent County, Michigan, Institute for Court Management Court Development Program (May, 2004) at 43.

[8] Munsterman, Supra at 3.

[9] Id.

[10] Holtrop, Supra at 28.

[11] Id. at 43.

[12] Munsterman, Supra at 5.

[13] Ashish S. Joshi and Christina T. Kline, Lack of Jury Lack of Jury Diversity: A National Problem with Individual Consequences, American Bar Association (September 1, 2015).

[14] Holtrop, Supra at 33-34; Munsterman, Supra at 10-11.

[15] Holtrop, Supra at 33-34.

[16] Holtrop, Supra at 40-41; Munsterman, Supra at 6.

[17] Holtrop, Supra at 40-41, 49, 53; Munsterman, Supra at 6.

Jury Instructions: Should Instructions be Improved and Why Good Instructions Matter

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            For litigators, years of toil are often capstoned by the trial, and the trial is the final chapter for a litigant’s claims. The lawyers play their role by crafting the best arguments for their clients’ positions, witnesses play theirs by providing facts and context, and judges play their role by ensuring the rules of court are properly followed. But the jury has center stage when it is all said and done and when a decision must ultimately be made. And the last piece of guidance on law and procedure that jurors are given are the jury instructions or the jury charge.

What are Jury Instructions or Charges?

 Jury charges are the questions, instructions, and definitions given to a jury by the judge in a case. They provide direction and information to the jury regarding their deliberations. Often, pattern jury charges are available to help guide attorneys and judges in crafting jury instructions. Pattern jury charges are model jury charges designed to guide judges and lawyers in formulating jury charges.[1] Along with model charge text, they often include comments and references to major cases. The State Bar of Texas produces its own set of model jury charges called Texas Pattern Jury Charges (PJC), which are generally published on a two-year cycle.[2] Other Texas pattern jury charges are produced by private companies.

But, despite these pattern jury charges, research indicates that “[J]urors don’t understand their instructions as well as they think they do, as well as judges, would like to think they do or as well as we in Society might hope they do.”[3]

Why are Jurors Struggling with Jury Charges?

Why are jurors struggling to understand their instructions despite the legal community’s best efforts? Well, for starters, decisions may be rushed in the heat of trial, perceptions too narrowed, or the law too confusing.[4] But other factors contribute to the struggles of jurors as well such as legal language being too complex and the average juror being a legal novice, relatively low average literacy levels, jurors often relying on schemas, stereotypes or shortcuts, and the overall timing of the instructions.[5]

Homing in on the language used in jury instructions, it might be an easy assumption that juries simply don't understand complex legal ideas and so they simply discard them. While it has been found that jurors disregard instructions when they are confused by them, it’s not because they don’t or cannot understand the complex legal ideas.[6] Instead, linguistic complexity is a greater contributor to poor understanding than the actual complexity of the law, and when language is simplified comprehension improves.[7]

Of course, this can have a doubling effect when the fact that a vast majority of jurors are legal novices is taken into consideration. Everyday phrases and language can have a different, significant meaning in law that is lost on jurors, and instructions are too often not written with the novice in mind – leading to more confusion. To overcome this confusion, jurors turn to schemas, stereotypes, and other cognitive shortcuts to make sense of the instructions leading to improper applications of the law and an inconsistent application of the law.

Why Should We Want Better, More Understandable Jury Instructions?

The first and obvious reason why attorneys, judges, and society at large should all want better, more understandable jury charges is the same reason why jury charges matter – the charge is the last piece of guidance on law and procedure that jurors are given. The charge will guide the jurors during deliberations in coming to an ultimate decision.

Of course, all attorneys want jurors to understand their instructions and apply the law correctly to the facts. The same goes for judges. But it might be missed by attorneys and judges in exactly how better jury instructions will help jurors when crafting and giving jurors their instructions. Better written jury instructions have been found to help jurors during their deliberations to effectively discuss facts, evidence, and apply the law correctly to them.[8] Better and more clear instructions also help reduce juror bias, reliance on stereotypes, and overreliance on personal experience or possibly incorrect knowledge of the law.[9] Overall, lawyers and judges have a vested interest in crafting better, more understandable jury charges because better charges will lead to more legally accurate and fairer outcomes.

            Furthermore, proper instructions should be a concern for society as a whole because of society's interest in a fair legal system and the impact the legal system still has on so many. Despite the overall decline in jury trials, a significant number of trials still take place across the country in state and federal courts. An estimated 148,558 jury trials occurred in state courts across the United States in 2007, involving over a million jurors.[10] Poor jury charges or instructions could cause jurors to misunderstand, misapply, or disregard the law. Jury trials still have great impact and often decide the biggest issue in a person’s life. Better instructions will help these jurors make the correct decision in their trial based on a proper application of the law to the facts. Plus, better and more understandable instructions will help juries more consistently apply the law to cases based on the same claims or charges. More understandable instructions will create a fairer legal system and protect citizens' constitutional rights by creating a more consistent legal system.

           Overall, jury instructions are a vital part of the jury system. Instructions are often the last piece of guidance jurors get before beginning their deliberations. Clear instructions can be jurors’ compass or map to reach their decision, but confusing instructions can dismantle much of what trial lawyers have built during the trial. Attorneys, judges, and society will all benefit by taking the time to craft instructions that will guide jurors instead of leaving them lost in the woods.  

              In my next post, I'll dive into techniques that might improve clarity in jury instructions and ways to help jurors better understand their instructions overall.  

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[1] Tarlton Law Library Jamail Center for Legal Research, Jury Charges, (Feb. 16 2022 3:34) https://tarlton.law.utexas.edu/texas-legal-resources/jury-instructions

[2] Id.

[3] Perkel, Steven E. and Perkel, Benjamin, Jury Instructions: Work in Progress, Vol. 27 The Jury Expert: The Art and Science of Litigation Advocacy Issue 2 (2015)

[4] Stride, John, A Year of Massaging Jury Instructions, TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION (March – April 2012)

[5]Chantelle M. Baguley, Blake M. McKimmie, Barbara M. Masser, Deconstructing the Simplification of Jury Instructions: How Simplifying the Features of Complexity Affects Jurors’ Application of Instructions, 41 Law and Human Behavior 3, at 284 (2017)

[6] Perkel et. al., Supra at 2.

[7] Id.

[8] Perkel et. al., Supra at 2.

[9] Kathy D. Patrick and James A. Reeder, Jr., An Effort to Enhance Jury Trials in Texas State and Federal Court, Jury Innovations Project Pilot Manual, (2011)

[10] Mize, Hon., G.E., retired, Hannafor-Agor, P. & Waters, N.L., (2007). The state of the states survey of jury improvement efforts: a compendium report. National Center for State Courts, Available at http://www.ncsc-jurystudies.org/~/media/Microsites/Files/CJS/ SOS/SOSCompendiumFinal.ashx

To Shuffle or Not to Shuffle? A Critical Look at the Jury Shuffle in Texas

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As an attorney sees the jury venire that has been numbered and seated, they observe a cross-section of people in that county. They begin to ready themselves for voir dire. But Texas is nothing if it isn’t big and if it isn’t unique – which means another twist might be around the corner.  

            At this point, the opposing party invokes Texas Rule of Civil Procedure 223[1] or Texas Criminal Procedure Article 35.11[2] for criminal trials – the jury shuffle. Ordinarily, if the county follows an interchangeable jury system[3], the jurors are placed on the general panel randomly and assigned for service from the top down. But, after being assigned to a court, all the names of the assigned jurors are reshuffled in a receptacle and reordered based on the shuffle if any party demands a shuffle before voir dire examination. Only one shuffle is allowed per trial in civil trials while multiple shuffles are allowed in a criminal trial. The jury shuffle is largely unique to Texas, and it is looked at with mixed feelings inside and outside the Lone Star State.

The idea behind the shuffle is that jurors seated first in order are more likely to be placed on the jury while those at the back are not. The shuffle is intended to provide a more diverse jury by reordering the seated potential jurors in an attempt to make it more likely to have a diverse panel and not be stacked by unscrupulous officials.[4] But many opponents believe that is being used for the exact opposite reasons, to make a jury less diverse.[5]

Shuffling based on the racial makeup of the jury has been the reason for several appeals under Texas law in an attempt to apply Batson [6] to the shuffle. The Court in Miller-El v. Dretke even noted that the prosecution had a predisposition to asking for a jury shuffle when the front of the panel was comprised of mainly Black jurors.[7] But as it currently stands, Texas law is not inclined to apply Batson to jury shuffling,[8] and Federal law is only inclined to view shuffling with suspicion under the circumstances, such as improperly peremptorily striking Black panel members as in Miller-El.[9] Even if Batson were applied to jury shuffling, many of the issues surrounding jury shuffling would remain because of the difficulty in showing a Batson violation.[10]

But proponents of the jury shuffle often look at it as a tool to effectively increase the diversity of selected jury. In Yanez v. State, the defendant took this approach and requested a jury shuffle to potentially move the four Hispanic panel members, who were placed at the end of the order, forward.[11] However, the double-edged sword that is the jury shuffle seemingly cuts one way more often, and that is against a diverse.

On its face, few reasons exist that are not based on prospective jurors’ race, gender, or general appearance for requesting a jury shuffle because so little information about the jurors is known before voir dire examination.[12] While it is true that a jury shuffle could be used to increase the diversity of the jury selected, better and more effective means are available that are not as easily abused such as drawing on names from the county based on various identifications, using electronic or mechanical equipment to select potential jurors, and ensuring that the district clerks are maintaining a fair jury pool.[13]

Texans are then left with two important questions regarding the state of the jury shuffle: 1) does the jury shuffle achieve more harm than good in ensuring a diverse jury; and 2) should the jury system be set up to allow for a favorable jury or an impartial one? In its current form, the jury shuffle seems to be doing more harm than good and allowing litigates to shape juries into favorable ones instead of impartial ones, often rewarding gamesmanship instead of fairness.[14]

The answer to those two questions suggests that the jury shuffle has outlived its usefulness in its current form in Texas and should be abolished or reformed to better ensure justice and fairness in jury selection.

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[1] Tex. R. Civ. P. 223

[2] Tex. Crim. P. Art. 35.11

[3] Gov. C. §§62.016, 62.017

[4] SUPREME COURT OF TEXAS JURY TASK FORCE, FINAL REPORT 5, 55-64 (1997), http://www.courts.state.tx.us/commtask/ at 176.

[5] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 316 (2004)

[6] Batson v. Kentucky, 476 U.S. 79 (1986)

[7] Miller-El v. Dretke, 545 U.S. 231 (2005)

[8] Blanton v. Quarterman, 543 F.3d 230, 242 (5th Cir. 2008)

[9] Miller-El, 545 U.S. at 253-54.

[10] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 328 (2004)

[11] Yanez v. State, 403 S.W.2d 412 (1966)

[12] Texans for Lawsuit Reform, Recommendation for Lawsuit Reform: The Civil Jury in Texas (2007)

[13] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 320 (2004)

[14] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 325 (2004)

Discrimination in the Venire?

            It is commonly known that an individual may be automatically disqualified from serving on a jury panel if he or she can swear before the court that he or she does not speak the English language. This disqualification is usually attributed to the fact that it would be an administrative nightmare to attempt to allow that individual to be on the petit jury, should they not be stricken from the panel during jury selection. Yet, should we continue to automatically assume that this treatment of non-English speaking venire members is acceptable, or are defendants actually being wrongfully deprived of a representative venire selection? Is there a case for the claim that the removal of non-English speakers is discriminatory against that individual and the defendant?

            The Sixth Amendment of the Constitution provides criminal defendants the right to a fair trial by a panel of impartial jurors. However, there is no legal precedent that mandates that the petit jury panel must be representative of the community in which the trial is taking place. Rather, the law only stipulates that the petit jury must be chosen from a representative cross section of the community, and it does not entitle a defendant to any particular racial composition in their petit jury. See Taylor v. Louisiana, 419 U.S. 522, 528 (1975). See also Justia Online’s article on impartial juries here: http://law.justia.com/constitution/us/amendment-06/07-impartial-jury.html. However, a defendant may object to the exclusion of potential jurors from the jury if it is believed that the exclusion was based on race, particularly if the defendant is a member of that same racial group. See Batson v. Kentucky, 476 U.S. 79, 86 (1986).

            So the question becomes, is there a case for a defendant’s claim of racial discrimination, or even a case based on the Equal Protection clause of the Fourth Amendment, due to the Court’s apparent unwillingness to let non-English speakers participate in a venire jury panel?

            Now obviously there is a clear distinction between one’s language and one’s nationality or race, but shouldn’t a defendant have the right to, at the very least, interview that potential juror to see if they can be fair and impartial if they serve on the jury? Aren’t the person’s beliefs all that should matter? Is the Court taking away, perhaps unconstitutionally, the defendant’s ability to form the fairest and most impartial jury possible, particularly if they are of the same race or nationality as the potential juror? Or rather, should the justice system not bother trying to get every single potential juror on the venire because it would simply be too cumbersome to get a translator for the duration of the trial?

            I recognize that this topic simply raises unrealistic expectations in an already clogged justice system, and truly may not matter in the grand scheme of determining a person’s innocent or guilt. Surely, there is more to the outcome of a trial than the mix of individuals sitting in the illustrious chairs of justice. But is there not some merit to an argument for equal application of the law, however impractical in the scenario presented here? Shouldn’t we strive to have a justice system where all citizens, no matter their native language, can weigh in on the justice system so that equality and fairness might prevail? Only time, and a really good fact pattern, will tell.