Jury Instructions: How Jury Instructions can be Improved for Better Understanding and Clarity

             

Photo by Scott Graham on Unsplash

               In my last blog,[1] I touched on why jurors often struggle to understand jury instructions or charges and how jurors misunderstanding the charge can have detrimental consequences to the trials they are jurors for and for the legal system as a whole. But in this post, I want to explore some ways to make jury instructions better by making them more clear and more understandable to a lay juror with no legal experience or knowledge.

            When jurors misunderstand the instructions, it isn’t typically based on their lack of ability to understand complex legal theories, or jurors’ inability to use complex reasoning. Instead, jurors often misunderstand instructions because of overly complex or legalistic language and writing. So, ideally, jurors will understand instructions better if they are written and given more clearly, understandably, and with their audience in mind.

Improving Understanding Through Timing and Frequency of Instructions

            The first way juror understanding can be improved has nothing to do with how they are written. Giving juries instructions at multiple stages throughout the trial can help jurors better understand the charges.[2]  Preliminary instructions, before opening arguments and during voir dire, could lead to improved understanding of the final charge on its own. Starting the jurors off with a better understanding of duties a defendant may owe or how a plaintiff might be equally liable can give them a better understanding as a whole to put other issues into context.[3]

Likewise, reiterating or incorporating the charge into closing arguments or right before may increase understanding because jurors are bringing their full attention to the legal arguments and making a decision.[4] Reiteration of the instructions at this point will also help give jurors context for the arguments they are hearing during closing.[5] Both the repetition of the charge and the timing of the charge play a role in improving jury understanding of instructions.[6]

Improving Instructions Through Common Structural Issues in Charges

            Jurors often have a common problem with structural errors in jury charges, that is errors stemming from jurors not understanding the relationship between instructions or why they are asked to disregard certain information yet give more attention to other facts.[7] One way to overcome this common mistake is to provide explicit guidance and explanations to help jurors understand the connection between the different instructions.[8] Another way to highlight and make this type of relationship understandable is to arrange the instructions in a logical order, which might seem obvious but can be easy to forget because the order makes sense to a trained legal mind.[9] Another way to help overcome these structural issues is to give jurors explicit definitions or legal dictionaries to help them better contextualize the instructions.[10] Finally, explaining to jurors why they are being asked to disregard certain information and focus their attention in other areas removes the cloud of mystery that jurors can get lost in where they typically start discarding instructions they don’t understand.[11]

Improving Instructions Through Writing

            One of the most important things to mind in all writing is to write for your audience, and this principle is true when writing jury instructions. So, jury instructions must be written with the average juror in mind.[12] Inexperienced, but still very intelligent, writers often display their intelligence in their writing and make themselves feel smart, but they might leave their audience lost behind them. But an experienced writer leaves their readers feeling smart themselves because the writer has kept the audience in mind. Keeping the jurors in mind as the audience means using understandable, non-legalistic language, simple grammar, active voice, and clear writing.[13]

            It’s easy to forget that jurors are not trained legal minds amid trial, after spending so much time on the law and being surrounded by those that are trained legal minds. But it’s important to remember to avoid legal jargon and phrases that jurors can easily be confused by. Words ending in -or or -ee such as lessor or lessee can give even first-year law students (like me at one time) pause when dealing with different parties in a case.[14] Try to use substitute synonyms or explanations when possible because this help jurors not become lost in legal jargon but still effectively deliver your point.[15] This goes double for archaic language like therewithin, whereupon, or heretofore. This will improve understanding for jurors and provide clarity at the same time.

            Another way to help jury instructions be clearer is to use active voice and verbs instead of nouns. Active voice is preached to law students as a hallmark of good legal writing but using the verb form of a word instead of the -ion or noun version provides more clarity, such as “James took steps in mitigation of his damages” vs. “James mitigated his damages” or “His failure to act constituted negligence” vs. “He is negligent because he failed to act” and for examples.[16] Using active voice and avoiding nouns when for verbs can also help keep sentences simpler, shorter, and more understandable.[17]

            Finally, being as clear as possible is an important goal in all writing, especially with jurors in mind. Take steps to precisely identify parties instead of relying on a defined term like “Defendant John Smith (“Defendant”)” to avoid confusing jurors.[18]  Examples can also help provide context and add clarity, whether in defining unavoidable legal terms or to help jurors understand a difficult legal point.[19]

            Overall, jury instructions can be made more understandable and clearer by utilizing sound writing principles such as using active voice, keeping the audience in mind, and logically ordering the structure. These principles can be easy to forget when writing major briefs and motions, and even more so for jury instructions. But keeping these principles in mind and utilizing other tools at our disposal, jury instructions can be made much more understandable to a layperson and improve the jury system as a whole.

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[1] Ralston, J. Hunter, Jury Instructions: Should Instructions be Improved and Why Good Instructions Matter, February 23, 2022.

[2] 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) at 3.

[3] 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) at 15.

[4] Abrams, Jeffrey, Campbell, Christopher G., & Cooper, Dan, DLA Piper, Sharpen the Nails: 8 Ideas for Empowering Jurors in Complex Trials, Product Liability Alert, September 24, 2018

[5] Walbolt, Sylvia H., Jurors Are Only Human: Proper Instructions Can Aid Their Good-Faith Deliberations, Appellate & Trial Support, January 25, 2020.

[6] Perkel, et. al., Supra. at 3.

[7] Walbot, Supra.

[8] Id.

[9] See id.

[10] See Perkel, et. al., Supra. at 4.

[11] See id.

[12] Peter M. Tiersma, Communicating with Juries: How to Draft More Understandable Jury Instructions, National Center for State Courts, Williamsburg, VA, 2006 [originally published in 10 Scribes J. Legal Writing 1 (2005–2006)] at 2.

[13] Id.

[14] Id. at 5.

[15] See id.

[16] Id. at 8.

[17] See id. at 12.

[18] Id. at 14.

[19] See Perkel, et. al., Supra. at 4; See Tiersma, Supra. at 15.

 

Donating Jury Pay: A Well-Intentioned Vehicle for Bias?

 In 1995, Texas passed a law requiring counties to offer jurors the option of donating part or all of their jury pay to their choice of pre-selected charitable causes. Section 61.003 of the Texas Government Code states that the list of organizations should include the (1) Texas Crime Victims Compensation Fund; (2) the county’s child welfare or child services program; (3) any public or private nonprofit that services victims of family violence; (4) “any other program . . . including a program . . . that offers psychological counseling in criminal cases involving graphic evidence;” (5) a veterans treatment court program; and (6) a county-approved veterans services office.

 One study considered how this offer to donate, specifically to the Texas Crime Victims Compensation Fund, prior to jury selection affected jury decision-making. (Aimone, North, & Rentschler, Priming the Jury by Asking for Donations). Jurors could be primed to find a guilty verdict by being more sympathetic to victims and feeling financially tied to crime victims. After noticing an increase in guilty verdicts after the law was passed, the study conducted a controlled experiment to test the change of conviction rates when jurors were first presented with a donation form. The controlled study found that the donation did affect jurors, finding that male jurors found a “guilty” verdict more often after receiving the form, while female jurors voted “not guilty” more often. The study provides, at least, causal evidence that these donation cards may affect how juror’s deliberate when provided before reporting for jury selection.

 Additionally, there have been concerns of the intended scope of the law where left to county discretion. In Waco, Texas, the county seat of McLennan County, commissioners questioned whether the county’s list of charitable organizations violated the law. Since 2010, almost $50,000 was donated by jurors to Fuzzy Friends Rescue, a pet adoption organization. According to McLennan County District Clerk Karen Matkin, juror pay is funded largely by reimbursements from the state, with a portion coming from “special fees and a tax.” At least a portion of county commissioners across Texas interpreted Section 61.003(a)(4) to act as a catch-all for any charitable cause approved by the county commissioners court, rather than a requirement that the organizations be connected to victims or the criminal justice system.

 This raises the question of whether the list of donations could bias jurors through a financial connection to a group, fund, or cause before ever being seated. Though jury pay is minimal, the Aimone article seems to point to the potential for bias. With the amended law, if counties are able to include other charitable causes, how could this unknowingly, and unintentionally, bias jurors?

 The Texas Legislature seemed to address this concern, while still preserving the goodwill intended by the law. In the 87th Regular Session, the legislature passed SB 1179, which modified Section 61.003 to provide that donation forms are given to jurors after jury service has concluded. The change went into effect September 1, 2021.

Dehumanizing Defendants: The Effect of Language on Capital Jurors’ Decisions

 Misleading Jury Instructions

In Texas, there are two distinct phases of capital murder trials: guilt/innocence and sentencing. Jurors are instructed that ten of them need to agree to sentence a guilty defendant to life in prison without possibility of parole. This is often known as Texas’s 12-10 rule. If only one juror destroys unanimity and objects to the death sentence, then the defendant will still be sentenced to life in prison without the possibility of parole. Article 37 prevents the judge, state, defendant, and attorneys from instructing the jury and clarifying this default punishment. 

 

Texas’s 12 – 10 rule work to confuse and mislead jurors. Given the language used in jury sentencing charges, it is crucial to inform jurors that they alone determine the fate of the defendant. Because research has shown that confusion leads juries to choose death more often than not.

 

Since 2011, the Texas Legislature has considered changing these rules. The Texas House Committee on Criminal Jurisprudence released a report in 2019 recommending changes to Article 37 to eliminate juror confusion in capital sentencing. It was passed by the House, but it did not lead to change in the statute.

 

Dehumanizing the Defendant

 

Not only are the jury instructions unclear in Texas, but the language used throughout trial help jurors put up a wall between themselves and the defendant. A psychologist discovered that capital jurors try to establish an “empathic divide” between themselves and defendants. This is heightened as people during the trial dehumanize the defendant.

 

A researcher analyzed the language of various capital trials and noticed that defendants were constantly being referred to as “this/that guy” or “this/that defendant.” This language was seen all throughout trials as well as in jurors’ interviews. These generic terms deny a defendant’s identity as unique and identifiable thus dehumanizing him or her, which helps the jurors’ set aside their empathy.

The Supreme Court has acknowledged that capital jurors need to consider the individuality of each defendant in their sentencing decisions. However, jurors may be dissuaded from empathizing with an individual defendant due to language used, which makes it easier for them to ignore a defendant’s humanity. Many jurors do not take individual responsibility for sentencing defendants to death because of the language used in court. It is what they hear from attorneys, judges, and the instructions as written that allows them to decide quicker on such a severe sentence. 

In Caldwell v. Mississippi, the Supreme Court found it was unconstitutional for capital jurors to believe that the responsibility for a defendant’s death rests anywhere other than within themselves. Tberefore, people argue that “Texas’s framework” of minimizing jurors’ role in their sentencing decision violates the point made in Caldwell.  

You can't unplug a juror, so is trial by jury no longer impartial?

The Information Age  

At the tip of our fingers, information has become readily accessible by a simple Google search. With the emergence of social media outlets, it is nearly impossible for most to avoid the constant bombardment of domestic and foreign news. High-profile cases inevitably become an area of primary concern because of a defendant's right to an impartial jury. The Internet has empowered many to vocalize opinions and guaranteed an infinite flow of information. But this comes at the cost of citizens formulating personal perceptions of guilt or innocence. Even before a final verdict, even without access to the total record. So in today's social media age, do impartial jurors exist anymore? It's difficult to say. 

Trial by Media

The concept of "Trial by Media" was born in the late 20th century, with arising concerns that a jury's impartiality will be compromised due to the consumption of extraneous information found on all sorts of social media channels. With how limitless the Internet has become, we are now privy to misinformation and are susceptible to the influence of popular media. As reflected by cases like Derek Chauvin, defendants have begun seeking remedy by filing for a new trial on the basis that extensive pretrial publicity deprived one of their right to a fair trial. 

The Impact of Trial by Media

Courtrooms are not entirely removed from what goes on in the world, which will always affect the verdict. As CNN analyst Jeffrey Toobin highlights, there is a constant tension in courtrooms between the desire to obtain a judgment solely based on admitted evidence and the "political and social conditions" that will inevitably affect the outcome in some manner. 

Courts attempt to alleviate this problem by implementing stringent jury instructions and sequestration. But let's be honest, it's the same situation as when an attorney's objection to a witness's answer has been sustained, yet the jury has heard it. It may have been struck from the record, but the jury still heard it. The same issue lies here, where people read and see all sorts of things online; it's nearly impossible for them to unsee or unread something. 

Prospective jurors will undoubtedly see popup news notifications and will be exposed to opinions that may be entirely based on misinformation. This is reflected in the most recent set of model jury instructions issued by a federal Judiciary committee, "persons, entities, and even foreign governments may seek to manipulate your opinions, or your impartiality during deliberation."  

Are there alternatives? Unplug the juror?

Given the emergence of the Information Age, it seems that our trial by jury system is heavily flawed and very susceptible to intense public scrutiny. Social media can easily overwhelm the individual and distract one with misinformation, which encroaches on a defendant's due process rights. Even with all the safeguards in the world, it seems nearly impossible to shelter one from radio, television, and phone. So what's the right solution? 

Honestly, I don't know. A juror connected to the digital age should not be penalized for seeking information. Still, as legal experts note, people are more likely to violate court rules if they don't have access to an "appropriate flow of information," so one proposed solution is empowering jurors with the opportunity to ask questions during trial. To be completely transparent, I don't think we will ever come up with a solution that entirely resolves this issue, but trial by jury has been so central in our justice system that we better start thinking of one. 

Should Grand Juries be used in Police Misconduct Cases?

    After the brutal murder of George Floyd in May of 2020, protests against police brutality and racial discrimination sparked across the country like wildfire. The New York Times estimates reactive protests in over 140 cities in the United States and even several, large protests in foreign countries. During the height of the protests, many ordinary citizens that had not previously taken part in civil unrest, took to the streets in an attempt to make a difference by showing their support for black Americans. 

 

    However, these peaceful demonstrations were not met with grace by police officers. Specifically in Dallas, clashes with police grew hostile in late May-early June, as the Dallas Police Department began using non-lethal ammunition as a means for crowd control. The results of this tactic included one protestor hit in his left eye so hard that he had to have it surgically removed; and another suffered two large cuts under his left eye, a broken cheekbone, and limited vision in that eye when he was hit by a "sponge round."

 

    As a legal screener at the Dallas Office of Community Police Oversight in 2020, there were far more injured and traumatized citizens of Dallas than can be counted. The trouble that remains in our legal system is no longer identifying these systematic abuses perpetrated by the police, but rather, gathering enough evidence for a jury to convict. 

 

    To illustrate the issue, earlier this year, a Dallas grand jury declined to convict Officer Rudloff who had over 26 years of racial profiling in his career. He was accused of assaulting two protestors, Verastique and Morse, who appeared to testify at his trial. However, as they entered the grand jury room, there was a sign placed on the witness box (completely unknown to the jury) that read “Do Not Mention Race While Testifying.”

 

    So, as the witnesses took the stand to testify about the racial targeting they witnessed by the DPD during the protests as well as their own assaults, they were prohibited from discussing race. This rule deprived them of their ability to emphasize an integral piece of their respective stories. Although the current and previous District Attorneys deny ever seeing the sign or placing it there, there have been no measures to remove it. In fact, the current DA, Creuzot says the sign is okay as long as “race is not an issue” to the case, but gave no standard or further elaboration as to when race would be considered at issue in case.

 

    As it pertains to Dallas, racial disparities in policing are prevalent with a tendency to disproportionately effect minorities. While limiting testimony to exclude race in cases where "race is not at issue" might hold some merit, in excessive use of police force cases, there is utility in pointing out race as a potential motivation behind the crime. 

 

    In my opinion, and contrary to Texas law, grand juries should not be available for trying cases that allege police misconduct. First, the results skew heavily in favor of the officer in question. The reasoning behind that follows the structure of a Grand Jury. The prosecutor has all the power, there are no judges or defense lawyers present, and the prosecutor is the only one that can give recommendations to the jury. 

    Because prosecutors and police typically work side by side on cases, it is in the prosecutors best interest not to go against their fellow public servants. This conflict of interest makes the decision from grand juries less credible in police misconduct cases. Second, grand juries have a total lack of transparency, therefore excluding the public from a very relevant discussion of our collective communal standards of our public servants. 

Instead of grand juries, prosecutors should file a criminal complaint on their own following an investigation. In 2016, California was the first state to ban the use of grand juries in deciding whether police officers would face criminal charges when they kill people in the line of duty. More states, such as Texas, should follow suit in order to ensure a just avenue for holding police accountable for their behavior while on duty.

One Failed Peremptory Strike, and You're Out!

On February 11, 2022, the Supreme Court of North Carolina vacated Defendant Christopher Clegg’s sentence after finding that a Batson violation had occurred at the trial court level. Although it took six years, in which time the Defendant had completed his sentence, the Defendant was eventually successful in what has become a nearly impossible claim.

While the history of the case is quite complex, the issue boils down to a Prosecutor’s decision to use peremptory strikes on two* black women. The two women, Ms. Jeffreys and Ms. Aubrey, were struck for a list of reasons, including Ms. Jeffreys’ prior work history in mental health, their body language and lack of eye contact, and Ms. Aubrey’s response when asked if she could be fair and impartial. Despite the Defendant’s claims of discrimination, the trial court found that no Batson violation had occurred. The case eventually made its way to the North Carolina Supreme Court. 

In what has become a rarity, the Court found that a Batson violation had occurred and that the trial court’s decision was clearly erroneous. While the Court underwent the three-step Batson test, much of its analysis focused on the third step–weighing the Prosecutor’s justifications with the Defendant’s allegations of discrimination. While the Supreme Court agreed with parts of the trial court’s decision, the Court found major flaws in its analysis.

1. The Prosecutor mischaracterized the record, and the trial court was correct to reject his proffered reason. One reason for striking Ms. Aubrey was that when asked if she could be fair and impartial, the Prosecutor recalled that she answered “I suppose.” However, after a careful look at the record, the Prosecutor’s recollection of her answer was wrong. And, according to Foster (578 U.S. at 505, 510), any offered reasons that are contradicted or mischaracterized must be thrown out.

2. The Prosecutor’s only remaining reason–body language and lack of eye contact–was unsupported by the record and correctly thrown out by the trial court. The Prosecutor argued that both women were rejected because of their body language and lack of eye contact. But, when the Defendant challenged this, the trial court made no specific findings regarding Ms. Aubrey’s demeanor.

3. The trial court was correct to consider Defendant’s statistical evidence tending to show racial discrimination at this specific trial and North Carolina, in general. At the trial level, the Defendant provided evidence that out of the twenty-two potential jurors, only three were non-white–two of which were struck by the Prosecutor. This resulted in a jury of eleven white members and one mixed-race juror. At the state level, the Defendant provided evidence that black jurors were struck about twice as much as white jurors. 

4. But, the trial court failed to consider the disparate treatment of jurors during questioning. For example, when Ms. Aubrey was questioned about hardships she would face serving on the jury, she was the only juror singled out for further questioning, despite being “far from the only one” who had substantial work- or family-related hardships.

5. Overall, the trial court was incorrect to still find that the Defendant did not meet his burden of proof, despite all of the Prosecutor's race-neutral reasons being thrown out. A finding that all of the proffered race-neutral reasons were invalid was the same as having no race-neutral reasons at all. At that point, all there was left to consider was the Defendant’s evidence of discrimination. 

6. No “smoking-gun” needed. Here, the trial court imposed an unnecessarily high burden on the Defendant. “Highlighted names and trick questions are not required;” defendants may present direct and circumstantial evidence of discrimination.

7. The trial court may not “imagine” a reason for the Prosecution. If the reasons presented by the Prosecution fail, that’s a wrap. The court may not come up with reasons or justifications on the prosecution's behalf. 

The Court cautioned against the improper use of peremptory strikes, acknowledging their controversial past. While it is often difficult, if not impossible, to succeed on these claims, this case serves as a warning against the improper use of these trial tools.

*While this case challenges the peremptory strikes of two black women from the jury, the North Carolina Supreme Court declined to consider one of the potentially justifiable strikes, because “[t]he Constitution forbids striking even a single prospective juror for a discriminatory purpose.”

How Valuable is the Perception of Fairness in Civil Jury Trials?

    The United States Supreme Court has consistently held that procedures must "satisfy the appearance of justice." E.g., Liljeberg v. Health Acquisition Servs. Corp., 486 U.S. 847, 864 (1988) (quoting In Re Murchison, 349 U.S. 133, 136 (1955). But if civil jury trial procedures are actually fair and just in reaching outcomes, why does it matter whether the parties or the public perceive them to be so?

    The appearance of justice has been deemed as important as justice itself. To quote former Justice Frankfurter, the appearance of impartiality is "an essential manifestation of its reality." Dennis v. United States, 339 U.S. 162, 182 (1950) (Frankfurter, J., dissenting). The perception of fairness in civil jury trials is valuable because it impacts public beliefs about the system's legitimacy. If individuals develop attitudes that the judicial system is biased or unfair, they will be less likely to respect the outcomes of that system. Without the appearance of fairness or justice, decreased respect for the judicial system may result in a gradual erosion of obedience to the law. 

    At trial, there is much more at stake than the actual matter in contest. If litigants and the public perceive the dispute resolution process as impartial, they are more likely to accept the legitimacy of the outcome and believe that justice has been served. In fact, political and legal academic theorists generally agree that government authority can only function effectively when citizens support them enough to comply willingly with their directives. 

    In the case of legal authorities, both the ability of the courts to influence the structure of law and the ability of the police and other government officials to enforce the law depend upon public satisfaction with, confidence in, and trust of legal authorities. Tom R. Tyler, The Role of Perceived Injustice in Defendants' Evaluations of Their Courtroom Experience, 18 LAW & SOC'Y REV. 51, 51-52 (1984) (citations omitted). "The theory that trust plays a key role in the authoritativeness of government and the willingness of citizens to cooperate with government decisions and leaders has been validated by research suggesting that a lack of public support leads to willingness to disobey the law and to engage in anti-system behaviors such as riots." Id. In other words, it is more difficult to govern without the respect of the governed, which derives in part from the appearance of the fairness of the processes employed by government. The appearance of fairness in civil litigation is crucial because without it, the judicial system becomes irrelevant. 

    One important component of perceived fairness is the presence of an impartial decision maker. In civil jury trials, some circumstances require a potential juror to be excused regardless of the juror's actual ability to be fair. See Chestnut v. Ford Motor Co., 445 F.2d 967, 971 (4th Cir. 1971). Regardless of the actual impartiality of the judge or jury, the process will be legitimate and the results acceptable only if that impartiality is unquestionable in the minds of the litigants. Thus, properly assembled civil juries increase the valuable appearance of fairness in the American judicial system. 

California’s Unusual Grand Jury System and Its Proposed Reform

Grand Juries Generally

        Typically, grand juries are summoned to examine criminal accusations and determine whether sufficient evidence exists to formally charge the accused with a crime.

California’s Grand Jury System

        California’s grand jury system began with the adoption of its state Constitution in 1849. Since then, every year, a group of eligible citizens are appointed as grand jurors in each of California’s 58 counties. Unlike most grand juries, California’s grand juries are not limited to investigating criminal matters. Instead, the California grand jury has three functions.

        First, the grand jury investigates the operations of the various officers, departments, and agencies of local government. This function is known as the grand jury’s “watchdog” function. Each grand jury decides which officer, departments, and agencies it will investigate. These investigations are civil rather than criminal in nature. The grand jury investigates whether the entity is operating in a businesslike manner and providing public services effectively. The rationale behind this function is that the grand jury is an independent body from the entities it investigates. However, due to its authorization by the Superior Court, it still has access to officials, employees, records, and information that would not be available to the public. 

        Second, the grand jury issues criminal indictments on felony charges. This is the only traditional function of the California grand jury system. 

        Third, the grand jury investigates accusations of corruption or intentional misconduct while a public official is in office. If necessary, the grand jury will file a “accusation” against the official to remove him or her from office. This accusation process is considered “quasi-criminal.” 

        Regardless of the function, the California grand jury always performs fact-finding. The jury’s fact-finding results are aggregated in a report that includes recommendations. For the “watchdog” jury, this report contains recommendations for improving local government operations. For felonies, the grand jury also issues indictments. Any accusations are filed with the District Attorney, who takes any accusations to trial. When a report is generated about a local governmental entity, then that entity must answer the report in writing.  

Proposed Reform: Bill ABA 1972

        Current California law pays California grand jurors $15 a day for their service. The Superior Court of each county must assemble a list of selected grand jurors and publish it in the newspaper. Grand jurors are impaneled from this list. Jury commissioners are required to consider the geographic makeup of a jury pool. 

On February 10, 2022, a San Diego assemblyman introduced a bill which aims to promote diversity within California grand jury panels. If adopted, the bill would make it so jury commissions can consider not only the geographic makeup of a jury pool, but also the gender, age, race, and ethnicity makeup of a jury pool, too. Additionally, as opposed to a flat daily fee, the bill would require eight hours of the hourly prevailing county wage to be paid to the grand jurors every day. 

 The Effect of High-Profile Police Brutality Trials on Future Juries

    With the advent and widespread usage of cell phone videos taken by the public of police interactions with the public, cases of police brutality are exponentially more accessible to community members. The old adage that one can deny wrongdoing unless it's on video is being put to the test in grand and petit juries across the country. But does that mean that juries are more likely to bring an indictment or a guilty verdict?

    Traditionally, police officers have enjoyed an extremely broad amount of reasonable doubt when it comes to jury decisions: "[i]n the many cases involving criminal allegations against police officers or proxy police actors poised as vigilantes, jurors consistently reject indicting or convicting on serious criminal charges of murder." However, the uproar that was caused by the video of the death of George Floyd at the hands of four Minneapolis police officers sparked a nationwide conversation about just how effective this technology can be in getting accountability for bad actors. The impression that police should always be believed or at least not questioned in their actions was being re-evaluated with every second that Floyd was held down with a knee to his neck that was played over and over in households that may have never had any bad experiences with their local law enforcement.

    But the ultimate legal outcomes of cases with police brutality captured on video does not seem to bring about actual charges against police officers. George Floyd's murder at the hands of police was not the first: Tamir Rice and Eric Garner's last moments were captured on video. Unlike the Floyd case, neither Rice nor Garner's cases resulted in charges for the officers involved. This has caused commentators to remark that "even video footage in seemingly egregious police abuse cases may not be enough to sway juries." Since 2005, "fewer than 5 officers have been convicted of murder and had those convictions upheld by higher courts" out of around 1,000 cases.

    Despite the outrage demonstrated through widespread protests and condemnation by community leaders, the vitriol and concern that immediately arises in your average individual is not a permanent state. Additionally, the trauma that is associated with watching an individual lose their life at the hands of the people we are taught are our protectors diminishes over time because of the reluctance to relive those horrid moments. We feel that fire rise in ourselves at the onset of these cases, but without constant kindling, that fire will go out and our attention is pulled to another outrage. 

    The bottom line is, we can not predict whether video evidence of police brutality will have a longstanding effect of bringing justice for the victims of police brutality. The idea of sunshine being a disinfectant has its place, and as an optimist who believes in the justice system in most cases, any accountability mechanisms have a chance to hold wrongdoers accountable in ways that may have been improbable, if not impossible, previously.

Does Juror Safety Outweigh the Need for Trial Transparency?

 

Juror Anonymity: The Pros and the Cons

            Juror anonymity has been a growing trend among courts in the United States for years now. This is partly due to concerns regarding juror safety, which is greatly limited by the ever-increasing availability to information through social media and internet databases. Perhaps courts are correct in maintaining such secrecy in that portion of a trial, but there is certainly no unanimity with respect to opinions surrounding juror anonymity. Indeed, many trial lawyers have expressed fear that such secrecy could “undermine the idea of an open and accountable society.” With that sentiment in mind, it is prudent to address the pros and cons of keeping jurors’ identities from the public—especially in more high-profile cases.

            Typically, names and identities of jurors are made public once a trial has completed; however, there are exceptions that may delay the release of that information. Arguing Constitutional concerns, opponents of concealing juror information maintain such anonymity would undermine the “right to a fair trial.” After all, the Supreme Court ruled, in Richmond Newspapers, Inc. v. Virginia, that access to trials was a Constitutional right to access of information. But, even with the extension of that access into voir dire questioning and pre-trial hearings, the First Amendment protections are not absolute. Following the Press-Enterprise II opinion, the Supreme Court articulated a two-part “experience and logic test” for determining the proper limitation to such access. Although that two-part test was established for pre-trial decisions regarding access to the court proceedings, the argument today is that such a test should be extended to the entire process—which would include juror anonymity throughout the trial and beyond.

High-Profile Cases Require both Secrecy and Transparency…

            It should come as no surprise that juror information is restricted in higher profile cases. For example, in the Derek Chauvin trial, the jurors’ identities have yet to be released, despite the overarching idea that trials should be open and public. Many other high-profile cases have seen juror identities withheld for long after the trial has been completed. Other cases that have seen jurors’ identities withheld for lengthy periods of time have been the sex trafficking trial of R. Kelly, El Chapo’s trial, and Ghislaine Maxwell’s trial. None of the juror names have been released following any of those verdicts. Indeed, juror safety is a great concern and the primary reason for withholding juror identification.

Safety, Shmafety: To Some, Access to Information Outweighs the Need for Anonymity

            Despite that safety concern, members of the press, as well as members of the legal community continue to lobby for juror information to be made available immediately. Those that oppose juror anonymity do so for arguably the same reason: they each want transparency in the judicial process. When the jurors’ identities remain hidden from the public, there is no accountability on the part of the court. This means that an anonymous jury could produce a verdict that was deliberated by a homogenous group of jurors, which would go unchecked as a result of public ignorance. An additional problem with juror anonymity is that the jury pool could very well be tainted simply by the juror’s knowledge of their being made anonymous players of the trial process.

Conclusion: Juror Safety Should Continue to Be Just as Important as Trial Transparency

            What is the answer, then? Do courts allow for secrecy, based on the existing logic of that two-part test? Or must courts allow for juror information to be made public, in order to maintain the optimal transparency of the judicial process?

            While there is much difficulty surrounding those particular questions, they certainly pose something that courts should afford a fair amount of time in trying to answer. Maybe more rigorous voir dire processes should be required, prior to selecting an anonymous jury. Gathering that information would benefit unsealed records, when they do become public, while maintaining anonymity until the court decides otherwise.

            Or maybe there is some other way. Regardless, balancing juror safety with the optics of judicial impropriety creates an incredibly fine line. Perhaps the answer is already there, and the outcries for change are nothing more than unanswerable queries. In any case, courts across the country must continue to put juror safety first without sacrificing the sanctity of our judicial process—however that may be done.

Texas Voir Dire Examination - Is There a Limit On What Can be Asked?

At What Point Does the Law How You Back?

    Although the Texas Supreme Court has recognized that counsel has broad latitude in questioning during voir dire, this latitude does have an end and there are certain limitations. [1] Although, these limitations are somewhat unclear and controversial among the courts. It is not always easy to determine whether a juror’s response indicates a prejudice due to personal ill feelings or simply an opinion based on the previewed evidence.[2] It could be a very close call. [3] The same is true for counsels questions to the prospective jurors.[4] The trial judge is in the best position to evaluate and balance these competing concerns and thus is the best person to decide whether the answer is a bias or not. [5] The Texas Supreme Court in Hyundai has made it clear that it is within the trial judge’s discretion to decide whether a juror’s response has resulted because of confusion or mistake and also whether a question seeks the gauge the weight a juror will give a specific piece of evidence.[6] There must be a proper balance between the competing concerns, and this must be done based on the facts of the case and the jurors answers to the questions. [7] Again, the trial judge is in the best position to make this decision. [8]


    The traditional rule of voir dire is that the inquiry may extend somewhat beyond matters that simply serve as grounds for challenges for cause, but they are usually limited to matters that are material and relevant to the particular type of case at hand. [9] As such, counsel is permitted to ask questions about the jurors background, experiences, and attitudes. [10] Counsel’s goal is to ask questions of the jurors that would help them find any biases or prejudices, so he/she must ask questions that he/she thinks will bring any of these to light. But sometimes questions presented to the panel try to elicit unnecessary or improper information.




    As such, the trial judge is allowed to limit the questioning when he/she thinks that a question might inaccurately commit a prospective juror to a particular verdict or is otherwise improper. [11] For example, it is improper for counsel to ask a question that would show that the prospective juror has been convicted of an offense that disqualifies the juror or is accused of a crime. [12] It is also improper for counsel to advise the panel of the effect of their verdict on the trial courts judgment or tell the panel about inadmissible information. [13] Also, counsel cannot comment on personal lives of the parties or their attorneys, attempt to create a bias or prejudice, attempt to preview a juror’s likely vote, or misstate the applicable law. [14] But even with these limitations in mind, counsel is still allowed broad latitude in their questioning even if the extent is unclear.

Conclusion    

    The Court has made clear that attorneys are given broad latitude in conducting their voir dire examinations of the panel. They have also made clear that this latitude has its limits and that it is in the trial court judges’ discretion to decide this limit. But even so, problems arise as neither the Legislature nor the Courts have made clear how far this latitude extends and exactly what questions are not allowed. The line between bias or prejudice and the mere opinion on a specific fact can very blurry and very hard to navigate. Thus, some courts have struck certain questions as improper, while others have allowed those same questions to remain.

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[1] Hyundai Motor Company v. Vasques

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Greenman v. Fort Worth, 308 S.W.2d 553, 554 (Tex. Civ. App.—Fort Worth 1958, writ ref’d n.r.e.); Johnson v. Reed, 464 S.W.2d 689, 691 (Tex. Civ. App.—Dallas 1971, writ ref’d n.r.e.).

[10] Id.

[11] Id.

[12] Tex. R. Civ. P. 230; cf. Tex. Gov’t Code § 62.102(7) (person is disqualified to serve as juror if person has been convicted of felony).

[13] Texas Employers Ins. Ass’n v. Loesch, 538 S.W.2d 435, 440 (Tex. Civ. App.—Waco 1976, writ ref’d n.r.e.); see A.J. Miller Trucking Company v. Wood, 474 S.W.2d 763, 764–766 (Tex. Civ. App.—Tyler 1971, writ ref’d n.r.e.).

[14] Gulf States Utilities Co. v. Reed, 659 S.W.2d 849, 855–856 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.); Hyundai Motor Company, 189 S.W.3d at 752–753;  Middlebrook v. State, 803 S.W.2d 355, 360 (Tex. App.—Fort Worth 1990, pet. writ ref’d); see Texas & New Orleans Railroad Co. v. Lide, 117 S.W.2d 479, 480 (Tex. Civ. App.—Waco 1938, no writ).