Over the past 15 years, courts have begun implementing a host of reforms to the jury system in response to growing criticism about jurors’ competence to decide cases. Of particular concern was the ability of jurors to set aside preexisting biases and to understand increasingly complex evidence and legal principles. This article describes the efforts undertaken by the courts to address these concerns. In particular, the section on voir dire focuses on efforts to elicit complete and candid information from prospective jurors during jury selection while balancing competing interests in courtroom efficiency and juror privacy. The second section focuses on the techniques employed by judges and lawyers during trial to enhance juror comprehension and performance.
The process of selecting trial jurors from a panel of prospective jurors is called voir dire, a term derived from 14th-century legal French, which, loosely translated, means “to speak the truth.” Typically, voir dire consists of a limited question-and-answer period in which the trial judge and attorneys examine prospective jurors to determine if they can serve fairly and impartially on that trial. If the judge concludes from this examination that a particular juror has life experiences, opinions, or attitudes that would prevent him or her from serving impartially, that juror will be removed “for cause.” After all the “for-cause” jurors have been excused, the attorneys have the opportunity to remove those jurors who they suspect may be predisposed against their clients by using a statutorily defined number of “peremptory challenges.” After all the for-cause and peremptory challenges have been executed, the jurors who remain are sworn as the trial jurors. The amount of time needed to select a jury varies according to the type of case to be tried (e.g., felony, misdemeanor, civil), the legal requirements and mechanics of voir dire, and the local legal culture, but it generally ranges from 1 to 3 hours.
A number of concerns about the voir dire process have risen in recent years. Some of these focus on the legitimacy of the criteria that judges and attorneys employ when deciding to remove or retain jurors. Most often, these debates take place in the context of proposals to reduce the number of peremptory challenges in order to minimize the opportunity for attorneys to discriminate on the basis of race, ethnicity, or gender—a practice ruled unconstitutional by the U.S. Supreme Court in Batson v. Kentucky (1986) and its subsequent progeny. The counterargument by the practicing bar is that peremptory challenges are needed as a remedy for the failure of trial judges to grant challenges for cause, even when a juror’s responses to voir dire questions indicate bias or prejudice. Thus far, Maryland is the only state to successfully reduce the number of peremptory challenges, and that legislation was driven as much by cost considerations as by concerns about the discriminatory use of peremptory challenges. However, several other jurisdictions—notably California, New Jersey, and the District of Columbia— are seriously considering legislation that would sub-stantially reduce the number of peremptory challenges.
Other proposals for improving voir dire focus on the efficacy of the voir dire process in eliciting candid and useful information from jurors. Empirical studies have repeatedly found that up to one in four prospective jurors fail to disclose case-relevant information during voir dire. In some instances, jurors are reluctant to reveal personal or sensitive information to a courtroom full of strangers. In other instances, jurors are unwilling to disclose information that they believe is not relevant to the case. Often the mechanics of the voir dire process—for example, whether the judge or lawyers question the jurors, whether jurors are told to raise their hands or respond orally to questions—send subtle messages about the judge’s desire, or lack thereof, for complete disclosure by jurors.
Attorney-conducted voir dire, which is the predominant practice in most state courts, but not in federal courts, is considered the better practice insofar as jurors are more likely to respond with candid, rather than socially desirable, answers to questions posed by lawyers rather than judges. Moreover, attorneys typically are more familiar with the nuances of the case and thus are in a position to question jurors about issues that a judge might not immediately view as relevant. Another technique that is gaining in popularity is the use of written questionnaires asking either general background information or case-specific information, which gives jurors the opportunity to disclose sensitive information to the judge and attorneys without having to do so orally in open court. This technique is also useful for trials involving substantial pretrial publicity because it permits jurors to disclose their knowledge of the case without tainting other jurors who may not have read or heard as much about it.
Many judges now invite jurors to indicate if they would prefer to respond to questions about potentially embarrassing or sensitive information (e.g., criminal background, substance abuse, or criminal victimization) privately in a sidebar conference or in chambers with the attorneys; approximately 30% of jurors take advantage of this opportunity. A small, but increasing, number of judges now advocate giving all prospective jurors an opportunity for individual voir dire, regardless of the nature of the case or the questions to be posed, as it alleviates some of the intimidation of the courtroom environment and invites jurors to disclose any information that they believe relevant to their impartiality even if no question has directly solicited that information.
In spite of increased awareness about how traditional voir dire techniques can discourage fully candid and complete self-disclosure by jurors, trial judges in many areas of the country have been reluctant to embrace voir dire reforms, largely out of concern over the additional time and effort that they might cause in the jury selection process. Many judges also voice skepticism about the need for a more expansive voir dire, claiming that lawyers’ desire for more information about jurors’ backgrounds too often intrudes on jurors’ privacy without actually eliciting useful information about jurors’ ability to serve impartially. Because of the traditional deference given to judges’ management of the voir dire process by reviewing courts and legislatures, reforms to voir dire have taken place more slowly and incrementally than reforms to other stages of the trial process.
Jury Comprehension and Performance
The most dramatic reforms to jury trials in recent years are those designed to enhance juror comprehension and decision making during the trial and deliberations. The growing popularity of these reforms among judges, lawyers, and policymakers reflects a change in the traditional understanding of how jurors perceive and process evidence and what, given this new understanding, the appropriate role of jurors should be in the trial.
Traditional jury trial procedures were developed with the intent of reinforcing juror passivity, which was believed essential to maintaining their neutrality throughout the evidentiary portion of the trial. Consequently, jurors were traditionally discouraged from taking notes because it might distract them from observing the witnesses’ demeanor or they might confuse their own notes with the evidence actually presented. Jurors were prohibited from asking questions of witnesses because they might become inappropriately adversarial. They were prohibited from discussing the evidence among themselves or with others because they might begin to draw conclusions before hearing the entire case. And they were not informed about the legal principles that they would be required to apply until just before deliberations because it might cause jurors to disregard evidence that seemed unrelated to those principles. All these restrictions were intended to ensure that nothing interfered with jurors’ ability to accurately remember, understand, and consider all the evidence presented to them at trial.
A substantial body of research from the field of social and cognitive psychology emphatically contradicts this traditional understanding of juror decision making. Empirical studies have conclusively established that jurors are not simply “blank slates” or “empty vessels” waiting to be filled but instead actively process and interpret information as it is received during the trial, in spite of the restrictions imposed on them. Indeed, many of those restrictions have been found to actually hinder jurors’ ability to efficiently and effectively process information. Thus, the reforms that have been introduced in recent years are intended to capitalize on jurors’ natural ability to understand and process information while emphasizing to jurors the continued importance of their neutrality during trial.
The least controversial reform, and the one that appears to have caught the attention and support of the legal community most strongly, is permitting jurors to take notes during trial, which helps jurors remember evidence. In a recent study of jury trial practices nationwide, jurors were permitted to take notes in 70% of trials in state and federal courts. Moreover, jurors in 64% of the trials were actually given notepaper and writing instruments with which to do so. Only two states—Pennsylvania and South Carolina— prohibit juror note taking in criminal trials, and only South Carolina prohibits it in civil trials; all other states either mandate that jurors be permitted to take notes (Arizona and Indiana) or make the practice discretionary.
Other techniques have encountered somewhat greater resistance in actual practice, in spite of empirical studies documenting their effectiveness, favorable reports from jurisdictions that have implemented those techniques, and endorsement by prominent judicial and bar organizations (e.g., the American Bar Association, the Conference of Chief Justices). Two of the techniques involve permitting jurors to submit questions in writing to witnesses and permitting jurors to discuss the evidence among themselves during trial provided that they refrain from making conclusions about ultimate issues (guilt/innocence, liability/no liability). Both of these techniques are intended to provide jurors with an opportunity to clarify confusing or ambiguous evidence while it is still reasonably fresh in their minds. The vast majority of states (37 in civil trials, 36 in criminal trials) grant trial judges the discretion to permit juror questions to witnesses; however, only 15% of judges routinely exercise this discretion. Only 11 states permit civil jurors to discuss the evidence before the final deliberations, and only 10 states permit criminal jurors to do so. Nationally, juror discussions were permitted in less than 2% of all trials.
Juror comprehension of instructions also continues to be a challenging area for many courts. Unlike disagreements over factual issues, in which jurors routinely combine their collective memories and judgments to make accurate conclusions, jurors’ unfamiliarity with the form and substance of the law often prevents them from correctly interpreting and applying the law. In addition to poorly drafted jury instructions, the form and timing of their delivery—typically orally and immediately before deliberations—also contributes to juror confusion. To address these issues, the majority of judges and lawyers (69%) now provide jurors with a written copy of the instructions—if not during the oral delivery of the jury charge, at least for their use during deliberations. Increasingly, judges are delivering jury instructions earlier in the trial. More than 40% of judges instructed juries before the closing arguments in their most recent trial, and 18% gave preliminary instructions on substantive issues before the evidentiary portion of the trial. In addition to providing jurors with the legal context in which to consider the evidence and closing arguments, the repetition of instructions at different points in the trial also helps jurors understand and retain that information. Finally, judicial and bar leaders have become increasingly aware of the importance of pattern jury instructions, especially their credibility to trial judges, lawyers, and reviewing courts in terms of both legal accuracy and clarity to jurors. This has led to efforts by pattern jury instruction committees across the country to improve the comprehensibility of instructions for laypersons and to increased education for trial judges on the appropriate use of pattern jury instructions.
Empirical studies of these various techniques present a mixed picture of their effectiveness. Juror note taking has conclusively been found to enhance juror recall of evidence, but it has a less apparent effect on juror comprehension. Studies of juror questions and juror discussions have arrived at differing conclusions about their impact on juror comprehension—most finding a small effect in longer, more complex cases but little or no impact in routine trials. Improvements in the clarity and organization of jury instructions have been found to improve juror comprehension of the law, but recent revisions to pattern jury instructions have not been rigorously evaluated. Virtually all investigations of these techniques have reported greater juror satisfaction in jury service and confidence in their verdicts, and concerns initially raised about these techniques—for example, that they would disrupt the trial process or undermine juror impartiality—have been unfounded.
- American Bar Association. (2005). Principles for juries and jury trials. Chicago: Author.
- Batson v. Kentucky, 476 U.S. 79 (1986).
- Dann, B. M. (1993). “Learning lessons” and “speaking rights”: Creating educated and democratic juries. Indiana Law Review, 68, 1229-1279.
- Hannaford-Agor, P. L., Waters, N. L., Mize, G. E., & Wait, M. (2007). The state-of-the-states survey of jury improvement efforts: A compendium report. Williamsburg, VA: National Center for State Courts.
- Hastie, R., Penrod, S. D., & Pennington, N. (1983). Inside the jury. Cambridge, MA: Harvard University Press.
- Munsterman, G. T., Hannaford-Agor, P. L., & Whitehead, G. M. (Eds.). (2006). Jury trial innovations. Williamsburg, VA: National Center for State Courts.