73 The Alabama Lawyer 190 (2012). On the fourth day of a jury trial.

• Author: Improving Jury Service

Alabama Bar Journal

2012.

73 The Alabama Lawyer 190 (2012).

On the fourth day of a jury trial

Improving Jury ServiceBy Judge Scott DonaldsonOn the fourth day of a jury trial between two businesses involved in a commercial lease dispute, a juror sends a note asking to speak to the judge. When the juror is brought into chambers with the lawyers and the reporter, the juror states that she has just learned that her boss will not pay her for the time she will lose while serving on the jury. She did not receive orientation materials about jury service prior to reporting nor when she arrived at the courthouse at the start of the week. She explains that she works part-time for hourly wages at a fast-food restaurant. It is unclear whether some of the lawyers knew this information. During the voir dire process, which had lasted over two hours, one lawyer spent his time expressing pleasantries and posing vague, hypothetical, "would you agree" philosophical questions. Very little had been asked by this lawyer about the prospective jurors themselves or about matters seemingly connected to the case. The juror learns that only "full-time" workers must be paid during jury service.(fn1) She is informed, however, that the state will give her $10 per day at the conclusion of the case. The trial reconvenes, and the presentation of the evidence ends after eight days. After closing arguments, the juror hears for the first time the elements of the claims and defenses of the parties. She is not given a copy of the instructions to take with her to the jury room. And because she served as a juror and performed this valuable civic duty, she lost her rent money for the month.

The jury system is an integral, vital component of the way we resolve disputes. The collective benefits to society as a whole of having a jury system are invaluable, but we need to remind ourselves that for the individuals who serve, they are at best sacrificing only their time. For many, including the self-employed and part-time workers, it can be financially devastating. We have an outstanding system of justice in our state, but everything can be improved. We should periodically re-examine the process to ensure that we are serving our citizens in the most effective, efficient, and fairest manner possible. The failure to do so could threaten the future of the system.(fn2)

Jury improvement efforts have been underway for years in many states.(fn3)

At times, jury "improvement" or "reform" has been a euphemism for political or policy changes. When honestly applied without a pre-determined agenda, though, improvement efforts have strengthened the right to a jury trial and re-focused the process on how best to serve society as a whole.(fn4) Alabama has addressed some of these efforts, most notably the "Plain English" jury charge.(fn5) And, while many of our circuit judges have individually implemented improvement techniques, we have not kept pace from a statewide perspective.

There are many, many resources and studies available to provide information on this topic.(fn6) This brief article does not address all of the proposals being advanced, nor is it intended to advocate on behalf of any particular proposal. It does suggest, however, that it is time to examine whether at least some of the changes should be implemented. We may find that we do not want to adopt a particular change, but we owe it to our citizens to examine the issues. This effort will require coordination between the civil and criminal rules and procedures.(fn7) In some states, commissions have been established to examine and recommend any changes.(fn8)

Jury Orientation Materials

Numerous studies show that jurors understand more about the process and are more satisfied with their service when they have received substantive orientation materials in advance. The materials should include not only education about the proper role of the jury and the trial process, but practical information such as parking, concessions, food, breaks, courtroom maps, etc. Many of our circuits have created excellent juror handbooks, lists of frequently-asked questions, and/or orientation videos to help explain the system to the prospective jurors.(fn9) Some of our circuits provide little information and/or are forced to use outdated materials.(fn10) Consideration should be given to developing a uniform juror handbook and video which could be supplemented with local information.

Juror Name/Address Confidentiality

A fairly recent issue of concern across the country is whether juror information can or should be kept confidential. There is both a statutory and common law right to inspect court records in Alabama, which presumably would include juror information.(fn11) The public may have the right to know the names of jurors who serve in our taxpayer supported system of justice, and permanent anonymity is generally not favored. A question that may arise, however, is whether the names or identifying information must be released before the trial is concluded. One judge expressed the concern as follows: Jurors are entitled to be treated with respectful regard for their privacy and dignity.... Most people dread jury duty-partly because of privacy concerns. A degree of anonymity safeguards jurors from intimidation during trial, promotes vigorous debate in the jury room, allows jurors to focus on the facts rather than on how the public might receive their verdict, reduces jurors' anxiety (which may improve jury...