Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial

AuthorDavid A. Anderson




I am by no means enamored of jury trials . . .[,] but it is certainly inconsistent to trust them so reverently as we do, and still to surround them with restrictions which if they have any rational validity whatever, depend upon distrust.2

I. Introduction

The modern trend in jury trials is "to reduce the passive role of jurors."3 Following this trend, the military has been on the forefront of juror innovations for the last twenty years.4 Military jurors (known as "members")5 may request to call or recall witnesses, interrogate witnesses, take notes during trial and use them in the deliberation room, request during deliberations that the court-martial be reopened and portions of the record be read to them or additional evidence introduced, and take written

instructions with them into the deliberation room.6 The essential purpose behind the innovations is to improve juror comprehension.7

A new, cutting-edge innovation, adopted for civil trials by Arizona in

1995 and Colorado in 2000 and employed to a limited extent in Washington, D.C., is the practice of permitting jurors to deliberate as the case progresses, a practice contrary to the standard practice of preventing jurors from discussing the case until all the evidence has been presented and the case submitted to them.8 To date, however, no jurisdiction has adopted a rule authorizing jurors in a criminal trial to discuss a case as it progresses. Should the military take the first revolutionary step? A review of the following matters will assist in answering this question: (1) the traditional basis for the prohibition against pre-deliberation discussion; (2) case law on the subject; (3) the Arizona, California, District of Columbia, and Colorado jury reform projects; (4) social science research; and (5) current military practice.

II. Traditional Prohibition

The earliest English juries could investigate the facts, talk with the parties and themselves, and question the witnesses without leave of court.9 By the mid-sixteenth century, however, "[n]umerous controls were imposed on jury autonomy and activism, and rules of evidence emerged as a means to limit and control the information made available to jurors."10

When the jury model was imported to the colonies in America, that model "was based on nearly complete passivity."11 Of the many controls aimed at regulating the flow of information to the jury, one was a rule prohibiting

jurors from discussing the case with other jurors until the case was submitted to them for formal deliberations.12

The primary justification for this rule is to prevent jurors from making premature judgments about the case or an issue in the case before hearing all of the evidence, the judge's instructions on the law, and the argument of counsel.13 In addition to this basic justification, numerous other reasons have been proffered: (1) "[S]ince the prosecution's [or plaintiff's] evidence is presented first, any initial opinions formed by the jurors are likely to be unfavorable to the defendant, and there is a tendency for a juror to pay greater attention to evidence that confirms his initial opinion.";14 (2)

"[O]nce a juror declares himself before his fellow jurors[,] he is likely to stand by his opinion even if contradicted by subsequent evidence.";15 (3)

"[T]he defendant is entitled to have his case considered by the jury as a whole, not by separate groups or cliques that might be formed within the jury prior to the conclusion of the case.";16 (4) "An aggressive, overpowering juror might dominate discussions and have undue influence on the views of others.";17 (5) "Allowing juror discussions prior to deliberations may detract from the ideal of the juror as a neutral decision[-]maker.";18

(6) "The quality of deliberations may decline as jurors become more familiar with each other's views.";19 (7) "[Pre-deliberation] discussions might produce a narrower and more confined set of final deliberations.";20

and (8) "Juror stress might increase because of the conflicts produced by prior discussions."21 At the heart of all these reasons is the goal of maintaining the open-mindedness of the jurors until the close of the case.22

III. Case Law

Over the last six decades, both federal and state courts have examined the issue of pre-deliberation jury discussions. The cases fall into three categories. The first category involves those cases in which the trial court simply omits to admonish the jury against pre-deliberation discussions.23

The second category involves those cases in which jurors fail to abide by such an admonition.24 The final category involves those cases in which the court affirmatively advises the jury that pre-deliberation discussions are permissible.25 Although the first two categories offer some tangential insight into judicial philosophies about the propriety of or necessity for an admonition against pre-deliberation instructions, the last category, consisting of six federal cases and about a dozen state cases, directly illustrates

the nature of judicial opinion on the use of an affirmative advisement permitting pre-deliberation discussions.

A. Federal Cases

The first reported federal case to consider an affirmative advisement for pre-deliberation discussions was Winebrenner v. United States,26 a

criminal conspiracy case involving two defendants. In Winebrenner, the trial court instructed the jurors, over defense objection, that although they could not discuss the case with others, they could discuss the case among themselves; the court also declined to admonish the jury not to form or express an opinion as to the guilt or innocence of the defendant until the case had been submitted to them.27 The defendants were later convicted and appealed. The U.S. Court of Appeals for the Eighth Circuit, in a 2-1 decision, reversed the convictions based solely on the court's finding that this instruction was improper, without testing for either prejudice or harmless error.28

In the opinion of the appellate court, the instruction of the trial court authorizing pre-deliberation discussions had three flaws. First, the jurors were authorized to discuss the case without any preliminary instructions on the presumption of innocence or the burden and quantum of proof. Second, the jurors were not prohibited from discussing the case in groups of less than the entire jury. And third, the jurors might form premature judgments about the evidence, thereby "in effect shift[ing] the burden of proof and plac[ing] upon the defendants the burden of changing by evidence the opinion thus formed."29 The court concluded: "The effect of the admonition given in this case is, of course, impossible of ascertainment, but as it violates the principle that an accused is entitled to be heard before he is condemned, and the essentials to a fair trial, the judgments appealed from must be reversed."30

The dissent disagreed with the reversal, finding that there was "no hint or suggestion [in the record] that any of the jurors in this case [made up their minds before the evidence was in], or that any one of them spoke an improper word throughout the trial."31 As the dissent viewed the case,

in the absence of evidence to the contrary, the jurors could be presumed to have obeyed the court and not committed their minds until all the evidence was in, and the majority had "no right to assume the contrary."32 Thus, "the right of the defendants to open minded deliberation was preserved to them," and "[t]hey were not prejudiced."33

In United States v. Lemus, 34 the trial judge instructed the jury, over defense objection, that discussion among the jury members prior to deliberation was "entirely proper."35 The instruction was accompanied by "a lengthy admonition to the jury" that "advanced all of the reasons why jurors should not discuss the evidence and instructed them to refrain from reaching any conclusions until all the evidence was submitted and an appropriate charge given."36 Reviewing this instruction on appeal, the U.S. Court of Appeals for the Fourth Circuit cited Winebrenner and found that if the instruction had been given "in the abstract," it would have "clearly jeopardized defendant's right to a fair trial."37 However, because the instruction included an admonition as to open-mindedness, the court found that any danger to the defendant had been minimized and that any error in the instruction had been rendered harmless.38

In Meggs v. Fair,39 the trial court instructed the jury, without objection, that "it's perfectly all right to talk about a witness'[s] testimony" during recesses.40 Accompanying that instruction was the qualification that the jurors should not arrive at any conclusions until all of the evidence was in. On appeal, the petitioner contended that the instruction "undermined his [S]ixth [A]mendment right to a fair trial before an impartial jury."41

Noting that the two federal courts which had previously considered the issue of an affirmative pre-deliberation instruction, Winebrenner and Lemus, were "divided," the U.S. Court of Appeals for the First Circuit "decline[d] to take a definitive stand on this delicate issue."42 Instead, the

court rejected the petitioner's contention by concluding that "the judge's admonition to the jury members not to commit themselves until [they had heard all the evidence, argument, and instructions] minimized any danger to the defendant."43

In United States v. Broome,44 the trial judge informed the jurors, without objection, that they could discuss the case among themselves "at breaks and at other times," but they were not to try "to arrive at any judgment or decision about the facts in this case until the case [was] completely tried."45 On appeal, the U.S. Court of Appeals for the Fourth Circuit held that because the instruction had not been challenged at trial, "the issue of its...

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