September 2004 - #2. FROM THE BENCH JURY TRIAL INNOVATIONS: DARING TO IMPROVE WHAT WE ARE SWORN TO REVERE.

Vermont Bar Journal

2004.

September 2004 - #2.

FROM THE BENCH JURY TRIAL INNOVATIONS: DARING TO IMPROVE WHAT WE ARE SWORN TO REVERE

Vermont Bar Journal - September 2004

FROM THE BENCH JURY TRIAL INNOVATIONS: DARING TO IMPROVE WHAT WE ARE SWORN TO REVERE

Hon. John P. Wesley

Jurors are rarely brilliant and rarely stupid, but they are treated as both at once.1

At the very outset of the general jurisdiction course for new judges that I attended more than ten years ago at the National Judicial College, the Dean challenged the class, "How many of you give written instructions to your juries? Do you let them take notes? How about allowing them to ask questions of the witnesses?" A smattering of the class had mastered the word-processing skills necessary to efficiently provide copies of jury instructions. A few allowed note-taking. No one permitted juror questioning. "Why not?" asked the Dean. Except for the hoary authority of tradition, the class had no good answers to the question.

The Dean was sowing seeds of curiosity among neophytes not yet aware of the swelling tide of opinion, questioning how well the ends of justice are served by jury traditions perpetuated by reverence but rarely re-examined. In my own practice, I immediately began working on standard sets of jury instructions for civil and criminal trials. Rendered into "plain English" to the best of my abilities, these have been stored electronically for retrieval and revision to fit a particular case, to be modified at the charge conference and sent in with the jury immediately after I give my instructions. Similarly, upon the briefest reflection, permitting jurors the same note-taking expedient as most everyone else in the courtroom - myself, the lawyers, some litigants and any member of the press - revealed itself as "a no-brainer." The anxieties responsible for decades of pencil-proof juries could not withstand serious scrutiny; no, it is unlikely that jurors bending over notepads will miss critical credibility clues from the demeanor of the witness; no, it is unlikely the note-takers will dominate deliberations by claiming the authority of a scribe, or being assigned the role by their peers. Not so remarkably, jurors can reliably be presumed to follow a standard admonition on the practice and limits of taking notes, just as we assume they will adhere to the host of other judicial instructions.2

Capitulation to common sense is a liberating experience. The pillars of justice did not crumble after my first experiments with so-called "jury innovations." Rather, it seemed intuitively obvious that the "innovations" I put into practice quite probably enhanced the comprehension of the jurors, presumably improving the likelihood of a fair verdict. Indeed, the assumptions underlying the traditional approach verge on the absurd...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT