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Juror Power?

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Juror Power?

Article Appeared in Daily Business Review, by: Susan R. Miller, February 5, 2002

Aiming to make trials more jury friendly, committee suggests overhauling the way the state’s courts conduct business

Mention jury duty and countless citizens cringe. Many who are asked to serve will invoke any excuse to dodge their civic duty.

But it doesn’t have to be like that, according to a 23-member committee that made far-reaching recommendations to the Florida Supreme Court on Monday for overhauling the way the state’s courts conduct their business.

Florida’s Jury Innovations Committee, comprising court administrators, clerks, judges, lawyers and former jurors, presented 48 proposals that if adopted would require the high court to amend its rules of civil and criminal procedures.

For the most part the proposed changes are not radical. Among them: abolishing the numerous exemptions that preclude some from serving, thereby increasing the potential jury pool; increasing citizen education; and encouraging the use of expedited trials.

More controversial among the recommendations are proposals that would allow jurors to ask witnesses questions and to discuss the case prior to deliberations.

The proposal also includes a Juror’s Bill of Rights which promotes increased juror compensation, urges employers to pay employees who are called on to serve and ensures better privacy for jurors.

The committee spent one and a half years crafting proposals it claims will make trials better not only for jurors, but for judges, lawyers, plaintiffs and defendants.

The Florida Supreme Court also heard objections Monday from other interested parties such as the Florida Chapter of the American Board of Trial Advocates (FLABOTA), and the trial lawyers section of the Florida Bar. Those groups fret that a few of the suggestions might adversely affect a juror’s ability to be as even-handed and fair as possible.

Although the proposals are designed to make the system more juror friendly and encourage citizen participation, reaching such a goal might be easier said than done, noted Sylvia Walbot, chairman of the Supreme Court Committee on Standard Jury Instructions in Civil Cases. She said she is worried that efforts to simplify the process might wreak havoc with the law.

Walbolt pointed to attempts by her committee to revampt the standard instruction for negligence cases, which has been in effect for 40 years.

“I can tell you there is a strong belief that the more tinkering we do with it to make it simpler, the worse we make it,” said Walbolt, chairman of the board and a partner at Carlton Fields in St. Petersburg.

During Monday’s oral arguments, Walbolt urged justices to seriously consider the impact that having to rewrite 40 years of civil jury instructions might have on her committee. The task, she said, would be “monumental” and could “negate a wide body of case law that already exists.”

Questions for witnesses

Because jurors often become bored with their role as observers, the panel recommended they be allowed to take a more active role by being allowed to submit written questions to witnesses.

Thomas Munsterman, director of the Center for Jury Studies of the National Center for State Courts in Arlington, Va., pointed out that by allowing jurors to ask questions they could, in theory, become partners with the prosecutor in a criminal case.

“The thought is that there is another active party who might screw things up. There are enough pot holes already,” Munsterman said.

On the other hand, he said, some lawyers like the idea “because for them, they are getting a feeling as to what the jury is feeling or thinking.”

Another recommendation, that jurors be allowed to discuss a case before it’s over, is a cause for concern, said Davisson Dunlap, Jr., a Tallahassee civil trial lawyer with Dunlap & Toole. He notes that it might encourage jurors to formulate a decision based on limited knowledge of the case.

“Our concern is that neither side gets an edge in the process and jurors maintain an open mind throughout the process,” said Dunlap, who headed the committee of FLABOTA that reviewed the 48 proposals and who presented oral arguments on behalf of the organization.

The trial lawyers section of the Florida Bar echoed FLABOTA’S sentiments. Thomas Scarritt, the section’s chair noted that “at first blush allowing jurors to discuss a case before deliberations sounds reasonable,” but that ultimately it may encourage jurors to formulate opinions about the case before they have heard all of the evidence.

Judge Robert Shevin of the 3rd District Court of Appeal in Miami and chairman of the Jury Innovations Committee, conceded to the high court that this recommendation was “the most cutting edge.” But said the panel’s job was to push the envelope, “and that’s exactly what we have done.”

Shevin added that for now the recommendation that jurors be allowed to discuss a case prior to deliberations be limited to civil trials. While no state allows pre-verdict discussions in criminal cases, he noted that Arizona is moving in that direction.

No peremptory challenges?

Another proposal that stirred heated debate was eliminating the use of peremptory challenges. Currently, lawyers can dismiss a number of prospective jurors without giving the court a reason. Shevin said there was talk of strengthening the challenges for cause and having judges become more lenient in granting them. Ultimately, the committee agreed more study was needed.

Short of eliminating the peremptory challenge, Shevin told the justices he would like to see “more liberalization of the judge’s ability to challenge for cause.”

Members of the trial lawyers section of the Florida Bar were “intrigued” by some of the proposals and believe that the innovations “for the most part are quite good,” said Scarritt. But he called any discussion of eliminating peremptory challenges “a dangerous move.” Scarritt told the court “that is a subject that is near and dear to the hearts of trial lawyers and we do not think there should be any change whatsoever.”

Dunlap agreed: “Peremptory challenges,” he told the justices, “fill the gap between challenges for cause and those situations where you inherently know someone is not going to be fair.”

The effort is part of a national movement to improve juror experiences and boost participation. Several states, including Arizona, California, Colorado and New York have successfully implemented reforms. Several others, such as Florida, are moving in that direction.

Dunlap pointed out that while it’s important for jurors to be educated and to feel a part of the process, it’s the people who are having their case heard whose rights should be considered and “they are the ones we should focus on.”
All of the proposals, Shevin said, grew out of much discussion and study.

Shevin said: “We didn’t just jump into this, saying that sounds like something we should do. ”

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