Standards Relating to Juror Use and Management

American Bar Association Judicial Administration Division Committee on Jury Standards

1993 ''

State Justice Institute

.·· .. : Standards Relating to Juror Use and Management

American Bar Association Judicial Administration Division Committee on Jury Standards

1993 This revised edition of the Standards Relating to Juror Use and Management was prepared under a Grant, number SJI-9 I -061-0-B-036 P92- I from the State Justice Institute to the National Center for State Courts. The points of view expressed do not necessarily represent the official position or policies of either the State Justice Institute or the National Center for State Courts

LEXIS was used to revise this edition. LEXIS was provided courtesy of Mead Data Central through a grant to the National Center for State Courts for access to the LEXIS and NEXIS databases and for related services. Preface

In 1980, the National Center for State Courts was awarded a grant from the Law Enforcement Assistance Administration to coordinate the standards development effort and to provide staff support. A Jury Standards Task Force was formed to address the issues concerning management and use of petit jurors in state courts. This task force set policy for the scope and conduct of the project; decided the content and language of the standards; reviewed and approved commentary to accompany the standards; and developed a plan for their dissemination and implementation. Organizations represented on the original Jury Standards Task force include: the Conference of State Court Administrators, the National Association of Trial Court Administrators, the National Association for Court Administration, the National Conference of State Trial Judges, the National Conference of Special Court Judges, and the National Conference of Metropolitan Courts. Organizations added during the course of the task forces work include the National Bar Association, the National Conference of Federal Trial Judges, the Lawyers' Conference and the Appellate Judges' Conference.

At the first meeting of the task force, the representatives of the Judicial Administration Division Conferences suggested that the impact of the standards being developed would be increased if it had the endorsement of the American Bar Association. To implement this suggestion, Judge Lawrence S. Margolis, then-Chairman of the JAD, appointed those members of the task force who were members of the JAD as a special committee to carry the work of the task force to the ABA. The Judicial Administration Division approved the standards in August, 1982. The Association's House of Delegates approved the standards at the 1983 Midyear Meeting in New Orleans.

That special committee of the JAD became the standing Committee on Jury Standards and continues the fine work of the original task force by promulgating the standards to the state courts of the United States. With funding from the State Justice Institute to the National Center for State Courts, teams from the states have received training in the standards. Eleven states have adopted them and this number is expected to rise to sixteen by the end of 1992. 1 The funding from the State Justice Institute also permitted the National Center to provide technical assistance to courts to further assist in the implementation of the standards.

In 1991, the Committee on Jury Standards met to consider revisions to the standards. The committee found that by updating the commentary to the standards, the standards did not require any changes, attesting to the foresight of the original task force. The revised commentary, as contained in this document, was adopted by the Council on February I, 1992.

A comparison of the membership of the original task force with the current Committee on Jury Standards reveals incredible continuity of dedication. Judges Janice Gradwohl, James Noe, Norma Shapiro, Roger Strand, and Mr. John Greacen remain active members of the Committee. I commend them, and the rest of the committee members, current and past, for the excellent work which they have achieved over the years.

1 The states which have adopted the standards are: Alaska, Arizona, Georgia, Idaho, Kansas, Louisiana, Minnesota, North Dakota, Virginia, Washington, and West Virginia. JURY STANDARDS TASK FORCE (1980-1983)

Mr. Walter Kane, Esq., Chairman of Task Force Honorable James A. Noe Providence, RI Seattle, WA

Mr. Don Cullen Mr. Hank Rodgers Austin, MN Ventura, CA

Honorable Janice L. Gradwohl Honorable Norma L. Shapiro Lincoln, NE Philadelphia, PA

John M. Greacen, Esq. Honorable Roger G. Strand Richmond, VA Phoenix, AZ

Mr. Edward B. McConnell, Esq. Mr. Allen L. Tapley, Esq. Williamsburg, VA Montgomery, AL

Mr. James Montgomery, Esq. Honorable Joseph R. Weisberger Chicago, IL Providence,RI Ms. Linda Caviness, Project Director Williamsburg, VA

JUDICIAL ADMINISTRATIVE DIVISION COMMITTEE ON JURY STANDARDS (1991-1992)

Honorable Janice L. Gradwohl, Chair Honorable James A. Noe Lincoln, NE Seattle, WA

Honorable Taylor L. Baker, Jr. Larry P. Polansky, Esq. Indianapolis, IN Alexandria, VA

Honorable Elsbeth Levy Bothe Honorable Norma L. Shapiro Baltimore, MD Philadelphia, PA

John M. Greacen, Esq. Honorable R. Shearn Smith Albuquerque, NM Houston, TX

Honorable Harl H. Haas Honorable Roger G. Strand Portland, OR Phoenix, AZ

Honorable Odel Horton G. Thomas Munsterman, Project Director Memphis, TN Arlington, VA I wish to thank the State Justice Institute for their continued support which has made the Standards an operating reality in many of our courts. I also would like to recognize the National Center for State Courts for its continued dedication to this effort and finally I must commend the many judges and administrators who have implemented the standards in their courts. To these people my thanks are modest compared to the thanks by those citizens serving as jurors and the many litigants who seek justice in our courts through the jury system.

Theodore A. Kolb Chairman Judicial Administration Division 1991- 1992

ii Table of Contents

INTRODUCTION ...... !

BLACK LETIER STANDARDS ...... 3

STANDARDS AND COMMENTARY

Part A: Standards Relating to Selection of Prospective Jurors

Introduction ...... l5 Footnotes ...... 16

Standard 1: OPPORTUNITY FOR SERVICE ...... l7 Commentary ...... 17 Suggested Steps for Implementation ...... 18 Related Standards ...... 19 Footnotes ...... 19 References ...... 21

Standard 2: JURY SOURCE LIST ...... 24 Commentary ...... 24 Suggested Steps for Implementation ...... 28 Related Standards ...... 29 Footnotes ...... 29 References ...... 31

Standard 3: RANDOM SELECTION PROCEDURES ...... 37 Commentary ...... 37 Suggested Steps for Implementation ...... 39 Related Standards ...... 39 Footnotes ...... 39 References ...... 42

Standard 4: ELIGIBILITY FOR JURY SERVICE ...... 48 Commentary ...... 48 Suggested Steps for Implementation ...... 5 I Related Standards ...... 5 I Footnotes ...... 5 I References ...... 54

Standard 5: TERM OF AND AVAILABILITY FOR SERVICE ...... 56 Commentary ...... 56 Suggested Steps for Implementation ...... 58 Related Standards ...... 59 Footnotes ...... 59

iii References ...... 61

Standard 6: EXEMPTION, EXCUSE, AND DEFERRAL ...... 63 Commentary ...... 63 Suggested Steps for Implementation ...... 66 Related Standards ...... 67 Footnotes ...... 67 References ...... 69

Part B: Standards Relating to Selection of a Particular Jury

Introduction ...... 72

Standard 7: VOIR DIRE ...... : ...... 73 Commentary ...... 73 Suggested Steps for Implementation ...... 76 Related Standards ...... 77 Footnotes ...... 77 References ...... 81

Standard 8: REMOVAL FROM THE JURY PANEL FOR CAUSE ...... 87 Commentary ...... 87 Suggested Steps for Implementation ...... 88 Related Standards ...... 88 Footnotes ...... 89 References ...... 90

Standard 9: PEREMPTORY CHALLENGES ...... 91 Commentary ...... 92 Suggested Steps for Implementation ...... 95 Related Standards ...... 95 Footnotes ...... 96 References ...... 99

Part C: Standards Relating to Efficient Jury Management

Introduction ...... ! 08

Standard I 0: ADMINISTRATION OF THE JURY SYSTEM ...... ! 09 Commentary ...... ! 09 Suggested Steps for Implementation ...... 112 Related Standards ...... 112 Footnotes ...... ll2 References ...... 114

Standard 11: NOTIRCATION AND SUMMONING PROCEDURES ...... 116

iv Commentary ...... 116 Suggested Steps for Implementation ...... 120 Related Standards ...... 121 Footnotes ...... 121 References ...... 123

Standard 12: MONITORING THE JURY SYSTEM ...... 125 Commentary ...... 125 Suggested Steps for Implementation ...... l26 Related Standards ...... 127 Foomotes ...... 127 References ...... 128

Standard 13: JUROR USE ...... l30 Commentary ...... 130 Suggested Steps for Implementation ...... 134 Related Standards ...... 136 Footnotes ...... 136 References ...... l38

Standard 14: JURY F ACILffiES ...... 140 Commentary ...... 140 Suggested Steps for Implementation ...... l42 Related Standards ...... 143 Footnotes ...... 143 References ...... 144

Standard 15: JUROR COMPENSATION ...... 145 Commentary ...... 145 Suggested Steps for Implementation ...... 146 Related Standards ...... 147 Footnotes ...... l47 References ...... 149

Part D: Standards Relating to Juror Performance and Deliberations lntroduction ...... l51

Standard 16: JUROR ORIENTATION AND INSTRUCTION ...... 152 Commentary ...... 153 Suggested Steps for Implementation ...... 160 Related Standards ...... 160 Fllomotes ...... 161 References ...... 163

Standard 17: JURY SIZE AND UNANIMITY OF VERDICT ...... 166 v I Commentary ...... 166 Suggested Steps for Implementation ...... 169 Related Standards ...... 169 Footnotes ...... 169 References ...... 173

Standard 18: JURY DELffiERATIONS ...... 178 Commentary ...... 178 Suggested Steps for Implementation ...... 180 Related Standards ...... 180 Footnotes ...... l80 References ...... 182

Standard 19: SEQUES1RATION OF JURORS ...... l83 Commentary ...... 183 Suggested Steps for Implementation ...... 185 Related Standards ...... 186 Footnotes ...... 186 References ...... 188

APPENDIX-Representativeness and Inclusiveness of Source Lists ...... l89

GLOSSARY ...... l93

INDEX ...... 208

vi Introduction

Guiding Statement of the Jury Standards Task Force and the ABNJury Standards Committee

Trial by jury is a fundamental concept of the American system of justice and has been instrumental in the preservation of individual rights while serving the interests of the general public.

The significance of the jury is not limited to its role in the decision-making process; jury service also provides citizens with an opportunity to learn. observe. and participate in the judicial process. The jury system affords an opportunity for citizens to develop an active concern for and interest in the administration of justice. Education of the public in the role of the jury in the American legal system, therefore, is essential.

Efficient court administration and management will best guarantee preservation of the jury system and enhance the quality of the decision-making process. Specifically, courts must seek to defme those qualities and characteristics which constitute effective jury use and management. Courts must ensure that jury resources are utilized to the maximum degree of efficiency, while minimizing inconvenience to individual citizens. Courts must identify those procedures and processes that have proven successful in increasing the economies of jury service and must present such findings in a manner that will be informative and suitable for application in courts throughout the United States.

Document Organization

The goals of jury system management focus on providing the fairest possible forum for handling criminal matters and resolving disputes while increasing the overall efficiency of jury operations, reducing costs, and improving the attitudes of the citizenry about jury duty. Management of a jury system includes every aspect of selecting jurors and utilizing their services from identifying prospective jurors and accurately predicting the courts' need for jurors, to providing adequate and appropriate facilities for the jury.

The standards set forth here are geared to meet these specific goals, as well as the more general goals outlined in the Guiding Statement.

The standards present recommendations addressing four areas of jury management: selection of prospective jurors, selection of a particular jury, efficient jury management, and juror performance and deliberation.

Each of the nineteen standards is accompanied by commentary that sets forth the rationale for the standard, discusses various practices underlying the standard, and contains specific recommendations for action under the standard. Additionally, each standard and commentary is followed by an outline of suggested actions for courts to take to comply with the standard. In some areas the task force was unable to be as specific as it would have liked because of the wide variation in jury practices throughout the country. The commentary also recognizes certain areas in which there are wide variances in jury processes.

A section on related standards references similar standards by other organizations. Those organizations and standards documents are listed here for easy reference.

American Bar Association, Chicago, IL

Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury," Chapter 15, January 1986 "Fair Trial and Free Press," Chapter 8, Amendments dated 1991 Judicial Administration Division, Standards Relating to Trial Courts. Discussion Draft, May 1991

National Advisory Commission, Courts

National Advisory Commission on Criminal Justice Standards and Goals, Courts. Washington, DC, 1973

National Conference of Commissioners on Uniform State Laws.

Uniform Jury Selection and Service Act. Reprinted in The Jury: Selected Readings ed. Glenn Winter, Chicago: American Judicature Society, 1971, pp. 110-125

Uniform Rules of Criminal Procedure West Publishing Co. ( 1987)

National District Attorneys Association

National Prosecution Standards, Second Edition. National District Attorneys Association, Alexandria, VA 1991

Commission on Trial Court Performance Standards

Trial Court Performance Standards. National Center for State Courts, Williamsburg, VA 1990

The references are organized by topic area to give courts that want to study selected aspects of jury management the most complete listings.

The appendix provides supplementary material on measuring the inclusiveness and representativeness of source lists.

2 Standards Relating to Juror Use and Management

Part A. Standards Relating to Selection of Prospective Jurors

Standard 1: OPPORTUNITY FOR JURY SERVICE

THE OPPORTUNITY FOR JURY SERVICE SHOULD NOT BE DENIED OR LIMITED ON THE BASIS OF RACE, NATIONAL ORIGIN, GENDER, AGE, RELIGIOUS BELIEF, INCOME, OCCUPATION, OR ANY OTHER FACTOR THAT DISCRIMINATES AGAINST A COGNIZABLE GROUP IN THE JURISDICTION.

Standard 2: J!JRY SOURCE LIST

(a) THE NAMES OF POTENTIAL JURORS SHOULD BE DRAWN FROM A JURY SOURCE LIST COMPILED FROM ONE OR MORE REGULARLY MAINTAINED LISTS OF PERSONS RESIDING IN THE COURT JURISDICTION.

(b) THE JURY SOURCE LIST SHOULD BE REPRESENTATIVE AND SHOULD BE AS INCLUSIVE OF THE ADULT POPULATION IN THE JURISDICTION AS IS FEASIBLE.

(c) THE COURT SHOULD PERIODICALLY REVIEW THE JURY SOURCE LIST FOR ITS REPRESENTATIVENESS AND INCLUSIVENESS OF THE ADULT POPULATION IN THE JURISDICTION.

(d) SHOULD THE COURT DETERMINE THAT IMPROVEMENT IS NEEDED IN THE REPRESENTATIVENESS OR INCLUSIVENESS OF THE JURY SOURCE LIST, APPROPRIATE CORRECTIVE ACTION SHOULD BE TAKEN.

Standard 3: RANDOM SELECTION PROCEDURES

(a) RANDOM SELECTION PROCEDURES SHOULD BE USED THROUGHOUT THE JUROR SELECTION PROCESS. ANY METHOD MAY BE USED, MANUAL OR AUTOMATED, THAT PROVIDES EACH ELIGIBLE AND AVAILABLE PERSON WITH AN EQUAL PROBABILITY OF SELECTION.

(b) RANDOM SELECTION PROCEDURES SHOULD BE EMPLOYED IN

3 (i) SELECTING PERSONS TO BE SUMMONED FOR JURY SERVICE;

(ii) ASSIGNING PROSPECTIVE JURORS TO PANELS; AND

(iii) CALLING PROSPECTIVE JURORS FOR VOIR DIRE.

(i) TO EXCLUDE PERSONS INELIGffiLE FOR SERVICE IN ACCORDANCE WITH STANDARD 4;

(ii) TO EXCUSE OR DEFER PROSPECTIVE JURORS IN ACCORDANCE WITH STANDARD 6;

(iii) TO REMOVE PROSPECTIVE JURORS FOR CAUSE OR IF CHALLENGED PEREMPTORILY IN ACCORDANCE WITH STANDARDS8AND9;AND

(iv) TO PROVIDE ALL PROSPECTIVE JURORS WITH AN OPPORTUNITY TO BE CALLED FOR JURY SERVICE AND TO BE ASSIGNED TO A PANEL IN ACCORDANCE WITH STANDARD I3.

Standard 4: ELIGIBILITY FOR JURY SERVICE

ALL PERSONS SHOULD BE ELIGffiLE FOR JURY SERVICE EXCEPT THOSE WHO

(a) ARE LESS THAN EIGHTEEN YEARS OF AGE, OR

(b) ARE NOT CITIZENS OF THE UNITED STATES, OR

(d) ARE NOT ABLE TO COMMUNICATE IN THE ENGLISH LANGUAGE, OR

(e) HAVE BEEN CONVICTED OF A FELONY AND HAVE NOT HAD THEIR CIVIL RIGHTS RESTORED.

4 Standard 5: TERM OF AND AVAILABILITY FOR JURY SERVICE

THE TIJ\.1E THAT PERSONS ARE CALLED UPON TO PERFORM JURY SERVICE AND TO BE AVAILABLE THEREFORE, SHOULD BE THE SHORTEST PERIOD CONSISTENT WITH THE NEEDS OF JUSTICE.

(a) TERM OF SERVICE OF ONE DAY OR THE COMPLETION OF ONE TRIAL, WHICHEVER IS LONGER, IS RECOMMENDED. HOWEVER, A TERM OF ONE WEEK OR THE COMPLETION OF ONE TRIAL, WHICHEVER IS LONGER, IS ACCEPTABLE.

(b) PERSONS SHOULD NOT BE REQUIRED TO MAINTAIN A STATUS OF AVAILABILITY FOR JURY SERVICE FOR LONGER THAN TWO WEEKS EXCEPT IN AREAS WITH FEW JURY TRIALS WHEN IT MAY BE APPROPRIATE FOR PERSONS TO BE AVAILABLE FOR SERVICE OVER A LONGER PERIOD OF TIME.

Standard 6: EXEMPTION. EXCUSE AND DEFERRAL

(a) ALL AUTOMATIC EXCUSES OR EXEMPTIONS FROM JURY SERVICE SHOULD BE ELIJ\.1INATED.

(b) ELIGIBLE PERSONS WHO ARE SUMMONED MAY BE EXCUSED FROM JURY SERVICE ONLY IF:

(i) THEIR ABILITY TO RECEIVE AND EVALUATE INFORMATION IS SO IMP AIRED THAT THEY ARE UNABLE TO PERFORM THEIR DUTIES AS JURORS AND THEY ARE EXCUSED FOR THIS REASON BY A JUDGE; OR

(ii) THEY REQUEST TO BE EXCUSED BECAUSE THEIR SERVICE WOULD BE A CONTINUING HARDSHIP TO THEM OR TO MEMBERS OF THE PUBLIC, OR THEY HAVE BEEN CALLED FOR JURY SERVICE DURING THE TWO YEARS PRECEDING THEIR SUMMONS, AND THEY ARE EXCUSED BY A JUDGE OR DULY AUTHORIZED COURT OFFICIAL.

(c) DEFERRALS OF JURY SERVICE FOR REASONABLY SHORT PERIODS OF TIME MAY BE PERMITTED BY A JUDGE OR DULY AUTHORIZED COURT OFFICIAL.

(d) REQUESTS FOR EXCUSES AND DEFERRALS AND THEIR DISPOSITION SHOULD BE WRITTEN OR OTHERWISE MADE OF RECORD. SPECIFIC UNIFORM GUIDELINES FOR DETERMINING SUCH REQUESTS SHOULD BE ADOPTED BY THE COURT.

5 Part B. Standards Relating to Selection of a Particular Jury

Standard?· VOIR DIRE

VOIR DIRE EXAMINATION SHOULD BE LIMITED TO MATTERS RELEVANT TO DETERMINING WHETHER TO REMOVE A JUROR FOR CAUSE AND TO EXERCISING PEREMPTORY CHALLENGES.

(a) TO REDUCE THE TIME REQUIRED FOR VOIR DIRE, BASIC BACKGROUND INFORMATION REGARDING PANEL MEMBERS SHOULD BE MADE AVAILABLE IN WRITING TO COUNSEL FOR EACH PARTY ON THEDA Y ON WHICH JURY SELECTION IS TO BEGIN.

(b) THE TRIAL JUDGE SHOULD CONDUCT THE INITIAL VOIR DIRE EXAMINATION. COUNSEL SHOULD BE PERMITTED TO QUESTION PANEL MEMBERS FOR A REASONABLE PERIOD OF TIME.

(c) THE JUDGE SHOULD ENSURE THAT THE PRIVACY OF PROSPECTIVE JURORS IS REASONABLY PROTECTED, AND THAT THE QUESTIONING BY COUNSEL IS CONSISTENT WITH THE PURPOSE OF THE VOIR DIRE PROCESS.

(d) IN CRIMINAL CASES, THE VOIR DIRE PROCESS SHOULD ALWAYS BE HELD ON THE RECORD. IN CIVIL CASES, THE VOIR DIRE PROCESS SHOULD BE HELD ON THE RECORD UNLESS WAIVED BY THE PARTIES.

Standard 8: REMOVAL FROM THE JURY PANEL FOR CAUSE

IF THE JUDGE DETERMINES DURING THE VOIR DIRE PROCESS THAT ANY INDIVIDUAL IS UNABLE OR UNWILLING TO HEAR THE PARTICULAR CASE AT ISSUE FAIRLY AND IMPARTIALLY, THAT INDIVIDUAL SHOULD BE REMOVED FROM THE PANEL. SUCH A DETERMINATION MAY BE MADE ON MOTION OF COUNSEL OR ON THE JUDGE'S OWN INITIATIVE.

Standard 9: PEREMPTORY CHALLENGES

(a) THE NUMBER OF AND PROCEDURE FOR EXERCISING PEREMPTORY CHALLENGES SHOULD BE UNIFORM THROUGHOUT THE STATE.

(b) PEREMPTORY CHALLENGES SHOULD BE LIMITED TO A NUMBER NO LARGER THAN NECESSARY TO PROVIDE REASONABLE ASSURANCE OF OBTAINING AN UNBIASED JURY.

6 (c) IN CIVIL CASES, THE NUMBER OF PEREMPTORY CHALLENGES SHOULD NOT EXCEED THREE FOR EACH SIDE.

(d) IN CRIMINAL CASES, THE NUMBER OF PEREMPTORY CHALLENGES SHOULD NOT EXCEED

(i) TEN FOR EACH SIDE WHEN A DEATH SENTENCE MAY BE IMPOSED UPON CONVICTION;

(ii) FIVE FOR EACH SIDE WHEN A SENTENCE OF IMPRISONMENT FOR MORE THAN SIX MONTHS MAY BE IMPOSED UPON CONVICTION; OR

(iii) THREE FOR EACH SIDE WHEN A SENTENCE OF INCARCERATION OF SIX MONTHS OR FEWER, OR WHEN ONLY A PENALTY NOT INVOLVING IN CAR CERATION MAY BE IMPOSED. ONE ADDITIONAL PEREMPTORY CHALLENGE SHOULD BE ALLOWED FOR EACH DEFENDANT IN A MULTI-DEFENDANT CRIMINAL PROCEEDING.

(e) WHERE JURIES OF FEWER THAN TWELVE PERSONS ARE USED IN CIVIL OR PETTY OFFENSE CASES, THE NUMBER OF PEREMPTORY CHALLENGES SHOULD NOT EXCEED TWO FOR EACH SIDE.

(t) ONE PEREMPTORY CHALLENGE SHOULD BE ALLOWED TO EACH SIDE IN A CIVIL OR CRIMINAL PROCEEDING FOR EVERY TWO ALTERNATE JURORS TO BE SEATED.

(g) THE TRIAL JUDGE SHOULD HAVE THE AUTHORITY TO ALLOW ADDffiONAL PEREMPTORY CHALLENGES WHEN JUSTIFIED.

(h) FOLLOWING COMPLETION OF THE VOIR DIRE EXAMINATION, COUNSEL SHOULD EXERCISE THEIR PEREMPTORY CHALLENGES BY ALTERNATELY STRIKING NAMES FROM THE LIST OF PANEL MEMBERS UNTIL EACH SIDE HAS EXHAUSTED OR WAIVED THE PERMITTED NUMBER OF CHALLENGES.

7 Part C. Standards Relating to Efficient Jury Management

Standard 10: ADMiNISTRATION OF THE JURY SYSTEM

THE RESPONSIBILITY FOR ADMINISTRATION OF THE JURY SYSTEM SHOULD BE VESTED EXCLUSIVELY IN THE JUDICIAL BRANCH OF GOVERNMENT.

(a) ALL PROCEDURES CONCERNING JURY SELECTION AND SERVICE SHOULD BE GOVERNED BY COURT RULES AND REGULATIONS PROMULGATED BY THE STATE'S HIGHEST COURT OR JUDICIAL COUNCIL.

(b) A SINGLE UNIFIED JURY SYSTEM SHOULD BE ESTABLISHED IN ANY AREA IN WHICH TWO OR MORE COURTS CONDUCT JURY · TRIALS. THIS APPLIES WHETHER THEY ARE OF THE SAME OR OF DIFFERING SUBJECT MATTER OR GEOGRAPHIC JURISDICTION.

(c) RESPONSIBILITY FOR ADMINISTERING THE JURY SYSTEM SHOULD BE VESTED IN A SINGLE ADMINISTRATOR ACTING UNDER THE SUPERVISION OF A PRESIDING JUDGE OF THE COURT.

Standard I I: NOTIFICATION AND SUMMONING PROCEDURES

(a) THE NOTICE SUMMONING A PERSON TO JURY SERVICE AND THE QUESTIONNAIRE ELICITING INFORMATION REGARDING THAT PERSON SHOULD BE

(i) COMBINED IN A SINGLE DOCUMENT;

(ii) PHRASED SO AS TO BE READILY UNDERSTOOD BY AN INDIVIDUAL UNFAMILIAR WITH THE LEGAL AND JURY SYSTEMS; AND,

(iii) DELIVERED BY FIRST CLASS MAIL.

(b) A SUMMONS SHOULD CLEARLY EXPLAIN HOW AND WHEN THE RECIPIENT MUST RESPOND AND THE CONSEQUENCES OF A FAILURE TO RESPOND.

(c) THE QUESTIONNAIRE SHOULD BE PHRASED AND ORGANIZED SO AS TO FACILITATE QUICK AND ACCURATE SCREENING, AND SHOULD REQUEST ONLY THAT INFORMATION ESSENTIAL FOR

(i) DETERMINING WHETHER A PERSON MEETS THE CRITERIA FOR ELIGIBILITY; 8 I (ii) PROVIDING BASIC BACKGROUND INFORMATION ORDINARILY SOUGHT DURING VOIR DIRE EXAMINATION; AND

(iii) EFFICIENTLY MANAGING THE JURY SYSTEM.

(d) POLICIES AND PROCEDURES SHOULD BE ESTABLISHED FOR ENFORCING A SUMMONS TO REPORT FOR JURY SERVICE AND FOR MONITORING FAILURES TO RESPOND TO A SUMMONS.

Standard 12: MONITORING THE JURY SYSIEM

COURTS SHOULD COLLECT AND ANALYZE INFORMATION REGARDING THE PERFORMANCE OF THE JURY SYSTEM ON A REGULAR BASIS IN ORDER TO ENSURE

(a) THE REPRESENTATIVENESS AND INCLUSIVENESS OF THE JURY SOURCE LIST;

(b) THE EFFECTIVENESS OF QUALIFICATION AND SUMMONING PROCEDURES;

(d) THE EFFICIENT USE OF JURORS; AND

(e) THE COST EFFECTIVENESS OF THE JURY SYSTEM.

Standard 13: JUROR USE

(a) COURTS SHOULD EMPLOY THE SERVICES OF PROSPECTIVE JURORS SO AS TO ACHIEVE OPTIMUM USE WITH A MINIMUM OF INCONVENIENCE TO JURORS.

(b) COURTS SHOULD DETERMINE THE MINIMALLY SUFFICIENT NUMBER OF JURORS NEEDED TO ACCOMMODATE TRIAL ACTIVITY. THIS INFORMATION AND APPROPRIATE MANAGEMENT TECHNIQUES SHOULD BE USED TO ADJUST BOTH THE NUMBER OF INDIVIDUALS SUMMONED FOR JURY DUTY AND THE NUMBER ASSIGNED TO JURY PANELS.

(c) COURTS SHOULD ENSURE THAT EACH PROSPECTIVE JUROR WHO HAS REPORTED TO THE COURTHOUSE IS ASSIGNED TO A COURTROOM FOR VOIR DIRE BEFORE ANY PROSPECTIVE JUROR IS ASSIGNED A SECOND TIME.

(d) COURTS SHOULD COORDINATE JURY MANAGEMENT AND CALENDAR MANAGEMENT TO MAKE EFFECTIVE USE OF JURORS.

9 Standard 14: JURY FACU..IDES

COURTS SHOULD PROVIDE AN ADEQUATE AND SUITABLE ENVIRONMENT FOR JURORS.

(a) THE ENTRANCE AND REGISTRATION AREA SHOULD BE CLEARLY IDENTIFIED AND APPROPRIATELY DESIGNED TO ACCOMMODATE THE DAILY FLOW OF PROSPECTIVE JURORS TO THE COURTHOUSE.

(b) JURORS SHOULD BE ACCOMMODATED IN PLEASANT WAITING FACll..IDES FURNISHED WITH SUITABLE AMENITIES.

(c) JURY DELillERATION ROOMS SHOULD INCLUDE SPACE, FURNISHINGS AND FACU..ITIES CONDUCIVE TO REACHING A FAIR VERDICT. THE SAFETY AND SECURITY OF THE DELIBERATION ROOMS SHOULD BE ENSURED.

(d) TO THE EXTENT FEASIBLE, JUROR FACll..ITIES SHOULD BE ARRANGED TO MINIMIZE CONTACT BETWEEN JURORS, PARTIES, COUNSEL AND THE PUBLIC.

Standard 15: llJROR COMPENSATION

(a) PERSONS CALLED FOR JURY SERVICE SHOULD RECEIVE:

(i) A NOMINAL AMOUNT IN RECOGNITION OF OUT-OF-POCKET EXPENSES FOR THE FIRST DAY THEY REPORT TO THE COURTHOUSE;

(ii) A REASONABLE FEE FOR EACH SUCCEEDING DAY THEY REPORT.

(b) SUCH ;~,,10UNTS AND FEES SHOULD BE PAID PROMPTLY.

(c) STATE LAW SHOULD PROHIBIT EMPLOYERS FROM DISCHARGING, LAYING-OFF, DENYING ADVANCEMENT OPPORTUNITIES TO, OR OTHERWISE PENALIZING EMPLOYEES WHO MISS WORK BECAUSE OF JURY SERVICE.

Part D. Standards Relating to Juror Performance and Deliberations

Standard 16: JVROR ORIENTATION AND INSIRUCTION

(a) COUR SHOULD PROVIDE SOME FORM OF ORIENTATION OR INSTRL!CTIONS TO PERSONS CALLED FOR JURY SERVICE:

(i) UPON INITIAL CONTACT PRIOR TO SERVICE;

10 (ii) UPON FIRST APPEARANCE AT THE COURTHOUSE;

(iii) UPON REPORTING TO A COURTROOM FOR VOIR DIRE;

(iv) DIRECTLY FOLLOWING EMPANELMENT;

(v) DURING THE TRIAL;

(vi) PRJ OR TO DELIBERATIONS; AND

(vii) AFTER THE VERDICT HAS BEEN RENDERED OR WHEN A PROCEEDING IS TERMINATED WITHOUT A VERDICT.

(b) ORIENTATION PROGRAMS SHOULD BE

(i) DESIGNED TO INCREASE PROSPECTIVE JURORS' UNDERSTANDING OF THE JUDICIAL SYSTEM AND PREPARE THEM TO SERVE COMPETENTLY AS JURORS;

(ii) PRESENTED IN A UNIFORM AND EFFICIENT MANNER USING A COMBINATION OF WRITTEN, ORAL AND AUDIOVISUAL MATERIALS.

(i) GIVE PRELIMINARY INSTRUCTIONS DIRECTLY FOLLOWING EMPANELMENT OF THE JURY THAT EXPLAIN THE JURY'S ROLE, THE TRIAL PROCEDURES INCLUDING NOTE-TAKING AND QUESTIONING BY JURORS, THE NATURE OF EVIDENCE AND ITS EVALUATION, THE ISSUES TO BE ADDRESSED, AND THE BASIC RELEVANT LEGAL PRINCIPLES.

(ii) PRJOR TO THE COMMENCEMENT OF DELffiERATIONS, INSTRUCT THE JURY ON THE LAW, ON THE APPROPRIATE PROCEDURES TO BE FOLLOWED DURING DELffiERATIONS, AND ON THE APPROPRIATE METHOD FOR REPORTING THE RESULTS OF ITS DELIBERATIONS. SUCH INSTRUCTIONS SHOULD BE RECORDED OR REDUCED TO WRITING AND MADE AVAILABLE TO THE JURORS DURING DELIBERATIONS.

(iii) PREP ARE AND DELIVER INSTRUCTIONS WHICH ARE READILY UNDERSTOOD BY INDIVIDUALS UNFAMILIAR WITH THE LEGAL SYSTEM.

(d) BEFORE DISMISSING A JURY AT THE CONCLUSION OF A CASE, THE TRIAL JUDGE SHOULD

(i) RELEASE THE JURORS FROM THEIR DUTY OF CONFIDENTIALITY;

11 (ii) EXPLAIN THEIR RIGHTS REGARDING INQUIRIES FROM COUNSEL OR THE PRESS; AND

(iii) EITHER ADVISE THEM THAT THEY ARE DISCHARGED FROM SERVICE OR SPECIFY WHERE THEY MUST REPORT.

THE JUDGE SHOULD EXPRESS APPRECIATION TO THE JURORS FOR THEIR SERVICE, BUT THE JUDGE SHOULD NOT EXPRESS APPROVAL OR DISAPPROVAL OF THE RESULT OF THE DELIBERATION.

(e) ALL COMMUNICATIONS BETWEEN THE JUDGE AND MEMBERS OF THE JURY PANEL FROM THE TIME OF REPORTING TO THE COURTROOM FOR VOIR DIRE UNTIL DISMISSAL SHOULD BE IN WRITING OR ON THE RECORD IN OPEN COURT. COUNSEL FOR EACH P.ARTY SHOULD BE INFORMED OF SUCH COMMUNICATION AND GIVEN THE OPPORTUNITY TO BE HEARD.

Standard 17: JURY SIZE AND UNANIMITY OF VERDICT

(a) JURIES IN CRIMINAL CASES SHOULD CONSIST OF:

(i) TWELVE PERSONS IF A PENALTY OF CONFINEMENT FOR MORE THAN SIX MONTHS MAY BE IMPOSED UPON CONVICTION;

(ii) AT LEAST SIX PERSONS IF THE MAXIMUM PERIOD OF CONFINEMENT THAT MAY BE IMPOSED UPON CONVICTION IS SIX MONTHS OR FEWER. A UNANIMOUS DECISION SHOULD BE REQUIRED FOR A VERDICT IN ALL CRIMINAL CASES HEARD BY A JURY.

(b) JURIES IN CIVIL CASES SHOULD CONSIST OF NO FEWER THAN SIX AND NO MORE THAN TWELVE PERSONS. IT IS ACCEPT ABLE TO HAVE EITHER UNANIMOUS OR NONUNANIMOUS VERDICTS IN CIVIL CASES, PROVIDED HOWEVER THAT A CIVIL JURY SHOULD NOT BE AUTHORIZED TO RETURN A VERDICT WIDCH IS CONCURRED IN BY LESS THAN THREE QUARTERS OF ITS MEMBERS.

Standard I 8: JURY DELffiERATIONS

JURY DELffiERATIONS SHOULD TAKE PLACE UNDER CONDffiONS AND P! ;UANTTO PROCEDURES THAT ARE DESIGNED TO ENSURE IMPARTIALITY A TO ENHANCE RATIONAL DECISION-MAKING. '

(a) THE JUDGE SHOULD INSTRUCT THE JURY CONCERNING APPROPRIATE PROCEDURES TO BE FOLLOWED DURING DELIBERATIONS IN ACCORDANCE WITH STANDARD !6(c).

12 . (b) THE DELIBERATION ROOM SHOULD CONFORM TO THE RECOMMENDATIONS SET FORTH IN STANDARD 14(C).

(d) A JURY SHOULD NOT BE REQUIRED TO DELIBERATE AFTER NORMAL WORKING HOURS UNLESS THE TRIAL JUDGE, AFTER CONSULTATION WITH COUNSEL, DETERMINES THAT EVENING OR WEEKEND DELIBERATIONS WOULD NOT IMPOSE AN UNDUE HARDSHIP UPON THE JURORS AND ARE REQUIRED IN THE INTERESTS OF JUSTICE.

(e) TRAINING SHOULD BE PROVIDED TO PERSONNEL WHO ESCORT AND ASSIST JURORS DURING DELIBERATION.

Standard 19" SEQUESTRATION OF JURORS

(a) A JURY SHOULD BE SEQUESTERED ONLY FOR THE PURPOSE OF INSULATING ITS MEMBERS FROM IMPROPER INFORMATION OR INFLUENCES.

(b) THE TRIAL JUDGE SHOULD HAVE THE DISCRETION TO SEQUESTER A JURY ON THE MOTION OF COUNSEL OR ON THE JUDGE'S INITIATIVE, AND THE RESPONSIBILITY TO OVERSEE THE CONDITIONS OF SEQUESTRATION.

(i) THE PURPOSE OF SEQUESTRATION IS ACHIEVED; AND

(ii) THE INCONVENIENCE AND DISCOMFORT OF THE SEQUESTERED JURORS IS MINIMIZED.

(d) TRAINING SHOULD BE PROVIDED TO PERSONNEL WHO ESCORT, AND ASSIST JURORS DURING SEQUESTRATION. USE OF PERSONNEL ACTIVELY ENGAGED IN LAW ENFORCEMENT FOR ESCORTING AND ASSISTING JURORS DURING SEQUESTRATION IS DISCOURAGED.

13 Standards and Commentary

Part A: Standards Relating to Selection of Prospective Jurors

Standard 1: OPPORTUNITY FOR SERVICE

Standard 2: JURY SOURCE LIST Standard 3: RANDOM SELECTION PROCEDURES

Standard 4: ELIGffiiLITY FOR JURY SERVICE Standard 5: TERM OF AND AVAILABILITY FOR SERVICE

Standard 6: EXEMPTION, EXCUSE AND DEFERRAL

14 PART A: STANDARDS RELATING TO SELECTION OF PROSPECTIVE JURORS

Introduction

In Taylor v. Louisiana, 1 the United States Supreme Court stated that:

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation .... Community participation in the administration of the criminal law... is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. "Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case. . . . [T]he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing the administration of justice is a phase of civic responsibility." Thiel v. Southern Pacific Co., 328 U.S. 217,227 (1946)(Frankfurter, J., dissenting).2

The primary objectives of the standards in this section are to ensure that the pool of prospective jurors reflects the fair cross-section of the community called for by the Court in Thiel, Taylor, and other jury discrimination cases,3 and that jury service is spread across as broad a proportion of the eligible population as feasible. The standards, commentaries, and suggested implementation actions seek to identify means of accomplishing these objectives in a cost-efficient manner. They are arranged in roughly the same sequence as the jury selection process itself.

In keeping with these objectives, Standard I delineates the duty of the court, commission, or individual responsible for managing the jury selection process to avoid practices and procedures that curtail the opportunity of any legally cognizable group in the community to serve on the jury. The subsequent standard reinforces this principle by specifying that the source list--i.e., the compilation of lists from which are drawn the names of persons subject to being called for jury service--should be representative of the cognizable groups in the community and as inclusive as is practicable. It urges the courts to review the source list periodically to make certain that it is current and that any deficiencies in coverage are corrected.

Standard 3 recommends that random selection procedures be used at each appropriate point in the jury selection process to ensure that the representativeness provided by a broadly based source list is not inadvertently diminished or consciously altered. Standard 4 addresses

15 the qualifications required for jury service. It limits eligibility restrictions to those that are essential to maintaining the integrity of the judicial process and defines the requirements so that they are easily determinable on an objective basis.

Standard 5 addresses the term of service. It recognizes that reducing the length of jury service can help to minimize the hardship and inconvenience imposed by jury duty, to permit elimination of exemptions from jury service and the enforcement of a strict excuse policy, and thereby, to increase substantially the representativeness and inclusiveness of the jury pool. Accordingly, the standard strongly encourages adoption of a one trial/one day system and recommends that persons not actually serving on a trial jury should be required to remain available for jury service for no more than two weeks. Finally, Standard 6 tackles the question of exemptions, excuses, and deferrals. It proposes that all automatic excuses and exemptions be eliminated, that the grounds for granting an excuse be limited, and that.the needs of individual prospective jurors be accommodated by deferring jury service to a more convenient, specific date.

As is evident from the above summary, this set of interlocking standards covers a range of difficult and controversial issues. The recommendations attempt to combine the constitutional prerequisites with the best of current practice so as to present a practical and reasonable guide to state and local jurisdictions for improving their jury systems.

FOQTNOTES

I 419 U.S. 522 (1975).

2 /d. at 530-531.

3 See, e.g., Peters v. Kif!, 407 U.S. 493 (1972); Castenada v. Partida, 430 U.S. 482 (1977); Duren v. Missouri, 439 U.S. 357 (1979).

16 Standard 1: OPPORTUNITY FOR SERVICE

COMMENTARY

Jury duty is both a civic responsibility and an obligation of all qualified citizens. It is also a constitutional right of citizens recognized by the U.S. Supreme Court. 1 The standard stresses that each group and individual should have the opportunity for jury service, and that none should be excluded. By ensuring that everyone has the opportunity to serve, a court not only increases the number of individuals serving as jurors, but also increases the representativeness of the panel. The Supreme Court has recently held that a prima facie violation of the fair cross-section requirement is shown when a distinctive group in the community is not represented in the venires from which juries are selected in a fair and reasonable relationship to the number of such persons in the community; and the underrepresentation is due to the systematic exclusion of the group in the jury selection process. 2

Over the years, courts have decided that particular juror selection procedures improperly curtailed the opportunity of certain cognizable groups to serve on juries. 3 Among the segments of the population that have been identified as a "cognizable group"4 are blacks,5 Hispanic-Arnericans,6 Native Americans,' women,8 persons who work for a daily wage,9 common laborers, 10 nontheists, 11 students and professors, 12 young people, 13 and persons who object in principle to the death penalty .14

The standard seeks to protect against discrimination based on race, national origin, age, sex, religious belief, and economic status. In Hemandez v. Texas the Supreme Court stated:

[C]ommunity prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Is

Accordingly, as other factors are identified by the courts or legislatures as discriminating against cognizable groups in the community (e.g., the emerging Jaw, including the passage of the Americans with Disabilities Act of 1990,16 regarding discrimination against persons with physical, sensory, and mental disabilities17) appropriate measures should be taken to ensure that those factors do not curtail the opportunity for jury service. The recommendations ofthel991 Conference on Court-Related Needs of the Elderly and Persons with Disabilities (sponsored by the ABA Commissions on Legal Problems of the Elderly and on the Mentally Disabled and the National Judicial College, and funded by the State Justice

17 Institute and the U.S. Commission on Aging) specifically address barriers to full access for these populations within the judicial system and means to overcome them. 18

The standard places on the court, the commission, or the individual responsible for managing the jury selection process the duty to avoid any practices or procedures that are discriminatory in purpose or effect. It urges the entity or individual responsible for the jury operation to remain alert and sensitive to measures that may limit the opportunity of segments of the community to serve on a jury. The duty to avoid discriminatory practices applies at all stages of the jury selection process, including, but not limited to: the selection of names from the source list and the master list; the granting of excuses and deferrals; and the exercise of peremptory challenges. There still must be some criteria for determining eligibility for jury service. They are set forth in Standard 4. 19

There is also an obligation on the part of the citizen to serve when summoned. To maintain the integrity of the selection process, courts should enforce and monitor the summoning process set forth in Standard ll.

SUGGESTED STEPS FOR IMPLEMENTATION

I. Compare the source list being used for the names of potential jurors with population data of the jurisdiction.

2. Take corrective action(s), such as supplementing the source list with additional lists.

3. Examine court policies on granting excuses.

4. Take corrective action(s), such as establishing written and uniform procedures for granting excuses.

5. Examine court practices with respect to peremptory challenges during the voir dire process.

6. Take corrective action if the voir dire process discriminates against any cognizable group in the jurisdiction.

7. Examine facilities for impediments to jury service by those with disabilities.

8. Include in all facility plans and modifications the provisions needed so that those with disabilities can serve on juries.

9. Exami•,,· need for communications technology and services so that persons with hearing and vision sen:- disabilities can serve on juries.

18 RELATED STANDARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15 "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Section 8(b) National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Section 73.1 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 Powers v. Ohio, 111 S.Ct. 1364 (1991 ).

2 Duren v. Missouri, 439 U.S. 357,364 (1979).

3 See, e.g., cases cited in Standard 2: Jury Source List.

4 I.e, a commonly recognized group of people who share some distinctive perspectives. See Hernandez v. Texas, 347 U.S. 475,478 (1954); Jon Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels, 68-69 (1977); see also United States v. Test, 550 F.2d 577, 59! (I Oth Cir. 1976); United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971).

5 Carter v. Jury Commission, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970); Alexander v. Louisiana, 405 U.S. 625 ( 1972).

6 Hernandez, 347 U.S. 475 (1954); Castaneda v. Partida, 430 U.S. 482 (1977).

7 State v. Plenty Horse, 85 S.D. 401, 184 N.W.2d 654 (1971); United States v. Freeman, 514 F.2d 171 (8thCir. 1975).

8 Taylor v. Louisiana, 419 U.S. 522 (1975); Duren, 439 U.S. 357 (1979).

9 Thiel v. Southern Pacific Co., 328 U.S. 217 (1946); People v. White, 43 Cal. 2d 740,278 P.2d 9 (1954).

10 Simmons v. State, 182 So.2d 442 (Fla. App. 1966).

19 II State v. Madison, 240 Md. 265,213 A.2d 880 (1965).

12 State v. Jenison, 405 A.2d 3 (R.I. 1979).

13 United States v. Butera, 420 F.2d 564 (1st Cir. 1970); State v. Holmstrom, 43 Wis. 2d 465, 168 N.W.2d 574 (1969)(dicta); contra United States v. Gargan, 314 F. Supp. 414 (W.D. Wis. 1970) affd. sub nom United States v. Gast, 457 F.2d 141 (7th Cir.) cert denied, 406 U.S. 969 (1972); Kuhn, 441 F.2d 179 (5th Cir. 1971); People v. Hoiland, 22 Cal. App. 3d 530,99 Cal. Rptr. 523 (1971); People v. Redwine, 50 Mich. App. 593,213 N.W. 2d 841 (1973).

14 Witherspoon v. Illinois, 391 U.S. 510 (1968).

1s 347 U.S. at 478.

16 The purpose of this act is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities ... " Americans with Disabilities Act, 42 U.S.C. §12101-12213 (1990).

17 See, e.g., Architectural Barriers Act of 1968,42 U.S.C. §4151-4157 (1976); Rehabilitation Act Amendments of 1973,29 U.S.C. §794 (1976); ARIZ. REV. STAT. §34-403 {1990); FLA. STAT. ANN. §255.21 (1991) and §553.48 (Supp 1992); N.J. STAT. ANN. §52:32-6 {Supp. 1992); Bartels v. Biernat, 405 F. Supp 1012 (E.D. Wis. 1975); ABA and National Judicial College, "Toward a Barrier-Free Courthouse: Equal Access to Justice for Persons with Disabilities" and "Eliminating Communications Barriers in the Courthouse," Court-Related Needs of the Elderly and Persons with Disabilities: A Blueprint for the Future ( 199 I).

18 ABA and National Judicial College, Court-Related Needs of the Elderly and Persons with Disabilities: A Blueprint for the Future (1991).

19 Standard 4: Eligibility for Jury Service; see also Standard 8: Removal for Cause.

20 REFERENCES

OPPORTUNITY FOR JURY SERVICE

American Bar Association and National Judicial College, Court Related Needs of the Elderly and Persons with Disabilities: A Blueprint for the Future (1991).

Ashby, John B., "Juror Selection and the Sixth Amendment Right to an Impartial Jury," II Creighton Law Review 1137 (1978).

Baldwin, John and Michael McConville, "The Representativeness of Juries," 129 New Law Joumal284 (1979).

Beiser, Edward N., "Are Juries Representative?" 57 Judicature 194 (1973).

Butler, Kathleen M., "The Representative Cross-Section Standard: Another Sixth Amendment Fundamental Right," 21 Layola Law Review 995 (1975).

Cartwright, Robert E., "Jury Selection," 13 Trial, December 1977, at 28.

Cleary, John C., "Jury Selection in a Federal Criminal Case," 26 Practical Lawyer, June I, 1980, at 37.

"Constitutional Law--Criminal Law--Jury Selection--Taylor v. Lauisiana," 21 New York Law Forum 505 (1976).

Cook, Ellen, E., Note, "Juries: The Jury Selection and Service Act--The Cross Section Principle as a Constitutional Right and the Use of Voter Registration Lists as an Administrative Technique to Insure a Defendant Due Process Under the Law," 4 St. Mary's Law Journal470 (1972).

Daughtrey, Martha Craig, "Cross Sectionalism in Jury Selection Procedures After Taylor v. Lauisiana," 43 Tennessee Law Review I (1975).

Dogin, HenryS. and David I. Tevelin, "Jury Systems of the Eighties: Toward A Fairer Cross-section and Increased Efficiency," II University of Toledo Law Review 939 (1980).

"Economic Discrimination in Jury Selection," 1970 Law and the Social Order 474 (1970).

Forrest, Kenneth B.,"Attica, Jury Pools and the Intent Requirement of the Equal Protection Clause," 24 Buffalo Law Review 347 (1975).

21 Hawrish, E., and E. Tate, "Determinants of Jury Selection," 39 Saskatchewan Law Review 285 (1974-1975).

Hayes, William, K., "Jury Selection and the Equal Protection Clause," 2 UCLA-Alaska Law Review 141 (1973).

Himelrick, Richard G., Note, "Federal Courts--Juror Selection--Underrepresentation of Young Adults on Juror Source Lists," 19 Wayne Law Review 1287 (1973).

Hock, Jared, Comment, "The Key-Man System of State Jury Selection as a Source of Violation of the Fourteenth Amendment." 77 Dickinson Law Review 117 (1972).

"Juries: The Ordeal of Serving," Time, February 7, 1969, at 35.

Kennedy, Jr., Thomas F., "Constitutional Trends of Systematic Exclusion in Grand and Petit Juries," 3 National Journal of Criminal Defense 277 (1977).

Klein, Howard M., "The Prohibition of Group-based Stereotypes in Jury Selection Procedures," 25 Villanova Law Review 339 (1980).

Krause, Kathryn M., Note, "Sixth Amendment Right to a Fair Cross Section of the Community--A Change in Emphasis," 41 Missouri Law Review 446 (1976).

Levine, Adeline G., and Claudine Schweber-Koren, "Jury Selection in Erie County: Changing a Sexist System," II Law and Society Review 43 (1976).

Mackoff, Benjamin S., "Jury Selection for the Seventies," 55 Judicarure 100 (1977).

MacPhail, John A., "A Jury of Peers?" 42 Pennsylvania Bar Association Quarterly 412 (1971).

McKusick, Vincent, and Daniel E. Boxer, "Uniform Jury Selection and Service Act," 8 Harvard Journal of Legislation 280 (1971).

National Center for State Courts, Facets of the Jury System: A Survey ( 1976).

National Jury Project, J.urywork: Systematic Techniques ( 1983).

National Jury Project, The Jury System: New Methods for Reducing Prejudice ( 1975).

Pollack, Ira C., Note, "Discriminatory Jury Selection: Reversible Error Regardless of Defendant's Own Race," 27 University of Miami Law Review 238 (1972).

Potash, Diane, "t-.:andatory Inclusion of Racial Minorities on Jury Panels," 3 Black Law Journal 80 (1973 ).

22 Simon, Rita J ., The Jury: Its Role in American Society ( 1980).

Solomon, Maureen, Management of the Jury System (1975).

Stanley, Roy E., Note, "Arkansas' Key-Man Jury Selection Procedures: Opportunity for Discrimination," 30 Arkansas Law Review 527 (1977).

Summers, M. R., "A Comparative Study of the Quality of Federal and State Jurors," 34 Wisconsin Bar Bulletin 35 (1961).

"Taylor v. Louisiana: The Jury Cross-section Crosses the State Line," 7 Connecticut Law Review 508 (1975).

"Underrepresentation of Economic Groups on Federal Juries," 57 Boston University Law Review 198 (1977).

United States Congress, Senate, Committee on the Judiciary, "Federal Jury Selection: 90th Congress, 1st Session," 43 (1967).

Van Dyke, Jon, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (1977).

Van Dyke, Jon, "The American Jury," 10 The Center Magazine 36 (1977).

Yost, Jeffrey J., "The Pauper--Short-Changed at the Jury Box," 74 West Virginia Law Review 392 (1972).

Zeigler, D. H., "Young Adults as a Cognizable Group in Jury Selection," 76 Michigan Law Review I 045 (1978).

23 Standard 2: JURY SOURCE LIST

(a) TilE NAMES OF POTENTIAL JURORS SHOULD BE DRAWN FROM A JURY SOURCE LIST COMPILED FROM ONE OR MORE REGULARLY MAINTAINED LISTS OF PERSONS RESIDING IN THE COURT JURISDICTION.

(b) TilE JURY SOURCE LIST SHOULD BE REPRESENTATIVE AND SHOULD BE AS INCLUSIVE OF TilE ADULT POPULATION IN TilE JURISDICTION AS IS FEASIBLE.

(c) TilE COURT SHOULD PERIODICALLY REVIEW TilE JURY SOURCE LIST FOR ITS REPRESENTATIVENESS AND INCLUSIVENESS OF THE ADULT POPULATION IN TilE JURISDICTION.

(d) SHOULD TilE COURT DETERMINE THAT IMPROVEMENT IS NEEDED IN TilE REPRESENTATIVENESS OR INCLUSIVENESS OF THE JURY SOURCE LIST, APPROPRIATE CORRECTIVE ACTION SHOULD BETAKEN.

COMMENTARY

Paragraph lal Organized Source Lists

The role of the jury is to determine fairly and impartially the facts of a case from the evidence presented and thereafter to apply the law to these facts. The selection of a jury from "a fair cross section of the community is fundamental to the American system of justice. "1 As the Supreme Court has observed:

When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.2

Because no practical way exists to pick prospective jurors from the population at large, organized source lists must be used. The representativeness of the jury is, therefore, initially dependent on the quality of the source list. The closeness of this relationship was succinctly stated by the Supreme Court of California in People v. Wheeler. "Obviously if that [source]list is not representative of a cross-section of the community, the process is constitutionally defective ab initio. "3

24 The standard encompasses three elements. The first is an emphasis on the importance of the representativeness of the source list from which prospective jurors are selected to ensure that the source list reflects the demographics of the community. The second is an affirmative duty to examine the source(s) of names from which prospective jurors are selected to ensure that the list is representative, with an emphasis on the responsibility to update the source list periodically. And third is the responsibility, once a source list is determined deficient in coverage, to consider other lists to correct the deficiency.

Paragraph lb l Inclusiveness and Representativeness

Representativeness and inclusiveness are conceptually distinct and may even be antagonistic in practice. Inclusiveness has to do with the percentage of the~ adult population in a jurisdiction that is included in the source list. A source list can be representative, yet not very inclusive. For example, in a county of one thousand eligible people of whom 25 percent are black, a source list of one hundred people, twenty-five of whom are black, would be fully representative of blacks but only I 0 percent inclusive, because 90 percent of the eligible population is excluded. On the other hand, a quite inclusive source can significantly underrepresent cognizable groups that constitute a small percentage of the adult population. For example, consider a county in which the source list includes nine hundred of the one thousand eligible adults in the population. Further, suppose that the list was constructed in such a way that only fifty of the one hundred blacks in the population were included in the source list. Even though this hypothetical source list is 90 percent inclusive, it is nonetheless extremely underrepresentative with respect to race. (For a complete discussion of source list representativeness and inclusiveness see the Appendix.)

There can be absolute certainty that a source list is ll.Q1h representative and inclusive ~ when it contains I 00 percent of the eligible population. Practical constraints, however, will always render it impossible to establish empirically that a source list is representative with respect to all "qualities of human nature and varieties of human experience" which may affect a juror's reaction to a case and performance as a juror. Whenever the source list is less than fully inclusive, the jury may be deprived "of a perspective on human events that may be of unsuspected importance in any case that may be presented." Since "the people on ... a source list may well have considerably different values, attitudes and experience from the rest of the eligible population,"4 and since it is unlikely that such values, attitudes, and experience would ever be measured, the degree to which a source is truly representative with respect to relevant juror characteristics will always be questionable as long as the source is not I 00 percent inclusive.

The standard does not specify a minimum inclusiveness criterion. Much of the literature and recent practice in local courts, however, indicates that a jury source list that covers 80 percent of the adult population in a jurisdiction is a reasonable goal. In order to include 80 percent, most jurisdictions would require sources in addition to the voter registration list. Convenient and inexpensive methods exist in many jurisdictions to produce combined source lists that are 90 percent inclusive. Officials responsible for preparing the source list are strongly encouraged to make it as inclusive as possible given financial and statutory limitations. It must be understood, however, that increasing inclusiveness can

25 sometimes render a list less representative. For example, if the list of property owners underrepresents the same cognizable groups as the voter list, adding the list of property owners to the source, composed of voter lists, will produce a combined source list that has greater comparative disparity than the original. Officials, therefore, should make the source as inclusive as possible subject to the condition that it be representative.

Paragraphs (c) and (d) Periodic Review and Corrective Action

The standard recommends periodic examination of the source list being used by a jurisdiction for summoning prospective jurors to ensure that the list is both representative and inclusive of the adult population in that jurisdiction. If the list is found deficient in any way, the standard places the responsibility for correcting the deficiency with the court. This may involve coordination with those agencies supplying the list in order to update it more frequently.s

To meet the goals of representativeness and inclusiveness, many jurisdictions will have to go beyond the roll of registered voters for the names of potential jurors. Nationally, only 64 percent of the voting-age population was registered to vote in 1986.6 In some states the level of registration is well below 60 percent. 7 The registration levels range from 54 percent in Hawaii to 96 percent in Maine in 1988.8 In addition, because of differential voting rates, voter registration lists have been shown to underrepresent significantly certain portions of the population. For example, surveys conducted by the U.S. Census Bureau found that nonwhites, the poor, and the young register to vote at substantially lower rates than other population groups.9 At least one court has held that because voter lists are generally not fully representative of the population, sole reliance on a voter registration list for jury selection is prima facia evidence of discrimination. to

Many lists, if they are reasonably current, can be used as a supplement to, or substitute for, the roll of registered voters. These include lists of licensed drivers, persons counted in a local census, utility customers, newly naturalized citizens, persons with telephones, parents of children enrolled in public schools, property owners, or motor vehicle owners.n In many instances, the list of licensed drivers will be the most suitable and convenient substitute or supplement for the voter registration list. In most jurisdictions, more individuals are licensed to drive than are registered to vote. Indeed, in nearly half the states, the driver's list is larger than the voter's list by 21 percent or more. 12 Moreover,

The driver list appears to offer the best opportunity to draw in those groups typically left out by the voter list A 1976 study of the San Diego County Superior Court found that the driver Jist included 83 percent of the county's over-eighteen population, in contrast to the voter list's 56 percent coverage. Although the driver list did not identify drivers by race. !he much higher rate of inclusiveness would, by itself, tend to increase the representation of blacks and other minorities on the jury list. The San Diego driver list percentage is typical of the nation, for approximately 84 percent of the United States'

26 driving-age population is licensed to drive while in seventeen states the percentage exceeds 90 percent. 13

The trend is to use multiple lists to obtain greater representativeness. A combined voters and drivers list is now used by twenty-five states and by individual counties in many more states. Four states use only the drivers' list.

Another good substitute or supplement is a local census list as used in Massachusetts. Unless a jurisdiction is already conducting such a census, however, the cost of a door-to-door count probably precludes the use of this technique solely for juror selection purposes.

The other lists noted above are suitable only as supplements to the voter registration, licensed driver, or local census lists. Although they are usually more current than the lists of voters and drivers, each has serious gaps in coverage as well as other limitations. For example, women and young people are usually underrepresented in city directories, telephone directories, and utility customer lists. These same groups are also disproportionately absent from state real estate, personal property, and income tax lists. 14 In addition, use of these lists is complicated by their inclusion of business as well as individual entries. It is often difficult to ascertain geographical jurisdiction from the information that they contain. Thus, they will usually be of limited incremental value.

In selecting lists to be used to form a jury source list, the frequency with which names are added to and deleted from those lists and the corrections made for addresses and other information should be carefully considered. Using lists that are seldom culled of the names of persons who, for example, have failed to renew their registration or driving license, or lists that are not otherwise kept current is likely to increase the number of summonses that must be issued, increase the cost of the jury selection process, and hamper efforts to provide a representative panel. Accordingly, when a list that would increase the inclusiveness of the juror source list is updated infrequently, discussions should be held with the agency or organization compiling that list to seek ways of keeping it more current and to identify systemic elements, such as restricting legislation, that impede updating of the list. Similar discussions should be initiated when a potentially useful list is not in a format that would permit its use for jury selection purposes or does not contain critical bits of information--e.g., the list omits addresses or classifies persons within geographical boundaries that differ from those defining the court's jurisdiction.

An argument that has often been voiced against the use of multiple lists has been the difficulty and cost of combining the lists and ensuring that individuals are not entered on the combined list more than once. Techniques have been recently developed, however, to accomplish these tasks, either manually or by computer, at relatively little cost. These techniques have been tested in the juror source list context and have been found to be effective. For instance, the use of a person's social security number as a means of identifying duplicate listings between lists facilitates the merging process. 15 A description of the methods employed and further references are provided in the Methodology Manual for Jury Systems prepared by the Center for Jury Studies of the National Center for State Courts. 16

27 SUGGESTED STEPS FOR IMPLEMENTATION

1. Periodically examine the Jist(s) used by the jurisdiction for summoning prospective jurors for the degree of representativeness and for coverage of the adult population in the jurisdiction.

2. Examine each list to determine

(a) whether it omits or underrepresents any age, race, or sex within the community;

(b) whether it provides the requisite information for determining juror eligibility, including name, address, and whether living within the geographic boundaries of the court's jurisdiction; and

3. Determining the representativeness and inclusiveness of each list by comparing it against the latest available local, state, or federal census estimate or a more recent, reliable population projection.

4. If the list(s) presently being used are not inclusive nor representative of the adult population, identify new lists that would alleviate the problem.

(a) Identify additional lists that are available--e.g., lists of registered voters, licensed drivers, persons counted in a local census, utility customers, newly naturalized citizens, persons with telephones, parents of children enrolled in public schools, property owners, motor vehicle owners, and persons with hunting, trapping, and/or fishing licenses.

(b) Rank :he lists in order of their representativeness and inclusiveness of the adult popuiation.

5. Establish procedures for regular review of the list(s) for the degree of representativeness and inclusiveness of the adult population. (For a detailed discussion of this topic, see the Appendix.).

6. Establish procedures for correcting or changing the unrepresentative or noninclusive list(s).

28 7. Establish procedures for correcting or including the list(s) if it is found to be underrepresentative or non-inclusive of persons with physical, sensory, and mental disabilities.

RELAJEDSTANPARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15 "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Section 1, 5(a) National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Section 73.1 Commission on Trial Court Performance, Trial Court Performance Standards: 3.2.1 and 3.2.3

FOOTNOTES

1 Taylor v. Louisiana, 419 U.S. 522, 530 (1975)(footnote omitted).

2 Peters v. Kif!, 407 U.S. 493,503-04 (1972); see also People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890,583 P.2d 748 (1978).

3 Wheeler, 22 Cal. 3d 266-267; 148 Cal Rptr. 900.

4 David Kairys, et. al., "Jury Representativeness: A Mandate For Multiple Lists," 65 California Law Review 776, 802 (1977).

5 One example of a procedure that could provide assistance to the jury manager in periodically reviewing the source list for representativeness and inclusiveness, is establishment of a monitoring committee composed of lawyers and the general public under the supervision of the court. See Standard 12: Monitoring the Jury System.

6 Center for Jury Studies, National Center for State Courts,"Voter Registration by States," 6 Center for Jury Studies Newsletter (1979); see also U.S. Bureau of Census," Voting and Registration in the Election of November 1976 (1977). Bureau of the Census, U.S. Department of Commerce, Statistical Abstracts of the United States, 1989, Table 432 (1989)[herinafter cited as Statistical Abstracts].

29 7 Statistical Abstracts, supra note 6.

s Statistical Abstracts, supra note 6 at Table 435.

9 See, Henry Do gin and David I. Tevelin, "Jury Systems of the Eighties: Toward A Fairer Cross-Section and Increased Efficiency," University of Toledo Law Review 939 (1980). See also U.S. Bureau of Census, Voting and Registration in the Election of November 1972, Series P-20, No. 253, at I (1973).

10 People v. Harris, 36 Cal 3d 36 (1984).

II G. Thomas Munsterman, et. al., Multiple Lists for Juror Selection: A Case Study for San Diego Superior Court (1978)[hereinafter cited as Multiple Lists].

12 G. Thomas Munsterman, and Janice Munsterman, "The Search for Jury Representativeness", II Justice System Journal, 59, 66-fo7 (1986).

13 Do gin and Tevelin, supra note 9; Multiple Lists, supra note II, see also Munsterman and Munsterman, supra note 12.

14 Dogin and Tevelin, supra note 9.

15 Use of the social security number in some jurisdictions may violate social security or privacy statutes. The ABA House of Delegates passed a resolution calling for "an amendment to the Social Security Act or other applicable laws allowing the use of Social Security numbers, to exempt courts and other governmental agencies responsible for the preparation of lists of prospective jurors." Resolution Report No. Ill, ABA House of Delegates, February 11-12, 1991.

16 Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems 2-1 ( 1979); National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Managment ( 1987).

30 REFERENCES

SOURCE LIST

Administrative Office of the United States Courts, Automating Jury Clerical Work (1974).

Administrative Office of the United States Courts, Qualifying, Sumi1Wning and Excusing Jurors in United States District Courts (1986).

Alder, Hayward, Jr. and Joseph J. Bernard, "Procedural and Social Bias in the Jury Selection Process," 3 Justice System Joumal220 (1978).

Alker, Hayward, Jr., et. al., "Jury Selection as a Biased Social Process," II Law and Society Review 9 (1976).

"Alphabetical Bias," I Center for Jury Studies Newsletter 5 ( 1979).

Ashby, John B., "Juror Selection and the Sixth Amendment Right to an Impartial Jury," II Creighton Law Review 1137 (1978).

Baldwin, John, and Michael McConville, "The Representativeness of Juries," 129 New Law Journal 284 (1979).

Beiser, Edward N., "Are Juries Representative?" 57 Judicature 194 (1973).

Brame, Nancy, Note "Constitutional Law--Sixth Amendment--Jury Pools Drawn from Voter Registration List May Not Provide a Fair Cross-section," 15 Cumberland Law Review 555 (1985).

Butler, Kathleen, M. Note, "Representative Cross Section Standard: Another Sixth Amendment Fundamental Right," 21 Layola Law Review 995 (1975).

"CA 10 Rejects Attack on Use of Colorado Voter Lists as Juror Source," 20 Criminal Law Reporter 2190 (1976).

Cannito, John A. and C. L. Becker, "The Case for Limited Use of Polls in the Jury Selection Process," 7 Rutgers Journal of Computers, Technology, and the Law Ill ( 1979).

Cartwright, Robert E., "Jury Selection," 13 Trial, December 1977, at 28.

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems (1980).

31 Cleary, John C., "Jury Selection in a Federal Criminal Case," 26 Practical Lawyer, June I, 1980, at 37.

Comment, "Economic Discrimination in Jury Selection," Law and Social Order 474 (1970).

Cook, Ellen E., Note, "Juries--The Jury Selection and Service Act--The Cross Section Principle as a Constitutional Right and the Use of Voter Registration Lists as an Administrative Technique to Insure a Defendant Due Process Under the Law" 4 St. Mary's Law Journal 470 (1972).

Coyne, Coleman G., Note, "Jury Selection Procedures: A Reform," 6 Suffolk University Law Review 865 (1972).

Daughtrey, Martha C., "Cross Sectionalism in Jury-Selection Procedures After Taylor v. Lauisiana," 43 Tennessee Law Review I (1975).

DiSalvo, Charles R., "The Key-Man System for Composing Jury Lists in West Virginia--The Story of Abuse, the Case for Reform," 87 West Virginia Law Review 219 (1985).

"Do gin, HenryS., and David I. Tevelin, "Jury Systems of the Eighties: Toward A Fairer Cross-section and Increased Efficiency," II University of Toledo Law Review 939 (1980).

"Fair Distribution of Jury Service," 2 Center for Jury Studies Newsletter 4 (1980).

Finkelstein, Michael 0., "The Application of Statistical Decision Theory to Jury Discrimination Cases," 80 Harvard Law Review 338 (1966).

Forrest, Kenneth B., Note, "Attica Jury Pools and the Intent Requirement of the Equal Protection Clause," 24 Buffalo Law Review 347 (1975).

Gelfand, Alan E., and Jack E. Davis, "The Jury List in Connecticut: Is the Voter Registration List Truly Representative?" 52 Connecticut Bar Joumal449 (1978).

George, J., D. Golash, and R. Wheeler, Handbook on Jury Use in the Federal District Couns (1989).

Gewin, Walter P., "An Analysis of Jury Selection Decisions, 506 F.2d 811, 824, appended to Foster v. Sparks, 506 F.2d 805 (5th Cir. 1975).

Gev,in, Walter P., "The Jury Selection and Service Act of 1968: Implementation in the Fifth Circuit Coun of Appeals," 20 Mercer Law Review 349 ( 1969).

Handma;• Laura, R., Comment, "Underrepresentation of Economic Groups on Federal Jv .• es," 57 Boston University Law Review 198 (1977).

32 Hawrish, E., and E. Tate, "Detenninants of Jury Selection," 39 Saskatchewan Law Review 285 (1974-1975).

Hayes, William K., "Jury Selection and the Equal Protection Clause," 2 UCLA-Alaska Law Review 141 (1973).

Himelrick, Richard G., Note, "Federal Courts--Juror Selection--Underrepresentation of Young Adults on Juror Source Lists," 19 Wayne Law Review 1287 (1973).

Hock, Jered, Comment, "The Key-Man System of State Jury Selection as a Source of Violation of the Fourteenth Amendment," 77 Dickinson Law Review 117 ( 1972).

J.P. C., Note, "Constitutional Law--Criminal Law--Jury Selection," 21 New York Law Forum 505 (1976).

"Juries: The Ordeal of Serving," Time, Februrary 7, 1969, at 35.

"Jury Selection in Missouri," 27 Journal of the Missouri Bar 398 (1971).

Kadane, Joseph and John P. Lehoczky, "Random Juror Selection from Multiple Lists," 24 Operations Research 207 (1976).

Kairys, David, et. al., "Jury Representativeness: A Mandate for Multiple Source Lists," 65 California Law Review 776 (1977).

Kairys, David, "Juror Selection: The Law, A Mathematical Method of Analysis, and a Case Study," 10 American Criminal Law Review 771 (1972).

Kennedy, Thomas F., Jr., "Constitutional Trends of Systematic Exclusion in Grand and Petit Juries," 3 National Journal of Criminal Defense 277 (1977).

Klein, Howard M., Comment, "Prohibition of Group-Based Stereotypes in Jury Selection Procedures," 25 Villanova Law Review 339 (1980).

Koskoff, Michael P.,and Beverly J. Hodgson, "Jury Selection: Everybody into the Pool: The Case for Supplementing the Voter List," 52 Connecticut Bar Journal475 (1978).

Krause, Kathryn, M., Note, "Jury Selection--Sixth Amendment Right to a Fair Cross Section of the Community--A Change in Emphasis," 41 Missouri Law Review 446 (1976).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Juror Usage (1974).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury System Management (1975).

33 Leete, Elizabeth B., Note, "Taylor v. Louisiana: The Jury Cross Section Crosses the State Line," 7 Connecticut Law Review 508 (1975).

Levine, Adeline G., and Claudine Schweber-Koren, "Jury Selection in Erie County: Changing a Sexist System," II Law and Society Review 43 ( 1976).

Logan, Charles H., and George F. Cole, "Reducing Bias in a Jury Source List by Combining Voters and Drivers," 67 Judicature 96 (1983).

Mackoff, Benjamin S., "Jury Selection for the Seventies," 55 Judicature 100 (1977).

MacPhail, John A., "A Jury of Peers?" 42 Pennsylvania Bar Association Quarterly 412 (1971).

McKusick, Vincent, and Daniel E. Boxer, "Uniform Jury Selection and Service Act," 8 Harvard Journal of Legislation 280 (1971).

Martin, M., "Alaska's Jury System," 26 Alaska Court System Newsletter, February 1980, at 26.

Michael, Mark, et. al, "Challenge to Jury Composition in North Carolina," 7 North Carolina Central Law Journal I ( 1975).

Miller, Harold G., "Forty-four Common Blunders of Jury Selection," 15 Law Notes 91 (1979).

Munsterman, G. Thomas, and Janice T. Munsterman, Microcomputer Applications for Jury Systems Support ( 1989\.

Munsterman, G. Thomas, and Janice T.Munsterman, "The Search for Jury Representativeness," II The Justice System Journal 59 (1986).

Munsterman, G. Thomas, et. al., The Use of Multiple Lists for Jury Selection, A Report to the Superior Court of San Diego, ( 1977).

Munsterman, G. Thomas, et. al., Multiple Lists for Juror Selection: A Case Study for San Diego Superior Court, ( 1978).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

National Center for State Courts, Facets of the Jury System: A Survey (1976).

National Jury Project, Jurywork: Systematic Techniques ( 1983).

National Jury Project, The Jury System: New Methods for Reducing Prejudice (1975).

34 Pollack, !rae, Note, "Discriminatory Jury Selection: Reversible Error Regardless of Defendant's Own Race," 27 University of Miami Law Review 238 (1972).

Potash, Diane, "Mandatory Inclusion of Racial Minorities on Jury Panels," 3 Black Law Journal 80 (1973).

"Report of the Committee on the Operation of the Jury System of the Judicial Conference of the United States," 42 Federal Rules Decisions 353 (1976).

Report of the President's Commission on Registration and Voting Population, Washington, D.C.: Government Printing Office (1963).

Robbins, Kenneth C., Note, "Juries--Juror Selection Process," 6 Suffolk University Law Review 1124 (1972).

Silver, David, "A Case Against the Use of Public Opinion Polls as an Aid in Jury Selection," 6 Rutgers Journal of Computers and the Law 177 (1978).

Simon, Rita J., The Jury: Its Role in American Society ( 1980).

Solomon, Maureen, Management of the Jury System ( 1975).

Sperlich, Peter, and Martin L. Jaspovice, "Methods for the Analysis of Jury Panel Selections: Testing for Discrimination in a Series of Panels," 6 Hastings Constitutional Law Quarterly 787 (1979).

Stanley, Jr., Arthur J., "Federal Jury Selection and Service Before and After 1968," 66 Federal Rules Decisions 375 (1975).

Stanley, Roy E., Note, "Arkansas' Key-Man Jury Selection Procedures: Opportunity for Discrimination," 30 Arkansas Law Review 527 ( 1977).

Summer, Fred A., Note, "Voter Registration Lists: Do They Yield a Jury Representative of the Community?" 5 University of Michigan Journal of Law Reform 385 ( 1972).

Summers, M. R., "A Comparative Study of the Quality of Federal and State Jurors," 34 Wisconsin Bar Bulletin 35 (1961).

"The Election and Jury Duty," 2 Center for Jury Studies Newsletter I (1980).

"The Recall Problem: Why Houston Runs Through the Entire Voter List," I Center for Jury Studies Newsletter, January 1979, at 6.

United States Congress, Senate, Committee on the Judiciary, Federal Jury Selection: 90th Congress, lst Session 43 (1967).

35 "Use of Voter Registration Lists for Jury Selection," 94th Congress, 1st Session, Congressional Record 55985 (April 15, 1975).

Van Dyke, Jon, Jury Selection Procedures: Our Uncenain Commitment to Representative Panels (1977).

Van Dyke, Jon, "The American Jury," 10 The Cemer Magazine, May/June 1977, at 36.

Villeneuve, John J., Comment, "Challenging the Juror Selection System in New York," 36 Albany Law Review 305 (1972).

Wanemaker, John L., Comment, "Computers and Scientific Jury Selection: A Calculated Risk," 55 University of Detroit Journal of Urban Law 345 (1978).

Williams, Cynthia, A., Note, "Jury Source Representativeness and the Use of Voter Registration Lists" 65 New York University Law Review 590 (1990).

Yost, Jeffrey J., Note, "The Pauper--Short-Changed at the Jury Box," 74 West Virginia Law Review 392 (1972).

Zeigler, Donald H., "Young Adults as a Cognizable Group in Jury Selection," 76 Michigan Law Review I 045 (1978).

Zeisel, Hans, and Shari S. Diamond, "The Jury Selection in the Mitchell-Stans Conspiracy Trial," 1976 American Bar Foundation Research Journal I 51 (1976).

36 Standard 3: RANDOM SELECTION PROCEDURES

(a) RANDOM SELECTION PROCEDURES SHOULD BE USED THROUGHOUT THE JUROR SELECTION PROCESS. ANY METHOD MAY BE USED, MANUAL OR AUTOMATED, THAT PROVIDES EACH ELIGIBLE AND AV ATI..,ABLE PERSON WITH AN EQUAL PROBABILITY OF SELECTION.

(b) RANDOM SELECTION PROCEDURES SHOULD BE EMPLOYED IN

(i) SELECTING PERSONS TO BE SUMMONED FOR JURY SERVICE;

(ii) ASSIGNING PROSPECTIVE JURORS TO PANELS; AND

(iii) CALLING PROSPECTIVE JURORS FOR VOIR DIRE.

(i) TO EXCLUDE PERSONS INELIGffiLE FOR SERVICE IN ACCORDANCE WITH STANDARD 4;

(ii) TO EXCUSE OR DEFER PROSPECTIVE JURORS IN ACCORDANCE WITH STANDARD 6;

(iii) TO REMOVE PROSPECTIVE JURORS FOR CAUSE OR IF CHALLENGED PEREMPTORILY IN ACCORDANCE WITH STANDARDS 8 AND 9; AND

(iv) TO PROVIDE ALL PROSPECTIVE JURORS WITH AN OPPORTUNITY TO BE CALLED FOR JURY SERVICE AND TO BE ASSIGNED TO A PANEL IN ACCORDANCE WITH STANDARD 13.

COMMENTARY

Paragraph

To ensure that the representativeness provided by a broadly based jury source list is not inadvertently diminished or consciously altered, this standard calls for random selection procedures at all appropriate stages of the juror selection process. 1 The standard makes clear that for selection procedures to be truly random, each name must have "the same chance as every other name of being chosen. "2 This may be accomplished through a number of techniques, such as the use of a random number table or computer program,' a manual or automated "random start/fixed interval" procedure,4 or a blind drawing of slips of paper or

37 capsules containing a name or number from a box or drum. In developing the selection process, care should be taken to cvoid a system that may be "nominally random and at the same time open to manipulation or unintentional but systematic bias. "5

Consider the jurisdiction where voter registration name cards are drawn at random from filing cabinets. The jury commissioner cannot see the name or any other identifying information on the card, so he or she does not know whom he or she is drawing, and theoretically he or she cannot discriminate. However, the filing cabinets are organized by voter precincts, and various ethnic groups tend to be concentrated in certain precincts. Omission of a file cabinet from the selection process, therefore, may exclude a substantial number of minority residents. 6

If the same list serves two geographical areas, the names for the larger geographical area should be selected from the list first. In that way, the equal probability of selection called for under this standard is maintained.

Paragraph (b) Applicable Stages

Random selection procedures are particularly appropriate at three points in the jury selection process: the identification of names of the persons to be summoned for jury duty; assignment of those persons to panels; and the determination of the order in which prospective jurors are considered for empanelment during voir dire. Randomization procedures may be repeated at each of these stages. For example, the individuals who have been randomly selected to be summoned could be assigned to panels in the order in which their names are drawn from a drum on the first day of their term of service.7 An equally effective method for maintaining randomness is to keep the names of those to be summoned in the order in which they were picked from the source list or master list until a jury has been selected from each panel. 8 The clerk or jury commissioner can simply begin at the top of the list of summoned jurors and assign the first set of names to panel one, the next set to panel two and so on until the necessary number of panels have been formed. Under either method, the prospective jurors should be advised during the initial orientation that they have been selected for jury service and assigned to panels in a manner designed to maximize representativeness and that it is essential that they sit in the assigned order when they are called to a courtroom. ·

Paragraph fc} Exceptions

The standard lists four instances in which exceptions to random selection procedures are appropriate. The first three are when an individual's eligibility, availability for service, or impartiality in a particular case is at issue. Clearly, a rational, nonrandom decision must be made in each of these areas to ensure the integrity, quality, and efficient operation of the jury system.

The fourth instance addresses a possible side effect of a completely random selection. Unless there is an opportunity for all persons on a list to be selected before a name can be drawn a second time, some individuals will be called upon to serve several times while others

38 will not be called at all. To overcome this problem, a "randomization without replacement" system can be used. Under such a system, the entire jury source list (or master list in those jurisdictions that draw a master list from the jury source list) is exhausted before a name can be drawn a second time. Similarly, every person in the juror pool would be sent to a courtroom for voir dire before an individual returned to the pool after jury selection can be sent a second time. 9

Using the procedures outlined above, with other practices recommended elsewhere in this volume, should ensure that all cognizable groups are represented in the pools from which juries are selected, in a fair and reasonable relationship to the number of such persons in the community, 10 and that as many citizens as possible serve on juries.

SUGGESTED STEPS FOR IMPLEMENTATION

I. Determine whether current selection procedures are consistent with the standard.

2. If they are not, review relevant statutes and court rules to determine whether they permit implementation of the recommended procedures.

3. Initiate appropriate legislation or rule changes if those provisions do not permit use of the recommended procedures.

RELATEDSTANPARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15 "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Section I National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Section 73.1 Commission on Trial Court Performance, Trial Court Performance Standards: 3.2.2

39 FOOTNOTES

1 See American Bar Association Commission Standards on Judicial Administration, Standards Relating to Trial Courts, §2.61 (Approved Draft 1976); American Bar Association, Standards on the Administration of Criminal Justice: Trial by Jury § 15.2.1 (Approved Draft 1978); see also National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act, §I (1971 ); National District Attorney Association, National Prosecution Standards, § 17.2 (A)(l976); Solomon, Maureen, Management of the Jury System, 16 (1975)[hereinafter cited as Solomon].

2 Solomon, supra note I.

3 See "Random Numbers," Center for Jury Studies Newslener, July 1981, at 6 [hereinafter cited as Newsletter].

4 When the random-start/fixed-interval method is used, names on the source list are numbered in sequence. The number of names to be selected from the source list is divided into the total number on the list; the result is called an interval. A random number is selected between one and the interval number; this is the starting number (i.e., random-start) corresponding to the first name of the subset The interval number is then added successively to the starting number and so on to determine other names in the subset. It should be noted that when the interval selected is larger than the occurrence of a particular cognizable group in the source list, the possibility exists that the group may be underrepresented in the names selected.

5 Solomon, supra note I (emphasis in the original).

6 National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management at 10-15 (1987).

7 Under the struck jury system recommended in Standard 9(h), it would.not be necessary to randomly select the members of the panel who would be seated initially in the jury box or the replacements for any prospective jurors who are peremptorily challenged or removed for cause.

8 Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice. A Guide to Jury System Management, 2-9 ( 1976). Center for Jury Studies, National Center for State Courts, Methodoln~" Manual for Jury Systems, 4-6 (1979); National Center for State Courts, A Supplement to th, Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

9 Newsletter, supra note 3, at 5. For a more detailed discussion of randomization without replacement, see the commentary to Standard 13: Juror Use. I 40 I 1° Duren v. Missouri, 439 U.S. 357, 364 (1979).

41 REFERENCES

RANPOM SELECTION

Administrative Office of the United States Courts, Qualifying, Summoning and Excusing Jurors in United States District Courts ( 1986).

Alker, Hayward, Jr., et al., "Jury Selection as a Biased Social Process," II Law and Society Review 9 ( 1976).

Alker, Hayward, Jr., "Procedural and Social Biases in the Jury Selection Process," 3 Justice System Journal220 ( 1978).

"Alphabetical Bias," Center for Jury Studies Newsletter, November 1979, at 5.

Ashby, John B., "Juror Selection and the Sixth Amendment Right to an Impartial Jury," II Creighton Law Review 1137 (1978).

Brams, Steven J and Morton D. Davis, "Game Theory Approach to Jury Selection," Trial December 1976, at 47.

Butler, Kathleen M., "Representative Cross-section Standard: Another Sixth Amendment Fundamental Right," 21 Loyola Law Review 995 (1975).

Cannito, John A., "Case for Limited Use of Pools in the Jury Selection Process," 7 Rutgers Computer and Technology Law Journal Ill (1979).

Cartwright, Robert E., "Jury Selection," 13 Tria128 (1977).

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems (1980).

Cleary, John C., "Jury Selection in a Federal Criminal Case," Practical Lawyer June I, 1980, at 37.

"Computers and Scientific Jury Selection: A Calculated Risk," 55 University of Detroit Journal of Urban Law 343 ( 1978).

"Constitutional L --Criminal Law--Jury Selection," 21 New York Law Forum 505 (1976).

Cook, Ellen, E., Nue, "Juries: The Jury Selection and Service Act--The Cross-Section Principle as a Constitutional Right and the Use of Voter Registration Lists as an

42 Administrative Technique to Insure a Defendant Due Process Under the Law," 4 St. Mary's Law Journal470 (1972).

Daughtrey, Martha Craig, "Cross Sectionalism in Jury Selection Procedures After Taylor v. Louisiana," 43 Tennessee Law Review I (1975).

Do gin, Henry S., and David I. Tevelin, "Jury Systems of the Eighties: Toward a Fairer Cross-section and Increased Efficiency," II University of Toledo Law Review 939 (1980).

Draper, J. M., "Validity of Requirement or Practice of Selecting Prospective Jurors Exclusively From List of Registered Voters," 3 Arizona Law Review 869 (1980).

"Economic Discrimination in Jury Selection," 3 Law and Social Order 474 (1970).

"Fair Distribution of Jury Service." Center for Jury Studies Newsletter, November 1980, at 4.

Finkelstein, Michael 0., "The Application of Statistical Decision Theory to Jury Discrimination Cases," 80 Harvard Law Review 338 (1966).

Forrest, Kenneth B., "Attica Jury Pools and the Intent Requirement of the Equal Protection Clause," 24 Buffalo Law Review 347 (1975).

Fukurai, H. et al., "Cross-sectional Jury Representation or Systematic Jury Representation? Simple Random and Cluster Sampling Strategies in Jury Selection," 19 Journal of Criminallustice 31 (1991 ).

Gelfand!, Alan E., and Jack E. Davis, "Jury List in Connecticut: Is the Voter Registration List Truly Representative?" 52 Connecticut Bar Journal 449 ( 1978).

Gewin, Walter Pettus, "An Analysis of Jury Selection Decisions" 506 F. 2d 811 (1975)(appended to Foster v. Sparks, 506 F.2d 805).

Gewin, Walter Pettus, "The Jury Selection and Service Act of 1968: Implementation in the Fifth Circuit Court of Appeals," 20 Mercer Law Review 349 ( 1969).

Hawrish, E., and E. Tate, "Determinants of Jury Selection," 39 Saskatchewan Law Review 285 (1974-1975).

Haws, Eric, "Jury Selection in Missouri," 27 Journal of the Missouri Bar 398 (1971).

Himelrick, Richard G., Note, "Federal Courts--Juror Selection--Underrepresentation of Young Adults on Juror Source Lists," 19 Wayne Law Review 1287 (1973).

Hock, Jared, Comment, "Key-Man System of State Jury Selection as a Source of Violation of the Fourteenth Amendment" 77 Dickinson Law Review 77 (1972).

43 Hunter, J. N., System Description, Compuwr-Aided Jury Selection ( 1981 ).

"Juries: The Ordeal of Serving," Time, February 7, 1969, at 35.

"Jury Selection and the Equal Protection Clause," 2 UCLA-Alaska Law Review 141 (1973).

"Jury Selection Procedures: A Reform," 6 Suffolk University Law Review 865 ( 1972).

"Juror Selection Process," 6 Suffolk University Law Review 1124 (1972).

Kadane, Joseph and John P. Lehoczky, "Random Juror Selection from Multiple Lists," 24 Operations Research 207 (1976).

Kairys, David eta!., "Jury Representativeness: A Mandate for Multiple Source Lists," 65 California Law Review 776 (1977).

Kairys, David, "Juror Selection: The Law, a Mathematical Method of Analysis, and a Case Study," 10 American Criminal Law Review 771 (1972).

Kennedy, Jr., Thomas F., "Constitutional Trends of Systematic Exclusion in Grand and Petit Juries," 3 National Journal of Criminal Defense 227 (1977).

Klein, Howard M., "Prohibition of Group-based Stereotypes in Jury Selection Procedures," 25 Villanova Law Review 339 (1980).

Koskoff, Michael P. and Beverly J. Hodgson, "Jury Selection: Everybody into the Pool: The Case for Supplementing the Voter List," 52 Connecticut Bar Journal475 (1978).

Krause, Kathryn M., "Sixth Amendment Right to a Fair Cross Section of the Community--A Change in Emphasis," 41 Missouri Law Review 446 (1976).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Juror Usage ( 1974).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury System Management ( 1975).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, The Use of Multiple Lists for Jury Selection, a Report to the Superior Court of San Diego County (1978).

Levine, Adeline G., and Claudine Schweber-Koren, "Jury Selection in Erie County: Changing a Sexist System," II Law and Society Review 43 (1976).

44 Macauley, William A., and Edward J. Heubel, "Achieving Representative Juries: A System that Works," 65 Judicature 126 (1981).

Mackoff, Benjamin S., "Jury Selection for the Seventies," 55 Judicature I 00 (1977).

MacPhail, John A., "Jury of Peers?" 42 Pennsylvania Bar Association Quarterly 412 (1971 ).

Martin, M., "Alaska's Jury System," 26 Alaska Court System Newsletter 26 (February 1980).

McKusick, Vincent, and Daniel E. Boxer, "Uniform Jury Selection and Service Act," 8 Harvard Journal of Legislation 280 (1971).

Michael, Market al., "Challenge to Jury Composition in North Carolina," 7 North Carolina Central Law Journal! (1975).

Miller, H. G., "Forty-four Common Blunders of Jury Selection," 15 Law Notes 91 (1979).

Munsterman, G. Thomas, A Review of the Automated Juror Selection Process in Santa Barbara County, California (1985).

Munsterman, G. Thomas, and Janice T. Munsterman, Microcomputer Applications for Jury Systems Support ( 1989).

National Center for State Courts, Facets of the Jury System: A Survey ( 1976).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management (1987).

National Jury Project, Jurywork: Systematic Techniques (1983).

National Jury Project, The Jury System: New Methods for Reducing Prejudice (1975).

Pollack, Ira C., Note, "Discriminatory Jury Selection: Reversible Error Regardless of Defendant's Own Race," 27 University of Miami Law Review 238 (1972).

Potash, Diane, "Mandatory Inclusion of Racial Minorities on Jury Panels," 3 Black Law Journal80 (1973).

"Report of the Committee on the Operation of the Jury System of the Judicial Conference of the United States." 41 Federal Rules Decisions 353 (1976).

Repon of the President's Commission on Registration and Voting Population, Washington, D.C.: Government Printing Office (1963).

Silver, David, "Case Against the Use of Public Opinion Polls as an Aid in Jury Selection," 6 Rutgers Computer and Technology Law Journal177 (1978).

45 Simon, Rita J., The Jury: Its Role in American Society (1980).

Solomon, Maureen, Management of the Jury System ( 1975).

Sperlich, Peter W., and Martin L. Jaspovice, "Methods for the Analysis of Jury Panel Selections: Testing for Discrimination in a Series of Panels," 6 Hastings Quarterly Law Review 787 (1979).

Staff of Senate Committee on the Judiciary, "Federal Jury Selection" 90th Congress, 1st Session 43 (1967).

Stanley, Jr., Arthur J., "Federal Jury Selection and Service Before and After 1968," 66 Federal Rules Decisions 375 (1975).

Stanley, Roy E., Note, "Arkansas' Key-Man Jury Selection Procedures: Opportunity for Discrimination," 30 Arkansas Law Review 527 (1977).

Summer, F. A., "Voter Registration Lists: Do They Yield a Jury Representative of the Community?" 5 University of Michigan Journal of Law Reform 385 ( 1972).

Summers, M. R., "A Comparative Study of the Quality of Federal and State Jurors," 34 Wisconsin Bar Bulletin 35 (1961).

"Taylor v. Louisiana: The Jury Cross-section Crosses the State Line," 7 Connecticut Law Review 508 (1975).

"The Election and Jury Duty," Center for Jury Studies Newsletter, November 1980, at I.

"The Recall Problem: Why Houston Runs Through the Entire Voter List," Center for Jury Studies Newsletter, January 1979, at 6.

"Underrepresentation of Economic Groups on Federal Juries," 57 Boston University Law Review 198 (1977).

United States Bureau of Census, "Voting and Registration in the Election of November 1972," Current Population Repons, Series P-20 (1973).

"Use of Voter Registration Lists for Jury Selection," 94th Congress, 1st Session Congressional Record 55985 (April 15, 1975).

Van Dyke, Jon M., Jury Selection Procedures: Our Uncenain Commitment ot Representative Panels (1977).

Van Dyke, Jon M., "The American Jury," 10 The Center Magazine, May/June 1977, at 36.

46 Villeneuve, John J., Comment, "Challenging the Jury Selection System in New York," 36 Albany Law Review 305 (1972).

Yost, Jeffrey J., "Pauper--Short-changed at the Jury Box," 74 West Virginia Law Review 392 (1972).

Zeigler, Donald H., "Young Adults as a Cognizable Group in Jury Selection," 76 Michigan Law Review I 045 (1978).

Zeisel, Hans, and Shari S. Diamond, "Jury Selection in the Mitcheli-Stans Conspiracy Trial," 1976 American Bar Foundation Research Journa/151 (1976).

47 Standard 4: ELIGffiiLITY FOR JURY SERVICE

ALL PERSONS SHOULD BE ELIGIBLE FOR JURY SERVICE EXCEPT THOSE WHO

(a) ARE LESS THAN EIGHTEEN YEARS OF AGE, OR

(b) ARE NOT CITIZENS OF THE UNITED STATES, OR

(d) ARE NOT ABLE TO COMMUNICATE IN THE ENGLISH LANGUAGE, OR

(e) HAVE BEEN CONVICTED OF A FELONY AND HAVE NOT HAD THEIR CIVIL RIGHTS RESTORED.

COMMENJARY

This standard is designed to extend the privilege and responsibilities of jury service to as broad a segment of the population as is possible. The imposition of myriad eligibility requirements not only adversely affects the inclusiveness of the jury selection process, but may also increase the cost of administering the jury system. Hence, the qualifications for jury service listed in the standard are limited to those five that are essential to maintaining the integrity of the judicial process. Under the Americans with Disabilities Act of 1990, persons with disabilities must be afforded equal opportunity to serve, as provided in Standard I, and must remain on the list of eligible jurors.

This standard recognizes further that vague or discriminatory eligibility criteria for jury service can substantially diminish the representativeness of a broadly based juror source list and random jury selection procedures. In the past, subjective criteria such as being "of sound mind and good moral character," 1 have been justified by the need to ensure that potential jurors are competent to decide the factual questions presented to them. 2 The chairperson of the L .:~ral judiciary's Committee on the Operation of the Jury System, Judge Irving R. Kauffman, refuted this justification on the basis that

long experience with subjective requirements such as "intelligence" and "common sense" has demonstrated beyond any doubt that these vague terms provide a fertile ground for discrimination and arbitrariness, even when the jury officials act in good faith ....They have nothing to do with "intelligence," "common sense," or what is more important, ability to understand the issues in a trial. And they are discriminatory--usually against the poor. The end result of subjective tests is not to secure more intelligent jurors, but more homogeneous jurors ....3

48 Accordingly, the limitations on eligibility included in the standard are easily determinable on an objective basis. 4

Paragraph (a) Age Requirement

The first limitation on eligibility is that only persons age eighteen and over should be permitted to serve on a jury.5 Although any demarcation on the basis of age is arbitrary, eighteen appears to be the most logical starting point for eligibility for jury service because it is the age at which individuals become eligible to vote in federal elections6 and is the age of majority in most states. 7 Currently forty-seven states require citizens to be at least eighteen years of age to be eligible for jury service; the remaining three states set higher age requirements. Although twenty-one states prohibit jury service by or automatically excuse persons beyond a certain age, (generally sixty-five or seventy),8 a blanket exclusion unnecessarily precludes many older Americans who are able and willing from participating in the jury process. Consequently, no maximum age limit is recommended for eligibility.

Paragraph (bl Citizenship Requirement

The second limitation is that a person must be a citizen of the United States to serve as ajuror.9 This requirement is already imposed by most states either by law or in fact through reliance upon the voter list as the primary source of potential jurors. 10 Jury service, together with voting and holding elective office, are nearly the only privileges/responsibilities that may be exercised exclusively by citizens. Although noncitizens may serve as attorneys, 11 hold government jobs, 12 and undertake other important tasks and positions of trust in our society, jury service, voting, and holding elective office have been considered key decision making duties that should be reserved for those with the commitment to the American political and judicial systems represented by citizenship. The restriction of jury service to citizens may affect the degree to which the pool of prospective jurors fairly reflects a cross section of the community in jurisdictions with a large resident alien population. Not to impose this restriction, however, would substantially diminish the significance of citizenship. Indeed, the desire to participate in the fundamental judgments made through the election and jury processes may serve as one of the primary incentives for attaining citizenship.

Paragraph fcl Residency Requirement

The third restriction is that all prospective jurors must be residents of the jurisdiction in which they have been called to serve. In accordance with the statutes of most states, the standard recommends no minimum period of residence. 13 The imposition of minimum periods of residence in a jurisdiction has been premised, in part, on the desire to ensure "some substantial nexus between a juror and the community whose sense of justice the jury as a whole is expected to reflect." 14 In view of the highly mobile nature of our society and the corresponding reduction in regional differences, however, this rationale no longer appears supportable, especially in the face of its adverse effect on the inclusiveness of the jury selection process. 15 Moreover, unnecessarily lengthy periods of residency have been ruled unconstitutional as prerequisites for votingl6 and receiving public assistance,n and as one commentator has suggested

49 [although] no court has yet struck down a [period of] residency requirement for jury service, [n]o persuasive reasoning has been offered to justify a continuing residence for jury service when it is unconstitutional for virtually all other governmental functions .... Persons new to a community are just as much a part of it as long-time residents and have a valid point of view on its activities. 18

Accordingly, the term resident is intended to refer to all persons living in the jurisdiction. It includes, in addition to domiciliaries of the jurisdiction, students attending local universities and military personnel and their dependents living in the community, even though they may be domiciled elsewhere. In many areas, such persons constitute a significant segment of the population that should not be excluded from the jury box: LL ·

Paragra,ph fdl Communication Requirement

Fourth is the requirement that potential jurors be able to communicate in the English language.2° Because of the history of misuse that accompanied literacy prerequisites for voting, any provision regarding knowledge of the English language must be carefully framed. 21 Therefore, to minimize the opportunities for bias and discrimination in the jury selection process, the standard does not use the words "to write"22 or "to understand" English. 23 In addition, it is phrased so as neither to proscribe nor to require eligibility for blind individuals able to read Braille or hearing-impaired persons able to communicate.

The law and practice in this area are in a state of change but generally favor the service of those with disabilities. Blind or hearing-impaired persons have successfully served as jurors. It is not yet possible to specify a generally applicable rule or procedure that safeguards the rights of blind or hearing-impaired individuals and accommodates their special needs in all cases, although the I Oth Circuit found that a juror's hearing impairment did not disqualify the juror nor did the interpreter's presence during the jury deliberations deprive the defendant of a fair trial. 24 Standard 8 makes clear, however, that a prospective juror who cannot read or see or hear may be removed for cause in a particular case when that ability is essential for the fair determination of the case at issue.

Paragraph fel Conviction of a Felony/Restoration of Civil Right~

The final restriction excludes individuals convicted of a felony who have not had their civil rights restored.25 Most states currently exclude felons from serving on a jury.26 Many felons "might well harbor a continuing resentment against 'the system' that punished [them] ... and an equally unthinking bias in favor of the defendant on trial .... "27 Moreover, the presence on a jury of convicted felons who have not had their civil rights restored through the applicable state procedure tends to '-' eaken respect for the judicial system.

This limitation on eligibilirv •!· •es not extend to a person accused of committing a crime. Although arguments similar tc• those outlined above have been made in favor of such

50 an exclusion,28 automatic disqualification of individuals subject to a pending prosecution impinges on the presumption of innocence.

SUGGESTED STEPS FOR IMPLEMENTATION

I. Review the provisions governing eligibility for jury service.

2. Initiate appropriate legislative or administrative changes if those provisions are inconsistent with the standard.

3. Interpret any subjective criteria in a manner consistent with the objective requirements of the standard--for example, a statutory requirement of "good moral character" may be interpreted to mean no felony conviction or the restoration of civil rights following such a conviction.

4. Document the procedures for restoring civil rights, such that if a request is made for this information, the individual can be informed of the procedures.

RELAIEDSTANQARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15.2.l(c) "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Section 8(b) National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Section 73.2 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 See, e.g., Iowa Code Annotated §607.1 (1975); Massachusetts Annotated Laws ch. 34, §4 (Supp. 1972); Oklahoma Statutes §38-28 (Cum. Supp. 1980); Rhode Island General Laws §9- 9-23 (Cum. Supp. 1980); South Carolina Code Annotated §14-7-140 (1977).

51 2 See Rabinowitz 1. United States, 366 F.2d 34,92 (5th Cir. 1966)(Coleman, J. concurring in part, dissenting in part).

3 Federal Jury Selection: Hearings Before the Subcommittee on Improvements in Judiciary Machinery of the Senate Judiciary Committee, 90th Cong., 1st Sess. (1967)[hereinafter Hearings].

4 Accord, Rabinowitz v. United States, 366 F.2d 34, 51 (5th Cir. 1966); American Bar Association, Standards Relating to the Administration of Criminal Justice: Trial by Jury (1991 )[hereinafter cited as ABA]; Kaufman statement in Hearings, supra note 3.

5 Accord, ABA, Standard 15-2.1; Judicial Administration Division, American Bar Association Commission, Standards Relating to Trial Courts, Standard 2.11 [hereinafter cited as ABA Commission]; Federal Jury Selection and Service Act of 1968, 28 U.S.C. § 1865(b )(I )[hereinafter cited as Federal Jury Act]. But see National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act, §8(b)(l) ( 1986)(age requirement of 21 years)[hereinafter cited as Uniform Jury Act].

6 U.S. Const., amendment XXVI.

7 Howard Beaser, The Legal Status of Runaway Children 51-54 (1975).

8 Id.

9 Accord, ABA, supra note 4, at Standard 15-2.1; ABA Commission, supra note 5; Federal Jury Act, supra note 5; Uniform Jury Act, supra note 5.

10 Jon M. Van Dyke, Jury Selection Procedures 131 (1977).

11 In re Griffiths, 413 U.S. 717 (1973).

12 Sugarman v. Dougall, 413 U.S. 634, 648-49 (1973); People v. Rodriguez, 35 Cal. App. 3d 900, Ill Cal. Rptr. 238 ( 1973). .

13 About a quarter of the states still require a minimum period of residence in order to be eligible to serve on a jury. In 1977, such requirements ranged from 30 days to two years. Van Dyke, supra note 10, at I.

14 H.R. Rep. No. 1076, 90th Cong., 2nd Session, Pt. 2, at 1792 (1968) (Report on the Jury Selection and Service Act of 1968, P.L. 90-274).

15 Van Dyke, supra note 10, at 72; see Maureen Solomon, Management of the Jury System II (1975).

16 Dunn v. Blumstein, 405 U.S. 330 (1972).

52 17 Shapiro v. Thompson, 394 U.S. 618 (1969); Memorial Hospital v. Maricopa County, 415 u.s. 250 (1974).

18 Van Dyke, supra note 10, at 72.

19 See Peters v. Kiff, 407 U.S. 493, 503-04 (1972). Implementation of the tenn of service recommended in Standard 5 and the excuse and deferral policies set forth in Standard 6 should substantially alleviate scheduling problems due to student vacations and military duty requirements.

2° The Task Force recognizes that the English language requirement would not apply in Puerto Rico, where the legal language is Spanish.

21 Van Dyke, supra note 10, at 132.

z2 Federal Jury Act, supra note 5.

23 Federal Jury Act, supra note 5; Uniform Jury Act, supra note 5.

24 United States v. Dempsey, 830 F. 2d 1084 (lOth Cir. 1987); accord, DeLong v. Brumbaugh, 703 F. Supp. 399 (W.D. Pa. 1989); see also, Arizona v. Marcham, 770 P.2d 356 (Ariz. Ct. App. 1988); Louisiana v. Freeman, 539 So.2d. 739 (La. Ct. App. 1989); Guzman v. New York, 555 N.E.2d 259 (NY. Ct. App. 1990); "Jury Selection: The Courts, the Constitution, and the Deaf," II Pacific Law Joumal967 (1980); "Due Process, The Deaf and the Blind as Jurors," 17 New England Law Review 119 (1981); Randy Lee, "Equal Protection and a Deaf Person's Right to Serve as A Juror," 17 New York University Review of Law and Social Change 81 (1989-1990).

25 See Federal Jury Act, supra note 5. Restoration of civil rights refers to the process for reinstating those rights and privileges automatically lost by an individual upon conviction of a felony, such as the right to vote or to hold public office. See, e.g., Arizona Rules of Criminal Procedure 29.

26 Van Dyke, supra note 10, at Appendix C.

27 Rubio v. Superior Court of San Joaquin County, 24 Cal. 3d 93, 101, 593 P.2d 595,600, (1979).

28 ABA, supra note 4, at Standard 15-2.1; ABA Commission, supra note 5; Federal Jury Act, supra note 5.

53 REFERENCES

ELIGIBILITY

Administrative Office of the United States Courts, Qualifying, Sumnwning and Excusing Jurors in United States District Courts (1986).

Beaser, Howard, The Legal Status of Runaway Children 51 ( 1975).

Carpenter, Joseph I., "Report to the Section on Practice and Procedure on Passage of the Juror Qualification and Selection Bill (Act. No. 594; Regular Session, 1978)," 39 Alabama Lawyer 331 (1978).

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems (1980).

"Due Process, the Deaf and the Blind as Jurors," 17 New England Law Review 119 (1981).

H.R. Rep. No. 1076, 90th Cong., 2nd Session, pt. 2, at 1792 (Report on the Jury Selection and Service Act of 1968, P.L. 90-274)(1968).

"Jury Selection: The Courts, the Constitution, and the Deaf," II Pacific Law Joumal961 (1980).

Lee, Randy, "Equal Protection and a Deaf Person's Right to Serve as a Juror," 17 New York University Review of Law and Social Change 81 (1989).

McKusick, Vincent L. and Daniel E. Boxer, "Uniform Jury Selection and Service Act," 8 Harvard Journal of Legislation 280 (1971).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

National Conference of Metropolitan Courts, Final Report on the Jury Administration Project (1973).

"New Jury Administration Legislation," 3 Pennsylvania Judiciary News, September 1980, at I.

"One-Step Summoning," Center for Jury Studies Newsletter, March 1979, at 3.

Pabst, William R., Jr., et al., "The Myth of the Unwilling Juror," 60 Judicature 60 (1976).

Richert, John P., "A New Verdict on Juror Willingness," 60 Judicature 164 (1977).

54 Simon, Rita J ., The Jury: Its Role in American Society ( 1980).

Solomon, Maureen, Management of the Jury System ( 1975).

Vanderbilt, Arthur T., Minimum Standards of Judicial Administration ( 1949).

Van Dyke, Jon M., Jury Selection Procedures: Our Uncertain Commitment to Representative Panels ( 1977).

55 Standard 5: TERM OF AND AVAILABILITY FOR JURY SERVICE

THE TIME THAT PERSONS ARE CALLED UPON TO PERFORM JURY SERVICE AND TO BE AVAILABLE THEREFOR, SHOULD BE THE SHORTEST PERIOD CONSISTENT WITH THE NEEDS OF JUSTICE.

(a) A TERM OF SERVICE OF ONE DAY OR THE COMPLETION OF ONE TRIAL, WHICHEVER IS LONGER, IS RECOMMENDED. HOWEVER, A TERM OF ONE WEEK OR THE COMPLETION OF ONE TRIAL, WHICHEVER IS LONGER, IS ACCEPT ABLE.

(b) PERSONS SHOULD NOT BE REQUIRED TO MAINTAIN A STATUS OF AVAILABILITY FOR JURY SERVICE FOR'LONGERTHAN TWO WEEKS EXCEPT IN AREAS WITH FEW JURY TRIALS WHEN IT MAY BE APPROPRIATE FOR PERSONS TO BE AVAILABLE FOR SERVICE OVER A LONGER PERIOD OF TIME.

COMMENTARY

Pam:raph fal Term of Jucy Service

This standard recommends that jurisdictions reduce to the shortest extent possible both the amount of time during which persons are required to remain available for jury duty and the time spent at the courthouse. The standard specifically encourages the adoption of a one triallone day jury term. Under the one triallone day term, an individual's term of service is completed upon serving either for the duration of one trial or for one day if he or she is not selected to serve as a juror. Those individuals who either are challenged at voir dire or are not selected for a voir dire panel are dismissed at the end of their first day.

When the voir dire process for a particular trial cannot be completed in one day, the members of the panel who have not been removed for cause may be required to return on succeeding days until the jury has been selected. Currently, nearly one-fourth of the United States population lives in jurisdictions that have adopted a one trial/one day term. These include all courts in Colorado, Connecticut, Hawaii, and Massachusetts, as well as many counties in other states and several federal district courts. None has changed back to a lengthier term of service.

In jurisdictions where one trial/one day is not feasible, the standard indicates that reducing the term of actual service to one week is acceptable. It is intended that under a one week term, jurors would complete the last trial assigned even if the trial continues past the one-week term.

The length of the jury term has a substantial impact on several aspects of jury management. 1 Most important is the direct correlation between the length of term and the

56 representativeness and inclusiveness of the jury panel. The standard recognizes that reducing the term of jury service is essential to achieving a representative and inclusive jury. Long terms of service disrupt domestic schedules, personal plans, and business activities and discourage service by many prospective jurors. The economic hardship and extreme inconvenience created by lengthy terms increases the number of requests to be excused from jury duty. Imposition of a strict excuse policy is impractical under such circumstances, and the resulting high excuse rate reduces the potential yield of jurors and diminishes the representativeness and inclusiveness of the jury panel. 2

A shortened term would minimize or practically eliminate the inconvenience and hardship presented by jury duty and thus, would justify the application of a strict excuse policy.3 Restricting excuses to only those cases in which a continuing hardship can be demonstrated increases the number of citizens available for jury service.4 As a result of this increase, the jury panel becomes more representative and inclusive of the community from which it is drawn. A one trial/one day term would further increase inclusiveness and representativeness because it requires a substantially greater number of citizens to serve as jurors.5

In addition to diminishing representativeness and inclusiveness, lengthy terms of jury service, when combined with inefficient use of prospective jurors, lead to juror frustration and dissatisfaction with the jury system and with the judicial system in general, as was shown in the National Center's study on the relationship of fees and terms of service.6 A shortened jury term encourages more efficient use of jurors, which in tum reduces the amount of time they spend waiting to be used. This recognizes that citizens are making an important contribution and that their time is valuable. As a result, juror dissatisfaction is minimized, and the willingness of individuals to serve when summoned is increased. Furthermore, improving individuals' attitudes toward jury service and the judicial system also reduces requests for excuse from service and thereby increases representativeness and inclusiveness of jury panels.

It should be emphasized that reducing the term of service can increase jury costs because of the additional number of individuals who must be summoned. By adopting efficient management techniques, however, these additional costs can be limited, and overall jury system costs may actually be reduced.? Specifically, courts are urged to use computerized selection of names and preparation of summonses, to combine their qualifying and summoning process, and to use first-class mail to offset the cost of summoning more individuals. Because summoning an excessive number of prospective jurors can waste jurors' time and the courts' money, courts also should establish an accurate assessment of the pattern of demand for jury trials to predict accurately the number of jurors needed for court each day. 8 Courts are encouraged to institute telephone call-in systems to inform jurors whether or not they are needed and if so, when they should report to the courthouse. This procedure results in substantial savings to the court in juror fees, helps ensure that the court has an adequate number of jurors on hand, and uses the prospective jurors' time more efficiently by permitting them to continue their routine schedules when their presence is not required for jury service. 9 In some jurisdictions there is a prohibition against the reuse of jurors after voir dire, but where permitted it is suggested that courts reuse challenged jurors in successive voir

57 dires to achieve an efficient jury pool. 1° Compensation that persons reporting to the courthouse receive for the first day of jury service should be limited to a nominal amount in recognition of their out-of-pocket expenses (a reasonable fee should be paid for each succeeding day they report). 11 Any added costs that remain after these steps have been taken are more than balanced by the increase in the representativeness of the jury pool and the significant decrease of the burden imposed on individuals called for jury service.

Paragraph fb) Availability for Service

It is recognized that a jury term requiring an individual to remain available for service for several weeks or months may cause considerable hardship and inconvenience even though the time actually served may be fairly short. Having to remain available for a protracted period of time creates uncertainty and disrupts business and personal affairs. 12 The standard attempts to alleviate such problems by specifically recommending that jurisdictions set a maximum of two weeks on the time persons may be required to remain available for jury service and consider placing a limitation on the number of times a juror can be called. This would relieve the hardship and inconvenience to both the individual and the employer. 13 It acknowledges, however, that an exception to this maximum may be necessary in rural areas with few jury trials. Even when this exception applies, it is intended that actual service should nevertheless be limited to, at most, a term of one week or the completion of the last trial assigned during that week.

SUGGESIED SIEPS FOR IMPLEMENTATION

I. Review existing statutes and/or court rules regarding the term of jury service.

2. Initiate appropriate statutory and administrative changes if those provisions are inconsistent with the standard.

3. Implement appropriate management techniques to accompany a reduced term of service such as but not limited to the following:

(a) Computerize selection of names from source list. (b) Combine qualification and summoning process.

4. Provide a clear explanation of the term of service and period of availability in the initial notice sent to prospective jurors and in the orientation presentation.

58 ------

RELATED STANDARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Silent "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Section 15 National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Silent Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 Janice T. Munsterman, et al., The Relationship of Juror Fees and Terms of Service to Jury System Performance, National Center for State Courts, March 1991 [hereinafter cited as Juror Fees].

2 See G. Thomas Munsterman and G. Gallas, Reduced Terms ofJury Service in the Federal Courts (I 986).

3 See James N. Canham, "One-Day,One Trial," 16 Judges' Journal, Summer 1977, at 37 [hereinafter cited as Canham)(Courts in Wayne County (Detroit), Michigan reported that after adoption of a one trial/one day term, excuses dropped to only 1.3 percent of those called); see also, Juror Fees, supra note I.

4 See, "Implementing One Day/One Trial," Center for Jury Studies Newsletter, March 1979, at 6 (Statistics from Allegheny County (Pittsburgh), Pennsylvania revealed that during the first year of the one trial/one day term more than three times as many individuals experienced jury duty than in the previous year).

5 See Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems 6-5 ( 1980)[hereinafter cited as Methodology Manual]; National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Managment (1987); Juror Fees, supra note I.

6 Juror Fees, supra note I.

59 7 Methodology Manual, supra note 5 at 6-5 to 6-6; Kenneth Carlson et al., An Exemplary Project: One Day/One Trial Jury System-Wayne County, Michigan (1977). But cf. Michael H. Graham & Richard S. Pope, "One Day/One Trial or A One Week Term of Jury Service: The Misleading Marketing of Modem Jury Management Systems," 45 Missouri Law Review 255, 275 (1980).

8 Methodology Manual, supra note 5 at 6-5.

9 Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Juror Usage, 6-7 (1974).

to "Implementing One-Day/One-Trial," Center for Jury Studies Newsletter, March 1979, at 6.

II See Standard 15, infra.

12 Munsterman and Gallas, supra note 2.

13 Juror Fees, supra note I.

60 -- -::.:------

REFERENCES

TERM OF SERVICE

"Before and Afler One-Day/One-Trial," Center for Jury Studies Newsletter, July 1981, at 3.

Canham, James M., "One Day/One Trial," 16 Judges' Journal, Summer 1977, at 34.

Carlson, Kenneth, eta/., One-Day/One-Trial Jury System ( 1977).

Cecil, Joe S., Jury Service in Lengthy Civil Trials ( 1987).

Cenler for Jury Studies, National Center for Stale Courts, Methodology Manual for Jury Systems (1980).

Graham, Michael H., and Richard S. Pope, "One Day/One Trial or a One Week Term of Jury Service: The Misleading Marketing of Modem Jury Management Syslems," 45 Missouri Law Review 255 (1980).

Kandt, William C., "Jury Waiting Time Can Be Eliminated," 55 Judicature 116 (1971).

Kasunic, David E., "One Day/One Trial: A Major Improvement in the Jury Syslem," 67 Judicature 7 8 (1983 ).

Law Enforcement Assistance Administration, National Institule of Law Enforcement and Criminal Justice, A Guide to Juror Usage, (1974).

Munsterman, G. Thomas, and G. Gallas, Reduced Terms ofJury Service in the Federal Courts (1986).

Munsterman, Janice T. et al., The Relationship ofJuror Fees and Terms of Service to Jury System Performance (1991 ).

National Center for State Courts, Proposed One Trial/One Day Jury System for the Courts Serving Maricopa County, Arizona: Final Report ( 1985).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

"One-Day/One-Trial," Center for Jury Studies Newsletter, January 1979, at 2.

Zeisel, Hans, Law and Contemporary Problems 43 ( 1980).

61 See also references in Standards 10: Administration of Jury Operations and Standard 13: Juror Use.

62 Standard 6: EXEMPTION, EXCUSE, AND DEFERRAL

(a) ALL AUTOMATIC EXCUSES OR EXEMPTIONS FROM JURY SERVICE SHOULD BE ELIMINATED.

(b) ELIGIBLE PERSONS WHO ARE SUMMONED MAY BE EXCUSED FROM JURY SERVICE ONLY IF:

(i) THEIR ABILITY TO RECEIVE AND EVALUATE INFORMATION IS SO IMPAIRED THAT THEY ARE UNABLE TO PERFORM THEIR DUTIES AS JURORS AND THEY ARE EXCUSED FOR THIS REASON BY A JUDGE; OR

(c) DEFERRALS OF JURY SERVICE FOR REASONABLY SHORT PERIODS OF TIME MAY BE PERMITTED BY A JUDGE OR DULY AUTHORIZED COURT OFFICIAL.

(d) REQUESTS FOR EXCUSES AND DEFERRALS AND THEIR DISPOSmON SHOULD BE WRITTEN OR OTHERWISE MADE OF RECORD. SPECIFIC UNIFORM GUIDELINES FOR DETERMINING SUCH REQUESTS SHOULD BE ADOPTED BY THE COURT.

COMMENTARY

The United States Supreme Court has held that a jury drawn from a representative cross-section of a community is an essential component of the Sixth Amendment guaranty of trial by an impartial jury. 1 The exclusion of a substantial portion of the community from jury service through excuses or exemptions seriously alters the representativeness and inclusiveness of a jury paneJ.2 Representative juries will be attained only if the source list is representative and if as many people as possible on that list actually appear on jury panels and are chosen to sit as jurors. This standard acknowledges that a drastic reduction in the number of individuals relieved from jury duty through excuses and exemptions is mandatory if the goal of representativeness and inclusiveness is to be achieved.

63 It should be noted that the standard is intended to address excuses from and deferrals to jury service at the jury pool stage only. Requests to be excused from a particular jury because of the possibility of a lengthy trial should be treated as challenges for cause.

Paragraph Cal Exemptions

Many states exempt individuals who fall into certain occupational categories or, upon request, automatically excuse other classes of individuals, such as the elderly or mothers caring for young children. In many areas, this practice has resulted in the absence of a significant portion of the community from the pool of prospective jurors. The absence of such individuals is especially noteworthy in those states that automatically eliminate from jury lists the names of those persons who fall into exempt or excused categories despite the fact that exemptions and excuses generally are considered to be voluntary.3 Even when names are not systematically eliminated, the mere availability of an exemption or automatic excuse contributes substantially to diminishing representativeness because of the likelihood that many people will take advantage of avoiding jury service if given the opportunity. 4 Deferral of jury service accommodates the public-necessity rationale upon which most exemptions and automatic excuses were originally premised, while enabling a broader spectrum of the community to serve as jurors.

The difficulty of securing a representative cross-section of the community is further increased where certain persons, such as physicians, attorneys, government service workers, accountants, and clergymen, are exempted from jury service.5 These broad categorical exceptions not only reduce the inclusiveness and representativeness of a jury panel, but also place a disproportionate burden on those who are not exempt. Recognizing these effects, the United States Supreme Court has struck down jury selection practices that have the consequence of systematically excluding cognizable groups.6

Relying upon the principle that jury service is an obligation and privilege of citizenship from which no eligible citizen should be exempt, the standard recommends that automatic excuses or statutory group exemptions be eliminated.? Considerable support exists for this recommendation. Twenty-six states have eliminated all group exemptions from jury duty, and nine states have very limited exemptions, such as for members of the legal profession and judges or members of the armed services.

Paragraph Cbl Excuses

It is contemplated that adoption of a strict excuse policy will reduce the number of unnecessary (":cuses granted and thus prevent the representativeness and inclusiveness of the jury from bei;.~ diminished at the excuse stage of the jury selection process. Consequently, the standard recommends that individuals be excused in only three instances. The first is when an individual is so physically or mentally impaired that he or she is unable to receive and assess the evidence and arguments and participate in deliberations with other jury members. The grounds for the excuse are phrased in functional terms rather than broad diagnostic labels, since it is the effect of the disability rather than its cause which is significant.8 The court may release an individual from jury duty under paragraph (b) (i) on its

64 own motion. To require the mentally disabled individual to request an excuse makes little sense. Because of the discretion and sensitivity required and to prevent abuse, the judge should decide whether to grant or deny an excuse on this basis, not administrative personnel.

The second instance is age. In many jurisdictions age is a basis for excuse from jury service. The judge may take this into consideration if an individual requests to be excused for reasons of advanced age. However, age should not constitute an automatic excuse. Rather, age-related problems and disabilities should be considered in an individualized determination.

The third instance in which an excuse may be granted is when an individual requests to be released from jury service and demonstrates that he or she served as a member of a venire within the past twenty-four months, or that jury service would cause genuine personal hardship either to the individual requesting the excuse or to members of the public whom that individual serves. The prior-service provision is to spread jury service more equitably over the population of eligible persons. The hardship excuse is intended to provide courts with the necessary flexibility to accommodate the exceptional cases for the limited term specified in Standard 5 because of severe, chronic physical illness or incapacity or essential military or other public duties. The experience of jurisdictions that have reduced their term of service and adopted a stringent excuse policy indicates that most current requests for a hardship excuse can be handled by scheduling the individual's jury service to a more convenient date and by fairly compensating citizens serving on jury duty. 9 Economic hardship is not included as a ground for excuse because of the shortened term of service and the liberal deferral policy recommended by these standards. However, members of jury panels may be removed for cause when the anticipated length of a trial would create such an economic hardship that they would be unable to participate fully in the proceedings. 10

Paragraph Cc l Deferral

The standard recommends that all requests for an excuse that do not meet the above criteria should be accommodated by deferring an individual's jury service. In such instance, jury service should be rescheduled immediately for a specific date when the individual will be able to serve. Many courts do not permit any deferral of jury service. Prospective jurors are given a choice between serving or being excused altogether. Such rigidity may create additional hardship and resentment for those citizens wishing to serve arid will diminish representativeness when citizens choose not to serve. Permitting jury service to be deferred and rescheduled increases the overall representativeness and inclusiveness of the jury pool while decreasing the hardship of jury service.

To facilitate the attainment of these goals, procedures for obtaining a deferment should be relatively simple and informal. Care must be taken, however, to ensure that the standard's purpose of increasing representativeness and inclusiveness is not defeated through abuse of the deferment policy.

65 Paragraph ldl Procedural Safeguards

To avert charges of arbitrary or capricious action, the standard specifies that requests for an excuse should be made in writing or if made orally reduced to writing for the court's records. Such records are essential for operating a fair and efficient deferral program and for monitoring the effect of the excuse and deferral process. 11 Requests should be considered on a case-by-case basis by a judge or duly authorized court official (e.g., the jury commissioner or a senior court manager) to ensure that sufficient justification for excuse exists. Recognizing the need for consistency, the standard requires the creation and adoption of a specific and uniform written policy detailing what constitutes hardship, specifying the manner in which the hardship is to be demonstrated, and imposing limitations on the number of deferments allowed per individual. Few courts have uniform guidelines with specific criteria to govern the granting of excuses. As a result, many permit excuses on an ad hoc basis. The uniform application of a strict, written policy will preclude the granting of arbitrary and inequitable excuses from jury service. It will also provide a safeguard against the granting of excessive excuses, thereby protecting the representative character of the jury pool. To further enhance consistency, one individual should have the responsibility for administering such a policy.

SUGGESTED SIEPS FOR IMPLEMENTATION

I. Review existing statutes and policies regarding exemptions, excuses, and deferments.

2. Initiate appropriate legislative or administrative changes if those provisions are inconsistent with the standard.

3. Establish a written excuse policy with guidelines enumerating the specific criteria for granting excuses and deferments, the type of proof required, and the number of deferments allowed per individual.

4. Require that requests for excuses and deferments be made in writing or reduced to writing promptly if handled by telephone.

5. Review current compensation policy and initiate appropriate changes if consistent with Standard 15.

6. Take appropriate steps to reduce the term of jury service to the shortest possible length of time. (See Standard 5.)

7. Handle requests for deferral before the reporting date to reduce administrative work load d:c·:ngjuror enrollment and to know the approximate number of jurors expected to repon.

8. Reschedule jury service for a specific date and send reminders to those individuals whose service has been postponed for more than a month.

66 9. Monitor the excuse and deferral procedures to make certain that they are conducted fairly and efficiently.

RELATEDSTANPARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15-2.l(c) & (d) "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Section I 0 & II National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Section 73.2 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 Taylor v. Louisiana, 419 U.S. 522 (1975).

2 The Center for Jury Studies has reported that the percentage of those excused varies from I 0 to 40 percent of those summoned to jury duty; the median range is 25%. Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems 4-4 ( 1979) [hereinafter cited as Methodology Manual]; National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

3 Arthur B. Vanderbilt, Minimum Standards of Judicial Administration 171 ( 1949)[hereinafer cited as Vanderbilt].

4 Jon Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 119 (1977)[hereinafter cited as Van Dyke].

5 See Vanderbilt, supra note 3, at 181; see also Van Dyke, supra note 4, at 126; see Methodology Manual, supra note 2, at 4-4 ("exemptions bear witness to the inventiveness and ingenuity of the state legislatures and to the pressures exerted by the various groups that have obtained exemptions."); accord Maureen Solomon, Management of the Jury System 12 ( 1975)[hereinafter cited as Solomon].

67 6 Duren v. Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1975).

' See Unifonn Jury Selection and Service Act,§ 10 cmt, 13 U.L.A. (1986).

8 This functional approach is consistent with recent legislation and recommendations. See, e.g .. The Developmental Disabilities and Bill of Rights Act, 42 U.S.C. §6001(5)(Cum. Supp.May 1992); Mental Health Law Project, "Legal issues in State Mental Health Care; Proposals for Change," Mental Disability Law Reponer (Special Reprint 1979); American Bar Association Commission on the Mentally Disabled, Prohibiting Discrimination Against Developmentally Disabled Persons ( 1978).

9 See Solomon, supra note 5, at 20-21; see also James Canham, "One Day/One Trial," 16 Judges' Journal, Summer 1977, at 34; see Standard 15: Juror Compensation.

Jo See Standard 8: Removal From the Jury Panel for Cause.

11 See Standard I 0: Jury System Administration.

68 REFERENCES

EXEMPTIONS. EXCUSES & DEFERRAL

Administrative Office of the United States Courts, Qualifying, Summoning and Excusing Jurors in United States District Courts (1986).

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems (1980).

Ellis, T. S., III, and J. Thomas O'Brien, Jr., "Virginia's Jury Exemptions: Ripe for Reform," 20 University of Richmond Law Review 971 ( 1986).

Kasunic, David, "One Big Idea for Small Courts," 16 Judges' Journal, Summer 1979, at 44.

Munsterman, G. Thomas, and Janice T. Munsterman, Microcomputer Applications for Jury Systems Support 1989.

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

National Conference of Metropolitan Courts, Final Report on the Jury Administration Project.

"New Jury Administration Legislation," 3 Pennsylvania Judiciary News 9 (September 1980).

Pabst, William R., Jr., et at., "The Myth of the Unwilling Juror," 60 Judicature 164 (1976).

Richert, John P., "A New Verdict on Juror Willingness," 60 Judicature 497 (1977).

Silver, David, "A Case Against the Use of Public Opinion Polls as an Aid in Jury Selection," 6 Rutgers Journal of Computers and the Law 177 (1978).

Solomon, Maureen, Management of the Jury System ( 1975).

"State Programs Underway," Center for Jury Studies Newsletter, January 1979, at 7.

Vanderbilt, Arthur, Minimum Standards of Judicial Administration ( 1949).

Van Dyke, Jon, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels ( 1977).

Villeneuve, John J., Comment, "Challenging the Juror Selection System in New York," 36 Albany Law Review 305 ( 1972).

69 70 PART B: Standards Relating to Selection of a Particular Jury

Standard 7: VOIR DIRE

Standard 8: REMOVAL FROM THE JURY PANEL FOR CAUSE

Standard 9: PEREMPTORY CHALLENGES

71 PART 8: STANDARDS RELATING TO SELECTION OF A PARTICULAR JURY

Introduction

The three standards in this section address the procedures for selecting a jury that is able and willing to hear a case fairly and impartially. The recommended procedures are designed to facilitate selection of an unbiased juror in an efficient and fair manner and to safeguard the guarantee of representativeness without interfering with the legitimate role of the peremptory challenge or intruding upon its peremptory nature. Standard 7, entitled "Voir Dire," recommends that counsel receive basic background information regarding the panel of prospective jurors before voir dire. It sanctions the direct questioning of panel members by counsel, but makes it clear that the trial judge is responsible for conducting the primary voir dire examination and for ensuring that any subsequent examination of the prospective jurors does not exceed the limited purpose of voir dire. Standard 8 sets forth the principles for determining when a juror should be removed for cause. It specifies that such determinations may be made either on a motion by counsel or on the judge's own initiative.

Standard 9 addresses the issues surrounding peremptory challenges. It urges that peremptory challenges be limited to a number no larger than necessary to provide reasonable assurance of obtaining an unbiased jury and contains explicit recommendations within the scope of current practice regarding the number of peremptory challenges that should be permitted in most cases. In addition, it strongly encourages the adoption of a "struck jury system" under which all peremptory challenges are exercised following the completion of the voir dire examination.

As noted in the commentary to these standards, several aspects of the voir dire process have been subject to intense scrutiny and criticism over the past few years. The recommendations in this section recognize voir dire as a fundamental part of the trial process and attempt to address the problems of voir dire without altering its purpose or basic character.

72 Standard 7: VOIR DIRE

VOIR DIRE EXAMINATION SHOULD BE LIMITED TO MATTERS RELEVANT TO DETERMINING WHETHER TO REMOVE A JUROR FOR CAUSE AND TO EXERCISING PEREMPTORY CHALLENGES.

(b) THE TRIAL JUDGE SHOULD CONDUCT A PRELIMINARY VOIR DIRE EXAMINATION. COUNSEL SHOULD THEN BE PERMITTED TO QUESTION PANEL MEMBERS FOR A REASONABLE PERIOD OF TIME.

(c) THE JUDGE SHOULD ENSURE THAT THE PRIVACY OF PROSPECTIVE JURORS IS REASONABLY PROTECTED, AND THAT QUESTIONING IS CONSISTENT WITH THE PURPOSE OF THE VOIR DIRE PROCESS.

(d) IN CRIMINAL CASES, THE VOIR DIRE PROCESS SHOULD ALWAYS BE HELD ON THE RECORD. IN CIVIL CASES, THE VOIR DIRE PROCESS SHOULD BE HELD ON THE RECORD UNLESS WAIVED BY THE PARTIES.

COMMENTARY

The voir dire process provides the court and the parties with the opportunity to question prospective jurors to discover conscious or subconscious preconceptions and biases or other facts related to selecting a fair and impartial jury. Voir dire is a valued and integral part of the adversary process and is necessary for the intelligent and effective exercise of challenges. 1 Peremptory challenges are intended to be used, within certain restrictions, by counsel on the basis of subjective judgments about prospective jurors' possible attitudes toward the case or one of the parties. (See also Standard 9.) Counsel are entitled to a reasonable amount of information on which to base such judgments.

Unlimited voir dire examination may be unduly time-consuming, hamper the efficient use of jurors, and probe unnecessarily into the private lives of prospective jurors.2 The standard recognizes the need to elicit sufficient information during voir dire for the effective use of challenges and to restrict unnecessary inquiry into matters beyond the proper scope of voir dire to protect juror privacy and to expedite the process.

Juror privacy is a difficult issue. It calls for a balance between the information needed by the parties to allow them to select fair and impartial juries and the right of privacy expected by each person called to serve. The court should assure that appropriate consideration is given to juror privacy by maintaining control of voir dire and restricting the

73 lines of questioning to those issues that are legitimate ones in determining the jurors' ability to serve fairly and impartially. The court should protect the juror's privacy to the extent allowed by law and should limit probing into sensitive areas. The juror is called upon to perform a public service, and the court has the responsibility to protect him or her. 3

Paragraph fa) Provision of Background Infounation

The standard suggests that jurisdictions provide counsel with basic background information regarding each member of the jury panel. Such information should include the age, gender, occupation, educational level, marital status, and prior jury service of the prospective juror, the geographic area in which the juror lives,4 the occupation of his or her spouse, if any, and the age of his or her children, if any. 5 The standard recommends further that this information be turned over to counsel on the morning on which jury selection is to begin. This is consistent with the one trial/one day system urged in Standard 5 and reduces the opportunity for improper contact with panel members. No independent investigation by attorneys or any others is contemplated nor should it be countenanced by the court.

Making juror information available will eliminate the necessity for many commonly asked questions, thus expediting the voir dire examination. 6 To realize this goal, it is essential that the trial judge not permit counsel to ask questions seeking information already available from the background questionnaire. In the exceptional case in which extensive information concerning the prospective jurors is necessary because of the notoriety of a party or the controversial nature of the matters at issue, a separate voir dire questionnaire should be prepared and submitted by the court to the jury panel when they report for voir dire. In these or other exceptional cases, the voir dire process may be recessed to permit counsel to evaluate the information provided on the questionnaire. When this is done, counsel should be admonished by the court not to contact prospective jurors during this recess.

Case-specific questionnaires may be used, but juror privacy should be carefully respected. One appellate court has suggested that the judge should assure that such questionnaires contain only questions usable during voir dire in open court. 7 The case specific questionnaire should not be an excuse to use questions that would not be appropriate in the courtroom in group or individual voir dire. The judge should review and approve all questionnaires. Recommended procedures for the use of these prescreenlng questionnaires have been promulgated in the literature and caselaw.8 Opinion is divided as to whether questionnaires are part of the public record. In the interest of juror privacy, the court should, at most, retain questionnaires only of those jurors selected and those about whom a particular challenge is made. 9

Paragraph (b) Examination Procedure

The procedure for voir dire examination varies considerably and is the subject of long-standing debate. In both civil and criminal cases, federal judges have complete discretion either to permit counsel to examine the prospective jurors or to conduct the examination themselves. 10 In practice, most federal judges conduct the voir dire examination but permit counsel to submit additional questions either directly or through the judge to the

74 prospective jurors. 11 Practice in the state courts varies. Trial judges in thirteen states conduct the voir dire themselves with no direct participation by counsel. Eighteen states give primary control over the voir dire questioning to counsel for the parties. In the remaining states, questioning is conducted by both judge and counsel. 12

Both voir dire by the judge and voir dire by counsel have apparent benefits and shortcomings. When the examination of prospective jurors is conducted solely by the judge, the length of the time needed to select a jury may be reduced, 13 and the opportunity for counsel to use the voir dire process to establish personal rapport with the jurors, instruct them on the facts of law, or induce them to take a certain position is eliminated. 14 On the other hand, since the attorneys for the parties are likely to be more fully aware than the trial judge of all the issues and evidence involved in the case, they may be in a better position "to delve into the recesses of a juror's mind and expose hidden prejudices and beliefs." 15

Paragraph (b) attempts to satisfy both the interest in proceeding with the voir dire examination expeditiously and the interest in ensuring sufficient questioning by counsel to permit the intelligent exercise of challenges. 16 It recommends that the trial judge conduct the initial examination of the jury panel. After advising the potential jurors of the purpose and procedure for the examination, the judge should pose a series of standard questions appropriate to the case, inquiries related to particular issues and persons in the case, and any other appropriate queries requested by counsel. The attorneys should then have an opportunity to ask questions on issues not covered fully by the judge. To avoid redundancy and delay, counsel should pose most questions to the entire jury panel. Questioning of individual jurors should address issues that cannot adequately be posed to the whole panel and follow-up inquiries suggested by responses to questions to the panel and by basic background information contained in the juror questionnaire. 17

Trial judges should prevent improper, argumentative, repetitive, or irrelevant questioning. Each court should develop general guidelines to advise counsel what constitutes proper and improper questioning and to assure that the scope of allowable questioning is relatively uniform throughout the jurisdiction. The trial judge may require counsel to submit proposed questions in advance and, after consultation with counsel, may set reasonable time limits for voir dire.1s

The Supreme Court has "stressed the wide discretion granted to the trial courts in conducting voir dire in the area of pretrial publicity and other areas that might tend to show juror bias." 19 Probing questions into pretrial publicity are not required and are at the discretion of the trial court.

Press-Enterprise Co. v. Superior Court of California20 held that the jury selection process is presumptively open and that there is a public right of access to voir dire. The court may close the courtroom when questions concern deeply personal matters, after notice of the proposed closure and an opportunity to be heard. The trial judge must make specific findings of facts justifying closure so that a reviewing court can determine whether the closure order was proper. 21

75 Courts have authorized the occasional use of anonymous juries to protect the jurors from outside influence and intimidation.22 Juror anonymity prohibits the disclosure of juror identity at any time during the judicial proceedings and after the verdict Total nondisclosure should only be used where the seriousness of the charges, the extensive pretrial publicity, or the defendant's willingness to interfere with the judicial process places the safety of the jurors in jeopardy .23 Critics of anonymous juries contend that the procedures prohibit meaningful voir dire and, in telling jurors to guard their identities, effectively violate the defendant's right to be presumed innocent until proven guilty. Guidelines in determining the necessity for an anonymous jury have been stated in the caselaw. 24

Standard 9(h) recommends that a "struck jury" system should be used for the exercise of peremptory challenges following voir dire examination. 25 It should be noted, however, that nothing in that standard nor this one is intended to prohibit the trial judge from ordering special procedures in unusual cases to protect the integrity and fairness of the trial process and the privacy of the prospective juror (e.g., questioning prospective jurors outside the hearing of the rest of the panel when there has been intensive pretrial publicity).26

Paragra.ph fcl Scope of Examination

Paragraph (c) urges that the scope of the voir dire examination be limited to those lines of inquiry likely to identify the prospective jurors who may be unable or unwilling to decide the case fairly or impartially. Broad, unfocused investigation of a prospective juror's life-style and attitudes is not only time-consuming and often unproductive, but may also "discourage potential jurors from serving and ... cause resentment in those who do." 27 Accordingly, efforts to obtain information regarding prospective jurors, both in the courtroom and through the preservice questionnaire, should be limited to securing only that information that is essential to selecting a fair and impartial panel. The standard recognizes that responsibility for keeping voir dire questioning within proper channels rests with the trial judge.28

Paragraph fdl voir Dire Examjnation on the Record

Since the right of a criminal defendant to an impartial jury of peers makes voir dire a fundamental part of the trial process, the voir dire examination and the exercise of challenges should be recorded in a manner that will permit the subsequent rendering of a verbatim transcript should one be requested during an appeal challenging the jury selection process or the competency of counsel. 29 The jury selection process in civil cases is no less critical. Hence, making voir dire procedures a matter of record in civil cases as well as in criminal cases is recommended.

SUGGESIED STEPS FOR IMPLEMENTATION

I. Determine whether current statutes, rules, and practices are consistent with the standard.

76 2. If they are not, initiate appropriate administrative and legislative changes.

3. Distribute a questionnaire at the time an individual is notified that he or she is subject to jury service that requests the person's age, gender, occupation, educational level, marital status and geographical area of residence, the occupation of his or her spouse (if any), the ages of his or her children (if any), and the dates of any prior jury service, in addition to that information essential for determining the person's eligibility for jury service and for efficiently managing the jury system. 30

4. Initiate appropriate administrative changes to ensure juror privacy.

RELAIEDSTANPARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15-2.2 & 15-2.4 "Fair Trial and Free Press": Chapter 8-3.5 American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: 4.13 National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Rule 512(b) National District Attorneys Association, National Prosecution Standards, Second Edition: Section 73.5 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 Swain v. Alabama, 380 U.S. 202,218-219 (1965); see also Pointer v. United States, 151 U.S. 396,408-409 (1894); Aldridge v. United States, 283 U.S. 308 (1931).

2 See e.g., Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems 11-1 ( 1979)[hereinafter cited as Methodology Manual]; National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management (1987); see William H. Levitt, et al., "Expediting Voir Dire: An Empirical Study," 44 Southern California Law Review 916,942- 44 (1971 )[hereinafter cited as Levitt]; Jeffrey M. Gaba, Note, "Voir Dire of Jurors: Constitutional Limits to the Right of Inquiry into Prejudice," 48 University of Colorado Law Review 525, 532 ( 1977).

' Whalen v. Roe, 429 U.S. 589,599 (1977); Nixon v. Administrator of General Services, 433 u.s. 425, 457 ( 1977).

77 4 For rea,\lns of privacy and safety, a panel member's address and telephone number should not be released. s See Standard II: Notification and Summoning.

6 American Bar Association, Section on Criminal Justice, Report to the House of Delegates (approved Feb. 1981 ); American Bar Association Standards for Criminal Justice: Trial by Jury (1986)[hereinafter cited as ABA, Trial by Jury]; see United States v. Barnes, 604 F.2d 121, 172 (2d Cir. 1979)(Meskill, J., dissenting)(List of jurors results in narrowing the scope of voir dire).

7 State v. Thayer, 528 S.2d 67 (4th Dist. 1988).

8 A recent case of interest is Copley Press, Inc. v. San Diego County Superior Court, 223 Cal. App 3d 994, 273 Cal. Rptr 22 ( 1990). In this incident pre-screening questionnaires containing 219 questions were used in a death penalty case for 300 prospective jurors. Copley Press filed a motion requesting the release of the questionnaires. The request was denied. The Superior Court recognized the right of access to the voir dire examin<~.tion of the jury in a criminal trial. However, the court found that questionnaires were used to equalize access for the parties to jury backgrounds and that jurors had given open and complete information because of assurances in the instructions that they would be confidential. The California Supreme Court held that a blanket denial of access to the questionnaires was unconstitutional. However, due to the assurance given to the prospective jurors of confidentiality of the questionnaires, the questionnaire were not to be released. The court directed that in future cases in which jury questionnaires were used, the court should: (I) segregate juror qualification information from other questions; (2) plainly instruct the venire in the body of the questionnaire that written responses are not confidential and the venire have a right to request an in camera hearing to discuss their responses to any questions they do not wish to answer in writing, and (3) provide public access to the questionnaire. This decision places further demands upon the court to assure that unnecessary questions of a personal nature should be avoided in the jury selection process unless they are absolutely necesary to determine whether an individual can be fair and impartial. But see, In re The South Carolina Press Association, 946 F.2d 1037 (4th Cir. 1991); Timothy R. Murphy, et al., A Manual for Managing Notorious Cases (1992).

9 For example, Minnesota has placed on the jury summons form a statement that informs the prospective juror that information provided on the qualification questionnaire will be made available to the court, the attorneys and the parties. It also states that after one year the information becomes a public record. Thus the legislature has insured that the lack of privacy for the information is known to the juror.

10 Fed. R. Crim. P. 24(a) provides:

The court may permit ~he defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself 78 I conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.

11 A 1977 survey of federal judges found that 75 percent exclude oral participation of counsel during voir dire. Gordon Berman!, Conduct of the Voir Dire Examination: Practices and Opinions of Federal District Judges 5 (1977).

12 National Center for State Courts, State Court Organization: 1987, Table 24 (1988). In some jurisdictions, the judge is not required to be present during voir dire; the examination is conducted by counsel or by the court clerk depending on the rules and practices in effect. These Standards do not endorse these practices.

n See Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury System Management, 3-16 ( 1975)[hereinafter cited as Jury System]; Levitt, supra note 2, at 949; Note, "Judge Conducted Voir Dire as a Time Saving Trial Technique," 2 Rutgers-Camden Law Joumal161, 164-65 (1970)[hereinafter cited as Judge Conducted Voir Dire]. One study of voir dire time differences has found that the federal method possesses significant time savings over counsel conducted voir dire. Levitt, supra note 4, at 948-49. Other quantitative studies comparing the duration of voir dire under various methods are inconclusive and suggest that individual factors have a substantial impact on voir dire times. Jon Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 165, fn. h (1977)[hereinafter cited as Van Dyke]; Jury System, supra note at 3-17 & 3-18; Richard Faust, et al., "Voir Dire: The New York Experience," Trial, December 1979, at 40.

14 See Levitt, supra note 2, at 942-44; ABA Trial by Jury, supra note 6, at 24; Hans, Valerie P., "The Conduct of Voir Dire: A Psychological Analysis," II Justice System Joumal40, 47 (1986).

15 Glass, Joseph F., "Voir Dire in the Federal Courts," 44lnsurance Counsel628, 630-31 (1977)[hereinafter cited as Glass); Judge Conducted Voir Dire, supra note 13, at 157; see Alice M. Padawer-Singer, et al., "Voir Dire by Two Lawyers: An Essential Safeguard," 57 Judicature 386 (1974)(attorney conducted voir dire superior in selecting an impartial jury); Robert E. Cartwright, "Jury Selection" Trial, December 1977, at 28; ABA, Trial by Jury, supra note 6.

16 See, e.g., People v. Williams, 29 Cal. 3d 392, 174 Cal. Rptr. 317 (1981).

17 A voir dire procedure similar to that proposed was used as an experiment by several judges of U.S. District Courts in the Second Circuit with positive results. Leonard B. Sand and Steven Alan Reiss, "A Report on Seven Experiments Conducted by District Coun Judges in the Second Circuit," 60 New York University Law Review 423,427-433 (1985).

79 18 Glass, supra note 15, at 632.

19 Mu'Min v. Virginia, Ill S.Ct. 1899, 1900 (1991).

20 Press-Enterprise Co. v. Superior Court, 104 S Ct. 819 (1984).

21 In re South Carolina Press Association, No. 91-5925, 946 F.2d 1037, (1991).

22 United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980) and United States v. Thomas, 757 F. 2d 1359 (2d Cir.), cert. denied, 474 U.S. 819 (1985).

23 See United States v. Thomas, 757 F.2d at 1359.

24 They are: (I) whether the defendant has participated in "dangerous and unscrupulous conduct"; (2) whether there is evidence of the defendant's past attempt to interfere with the judicial process; or (3) whether there has been a substantial amount of pretrial publicity that increases the possibility that jurors' names will become public and thus expose them to intimidation or harrassment. United States v. Persico, 621 F. Supp. 842, 878 (S.D.N.Y. 1985).

25 For a discussion of the struck jury system, see the commentary to Standard 9: Peremptory Challenges.

26 American Bar Association, Section of Criminal Justice, Standards for Criminal Justice: Fair Trial and Free Press, 8-3.5 ( 1991).

27 Van Dyke, supra note 13, at 163.

28 Mu'Min, Ill S.Ct. at 1899.

29 Accord National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure, Rule 754(a) (1987).

30 See Standard II: Notification and Summoning.

80 REFERENCES

VOIR DIRE

Babcock, Barbara Allen, "Voir Dire: Preserving 'liS Wonderful Power,"' 27 Stanford Law Review 545 (1975).

Berk, R. A., et al., "The Vagaries and Vulgarities of 'Scientific' Jury Selection: A Methodological Evaluation," I Evaluation Quarterly 143 (February 1977).

Berman, J., and Bruce D. Sales, "A Critical Evliluation of the Systematic Approach to Jury Selection," 4 Criminal Justice and Behavior 219 (1977).

Braswell, E. Morris, "Voir Dire: Use and Abuse," 7 Wake Forest Law Review 49 (1970).

Broeder, Dale W., "Voir Dire Examinations: An Empirical Study," 38 Southern California Law Review 503 (1965).

Bryson, Cheryl Blackwell, "Criminal Procedure--Voir Dire--The Right to Question Jurors on Racial Prejudice" 37 Ohio State Law Journal412 (1976).

Buckley, Jennifer Sweeney, "A Juror's Right to Privacy," 1985 Detroit College of Law Review 649 (1985).

Campbell, Scott, "Multiple Functions of the Criminal Defense Voir Dire in Texas" I American Journal of Criminal Law 255 (1972).

Cartwright, Robert E., "Jury Selection," Trial, December 1977 at 28.

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems ( 1980).

Christians, Robert J., "DefendaniS Are Not Deprived of the Intelligent Use of Peremptories by Voir Dire Restrictions Intended to Protect Potential Jurors' Safety and Privacy," 55 Notre Dame Lawyer 281 (1979).

Cooper, Laura, "Voir Dire in Federal Criminal Trials: Protecting the Defendant's Right to an Impartial Jury," 48 Indiana Law Journal269 (1973).

Craig, Walter E., et al., "Voir Dire: Criticism and Comment," 47 Denver Law Journal465 (1970).

"Defendant's Right to Object to Prosecutorial Misuse of the Peremptory Challenge," 92 Harvard Law Review 1770 ( 1979).

81 Dorsey, Saunders, Note, "Constitutional Law: The Right of an Accused to Question Prospective Jurors Concerning a Specific Prejudice at Voir Dire," 20 Howard LAw Journal527 (1977).

"Fair Jury Selection Procedures," 75 Yale LAw Journal322 (1965).

Faust, Richard, tl.Jil., "Voir Dire: The New York Experience," Trial, December 1979, at 40.

Fredsham, Allan A., "Challenges for Cause," 12 Alberta LAw Review 327 (1974).

Gaba, Jeffrey M., "Voir Dire of Jurors: Constitutional Limits to the Right of Inquiry Into Prejudice," 48 University of Colorado LAw Review 525 (1977).

Gebhart, Timothy M., "Press-Enterprise Co. v. Superior Court: Is There a Juror Right to Privacy that Justifies Closing Voir Dire in Criminal Cases?" 30 South Dalwta LAw Review 134 (1984 ).

Geeslin, Gary L., Note, "Peremptory Challenge--Systematic Exclusion of Prospective Jurors on the Basis of Race," 39 Mississippi LAw Journal 157 (1976).

George, Jody, et al., Handbook on Jury Use in the Federal District Courts, (1989).

Glass, Joseph. F., "Voir Dire in the Federal Courts: Diminishing the Effectiveness of Legal Representation," 44 Insurance Counsel Journal628 (1977).

Glover, Michael R., "The Right to Privacy of Prospective Jurors During Voir Dire," 70 California LAw Review 708 (1982).

Goodspeed, E. Givens, "Constitutional Law--Impartial Jury--Restricting the Peremptory Challenge," 13 Suffolk University LAw Review 1082 (1979).

Grandoff, J. Bert, "Voir Dire: Some Impressions," 53 Florida Bar Journpl144 (1979).

Gutman, S. Mac, "The Attorney-conducted Voir Dire of Jurors: A Constitutional Right," 39 Brooklyn LAw Review 290 (1972).

Hare, Francis H., Jr., "Voir Dire and Jury Selection," 29 AlabaltUI LAwyer 160 (1968).

Hastie, Reid, "Is Attorney-Conducted Voir Dire an Effective Procedure for the Selection of Impartial Juries?" 40 American University LAw Review 703 ( 1991 ).

Hicks, Renea, "Voir;· ·'--The Due Process Clause of the Fourteenth Amendment Does Not Require That Prospective Jurors be Questioned as to Possible Racial Prejudice When the Defendant is Black Unless Special Circumstances Are Present," 4 American Journal of Criminal LAw 180 (1975-1976).

82 Jones, Philip F., "Voir Dire in Criminal Cases--Are You Searching for Prejudice, or Creating It?," 54 California State Bar Journal218 (1979).

Jones, Susan E., "Judge vs. Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor," II Law and Human Behavior 131 (1987).

"Judge Conducted Voir Dire as a Time-saving Trial Technique," 2 Rutgers-Camden Law Journal161 (1970).

Judy, Janet, "Voir Dire in California Criminal Trials: Where Is It Going? Where Should It Go?," 10 San Diego Law Review 395 (1973).

Kerr, Norbert L., tl.J!l., "On the Effectiveness of Voir Dire in Criminal Cases with Prejudicial Pretrial Publicity: An Empirical Study," 40 American University Law Review 665 (1991).

Kornblum, Guy 0., "Voir Dire, Opening Statement, and Closing Argument," 23 Practising Lawyer II (1977).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury System Management (1975).

Lehner, Daniel P., Note, "Anonymous Juries: Do the Benefits Warrant Jeopardizing the Rights of the Accused?" II Criminal Justice Journal 197 ( 1988).

Levitt, William H., et al., "Expediting Voir Dire: An Empirical Study," 44 Southern California Law Review 916 (1971).

Malak, M.P., "First Amendment--Guarantee of Public Access to Voir Dire," 75 Journal of Criminal Law and Criminology 583 (1984).

Mariani, Gilda, Note, "Peremptory Challenge--Divining Rod for a Sympathetic Jury?," 21 Catholic Lawyer 56 (1975).

Martin, Byron F., III, "Voir Dire Examination as to Fundamental Rules of Law," 33 Louisiana Law Review 449 (1973).

McGuirk, Russell H., and Steven L. Tober, "Attorney-conducted Voir Dire: Securing an Impartial Jury," 15 New Hampshire Bar Journal! (1973).

Martin, George, Lawyers Speak the Truth About Counsel-Conducted Voir Dire ( 1970).

Maxwell, Robert F., "Case of the Rebellious Juror," 56 American Bar Association Journal 838 (1970).

83 Merritt, GilbertS., and John W. Wilson, "Voir Dire in Pennsylvania," 32 University of Pittsburgh Law Review 362 (1971).

Minow, Newton, and Fred H. Cate, "Who is an Impartial Juror in an Age of Mass Media?," 40 American University Law Review 631 ( 1991 ).

Moore, Christopher Whitman, "People v. Wheeler: Peremptory Challenge May Not Be Used to Remove Jurors Solely for Group Association," 58 North Carolina Law Review !52 (1979).

Moran, Cutler, and Loftus, "Jury Selection in Major Controlled Substance Trials: The Need for Extended Voir Dire," 3 Forensic Report 331 (1990).

Morgan, Kerry Lee, "People v. Wheeler: Has California Really Assured Impartial Juries by Revision of Peremptory Challenges?," 31 Detroit College Law Review 527 ( 1979).

Mormino, Susan C., "Exploring Racial Prejudice on Voir Dire: Constitutional Requirements and Policy Considerations," 54 Boston University Law Review 394 (1974).

Murphy, Timothy G., et al., A Manual for Managing Notorious Cases (1992).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

National Jury Project, Jurywork: Systematic Techniques (1983).

Padawer-Singer, Alice M., et al., "Voir Dire by Two Lawyers: An Essential Safeguard," 57 Judicature 386 (1974).

"Peremptory Challenges and the Meaning of Jury Representation," 89 Yale Law Journal II?? (1980).

Peters, Patrick W., "Capital Voir Dire: A Procedure Gone Awry," 58 UMKC Law Review 603 (1990).

Phelps, James E., "Voir Dire Examination--Court or Counsel," II St. Louis University Law Joumal234 ( 1967).

"Racial Discrimination in Jury Selection--Limiting the Prosecutor's Right to Peremptory Challenge to Prevent a Systematic Exclusion of Blacks from Criminal Trial Juries," 41 Albany Law Review 623 (1977).

Reed, Larry E., "Federal Criminal Procedure--Supplemental \ !r Dire Is Required When Significant Delay Occurs Between Jury Selection and :::.tart of Trial," 10 St. Mary's Law Journal658 (1979).

84 Rolewick, David F., "Voir Dire Examination of Jurors: A Brief Study of the Action of the lllinois Judicial Conference in Recommending Revisions in Supreme Court Rule 234," 25 DePaul Law Review 50 (1975).

Sand, Leonard B. and Steven A. Reiss, "A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit," 60 New York University Law Review 423 (1985).

Soler, Mark, '"A Woman's Place': Combating Sex-Based Prejudices in Jury Trials Through Voir Dire," 15 Santa Clara Lawyer 535 (1975).

Soper, Kevin, "Constitutional Law--Constitutional Guarantees of Open Public Proceedings in Criminal Trials Extend to Voir Dire Examination of Potential Jurors," 14 University ofBaltimore Law Review 359 (1985).

Springer, Boyd J., "Attorney Participation in Voir Dire Examination in lllinois," University of Illinois Law Forum 1145 (1977).

Stanley, Arthur J., Jr. and Robert G. Be gam, "Who Should Conduct Voir Dire?" 61 Judicature 70 (1977).

Stoll, Mark T., "Voir Dire Examination--Challenges for Cause and Abuse of Discretion," 41 Missouri Law Review 632 (1976).

Strawn, David U., "Jurors Perceptions: Ending the Voir Dire Wars," 14 The Judges' Journal, Spring 1975, at 44.

Strong, T. and M. W. Placzek, "Civil Voir Dire Notes of a Trial Attorney," 34 Missouri Bar Journal III (1978).

Suggs, David L. and Bruce D. Sales, "Juror Self-Disclosure in Voir Dire: A Social Science Analysis," 56 Indiana Law Journal245 (1981).

Suggs, David L. and Bruce D. Sales, "Using Communication Cues to Evaluate Prospective Jurors During the Voir Dire," 20 Arizona Law Review 629 (1978).

"Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury," 52 Virginia Law Review 1157 (1966).

Tetitelbaum, William, "Voir Dire: Another View," I American Journal of Criminal Law 274 (1972).

"The Defendant's Right to an Impartial Jury and the Rights of Prospective Jurors," 48 Cincinnati Law Review 985 ( 1979).

85 Toomin, Michael, "Court Control Over the Voir Dire Examination of Prospective Jurors" 15 DePaul Law Review 107 (1965).

Van Dyke, Jon, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (1977).

Van Dyke, Jon, "Voir Dire: How Should It Be Conducted to Ensure That Our Juries Are Representative and Impartial?," 3 Hastings Constitutional Law Quarterly 65 (1976).

"Voir Dire Limitations as a Means of Protecting Jurors' Safety and Privacy: United States v. Barnes," 93 Harvard Law Review 782 (1980).

"Voir Dire: Strategy and Tactics in the Defense of Social and Political Activists," 5 Akron Law Review 265 (1972).

See also References to Standard 9: PEREMPTORY CHALLENGES.

86 Standard 8: REMOVAL FROM THE JURY PANEL FOR CAUSE

COMMENTARY

A prospective juror may be removed for cause when there is a "narrowly specified, provable and cognizable basis of partiality." 1 Removals for cause may be predicated upon the prospective juror's personal or business relationship with a party, victim, witness, or attorney in the case, significant prior contact with the case (e.g., serving on the grand jury that indicted the defendant), or state of mind (e.g., extensive knowledge regarding the case as a result of pretrial publicity; prejudice against the particular racial, ethnic, or religious group of a party or important witness, a religious belief forbidding the judgment of other persons; or involvement in an accident similar to the one involved in the case). 2 The mere existence of such a relationship, prior contact, or state of mind, however, is not sufficient to support removal of a prospective juror, unless the court determines that it will prevent that individual from rendering a verdict based solely on the evidence presented and the law as explained by the court. Removals for cause may also occur when an individual is ineligible for jury service and when service in a particular case would constitute such a substantial personal hardship to the prospective juror that he or she would be unable to concentrate on the trial or participate fully in the deliberations.

The Americans with Disabilities Act of 1990 specifically addresses the need to end discrimination against individuals with disabilities. In accordance with Standard I, persons with disabilities should be allowed the opportunity to serve and should be removed from the jury panel only if reasonable accommodations have been explored and would not ensure that the person could receive the evidence in a particular case.

The recommendations in Standard 9 for limiting the number of peremptory challenges lend added importance to removals for cause. If a member of the panel whose partiality has been demonstrated is not removed, a party may, in effect, be deprived of one of the limited number of peremptory challenges to which the party is entitled. On the other hand, if even poorly supported requests for removal are granted, the parties are able to circumvent restrictions on peremptory challenges and the representativeness of the jury may be seriously impaired. Accordingly, the standard sets out the basic principle that should guide removal for-cause decisions. If a person is incapable or unwilling to perform his or her role as an impartial weigher of the evidence in a particular case, that person should be excused from that panel and returned to the jury pool. If the person appears able to render a fair verdict, he or she should be allowed to remain on the panel unless peremptorily struck by counsel. The mere presence of a potential cause of bias (e.g., having a particular occupation or being

87 married to a person in that occupation), should not be sufficient grounds for removal. As Chief Justice Marshall remarked nearly 180 years ago during the trial of Aaron Burr

... [no say that any ... [person] who had formed an opinion on any fact conducive to the final decision of the case would therefore be considered as disqualified from serving on the jury, would exclude intelligent and observing ... [people] whose minds were really in a situation to decide upon the whole case according to the testimony, and would perhaps be applying the letter of the rule requiring an impartial jury with a strictness which is not necessary for the preservation of the rule itself. 3

The standard also makes clear that the trial judge should be empowered to remove a prospective juror for cause whether or not that individual has been formally challenged by a party. The removal from the panel of persons who are unable or unwilling for some demonstrable reason to render a fair and impartial verdict is required to preserve the integrity of the trial process. Consequently, the decision whether to question a prospective juror's impartiality cannot be left solely to the tactical decisions of counsel.

In trials that are anticipated to be lengthy, some courts are finding it helpful to screen prospective jurors before reporting to assure that they will be able to serve for an extended period of time. 4 In this way persons who cannot serve for the extended period of time as determined by the court can be excused without having to report.

SUGGESIEP SIEPS FOR IMPLEMENTATION

I. Determine whether current statutes, rules, and practices are consistent with the standard.

2. If they are not, initiate appropriate administrative and legislative changes.

RELAIED ST ANPARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15-2.4 & 2.5 "Fair Trial and Free Press": Chapter 8-3.5 American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts Rule 4.13 National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Rule 512(c) National District Attorneys Association, National Prosecution Standards, Second Edition: Section 73.8

88 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 Swain v. Alabama, 380 U.S. 202,220 (1965).

2 See e.g, Model Code of Criminal Procedure, Sec. 277 commentary at 832 (1931); U. R. Crim. P. 512(c), 10 U.L.A. 135 (1974); Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press 8-3.5 (ABA 1992).

J United States v. Burr, 25 F. Cas. 49, 5 I (D.V A. 1807)(No. 14,692g).

4 See Dennis Bilecki, "A More Efficient Method of Jury Selection for Lengthy Trials," 73 Judicature, June-July 1989, at 43.

89 REFERENCES

REMOVAL FROM JURY PANEL FOR CAUSE

American Law Institute, Code of Criminal Procedure ( 1931 ).

Bilecki, Dennis, "A More Efficient Method of Jury Selection for Lengthy Trials," 73 Judicature, June-July 1989, at 43.

90 ------

Standard 9: PEREMPTORY CHALLENGES

(a) TilE NUMBER OF AND PROCEDURE FOR EXERCISING PEREMPTORY CHALLENGES SHOULD BE UNIFORM TIIROUGHOUT TilE STATE.

(b) PEREMPTORY CHALLENGES SHOULD BE LIMITED TO A NUMBER NO LARGER TIIAN NECESSARY TO PROVIDE REASONABLE ASSURANCE OF OBTAINING AN UNBIASED JURY.

(d) IN CRIMINAL CASES, THE NUMBER OF PEREMPTORY CHALLENGES SHOULD NOT EXCEED

(i) TEN FOR EACH SIDE WHEN A DEA Til SENTENCE MAY BE IMPOSED UPON CONVICTION;

(ii) FIVE FOR EACH SIDE WHEN A SENTENCE OF IMPRISONMENT FOR MORE TIIAN SIX MONTI-ISMAY BE IMPOSED UPON CONVICTION; OR

(iii) TIIREE FOR EACH SIDE WHEN A SENTENCE OF INCARCERATION OF SIX MONTHS OR FEWER, OR WHEN ONLY A PENALTY NOT INVOLVING INCARCERATION MAY BE IMPOSED.

ONE ADDffiONAL PEREMPTORY CHALLENGE SHOULD BE ALLOWED FOR EACH DEFENDANT IN A MULTI-DEFENDANT CRIMINAL PROCEEDING.

(e) WHERE JURIES OF FEWER TIIAN 1WELVE PERSONS ARE USED IN CIVIL OR PEITY OFFENSE CASES, TilE NUMBER OF PEREMPTORY CHALLENGES SHOULD NOT EXCEED 1WO FOR EACH SIDE.

(f) ONE PEREMPTORY CHALLENGE SHOULD BE ALLOWED TO EACH SIDE IN A CIVIL OR CRIMINAL PROCEEDING FOR EVERY 1WO ALTERNATE JURORS TO BE SEA TED.

(g) TilE TRIAL JUDGE SHOULD HAVE THE AUTHORITY TO ALLOW ADDITIONAL PEREMPTORY CHALLENGES WHEN JUSTIFIED.

(h) FOLLOWING COMPLETION OF TilE VOIR DIRE EXAMINATION, COUNSEL SHOULD EXERCISE TIIEIR PEREMPTORY CHALLENGES BY ALTERNATELY STRIKING NAMES FROM TilE LIST OF PANEL MEMBERS UNTIL EACH SIDE HAS EXHAUSTED OR WAIVED THE PERMITTED NUMBER OF CHALLENGES.

91 COMMENTARY

The United States Supreme Court declared in Swain v. Alabama .that the peremptory challenge is essential to achieving a fair trial by jury1 because it enables parties to eliminate extremes of partiality and results in a jury most likely to decide the case on the basis of the evidence.2 A peremptory challenge is highly subjective and may be "exercised without a reason stated, without inquiry and without being subject to the court's control. "3 Peremptories enable parties to exclude jurors they suspect of bias but of whom they lack sufficient proof of bias necessary to sustain a challenge for cause;4 however, peremptory challenges may alter the representative character of the jury panel·tothe point of eliminating entire cognizable groups from jury service.s The Supreme Court stated in Batson v. Kentucky, "The reality of practice, amply reflected in many state and federal opinions, shows that the challenge may be and unfortunately at times has been, used to discriminate against black jurors. "6 The court held that the use of peremptory challenges by a prosecutor to exclude potential jurors "solely on account of their race" violates the defendant's right to equal protection of the law. 7

In Batson, both the defendant and the prospective jurors excluded by the prosecution were black.8 In Powers v. Ohio,9 the Court overturned a conviction of a white defendant when the prosecution used peremptory challenges to exclude black jurors and said, "[t]he Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of race." 10 The Court acknowledged a citizen's right to be considered as a juror and gave the defendant standing to assert that right The Court extended the limitation on peremptories to civil cases in Edmonson v. Leesville Concrete Company 11 and to the defendant in Georgia v. McCollum12 thereby completing the issue of prohibiting racially motivated peremptory challenges. State and federal courts have applied Batson to other demographic groups. 13 The growing limitations on the use of peremptory challenges suggest that the courts look with increasing disfavor upon them and strengthens the arguments for limiting their number. 14

Paragraph lal Unjfoon Practice

To promote uniform statewide practice in this sensitive area, the standard recommends that both the permissible number of peremptory challenges and the procedures for exercising those challenges be clearly established. Although the number of challenges is usually specified, 15 only a few jurisdictions set forth the order and manner in which peremptory challenges are to be exercised. 16 As a result, practices vary within as well as among the states.

Paragraphs fbl-CO Number of Peremptocy Challenges

The number of peremptory challenges permitted a party varies widely from state to state. 17 The standard urges that the number of peremptory challenges be 1imited to the minimum number required to achieve their basic purpose in order to

92 reduce the likelihood that members of a cognizable group will be excluded from a jury, the number of persons who must be called for jury service, the time needed for voir dire, and the cost of operating the jury system. 18 Paragraph (b) makes clear that the historic purpose of peremptory challenges is "to eliminate the extremes of partiality on both sides, [and] to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otheiWise." 19

Paragraphs (c) through (f) contain explicit recommendations on the number of peremptory challenges that should ordinarily be permitted. The standard intends that the number of peremptory challenges be equal for prosecution and defense. Paragraph (d)(i) recommends a maximum of ten challenges for each side in capital cases. Thirty-two states permit the defense and the prosecution to exercise the same number of peremptory challenges in capital cases. Seventeen states provide the defense with ten or fewer peremptory challenges, and twenty-three states provide the prosecution with ten or fewer, although some states permit as many as twenty-six per party while others only allow four per party in capital cases. Paragraph (d)(ii) recommends five challenges for each side in felony cases. Thirty nine states accord the same number of challenges to the defense and the prosecution in felony cases. Seventeen states permit the prosecution to exercise five or fewer challenges, and twelve states permit no more than five defense peremptory challenges in felony cases, although some states permit as many as fifteen per side, and others only allow three per side. Paragraph (d)(iii) recommends a maximum of three challenges for each side in misdemeanor cases. Only ten states permit both the prosecution and defense to exercise more than five challenges, and only three states give misdemeanor defendants more peremptory challenges than the prosecution.20 Some states permit as many as thirteen challenges in misdemeanor cases. Paragraph (c) recommends three challenges for each side in civil cases. As of 1987, rwenty-nine states limited the number of peremptory challenges in civil cases to three or fewer for each side, although some states permit as many as eight in civil cases, and some only allow two.

The number of challenges recommended in paragraphs (c) and (d) of the standard refer to cases to be heard by twelve-person juries. Thus, paragraph (e) makes clear that in jurisdictions that use smaller juries in petty offense and civil cases,21 each side should be permitted to exercise two peremptory challenges. ·

The standard provides further that when there is more than one defendant in a criminal proceeding, an additional challenge should be permitted for each defendant. The practice in the states varies from giving each codefendant the same number of challenges as are allowed a defendant tried alone, to dividing the peremptory challenges normally accorded a single defendant among all codefendants.22 Permitting one additional challenge per codefendant appears to be a reasonable middle ground, which recognizes that, in most instances, the apparent partiality of the prospective juror will apply to the case as a whole but provides protection against the risk of partiality against a single defendant. 23 This is the only exception to the standard's principle of equality of peremptory challenges berween prosecution and defense.

93 Paragraph (f) recognizes that to reduce the overall number of peremptory challenges, accommodation must be made for those cases in which alternate jurors are seated. Hence, a provision is included urging that each side in a proceeding be permitted to exercise one peremptory challenge for every two alternates to be selected if it has exhausted its allotted number in selecting the regular jurors.

When deliberating or voting alternates are allowed as described in the commentary to Standard 17, they are considered as regular jurors for the purpose of this standard. That is, the jury size is considered to be increased by the inclusion of these alternates.

Paragraph lgl Authority to Peonit Additional Challenges

This paragraph recommends that trial judges be given the authority to permit parties to exercise additional peremptory challenges in exceptional cases. Such flexibility is required to accommodate cases involving multiple parties or considerable pretrial publicity.24 In determining how many additional challenges to permit in such circumstances, courts should use the principle set forth in paragraph (b) as a guide and to the extent possible maintain parity in the number of peremptory challenges allowed each side.

Paragraph (h) Procedure for Exercisjng Peremptoey Challenges

Paragraph (h) recommends the use of the "struck jury system." There are a number of procedural variations of this system, but the basic pattern is as follows:

• A panel is brought to the courtroom equal to the number of jurors and alternates to be seated plus the total number of peremptory challenges available to the parties and the statistically projected number of those likely to be removed for cause;

• The panel is questioned as a whole by the judge and counsel with follow-up questions to individual panel members,25 and removals for cause are made;26

• After the examination has been completed, the parties exercise their peremptory challenges, "by alternate striking of juror's names from a list passed back and forth between counsel."

• The jury is empaneled after all sides have passed or exercised their peremptory challenges.

• If some challenges are passed and more prospective jurors remain than are needed, the unstruck names are called in the order they appear on the list until the prescribed number of jurors and alternates are seated.27

This procedure : .. nefits the parties by permitting them to compare all the prospective jurors before striking the most ob.i' ·tionable. Thus, a party will not be caught in the dilemma of accepting a person who may oe somewhat partial for fear that his or her replacement may be

94 even more partial, 28 and counsel do not need to hold one peremptory challenge in reserve to guard against the possibility that a particularly partisan panel member may be called into the box after most of the jury has been selected. The procedure benefits prospective jurors by eliminating the embarrassment of being challenged and asked to step down from the jury box for no apparent reason. Strikes are made by drawing a line through a name on the list of panel members rather than orally. The process focuses on the affirmative choice of the final jurors rather than on the disqualification of individuals along the way. In the traditional jury box or sequential method, a Batson challenge cannot be sustained without calling a new panel, because prejudice between the prospective juror and the party exercising the challenge has been established. The struck jury method allows such challenges to be made and acted upon without the knowledge of the potential jurors. It also provides an opportunity for more prospective jurors to be considered for service on a jury. Finally, it benefits the court system by shortening the voir dire process. 29 There is no need to repeat questions to each replacement for a person removed for cause, and there is less pressure on counsel to question each prospective juror exhaustively. The comparative choices that have to be made tend to become apparent early, and the parties can limit their questions to the few panel members involved.

One criticism of the struck jury method from practitioners is that it is very difficult to keep track of venire member responses and reactions when dealing with venires of forty to sixty people rather than panels of twelve to fourteen. This problem is lessened, however, when the total number of peremptory challenges is reduced, thereby reducing the number of potential jurors who must be included in each venire.30

It should be noted that nothing in this standard is intended to limit the authority of the trial judge to require special procedures in unusual cases to protect the integrity and fairness of the trial process. Thus, in cases in which there has been extensive publicity, for example, the trial judge could still order that prospective jurors be questioned individually, out of the hearing of the other members of the panel. 31

SUGGESTED SIEPS FOR IMPLEMENTATION

I. Determine whether current statutes and rules governing peremptory challenges are consistent with the standard.

2. If they are not, initiate appropriate legislative and administrative changes to limit the number of peremptory challenges and specify the procedures for exercising those challenges.

3. Institute a "struck jury system."

RELAIEDSTANPARDS

American Bar Association, Section of Criminal Justice, Staruklrds for Criminal Justice "Trial by Jury": Chapter 15-2.6

95 "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: 2.12(c) National Advisory Commission, Courts: 4.13 (paragraph 2) National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Rule 512(d) National District Attorneys Association, National Prosecution Standards, Second Edition: Section 73.6 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 Swain v. Alabama, 380 U.S. 202,219 (1965)

2 See e.g., Swain, 380 U.S. at 219("necessary part of a trial by jury"); Pointer v. United States, 151 U.S. 396,408 (1894)("one of the most important rights secured by the accused"); Lewis v. United States, 146 U.S. 370, 376 (1892)("essential to the fairness of a trial by jury").

3 Swain, 380 U.S. at 220.

4 See e.g., Swain, 380 U.S. at 220(allows exclusion on the basis of a "real or imagined partiality that is less easily designated or demonstrable"); Lewis v. United States, 146 U.S. 370, 376 (1982)(exercised upon the "sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another"); American Bar Association Commission on Standards of Judicial Administration, Standards Relating to Trial Courts as Amended, 1976 and 1987 ( 1987)[hereinafter cited as ABA, Trial Courts]; see also, Barbara Allen Babcock, "Voir Dire: Preserving its Wonderful Power," 27 Stanford Law Review 545, 553-54 (1975).

5 Jon Van Dyke, Jury Selection Procedures, Our Uncertain Commitment to Representative Panels 169 (1977)[hereinafter cited as Van Dyke]; "The Defendant's Right to Object to Prosecutorial Misuse of Peremptory Challenge," 92 Harvard Law Review 1770, 1774- 76( 1979); American Bar Association Standards for Criminal Justice: Trial by Jury, Standard 15-2.6 (1986)[hereinafter cited as ABA, Trial by Jury.

6 Batson v. Kentucky, 476 U.S. 79, 99; see also Batson, 476 U.S. at 102 (J. Marshall, concurring).

7 See e.g., Swain, 380 U.S. at 216-17; ABA, Trial by Jury, supra note 5.

8 Batson, 476 U.S. at 82.

9 Powers v. Ohio, 111 S. Ct 1364 (1991 ).

96 10 Jd., at 1365.

" Edmondson v. Leesville Concrete Co., Ill S.Ct. 2077 (1991).

12 Georgia v. McCollom, 112 S.Ct. 2348 (1992).

13 See e.g., United States v. DeGross, 913 F.2d 1417 (9th Cir. !990)(females); United States v. Iron Moccasin, 878 F.2d 226 (8th Cir. !989)(American Indians); United States v. Alcantar, 832 F.2d 1175 (9th Cir. !987)(Hispanics); United States v. Biaggi, 673 F. Supp. 96 (E.D.N.Y. !987), affd., 853 F.2d 89 (2d Cir. 1988) cert. denied,489 U.S. 1052 (1989)(ltalians); Mallottv. Alaska, 608 P.2d 737 (1980)(Alaskan Natives); State v. Gonzalez, 206 Conn. 391,538 A.2d 210 (1988)(Hispanics); Statev. Levison, 71 Haw. 492,795 P.2d 845 (1990)(females); Kline v. State, 737 S.W.2d 895 (Tex. App. !987)(Asians).

14 Batson, 476 U.S. at 82.

15 Van Dyke, supra note 5, at 282-85.

16 ABA, Trial by Jury, supra note 5, at 31.

11 I d., at 28-29.

18 Van Dyke, supra note 5, at 153-60.

19 Swain, 380 U.S. at 219.

2o Van Dyke, supra note 5, at 282-85.

21 See Standard 17: Size and Unanimity of Verdict.

22 ABA, Trial by Jury, supra note 5.

23 I d., at 29-30.

24 American Bar Association, Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press 8-3.5 (2d ed. Approved Draft 1978)[hereinafter cited as ABA, Fair Trial/Free Press].

25 See Standard 7: Voir Dire and Standard 3: Random Selection Procedures. A common variation is to seat a group of prospective jurors in the jury box equal to the number to be em panelled plus the peremptory challenges available to counsel. The voir dire examination follows normal procedures and the remaining members of the panel are admonished to give close attention. If one of the prospective jurors is removed for cause, he or she is replaced by an individual from the panel who is in tum questioned by the court and counsel.

97 26 See Standard 8: Removal from the Jury Panel for Cause.

27 ABA, Trial Courts, supra note 4, at 33; see Swain, 380 U.S. at 218.

28 ABA, Trial by Jury, supra note 5, at 31.

29 ABA, Trial Courts, supra note 4; Swain, 380 U.S. at 202.

3o G. Thomas Munsterman, et al., "The Best Method of Selecting Jurors," 29 Judges Journal. Summer 1990, at 13.

31 ABA, Fair Trial/Free Press, supra note 24.

98 REFERENCES

PEREMPTORY CHALLENGES

Acker, James R., "Exercising Peremptory Challenges after Batson," 24 Criminal Law Bulletin 187 (1988).

Alschuler, Albert W., "The Overweight Schoolteacher from New Jersey and Other Tales: the Peremptory Challenge After Batson," 25 Criminal Law Bulletin 57 (1989).

Alschuler, Albert W., "The Supreme Court and the Jury: Voir Dire, Peremptory Challenges and the Review of Jury Verdicts," 56 University of Chicago Law Review 153 (1989).

Armstrong, Lester W., "Impartial Jury Guarantees of State Constitutions May Forbid the Use of Peremptory Challenges Exercised to Exclude Jurors Solely Because of Race," 16 University of Toledo Law Review 507 (1985).

Arnold, Robert Paul, "Discrimination in Jury Selection via Peremptory Challenge: Many are Called, But Few Are Chosen," 5 Northern Illinois University Law Review 71 (1984).

Babcock, Barbara Allen, "Voir Dire: Preserving Its Wonderful Power," 27 Stanford Law Review 545 (1975).

Barker, Douglas H., "People v. Wheeler: California Answer to Misuse of the Peremptory Challenge," 16 San Diego Law Review 897 (1979).

Berk, R. A., et at., "The Vagaries and Vulgarities of 'Scientific' Jury Selection: A Methodological Evaluation," I Evaluation Quarterly 143 (February 1977).

Berman, J., and B. D. Sales, "A Critical Evaluation of the Systematic Approach to Jury Selection," 4 Criminal Justice and Behavior 219 (1977).

Blume, John H., "Racial Discrimination in the State's Use of Peremptory Challenges: The Application of the United States Supreme Court's Decision in Batson v. Kentucky in South Carolina," 40 South Carolina Law Review 299 (1988).

Bowen, J. S., "Peremptory Challenge Discrimination Revisited: Do Batson and McCleskey Relieve or Intensify the Swain Paradox?" II National Black Law Jouma/291 ( 1990).

Bowes, Murray R., "Voir Dire: Strategy and Tactics in the Defense of Social and Political Activists," 5 Akron Law Review 265 (1972)

Bradshaw, T. M. "Peremptory Challenges in Criminal Cases--Trial By a Jury of Whose Peers?" 30 Missouri Bar Journal 170 (1977).

99 Braswell, E. Maurice, "Voir Dire: Use and Abuse," 7 Wake Forest Law Review 49 ( 1970).

Brew, Gerard G., "The Civil Implications of Batson v. Kentucky and State v. Gilmore: A Further Look at Limitations on the Peremptory Challenge," 40 Rutgers Law Review 891 (1988).

Broeder, Dale W., "Voir Dire Examinations: An Empirical Study," 38 Southern California Law Review 503 (1965).

Brown, Frederick L., et al., "Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse," 14 New England Law Review 192 (1978).

Bry, Kevin E., "Illinois Courts Struggle to Evaluate Race-Neutral Explanations for Peremptory Challenges Under Batson v.Kentucky," 22 John Marshall Law Review 235 (1988).

Bryson, Cheryl Blackwell, "Criminal Procedure--Voir Dire--The Right to Question Jurors on Racial Prejudice," 37 Ohio State Law Journal412 (1976).

Campbell, Scott, "Multiple Functions of the Criminal Defense Voir Dire in Texas," I American Journal of Criminal Law 255 (1972).

Chang, Te Jung, "Battered Women Are Not an Identifiable Group Whose Representation ls Essential to a Fair Jury Trial," 18 Golden Gate University Law Review 600 (1988).

Christians, Robert J., "Defendants Are Not Deprived of the Intelligent Use of Peremptories by Voir Dire Restrictions Intended to Protect Potential Jurors' Safety and Privacy," 55 Notre Dame Lawyer 281 (1979).

Colbert, Douglas L., "Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges," 76 Cornell Law Review I ( 1990).

Cooper, Laura, "Voir Dire in Federal Criminal Trials: Protecting the Defendant's Right to an Impartial Jury," 48 Indiana Law Journal269 (1973).

Craig, Walter E., et al., "Voir Dire: Criticism and Comment," 47 Denver Law Journal465 (1970).

"Defendant's Right to Object to Prosecutorial Misuse of the Peremptory Challenge," 92 Harvard Law Review 1770 (1979).

Dorsey, Saunders. Note, "Constitutional Law: The Right of an Accused to Question Prospectiv~ Jurors Concerning a Specific Prejudice at Voir Dire," 20 Howard Law Journal 527 (1977).

100 Doskos, Jeffrey G., "The Discriminatory Use of Peremptory Challenges Within Connecticut Civil Proceedings: Arguments for Their Constitutionality," 9 University of Bridgeport 197 (1988).

Doyel, Robert L., "In Search of a Remedy for the Racially Discriminatory Use of Peremptory Challenges," 38 Oklahomn Law Review 385 (1985).

Dunnigan, E. Vaughn, "Discrimination by the Defense: Peremptory Challenges After Batson v. Kentucky," 88 Columbia Law Review 355 ( 1988).

"Fair Jury Selection Procedures," 75 Yale Law Journal322 (1965).

Faust, Richard, et al., "Voir Dire: The New York Experience," Trial, December 1979, at 40.

Fradsham, Allan A., "Challenges for Cause," 12 Alberta Law Review 327 (1974).

Frederick, Kenneth Lawton, "State's Use of Peremptory Strikes Made More Difficult to Challenge on Grounds of Racial Discrimination," 41 South Carolina Law Review 39 (1989).

Gaba, Jeffrey M., "Voir Dire of Jurors: Constitutional Limits to the Right of Inquiry Into Prejudice," 48 University of Colorado Law Review 525 ( 1977).

Geeslin, Gary L., Note, "Peremptory Challenge--Systematic Exclusion of Prospective Jurors on the Basis of Race," 39 Mississippi Law Journal 157 ( 1976).

Glass, Joseph F., "Voir Dire in the Federal Courts: Diminishing the Effectiveness of Legal Representation," 44 Insurance Counsel Journal 628 (1977).

Goldwasser, Katherine, "Limiting a Criminal Defendant's Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial," 102 Harvard Law Review 808 (1989).

Goodspeed, E. Givens, "Restricting the Peremptory Challenge," 13 Suffolk University Law Review 1082 (1979).

Grandoff, J. Bert, "Voir Dire: Some Impressions," 53 Florida Bar Journal144 (1979).

Greenberg, Marc L., "The Prosecutor's Exercise of the Peremptory Challenge to Exclude Non-White Jurors: A Valued Common Law Privilege in Conflict With the Equal Protection Clause," 46 University of Cincinnati Law Review 554 (1977).

"Group Bias--An Improper Ground for Peremptory Challenge in California," 12 Layola University Law Review 747 ( 1979).

Gutman, S. Mac, "The Attorney-Conducted Voir Dire of Jurors: A Constitutional Right," 39 Brooklyn Law Review 290 ( 1972).

101 Hamilton, Neill Q., "Prosecutor's Use of Peremptory Challenges to Exclude Racial Minorities from Criminal Juries," II Ohio Northern University Law Review 767 (1984).

Hare, Francis H., Jr., "Voir Dire and Jury Selection," 29 Alabama Lawyer 160 (1968).

Hayden, George, et al., , "Prosecutorial Discretion in Peremptory Challenges: An Empirical Investigation of Information Use in the Massachusetts Jury Selection Process," 13 New England Law Review 768 (1978).

Hicks, Renea, "Voir Dire--The Due Process Clause of the Fourteenth Amendment Does Not Require that Prospective Jurors Be Questioned as to Possible Racial Prejudice When the Defendant is Black Unless Special Circumstances Are Present," 4 American Journal of Criminal Law 180 (1975-1976).

Hoeffner, John J., "Defendant's Discriminatory Use of the Peremptory Challenge After Batson v. Kentucky," 62 St. John's Law Review 46 (1987).

Hopper, David D., "Batson v. Kentucky and the Prosecutorial Peremptory Challenge: Arbitrary and Capricious Equal Protection?," 74 Virginia Law Review 811 (1988).

Jackson, Jeff, "Divining Prosecutorial Motives in the Use of Peremptory Challenges: Must the Defendant in a Batson Inquiry be Allowed to Present Rebuttal Evidence?," 35 Loyola Law Review 189 (1989).

Jones, Philip F., "Voir Dire in Criminal Cases--Are You Searching for Prejudice, or Creating It?" 54 California State Bar Journal218 (1979).

Judy, Janet, "Voir Dire in California Criminal Trials: Where Is It Going? Where Should It Go?," 10 San Diego Law Review 395 (1973).

Kafker, Serena, "The Defendant's Right to an Impartial Jury and the Rights of Prospective Jurors," 48 University of Cincinnati Law Review 985 (1979).

Katz, Eric D., "Striking the Peremptory Challenge from Civil Litigation: 'Hey Batson, Stay Where You Belong,'" II Pace Law Review 357 (1991).

Kornblum, Guy 0., "Voir Dire, Opening Statement, and Closing Argument," 23 Practicing Lawyer 28 (1977).

"Limiting the Peremp•ory Challenge: Representation of Groups on Petit Juries," 87 Yale Law Journall715 :977).

Lindsay, Stephen P., "Prosecutorial Abuse of Peremptory Challenges in Death Penalty Litigation: Some Constitutional and Ethical Considerations," 8 Campbell Law Ren • .•. 71 (1985). 102 j ------

Magid, Laurie, "Challenges to Jury Composition: Purging the Sixth Amendment Analysis of Equal Protection Concepts," 24 San Diego Law Review I 081 ( 1987).

Mariani, Gilda, Note, "Peremptory Challenge--Divining Rod for a Sympathetic Jury?," 21 Catholic Lawyer 56 (1975).

McGuirk, Russell H., and Steven L. Tober, "Attorney-Conducted Voir Dire: Securing an Impartial Jury," 15 New Hampshire Bar Journal! (1973).

Martin, Byron F., III, "Voir Dire Examination as to Fundamental Rules of Law," 33 Louisiana Law Review 449 (1973).

Martin, George, Lawyers Speak the Truth About Counsel-Conducted Voir Dire (1970).

Maxwell, Robert F., "Case of the Rebellious Juror," 56 American Bar Association Journal 838 (1970).

Moore, Christopher Whitman, "People v. Wheeler: Peremptory Challenge May Not Be Used to Remove Jurors Solely for Group Association," 58 North Carolina Law Review 152 (1979).

Morehead, J. W., "Prohibiting Race-Based Peremptory Challenges: Should the Principle of Equal Protection be Extended to Private Litigants?," Tulane Law Review 833 (1991).

Morgan, Kerry Lee, "People v. Wheeler: Has California Really Assured Impartial Juries by Revision of Peremptory Challenges?," 1979 Detroit College Law Review 527 ( 1979).

Mormino, Susan C., "Exploring Racial Prejudice on Voir Dire: Constitutional Requirements and Policy Considerations," 54 Boston University Law Review 394 (1974).

"Multiple Voir Dire," Center for Jury Studies Newsletter, July 1979, at 2.

Munsterman, G. Thomas, et al., "The Best Method of Selecting Jurors," 29 Judges Journal, Summer 1990, at 8.

National Jury Project, Jurywork: Systematic Techniques ( 1983).

"New Standard for Peremptory Challenges: People v. Wheeler," 32 Stanford Law Review 189 (1979).

O'Connell, Robert M., "The Elimination of Racism from Jury Selection: Challenging the Peremptory Challenge," 32 Boston College Law Review 433 (1991).

"Peremptory Challenges and the Meaning of Jury Representation," 89 Yale Law Journalll77 (1980).

103 Purtell, Rosemary, "The Continued Use of Discriminatory Peremptory Challenges After Batson v. Kentucky: Is the Only Alternative to Eliminate the Peremptory Challenge Itself?," 23 New England Law Review 221 (1988).

Reed, Larry E., "Federal Criminal Procedure--Supplemental Voir Dire is Required When Significant Delay Occurs Between Jury Selection and Start of Trial," 10 St. Mary's Law Journal658 (1979).

Richers-Rowland, Cynthia "Batson v. Kentucky: The New and Improved Peremptory Challenge," 38 Hastings Law Journalll95 (1987).

Rivard, William, "Is There a Place for the Challenge of Racially-Based Peremptory Challenges?," 1984 Detroit College of Law Review 703 (1984).

Robinson, Michael R., "The Peremptory Challenge After Batson: Limits on the Prosecutor or License to Discriminate?," 76/llinois Bar Journal620 (1988).

Rolewick, David F., "Voir Dire Examination of Jurors: A Brief Study of the Action of the lllinois Judicial Conference in Recommending Revisions in Supreme Court Rule 234," 25 DePaul Law Review 50 (1975).

Scott, Daniel E., "Peremptory Challenges of a Cognizable Group--Denial of a Fair Trial," 44 Missouri Law Review 559 (1979).

Sheehan, Daniel J., Jr., and Cynthia C. Hollingsworth, "Allocation of Peremptory Challenges Among Multiple Parties," 10 St. Mary's Law Journal 511 (1979).

Soler, Mark, '"A Woman's Place': Combating Sex-Based Prejudices in Jury Trials Through Voir Dire," IS Santa Clara Lawyer 535 (1975).

Spears, J. M., "Voir Dire: Establishing Minimum Standards to Facilitate the Exercise of Peremptory Challenges," 27 Stanford Law Review 1493 (1975).

Starr, Michael 0., "Race Discrimination and the Use of Peremptory Challenges: Is Batson v. Kentucky the Sole Motivating Factor for Texas Law?," 41 Baylor Law Review 161 (1989).

Stoll, Mark T., "Voir Dire Examination--Challenges for Cause and Abuse of Discretion," 41 Missouri Law Review 632 (1976).

104 Strong, T., and M. W. Placzek, "Civil Voir Dire Notes of a Trial Attorney," 34 Missouri Bar Journal Ill ( 1978).

Suggs, David L., and Bruce Dennis Sales, "Using Communication Cues to Evaluate Prospective Jurors During the Voir Dire," 20 Arizona Law Review 629 (1978).

"Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury," 52 Virginia Law Review 1157 (1966).

Tanford, J. Alaxander, "Racism in the Adversary System: The Defendant's Use of Peremptory Challenges," 63 Southern California Law Review 1015 (1990).

Teitelbaum, William, "Voir Dire: Another View," I American Journal of Criminal Law 274 (1972).

Toomin, Michael, "Court Control Over the Voir Dire Examination of Prospective Jurors," 15 DePaul Law Review 107 (1965).

Van Am burg, Lisa, "A Case Study of the Peremptory Challenge: A Subtle Strike at Equal Protection and Due Process," 18 St. Lauis University Law Journal662 (1974).

Van Dyke, Jon, "Voir Dire: How Should It Be Conducted to Ensure That Our Juries Are Representative and Impartial?," 3 Hastings Constitutional Law Quanerly 65 (1976).

VanSlyke, Paula K., "Exclusion of Black Veniremen Through the Use of Prosecution's Peremptory Challenges Held to Be in Violation of Equal Protection Clause," 8 Cumberland Law Review 307 (1977).

"Voir Dire Limitations as a Means of Protecting Jurors' Safety and Privacy: United States v. Barnes," 93 Harvard Law Review 782 (1980).

Walker, Kendall R., "Batson Restrictions on Peremptory Challenges Do Not Apply to Civil Cases Between Private Litigants," 42 South Carolina Law Review 161 (1990).

Wasserman, Peter J., "The Peremptory Challenge in a Criminal Case After United States v. Barnes," 71 Journal of Criminal Law and Criminology 173 (1980).

Williams, C., "Jury Discrimination: The Peremptory Challenge as a Racially Discriminatory Device," 12 Southern University Law Review 189 (1986).

Wilson, Brian, "Batson v. Kentucky: Can the 'New' Peremptory Challenge Survive the Resurrection of Strauder v. West Virginia?," 20 Akron Law Review 355 (1986).

Ziesel, Hans, and Shari S. Diamond, "Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court," 30 Stanford Law Review 491 ( 1978).

105 Zirlin, Harry, "Unrestricted Use of Peremptory Challenges by Criminal Defendants and Their Counsel: The Other Side of the One Color Jury," 34 New York Law School Law Review 117 (1989),

106 Part C: Standards Relating to Efficient Jury Management

Standard 10: ADMINISTRATION OF TilE JURY SYSTEM

Standard II: NOTIFICATION AND SUMMONING PROCEDURES

Standard 12: MONITORING THE JURY SYSTEM

Standard 13: JUROR USE

Standard 14: JURY FACILITIES

Standard 15: JUROR COMPENSATION

107 PART C: STANDARDS RELATING TO EFFICIENT JURY MANAGEMENT

Introduction

The standards in this section address the goals of efficiency and economy in the jury system. Efficiency encompasses savings to the court, the juror, and the community, and generally is achieved by improving jury system administration. Economy refers not only to savings in monetary costs but also to conservation of human, administrative, and technical resources in the court and community, and a reduced burden on the juror.

Standard I 0, entitled "Administration of the Jury System," recommends that the judicial branch of government have the responsibility for administering the jury system with procedures for jury selection governed by court rules. In addition, it strongly recommends that the day-to-day operation of the jury system be managed by a single administrator under the direction of the presiding judge and that a unified jury system be established where two or more courts conduct jury trials. Standard II sets forth procedures for eliciting information from citizens to determine eligibility for jury service and for summoning prospective jurors.

Standards 12 and 13 on monitoring the jury system and on juror use emphasize the need for collecting and analyzing information on system performance, particularly with regard to the number of citizens summoned for service and those actually used.

Adequate facilities play an integral part in the realization of an efficient well managed, jury operation. Standard 14 on jury facilities makes specific recommendations regarding the space arrangement and facilities for jurors and emphasizes that courts should provide a suitable environment for jurors.

Standard 15 addresses three aspects of juror compensation: fee for service, promptness of payment, and sanctioning of employees who miss work because of jury service. It specifies a two-part approach to compensation for service and encourages prompt payment of fees. The standard strongly urges that persons performing jury service be legally protected against being discharged, laid off, or otherwise penalized as a result of fulfilling their civic duty.

The primary objective of the standards in this section is to emphasize the need for management of the jury operation in such a way as to provide an efficient and cost effective system. Reasonable payment of jurors and comfortable facilities are important aspects of this objective.

108 Standard 10: ADMINISTRATION OF THE JURY SYSTEM

THE RESPONSIBILITY FOR ADMINISTRATION OF THE JURY SYSTEM SHOULD BE VESTED EXCLUSIVELY IN THE JUDICIAL BRANCH OF GOVERNMENT.

(a) ALL PROCEDURES CONCERNING JURY SELECTION AND SERVICE SHOULD BE GOVERNED BY COURT RULES AND REGULATIONS PRO MULGA TED BY THE STATE'S HIGHEST COURT OR JUDICIAL COUNCIL.

(b) A SINGLE UNIFIED JURY SYSTEM SHOULD BE ESTABLISHED IN ANY AREA IN WHICH TWO OR MORE COURTS CONDUCT JURY TRIALS. THIS APPLIES WHETHER THEY ARE OF THE SAME OR OF DIFFERING SUBJECT MA TIER OR GEOGRAPHIC JURISDICTION.

(c) RESPONSIBILITY FOR ADMINISTERING THE JURY SYSTEM SHOULD BE VESTED IN A SINGLE ADMINISTRATOR ACTING UNDER THE SUPERVISION OF A PRESIDING JUDGE OF THE COURT.

COMMENTARY

Paragraph Cal Responsibility for the Jury System

One of the most significant advances in court administration during the past decades is the widespread acceptance of the principle that the judiciary should have the authority to establish and modify rules by which the courts are administered and cases are litigated. The American Bar Association's Standards Relating to Coun Organization call for the courts to have broad rule-making and policymaking authority.

Authority to formulate rules of procedures for all types of matters and proceedings in the courts should be vested in the court system, under procedures in which the legal profession and the public have an · opportunity to participate. The court system should control its own administrative policies and should have procedures through which all its judges, administrators, and court support personnel can contribute to the development of such policies. 1

The jury is an integral pan of the judicial process. The procedures by which citizens are called to serve, the manner in which they are assigned to particular cases, and the rules governing their deliberation are as much a matter of court procedure as are the rules of pleading and discovery.

Jury management is an area of judicial administration in which new techniques are developed regularly. When jury management procedures are detailed in a state's statutes

109 rather than in court rules, jury managers are prevented from modifying them to incorporate advances. Rather than pursue the long process required to amend the laws, the courts will often forego the benefits of newly discovered procedures. Statutes can provide the general legal framework, for example, the right to jury trial, the size of juries, the unanimity of the verdict required. Operational issues, such as when names should be drawn, how many should be drawn, the source list from which they should be drawn, the form of the summons, and the method of delivery, should be determined by court rules and internal operating procedures.

To recognize the legitimate authority of the courts over the operation of the jury system, and to provide the flexibility needed for efficient administration, the standard recommends that rules and regulations governing jury administration be promulgated by the judicial branch.

Paragraph tbl Unification of the Jury System

In many states, several different levels of trial courts conduct jury trials. In these states, the statutes establish both a trial court of general jurisdiction and a number of other courts of special or limited jurisdiction, such as justices of the peace, magistrates, municipal court, juvenile courts, probate, and surrogate courts. Some or all of these special or limited jurisdiction courts may conduct jury trials, either by express legislative design or as a result of decisions of the United States Supreme Court recognizing a constitutional right to jury trial for matters heard in those courts.

In such instances, there are many advantages to combining the administration of the jury systems for all local courts in one location and under a single authority. There are significant cost savings in maintaining only one juror source list, using one set of summoning and qualification materials, combining juror orientation processes, and pooling jurors for all courts in a single central location. After an initial orientation, jurors can be instructed to report for service at the particular court or courthouse where their services are needed. Orientation to the particular court and to the cases to be heard can be conducted in the court to which the jurors are assigned. If additional jurors are needed during the day, they can be dispatched from the central pool.

Payment of juror compensation can be performed by the central administrative unit. The costs--both actual juror fees paid and the general costs associated with the unified jury administration--can be shared equitably by the participating courts.

Unified administration can also ensure that individuals called for service in one local court are not soon summoned for duty in another.

Many states' laws require that jurors be drawn from the geographical jurisdiction actually served by the court. This fact is often used to justify the maintenance of separate jury operations for local courts serving different geographic areas, for instance; city and county courts. However, city- and county-level courts that have combined their jury administrations have developed relatively simple procedures for assuring that appropriate jurors are assigned to the various courts without departing from random selection principles.z

110 Courts employing unified jury operations of this sort have generally found it useful to establish a joint committee, with representatives form each participating court to oversee the operations of the jury administrator and to make sure that the needs of each court are being met.

Regardless of a particular court's jurisdiction, its jurors all come from the same general citizenry. Considerations of efficiency of operation, equitable allocation of jury service among the general population, and cost savings through elimination of redundant administrative units support the unification of all jury operations in the same geographic area into a single jury system, under the direction of one administrator.

Paragraph (c) Management of the Jury System

At the local level, the management of the jury system should be carried out under the supervision of the presiding judge by a member of the court administrative staff assigned the duties of jury manager. In small courts with few jury trials, a court employee should be designated to assume this responsibility, and requisite training should be provided. Generally, the responsibilities of the jury manager should include the following: 3

• Supervising all aspects of juror selection • Setting up liaison between the jury management system and other court personnel to ensure two-way information flow: anticipated trial activities; the number of jurors available; and other matters affecting the supply of jurors needed (e.g., if temporarily out of jurors during the day, the jury supervisor might advise the master calendar assignment clerk so that a nonjury case could be assigned out next) • Integrating management of juror selection and use so that the operation of each compliments the other • Maintaining statistical records: response and qualification rates on persons sent questionnaires or summoned; numbers of jurors used (and not used) daily; and other statistics necessary to determine how many questiomiaires to send out, how many jurors to summon, etc., in the future • Predicting both on a long-range and day-to-day basis the number of jurors needed at court • Managing the activities of jurors while at court • Maintaining attendance records • Notifying jurors to come to court • Preparing panels for jurors to be sent for voir dire • Providing training for all court personnel involved with jurors • Planning for better management and recommending improvements when needed • Arranging for payment of jurors • Taking all necessary steps to ensure the security of jurors at the courthouse and in traveling to and from the courthouse

Ill • Planning and supervising maintenance of jury facilities and inspecting the facilities and supervising the upgrading of jury facilities to accommodate potential jurors with disabilities.

In most urban and suburban jurisdictions, these tasks will require the full-time effort of at least one professional on the court's administrative staff. Given the complexity and cost of the jury system and the importance of public participation in our system of justice, the expense of having a well-trained, full-time jury manager is a small price to pay for an efficiently and fairly administered jury system.4

The jury manager, through the court administrator, should ensure that facilities amenable to use by those with disabilities are provided. Expansion, remodeling, or new construction should take into consideration the needs of the jurors for access, security, comfort, and privacy.

SUGGESTED STEPS FOR IMPLEMENTATION

I. The state supreme court, judicial council, and administrative office of courts should review current statutes, rules, and regulations to determine whether they are consistent with this standard and should initiate all necessary legislative or administrative changes.

2. The presiding judge of each court in which jury trials may be held should assign one person on the court administrative staff to serve as jury manager.

RELAJEDSTANPARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Silent "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: 2.37, 2.50 & 2.51 National Advisory Commission, Courts: 9.4 National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition, Section 61.1-61.4 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 American Bar Association, Judicial Administration Division, Standards Relating to Court Organization §130 (1990).

112 2 For example, Nashville/Davidson County, Tennessee, recently consolidated five jury pools into two, and jurors for the Phoenix, Arizona, Municipal Courts are drawn from the Maricopa County pool.

3 Maureen Solomon, Management of the Jury System 24 (1975).

4 /d., at 25; see also Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems; National Center for State Courts, Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management (1987).

113 REFERENCES

ADMINISTRATION OF TilE JURY SYSTEM

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury System:; (1980).

Dogin, Henry S., and David I. Tevelin, "Jury Systems of the Eighties: Toward a Fairer Cross-section and increased Efficiency," II University of Toledo Law Review 939 (1980).

Fremlin, Ronald H., Modem Judicial Administration: A Selected and Annotated Bibliography (1973).

Gallas, Edward C., "The Planning Function of the Court Management," 51 Judicature 334 (1968).

Hart, W., "Modem Plan for Wayne County Court Reorganization," 49 Michigan State Bar Journal 18 (1970).

Kalven, Harry, and Hans Zeisel, The American Jury ( 1966).

Keilitz, lngo, and Linda R. Caviness, "Evaluating Jury Selection, Utilization, and Management," 4 State Court Journal, Winter 1980, at 9.

Klein, Fannie J., , "The Position of the Trial Court Administrator in the States," 50 Judicature 278 (1967).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, Modem Court Management: Trends in the Role of the Executive ( 1970).

Lewis Merlin, et at., An Introduction to the Courts and Judicial Process ( 1978).

McConnell, Edward, "The Role of the State Administrator," J.udicial Administration: Text and Readings (Prentice-Hall 1977).

Munsterman, G. Thomas, "How to Manage Your Jury by Computer," 28 Judges Journal, Spring, 1989, at 22.

Munsterman, G. Thomas and Janice T. :VIunsterman, Microcomputer Applications for Jury System:; Support (1989).

114 I National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management (1987).

National Center for State Courts, A Survey of the Jury Systems in Virginia (1983).

National Center for State Courts, Facets of the Jury System: A Survey (1976).

Rubin, H. Ted, The Courts: Fulcrum of the Justice System (1976).

Simon, Rita J., The Jury: Its Role in American Society (1980).

Solomon, Maureen, Management of the Jury System (1975).

Van Dyke, Jon, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (1977).

Van Dyke, Jon, "The American Jury," 10 The Center Magazine 36 (1977).

Wheeler, Russell R. and Howard R. Whitcomb, Judicial Administration: Text and Readings (1977).

115 Standard 11: NOTIFICATION AND SUMMONING PROCEDURES

(a) THE NOTICE SUMMONING A PERSON TO JURY SERVICE AND THE QUESTIONNAIRE ELICITING ESSENTIAL INFORMATION REGARDING THAT PERSON SHOULD BE:

(i) COMBINED IN A SINGLE DOCUMENT;

(ii) PHRASED SO AS TO BE READILY UNDERSTOOD BY AN INDIVIDUAL UNFAMILIAR WITH THE LEGAL AND JURY SYSTEMS; AND,

(iii) DELIVERED BY FIRST CLASS MAIL

(b) A SUMMONS SHOULD CLEARLY EXPLAIN HOW AND WHEN THE RECIPIENT MUST RESPOND AND THE CONSEQUENCES OF A FAILURE TO RESPOND.

(c) THE QUESTIONNAIRE SHOULD BE PHRASED AND ORGANIZED SO AS TO FACILITATE QUICK AND ACCURATE SCREENING, AND SHOULD REQUEST ONLY THAT INFORMATION ESSENTIAL FOR:

(i) DETERMINING WHETHER A PERSON MEETS THE CRITERIA FOR ELIGffiiLITY;

(ii) PROVIDING BASIC BACKGROUND INFORMATION ORDINARILY SOUGHT DURING VOIR DIRE EXAMINATION; AND

(iii) EFFICIENTLY MANAGING THE JURY SYSTEM.

(d) POLICIES AND PROCEDURES SHOULD BE ESTABLISHED FOR ENFORCING A SUMMONS TO REPORT FOR JURY SERVICE AND FOR MONITORING FAILURES TO RESPOND TO A SUMMONS.

COMMENTARY

Improving the representativeness of the jury system and making better use of the time of individuals performing jury service do not necessarily imply that the cost of operating the jury system must increase. One area in which significant cost savings can be realized is the process for summoning and determining the qualifications of prospective jurors.1 Accordingly, this standard urges adoption of a combined qualification and summoning procedure and a simplified questionnaire as a means of increasing efficiency and reducing the cost of summoning individuals for jury service.2 In addition, it urges jurisdictions to establish 116 I clear policies and procedures, so as to ensure, to the greatest extent possible, that a summons for jury service will be obeyed.

Paragraph (a){i) Combined Summons and Questionnaire

The task of qualifying and summoning jurors can be undertaken in three ways. The ftrst is for all the individuals on the master prospective juror list to be personally interviewed to determine whether they are eligible for jury service. The names of those who are eligible for and not exempt from jury service are placed on a "qualifted list." At a later date, names are chosen from the qualifted list, and these persons are summoned for jury duty. The second method substitutes a standard questionnaire for the personal interview, but retains the two step process for qualification and summoning. The third method merges the qualification questionnaire and summons into a single form which is mailed to persons randomly selected from the master prospective juror list or from the jury source list itself. The number of forms sent is equal to the number of prospective jurors required for a given term, plus a number based upon the projected average percentage of disqualifications, nondeliverables, and persons who fail to respond or appear. 3

Using a questionnaire and combining it with the summons has a number of advantages. Filling out and screening a well-designed questionnaire not only takes less time than an interview but is less subject to bias and distortion.4 (Most jurisdictions, particularly large metropolitan areas, now rely on an objective questionnaire to ascertain the eligibility of individuals to serve as jurors.) Sending out one form rather than two eliminates duplication of work, thus reducing material and postage expenses. 5 In addition, the combined method eliminates the need for a qualifted list or wheel, which may become outdated between the time prospective jurors are qualifted and the time they are summoned.6 It also relieves some of the uncertainty and confusion felt by prospective jurors as a result of this interval between qualification and summoning. Finally, the combined qualification and summoning method has been shown to increase the percentage of eligible persons who respond to the initial notice. 7

Paragraph (a)(ji) Comprehensible Form

The design and packaging of the notiftcation and qualiftcation forins is important not only for reasons of efftciency but also because the forms serve as an introduction to the courts. Long, legalistic documents may be confusing, tedious, and aggravating to prospective jurors. As is indicated in the standard on juror orientation, both the operation of the jury system and esteem for the judicial process is significantly enhanced when citizens called for jury duty understand what is expected of them and why it is required. Since the qualification questionnaire and summons will be the ftrst contact for many individuals with the court system, it is essential that the forms be as clear and concise as possible.

117 Paragraph (a)(jiil Use of First-class Mail

There are three methods generally used to notify individuals that they are being considered for jury duty: delivery by a sheriff or process server, delivery by registered or certified mail, and delivery by first-class mail. The standard recommends use of flrst-class mail. Courts that have adopted delivery of juror summons by frrst-class mail report the following advantages:

• The net response rate is as high, if not higher, than that with other methods of service.l428 • Nondeliverables are returned more quickly and reduced in number (certified mail is held for three weeks; undeliverable first-class mail is returned at once).9 • The anxiety or embarrassment felt by citizens when a sheriff or process server delivers the summons is eliminated.

Furthermore, flfSt-class mail is considerably less expensive than the other means, especially when combined with a one-step qualification and summoning process. 10

Paragraph (b) The Summons

A summons is a legal document directing an individual to appear for jury service. Although the percentage of summons recipients who fail to respond is usually quite low, 11 it is anticipated that by following the steps recommended in paragraph (b), jurisdictions will be able to reduce the no-response rate even further. First, the summons should specify both the manner in which the prospective juror is to respond--by appearing at the courthouse or by calling a particular telephone number--and the exact time, date, and place by which the response must occur. Most persons have never received a summons for jury service. 12 Hence, it is essential that this information be conveyed as clearly and prominently on the form as is possible, so as to limit failures to respond due to confusion or a misunderstanding of what actions must be taken. 13 Several jurisdictions are now using summons forms that are designed to be easily understood by the recipient and easy for the court to screen. A number contain special features, such as a juror-parking pass or a map illustrating how to reach the courthouse.

Second, the summons should provide notice that compliance is required by law. Respect for the Jaw should be encouraged; the recipient of a summons should not be able to assume that it can be ignored with impunity. Courts should establish procedures for dealing with nonrespondents appropriately.t4

In most instances, a simple follow-up letter reminding the individual of his or her obligation, the appropriate method for responding, and the penalty for again failing to respond will be sufficient. "Courts which send out hllow-up notices often find that most non-respondents are not recalcitrant citizens but ra~ .:r those who have moved or become unavailable to serve." 15 Third, each jurisdiction should develop and implement procedures for enforcing a summons in those cases in which there is a knowing and willful failure to respond.

118 Paragraph (cl The Questionnaire

Paragraph (c) urges that the questionnaire sent to prospective jurors be carefully tailored to fit the screening procedures and meet the information needs of the jurisdiction. The screening and tabulation of responses to any notices sent to prospective jurors is an important aspect of the monitoring of the qualification and summoning process. The ease with which the screening is accomplished may depend on the degree of computerization. Those courts using manual techniques may find it to be expensive in both time and labor, although this method may be best for smaller courts. Moreover, manual screening raises the possibility of abuses of discretion in granting disqualifications or excuses and consequent biasing of the selection process. A change to computerization may be initially costly and require a redesign of the forms, but the efficiency with which the tasks are accomplished and the lack of opportunity for personal bias in the process appear more important.I6

Many different formats for qualification questionnaires are used. Some are designed for manual screening, others for manual entry into a computer, and still others for reading by an optical scanner. 17 The Methodology Manual for Jury Systems suggests that "the easiest questionnaires to fill out and screen seem to be the ones which line up all the yes and no answers," or which place "all of the answers indicating disqualification in a single column."18 Whatever method is used, the form should facilitate rather than complicate the screening process.

Another important method of simplifying screening is to limit the information gathered to the minimum amount needed to determine eligibility, expedite voir dire and operate the jury system. Limiting the amount of information also reduces the intrusion into the private affairs of prospective jurors and the cost of maintaining and protecting voluminous personal records. Accordingly, the portion of the questionnaire regarding eligibility should ask only whether the person is eighteen or over, whether he or she is a citizen of the United States and a resident of the jurisdiction, whether he or she is able to communicate in the English language, whether he or she has ever been convicted of a felony and if so, whether his or her civil rights have been restored. 19

For voir dire purposes, only the basic background information requested in nearly every case should be sought. This includes the age, gender, occupation, educational level, and marital status of the prospective juror, the dates of any prior jury service, the geographic area in which he or she lives, the occupation of his or her spouse, and the age(s) of his or her children, if any. 20 It is anticipated that obtaining these answers to standard voir dire questions in advance will reduce the time needed to pick a jury21 and the annoyance felt by prospective jurors after being asked to repeat the information in successive voir dire examinations. It must be emphasized that the scope of questions to be asked should be limited. The standard is not intended to open the way for a wholesale investigation into the personal habits, associations, and views of every prospective juror. Not only are such broad inquiries often considered as substantial invasions of privacy, but also the information gathered is expensive to store and is actual! y used in very few voir dire examinations. In the exceptional case in which extensive information concerning the prospective jurors is necessary because of the

119 notoriety of the defendants or the controversial nature of the matters at issue, a separate voir dire questionnaire should be prepared by counsel and submitted to the court. Following court approval, this separate questionnaire should be mailed to the prospective jurors by the court and returned by them when they report on the day of trial. 22

Finally, the information necessary to operate the jury system should include such items as the telephone numbers at which the prospective juror can be reached, address corrections, whether the individual requests an excuse or a deferment, and the data supporting the request for an excuse or proposed alternate dates of service. 23

As indicated above, the questions should be written in nontechnical language, and a brief statement should be included explaining why the information is needed. The questionnaire should be reviewed periodically to·ascertain whether the information needed by the court to accomplish the three functions noted in the standard is being collected and whether any of the data being gathered are not used on a day-to-day basis.

SUGGESTED STEPS FOR IMPLEMENIATION

I. Determine whether current information gathering, screening, and summoning procedures are consistent with the standard.

2. If current procedures are not consistent with the standard, review relevant statutes and court rules to determine whether they permit the recommended procedures.

3. Initiate appropriate legislature or rule changes if those provisions do not permit use of the recommended procedures.

4. Examine the forms currently being used to determine whether they can be easily understood by prospective jurors; whether they provide all the information necessary at this stage of the process (see Standard 16: Juror Orientation and Instruction); whether they request only the information necessary to determine eligibility and to expedite voir dire questioning and manage the jury information effectively; whether they properly respect the jurors' privacy; and whether they are organized so as to facilitate handling, mailing, and screening.

5. Have the forms redesigned if necessary.

6. If manual procedures are currently employed, determine whether automation would increase efficiency and decrease operating expenses.

7. Determine through a separate questionnaire why individuals are not responding to a summons and develop policies and procedures that will best encourage compliance.

120 I RELAJEDSTANDARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15-2.l(b) "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act, Section 7 National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition, Section 73.4 Commission on Trial Court Performance, Trial Court Peiformance Standards: Silent

FOOTNOIES

1 Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems 3-4 through 3-5 ( 1980)[hereinafter cited as Methodology Manual]; National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

2 Methodology Manual, supra note I, at Element 3.

3 I d., 3-4 through 3-5; see also M. F. King, One Step Summoning, (Erie County, NY 1988).

4 Maureen Solomon, Management of the Jury System 18 ( 1975)[hereinafter cited as Solomon].

5 Methodology Manual, supra note I.

6 Jd.

7 Solomon, supra note 4, at 20; see also Center for Jury Studies, National Center for State Courts, Jury Utilization and Management Implementation Program, (McLean, Va.) (preliminary data).

8 A recent study by the Federal Judicial Center compares the effectiveness of certified and regular mail for delivering jury summonses. The report indicates that although people are more likely to respond to a summons for jury service delivered by certified mail then one delivered by ftrst-class, regular mail is so much more likely then certified mail to reach the addressee, that it "usually affords a net response rate as good or better than that for certified mail." John E. Shapard, A Comparative Study of Jury Selection Systems 8-10 ( 1981 ).

121 9 Methodology Manual, supra note 1 at 3-5 and 3-14; Center for Jury Studies Newsletter March 1979, at 4.

10 Methodology Manual, supra note I at 3-7; for a more detailed discussion of the use of automation in the juror selection process, seeN. Halloran, Automation of Jury Clerical Work in the United States District Courts (Administrative Office of the U.S. Courts, 1969.)

11 Methodology Manual, supra note I at 4-7.

12 Merlin Lewis, et al., An Introduction to the Courts and Judicial Process 202-203 (1978).

13 See discussion of paragraph (a) in text, supra;-and Standard 16: Juror Orientation and Instruction.

14 Methodology Manual, supra note I at 4-7.

15 /d.

16 See Solomon, supra note 4, at 37.

17 Methodology Manual, supra note I, at Ch. 3, contains examples of forms used in this country and in Canada. See also, National Center for State Courts, Action Plan Guide for Improving Jury Systems (1981).

18 Methodology Manual, supra note 1, at 3-11.

19 See Standard 4: Eligibility for Jury Service.

20 See American Bar Association, Standards on Judicial Administration: Standards Relating to Trial Courts, as Amended, 2.12(a) (1987). The voir dire section of the questionnaire should include only the geographic area of residence and not the prospective juror's exact address in order to protect his or her privacy and safety.

21 American Bar Association, Standards Relating to the Administration of Criminal Justice: Trial by Jury, 15-2.2 (commentary) (2d ed., Approved Draft) 1978.

22 See Standard 6: Exemption, Excuse and Deferral.

23 /d.

122 REFERENCES

NOTIFICATION AND SUMMONING

Bilecld, Dennis, "More Efficient Method of Jury Selection for Lengthy Trials," 73 Judicature 43 (1989).

Carpenter, Joseph T., "Report to the Section on Practice and Procedure on Passage of the Juror Qualification and Selection Bill (Act. No. 594, Regular Session, 1978)," 39 Alabama Lawyer 331 (1978).

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems ( 1980).

Fourth Judicial District, Ada County, Idaho, Procedural Guide for Jury Usage and Management (1978).

George, Jody, et al., Handbook on Jury Use in the Federal District Courts (1989).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury System Management ( 1975).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury Usage (1974).

"List Coverage and Yields," Center for Jury Studies Newsletter, March 1981, at 2.

McKusick, Vincent, and Daniel E. Boxer, "Uniform Jury Selection and Service Act," 8 Harvard Journal of Legislation 280 (1971 ).

Munsterman, G. Thomas, and Janice T. Munsterman, Microcomputer Applications for Jury Systems Support (1989).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

"One-Step Summoning," Center for Jury Studies Newsletter, March 1979, at 3.

Solomon, Maureen, Management of the Jury System (1975).

Van Dyke, Jon M., Jury Selection Procedures: Our Uncenain Commitment to Representative Panels (1977).

123 Wagner, R, "Computers for Jury Selection," The Jury: Selected Readings 52-54 (Glenn Winters, ed., 1971).

124 Standard 12: MONITORING THE JURY SYSTEM

COURTS SHOULD COLLECT AND ANALYZE INFORMATION REGARDING THE PERFORMANCE OF THE JURY SYSTEM ON A REGULAR BASIS IN ORDER TO ENSURE

(a) THE REPRESENTATIVENESS AND INCLUSIVENESS OF THE JURY SOURCE LIST;

(b) THE EFFECTIVENESS OF QUALIFICATION AND SUMMONING PROCEDURES;

(d) THE EFFICIENT USE OF JURORS; AND

(e) THE COST EFFECTIVENESS OF THE JURY SYSTEM.

COMMENTARY

Monitoring is essential for effective management of the jury system. When properly designed, it provides the necessary feedback to determine how the jury system is operating, whether performance objectives are being met, where problems are occurring, and how to best allocate resources. 1 A number of states, including Aorida, Kansas, New Jersey, and New York, monitor their jury system on a statewide basis. In other states, individual courts monitor their own jury systems.

The ftrst step in the monitoring and control of jury operations is assessing the current jury system and identifying those problem areas that are in need of change. The assessment phase includes quantitative analyses of the various elements of the jury system, such as representativeness of the source lists, qualification and summoning yield, and juror use. After measurement and assessment, those responsible for jury operations can determine in which areas, if any, to concentrate their efforts toward a more efficient operation. These decisions are usually based on the feasibility and the cost-effectiveness of the changes as well as their overall impact on the jury system.

It is necessary to continue monitoring jury operations after a court has begun to implement change. The jury manager is then able to measure whether the changes are producing the intended results. Continuation of monitoring after the changes have been fully implemented is also necessary to assess whether the changes have been effective over time. The data collection during these phases is important documentation regarding the associated processes and costs. For example, a court that has reduced the term of service would be able to document whether the yield had increased or whether the number of requests for excuses

125 had declined. The court might be able to detail the amount of administrative work that was necessary before and after the change, as well as the amount of work needed to accomplish the change. Such information is useful not only for internal administrative purposes but also for answering inquiries from the public and other courts regarding the need for and impact of changes in the jury system.

One example of a procedure that could help the jury manager and serve as a monitoring technique is a committee to periodically review the source list for representativeness and inclusiveness. Such a committee, composed of lawyers and the general public under the supervision of the court, could advise court personnel on the management of the jury system.

The monitoring and control of jury system operations require the collection and maintenance of records and the use of a number of indices. In particular, jury managers should measure the following

• The extent to which the source list, the jury pool, and actual juries reflect a fair cross-section of the community;2 • the percentage of those summoned or sent a qualification questionnaire who are not excused or disqualified;3 • the number of those failing to respond to a summons; • the number of and reasons for requests for deferment of jury service;4 • the percentage of the pool who serve as jurors and participate in voir dire;5 • the number of juror days per trial; 6 • the administrative cost per juror, and • the response of individuals completing jury service. (An exit questionnaire to measure juror satisfaction with the system is used periodically in many courts.)

A number of other indices and measures have been developed by the Center for Jury Studies to aid jury managers in assessing and improving their systems. Examples and more detailed explanations are contained in A Guide to Juror Usage (1974 ), A Guide to Jury System Management (1975), Methodology Manual for Jury Systems ( 1981 ), and A Supplement to the Methodology Manualfor Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

SUGGESIED SIEPS FOR IMPLEMENIATION

I. Determine the particular performance measures necessary to evaluate the operation of the jury system.

2. Review and assess current administrative data collection, data analysis, and reporting activities.

3. Initiate the ;ieeded changes in the nature, frequency, extent, and quality of monitoring activities.

126 4. Reassess the monitoring system periodically to ensure that only the information that is needed is being collected and that it provides an accurate picture of jury operations.

5. If as a result of monitoring the system, it is discovered that the standards are not being met, make appropriate changes in the written policies and procedures.

RELAIEDSTANPARDS American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Silent "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Silent Commission on Trial Court Performance, Trial Court Performance Standards: 3.2

FOQTNOIES

1Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems 12-1 (1979); Maureen Solomon, Management of the Jury System 25 (1975).

2 See Standard 2: Jury Source List

3 See Standard II: Notification and Summoning Procedures.

4 See Standard 4: Eligibility and Standard 6: Exemption, Excuse and Deferral.

5 See Standard 13: Juror Use.

6 Jd.

127 REFERENCES

MONITORING THE JURY SYSTEM

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems (1980).

"Continuous vs. Intensive Operations," Center for Jury Studies Newsletter, May 1979, at 2.

Dogin, Henry S., and David I. Tevelin, "Jury Systems of the Eighties: Toward a Fair Cross section and Increased Efficiency," 11 University of Toledo Law Review 939 (1980).

Draheim, Newt, "Efficient Juror Utilization Techniques ... or Proposition 12," 28 Drake Law Review 21 (1978).

Federal Judicial Center, Guidelines for Improving Juror Utilization in U. S. District Courts (1972).

Henriksen, Melvin, and George Orland, "On the Juror Utilization Problem," 16 Jurimetrics Joumal3!8 (1976).

Kandt, William C., "Jury Waiting Time Can Be Eliminated," 55 Judicature 116 (1971).

Kaufman, Irving R., "The Wasted Juror," 56 Judicarure 72 (1972).

Keilitz, lngo, and Linda R. Caviness, "Evaluating Jury Selection, Utilization, and Management," 4 State Court Journal, Winter 1980, at 9.

Keilitz, lngo, and Linda Caviness, National Evaluation of the Jury Utilization and Management Demonstration Program ( 1979).

Lasdon, Leon S., et al., "Juror Management in a Metropolitan Trial Couit," 57 Judicature 402 (1974).

Law Enforcement Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Juror Usage (1974).

Law Enforcement Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury System Management ( 1975).

Merrill, Frederic, and Linus Schrage, "Efficient Use of Jurors: A Field Study and Simulation Model of a Court System," 1969 Washington University Law Quarterly !51 (1969).

Merrill, Frederic, and Linus Schrage, Pilot Srudy of Utilization of Jurors ( 1970).

128 Munstennan, G. Thomas, and Janice T. Munstennan, Microcomputer Applications for Jury Systems Support (1989).

National Center for State Courts, A Report to the California Judicial Council on Ways to Improve Trial Jury Selection and Management ( 1978).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

Pabst, William R., Jr., "An End to Juror Waiting," 55 Judicature 277 (1972).

Solomon, Maureen, and T. Cameron, Instructor's Guide for Teaching the Element of Jury Usage and Management (1981 ).

Solomon, Maureen, Management of the Jury System ( 1975).

Stoever, William, "The Expendable Resource: Studies to Improve Juror Utilization," I Justice System Journal, Winter I 974, at 39.

129 Standard 13: JUROR USE

(a) COURTS SHOULD EMPLOY THE SERVICES OF PROSPECTIVE JURORS SO AS TO ACHIEVE OPTIMUM USE WITH A MINIMUM OF INCONVENIENCE TO JURORS.

(c) COURTS SHOULD ENSURE THAT EACH PROSPECTIVE JUROR WHO HAS REPORTED TO THE COURTHOUSE IS ASSIGNED TO A COURTROOM FOR VOIR DIRE BEFORE ANY PROSPECTIVE JUROR IS ASSIGNED A SECOND TIME.

(d) COURTS SHOULD COORDINATE JURY MANAGEMENT AND CALENDAR MANAGEMENT TO MAKE EFFECTIVE USE OF JURORS.

COMMENTARY

Paragraph fal Optimum Juror Use

The goals of effective jury management are to increase the overall efficiency of jury system operations, to reduce costs, and to improve the attitude of the citizenry toward jury service and the court system. These goals are interrelated; efficiency decreases the costs of jury operations and helps improve the attitude of citizens toward the jury system specifically and the judicial system generally. Inefficiency and waste occur when the supply of prospective jurors exceeds the demand for their services. Unfortunately, inefficient juror use is not an uncommon occurrence.

Every year thousands of citizens are summoned for jury duty, many of them expecting that the world of the courtroom furnishes the excitement and gratification which flows from participating in the dispensing of justice. The sad fact, however, is that an unconscionable amount of the average jur:: ~ ·· time is wasted waiting to be called for service in a particular case. :adeed, sometimes a prospective juror is never selected to participate in a single case during his several weeks of duty. 1

Studies have suggested that a substantial correlation exists between wasted time and juror dissatisfaction.2 If jurors actually serve on a trial, they find jury service a worthwhile experience.J Furthermore, poor juror use increases court costs considerably. This standard

130 recognizes the need to balance this supply of prospective jurors at the court with the actual number required to accommodate scheduled trial activity and to employ prospective jurors' service so as to achieve the best use of their time.

As trials become more complex or when cases achieve great notoriety, the result can be extended voir dire and trial times. Notwithstanding the burden on the court, this can represent a hardship upon the jurors, result in many persons having to be excused because of this burden and necessitating more alternates to be selected. That people can be found who will serve on yearlong or longer trials is remarkable. The trial judge should consider techniques that reduce the amount of time required to try such cases.4

Paragraph lbl Standardized Panel Size and Use of Jury Pools

Courts should reduce the number of prospective jurors that comprise a jury panel to the minimum number likely to be required to yield a jury in a given type of case. Although jury panels must be large enough to permit the selection of a trial jury after the parties have exercised their challenges,5 panels frequently include substantially more people than are needed to cover allowable challenges.6 Unnecessarily large panels create an artificial demand for prospective jurors. This usually results in an increase in the number of individuals summoned in order to avoid any delay in trial starts. Panels that are too large result in inefficient use of prospective jurors and waste their time because many will not be "reached" during the selection process (i.e., they will neither be challenged nor selected for the jury). This poor use of jurors' time, especially when combined with the disappointment many experience when they are not reached on voir dire, increases their dissatisfaction.

Reducing the panel size to the minimally sufficient number of prospective jurors increases efficient juror use. Courts should set a standardized size for panels in a given type of case after analyzing data of past juror use. The following factors should be considered in determining an appropriate number

• the jury size, • the number of challenges typically exercised, • the number of parties, and • the procedures for exercising challenges .

In addition, the court must establish an acceptable level of risk of the panel's being exhausted, causing a delay in trial starts until additional prospective jurors are obtained. In determining the acceptable risk of delay, the frequency with which delay might occur and the maximum length of time a judge might have to wait for prospective jurors should be considered.

This fear of delay and of inconvenience to judges and attorneys usually accounts for the tendency to send unnecessarily large jury panels to voir dire. Actual experience indicates that this fear is largely unfounded. Courts that have reduced their panel sizes have found them sufficient to meet most of their needs for jurors with little or no delay.7 Furthermore, setting a standardized size for panels is essential to effective jury management so that judges and court administrators recognize the importance of improved juror use and its crucial

131 impact on both the overall cost and efficiency of jury system operations and the public's attitudes toward jury duty.

Once a standard panel size has been established, continued monitoring of juror use should continue to ensure that the panel size is sufficient to meet the demand for jurors without resulting in inefficient use. The panel size should be adjusted when unusual circumstances, such as highly publicized cases or cases with multiple defendants, create the need for additional prospective jurors on the panel. Courts should anticipate the need for larger panels. This requires good communication between the judges and the jury manager.8 Unless advance notice is given, the supply of prospective jurors may be depleted, creating the risk that trial starts will be delayed because of a shortage of prospective jurors.

The occasional need for panels in excess of the usual or standard panel size can be handled by

• summoning more prospective jurors for the specific trial date, dismissing those who are not used; • summoning more prospective jurors to the pool for the week or term and scheduling on subsequent days other trials also requiring large panels; • summoning only portions of a large panel on successive days and thus avoiding having a large number of prospective jurors waiting in the pool. Those not needed can be notified not to report or can be dismissed form the pool; • scheduling the voir dire of the large panel on an off-peak hour or on a day when few trials are scheduled to begin; • scheduling other trials to begin later and using those prospective jurors challenged or not reached in subsequent voir dires; or • using a telephone stand-by system and notifying a larger number of prospective jurors to report to the pool. 9

Each of these methods can help a court efficiently handle large panels. Each requires prior planning, yet these methods may reduce costs because they enable courts to achieve a high rate of juror use without increasing the supply of prospective jurors to cover the occasional need for large panels.

Use of Juzy Pools. Multi-judge courts with sufficient trial activity should draw panels from a collective pool of jurors. A jury pool is defined as the collection of prospective jurors reporting for jury duty in a given term and awaiting assignment to a panel for voir dire and selection as jurors. 10 A pool generally operates in the following manner: Prospective jurors report to a central assembly room where they await assignment to a panel for voir dire proceedings. Those who are not sworn as jurors are then returned to the jury pool for reuse on a subsequent panel or are dismissed for the day or, in some cases, the term.

The major purpose of a jury pool is the sharing of prospective jurors among several judges or courtrooms when trial activity is sufficient to warrant such sharing. 11 The use of a jury pool is most effective when at least three or more jury trials are scheduled to begin on a given day. 12 Its use rests on the assumption that not every trial scheduled to begin will 132 I actually do so because of last-minute settlements or delays. Therefore, there is no need to form a panel of prospective jurors for each Uial start listed on the calendar. The risk that all scheduled cases may proceed to Uial and that an insufficient number of jurors may result is shared among the courts. If correctly managed, the jury pool permits Uial activity to be efficiently accommodated by a minimum number of jurors. 13 Furthermore, the jury pool enables courts to achieve higher juror use through the reuse of prospective jurors. Those prospective jurors challenged or not reached during voir dire should be returned to the pool as soon as they are released and reassigned to a new jury panel. Reuse of jurors improves their attitudes toward jury duty by increasing their participation in the process and their chance of actually sitting on a jury. When the demand for the services of prospective jurors falls because of reduced Uial activity, those waiting in the pool should be permitted to leave until the demand increases. Releasing prospective jurors who are not being used acknowledges that their time is valuable and thus further improves their willingness to serve in the future.

As a matter of procedure, courts should use all prospective jurors who are in the pool for voir dire before using any prospective juror a second time. This practice would allow each prospective juror in the courthouse the chance to be assigned for a voir dire. Participating in a voir dire will give jurors a sense of satisfaction about serving on jury duty.

Paragraph Ccl Predicting Need

A major impediment to efficient management of jury pools is summoning too many citizens. This occurs because of concern over the unpredictability of cases going to Uial and the possibility that Uial starts will be delayed _as a result of a shortage of jurors. Over summoning frequently results in needless waste of jurors' time and the courts' money. To reduce the disparity between the number of prospective jurors summoned and the actual demand for their services, courts should establish a method by which to predict the actual need for prospective jurors. To assess accurately the pattern of juror use, such a method should be based on analysis of data on juror use gathered over a period of time. The efficiency of the pool can be determined by comparing the number of prospective jurors in the pool with the number used both in voir dire proceedings and on juries. Predicting the need for prospective jurors according to patterns of actual use permits courts to reduce the supply of prospective jurors summoned to the pool while continuing to meet the demand for jurors. 14 ·

Paragraph Cdl Efficient Scheduling Practices

Implicit in the standard's recommendation is the need for efficient calendar management practices. Inefficient scheduling practices, such as scheduling voir dires to begin simultaneously, creates a heavy demand on the jury pool for short periods of time and usually results in the need to summon a larger pool to accommodate these anticipated Uial starts. Several scheduling measures exist both to alleviate such intensive demands on the pool and to achieve a high rate of juror use. These include staggering Uial starts so that judges do not simultaneously call for panels of jurors, thereby depleting the pool, and maintaining continuous court operation by scheduling bench Uials and other activities around jury Uials so

133 that the demand for jurors is spread more evenly throughout the day, the week, and the term. 15

Effective implementation of these practices will require continuous cooperation and communication between judges and court staff. The jury manager must be notified of any changes in trial schedules, such as continuances, dismissals, or settlements, or of cases likely to require larger jury panels. Such information is necessary for the manager to adjust the supply of prospective jurors to the demand and to reassign or release jurors as the demand fluctuates.

Use of Stand-by Jurors. A stand-by juror system is a means of increasing efficiency, improving jurors' attitudes, and decreasing costs. Stand-by jurors are those who have been qualified and summoned for jury duty and who maintain daily contact with the court, usually by telephone, during the designated term of service. 16 They report for jury duty only when needed. Other terms used to designate stand-by status include "on-call" and "telephone alert." When the prospective jurors call the court, a recording gives them the needed information. Some courts call the juror. However, an answering machine has the advantages of being available twenty-four hours a day and reducing the needed staff time.

A stand-by juror system gives jury managers a flexible supply of prospective jurors to meet the variable demand for panels that are caused by unpredictable trial starts, last minute postponements or settlements, and plea-bargains. The success of this system, however, depends primarily on the ability of a court to predict the number of jury trials that will actually start. Rather than maintaining a constant number of prospective jurors in the pool, a court can contact prospective jurors the day or the hour before the scheduled trial starts and request that they report for service. If a court can accurately predict the number of prospective jurors needed, it can increase efficient juror use by summoning only those jurors needed and reduce the time prospective jurors spend waiting. Additional benefits are that more prospective jurors experience voir dire, and trial costs are reduced because stand-by jurors are paid only for the days they actually serve. 17 Finally, because it makes jury service a less disruptive factor in the lives of jurors, the stand-by system can improve jurors' attitudes toward service. Is

SUGGESTED SIEPS FOR IMPLEMENTATION

Pooling Operation

I. Analyze the current court operations concerning the scheduling of trial starts, the number of prospective jurors summoned to the pool, the number assigned to panels, and the number selected for a jury.

2. After analyses of current practices, systematically reduce the number of prospective jurors summoned to the courthouse.

3. Devise a method to predict the number of trial starts and summon only the number of prospective jurors that are needed.

134 4. Improve the scheduling of trial starts.

5. Consider multiple voir dire and single-day empanelment as a means to increase the efficiency of the pooling operation.

6. Consider the use of a stand-by system to augment the pooling operation.

7. Devise a method for assigning all prospective jurors who are in the courthouse for voir dire before any prospective juror is assigned a second time.

8. Dismiss those jurors not needed.

Panel Sjze

I. Analyze current panel size and panel use.

2. Systematically reduce and standardize panel sizes in accordance with panel use.

3. Anticipate the need for exceptionally large panels and make special arrangements, such as the following:t9

(a) summon additional prospective jurors for the specific trial date, dismissing those who are not used; (b) summon additional prospective jurors to the pool for the week or term and schedule other trials also requiring large panels on term and schedule other trials also requiring large panels on subsequent days; (c) summon only portions of a large panel on successive days and thus avoid having a large number of prospective jurors waiting in the pool. Those not needed can be notified not to report or can be dismissed from the pool; (d) schedule the voir dire of the large panel on an off-peak hour or on a day when few trials are scheduled to begin; (e) schedule other trials to begin later, using those challenged or not reached in subsequent voir dires; or (f) use a telephone stand-by system and notify a larger number of prospective jurors to report to the pool.

Stand-by Jurors

I. Assess the feasibility of adopting a system for calling in prospective jurors.

2. Determine the method of call-in needed.

135 RELATED ST ANPARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Silent "Fair Trial and Free Press": Chapter 5.6 American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Silent Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOQTNOIES

' I. R. Kaufman, "Courts in Crisis: Progress Versus Intransigence," 52 American Bar Association Journall026, 1028 (1966).

2 John P. Richert, "Juror's Attitudes Toward Jury Service," 2 Justice System Journal, 233 (1977).

3 Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Juror Usage 3-2 (1974)[hereinafter cited as Juror Usage].

4 See generally, 29 Judges Journal, Fall 1990 (The issue theme is "Put Time on Your Side- Modem Trial Techniques Can Help You").

5 In go Keilitz and Linda R. Caviness, National Evaluation of the Jury Utilization and Management Demonstration Program 9-14 (1979).

6 S. Atkins, "Effective Jury Utilization, Use of Jury Pools, Staggered Starts, Accepting Pleas, Status Calls, Advance Calendar Calls, Conduct of Multiple Voir Dire," 9 New Judges' Seminar (November 13, 1978). See also National Center for State Courts, A Report to the California Judicial Council on Ways to Improve Trial Jury Selection and Management 96 (1978)[hereinafter cited as NCSC Report].

7 See ep . Kenneth Coe, "A Juror Utilization in Three Selected Oklahoma District Courts," 29 Oklahoma Law Review 65, 89 (1976). See also NCSC Report, supra note 6.

8 Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems 8-8 ( I980)[hereafter cited as Methodology Manual]; National Center for State

136 Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

9 Methodology Manual, supra note 8, see also Juror Usage, supra note 3, at 3-4.

10 Juror Usage, supra note 3, at 2-2.

11 Methodology Manual, supra note 8, at 7-2.

12 /d.

13 LEAA Program Announcement 3 (1979).

14 Methodology Manual, supra note 8, 9-1.

15 Juror Usage, supra note 3, at 3-7.

16 Methodology Manual, supra note 8, at 10-1.

17 /d.

18 /d.

19 Methodology Manual, supra note 8, at 8-8; see also Juror Usage, supra note 3, at 3-4.

137 REFERENCES

JURQRUSE

Atkins, S., "Effective Jury Utilization, Use of Jury Pools, Staggered Starts, Accepting Pleas, Conducted of Multiple Voir Dire," 9 New Judges Seminar 427 ( 1978).

"Call-In System for Jurors," 2 Center for Jury Studies Newsletter, January 1979, at 5.

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems (1980).

Coe, Kenneth, "Juror Utilization in Three Selected Oklahoma District Courts," 29 Oklahoma Law Review 65 (1976).

"Continuous vs. Intensive Operations," I Center for Jury Studies Newsletter, May 1979, at 2.

Do gin, Henry S., and David I. Tevelin, "Jury Systems of the Eighties: Toward A Fair Cross Section and Increased Efficiency," II University of Toledo Law Review 939 (1980).

Draheim, Newt, "Efficient Juror Utilization Techniques or Proposition 12?" 28 Drake Law Review 21 (1978).

Federal Judicial Center, Guidelines for Improving Juror Utilization in U.S. District Courts, (1972).

Henriksen, Melvin, and George H. Orland, "On the Juror Utilization Problem," 16 Jurimetrics Journal 318 (1976).

Kandt, William C., "Jury Waiting Time Can Be Eliminated," 55 Judicature 116 (1971).

Kaufman, Irving R., "Courts in Crisis: Progress Versus Intransigence," 52 American Bar Association Journal I 026 (1966).

Kaufman, Irving R., "The Wasted Juror," 56 Judicature 72 (1972).

Keilitz, Ingo, and Linda R. Caviness, "Evaluating Jury Selection, Utilization, and Management," 4 State Court Journal, Winter 1980, at 9.

Keilitz, In go, and Linda R. Caviness, National Evaluation of the Jury Utilization and Manag,·ment Demonstration Program ( 1979).

Lasdon, Leon S., et. al., "Juror Management in a Metropolitan Trial Court," 57 Judicature 402 (1974).

138 Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Juror Usage (1974).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury System Management ( 1975).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, Juror Usage and Management: Participant's Handbook (1976).

Merrill, Frederic and Linus Schrage, "Efficient Use of Jurors: A Field Study and Simulation Model of a Court System," 1969 Washington University Law Quarterly !51 (1969).

Merrill, Frederic and Linus Schrage, Pilot Study of Utilization of Jurors ( 1970).

Munsterman, G. Thomas, State Juror Use and Management Standards: The Kansas Experience (1984).

Munsterman, Janice T., Computer Analyses for Juror Utilization Operation Manual ( 1984).

National Center for State Courts, A Report to the California Judicial Council on Ways to Improve Trial Jury Selection and Management (1978).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management (1987).

Pabst, Jr. William R., "An End to Juror Waiting." 55 Judicature 277 (1972).

"Put Time on Your Side--Modem Trial Techniques Can Help You," 29 Judges Journal (Fall 1990).

Richert, John P., "Jurors' Attitudes Toward Jury Service," 2 Justice System Journal233 (1977).

Solomon, Maureen, Management of the Jury System ( 1975).

Stoever, William, "The Expendable Resource: Studies to Improve Juror Utilization," I Justice System Jouma/39 (1974).

"Telephone Call-in Equipment," 3 Center for Jury Studies Newsletter, July 1979, at 6.

Wilson, F, "Use of Jurors," 62 Federal Rules Decisions 211 (1974).

139 Standard 14: JURY FACILITIES

COURTS SHOULD PROVIDE AN ADEQUATE AND SUITABLE ENVIRONMENT FOR JURORS.

(a) THE ENTRANCE AND REGISTRATION AREA SHOULD BE CLEARLY IDENTIFIED AND APPROPRIATELY DESIGNED TO ACCOMMODATE THE DAILY FLOW OF PROSPECTIVE JURORS TO THE COURTHOUSE.

(b) JURORS SHOULD BE ACCOMMODATED IN PLEASANT WAITING FACILITIES FURNISHED WITH SUITABLE AMENITIES.

(c) JURY DELIDERATION ROOMS SHOULD INCLUDE SPACE, FURNISHINGS AND FACILffiES CONDUCIVE TO REACHING A FAIR VERDICT. THE SAFETY AND SECURITY OF THE DELlliERATION ROOMS SHOULD BE ENSURED.

(d) TO THE EXTENT FEASIBLE, JUROR FACILffiES SHOULD BE ARRANGED TO MINIMIZE CONTACT BETWEEN JURORS, PARTIES, COUNSEL AND THE PUBLIC.

COMMENTARY

The court should make all facilities accommodating to all jurors, including those with disabilities. Adequate facilities play an integral part in the realization of an efficient well managed jury operation. It is difficult, for example, to maintain an efficient and secure jury operation when people must gather in overcrowded rooms and when jury management personnel are not located adjacent to the jury assembly room. Poor spatial arrangement and unsatisfactory environmental conditions, in addition to inadequate facilities, can reduce the efficiency of operations. Inadequate attention to the accessibility of courthouse facilities can reduce the representativeness of the jury pool by, in effect, excluding many otherwise eligible persons whose mobility is impaired. The standard recognizes the need for an adequate and suitable environment for jurors, not only to allow them to wait in comfort and dignity but also to orient them to the trial process, to carry out administrative details, and to properly accommodate the movements, voir dire, and selection process in trial proceedings.

The importance of adequate physical facilities for efficient performance by jurors and accessibility and security for all persons cannot be overemphasized. The equipping, design, and arrangement of court facilities need careful study by court personnel in coordination with architects. The American Bar Association and the American Institute of Architects have published an extensive guide, The American Courth ase: Planning and Design for the Future, 1 to aid court planners and personnel.

140 Paragraph Cal Entrance and Registration Area

People responding to a jury summons report first to the registration desk to be registered before entering the jury assembly and waiting spaces. The number of people entering this area during the initiation of a jury term may be quite high, depending on the jury call in a particular jurisdiction. Because jurors will receive the first impression of the court facilities in the entrance/registration area, the standard recommends careful handling of its location, design, and layout. Proper identification and registration of prospective jurors are the primary functions of this area. Names are checked against a list of persons called for duty. Jurors then fill out registration forms and are assigned numbers for later use in the impaneling process. They may also receive instructional brochures.

The entrance/registration area should be immediately visible to jurors as they enter the courthouse. The design of this area should be coordinated with that of the lounge area, and they should be adjacent. 2 The entrance area should also be located so that access to all jury facilities can be controlled by the jury staff to ensure security and limit accessibility by nonauthorized persons such as attorneys or plaintiffs and defendants. From the entrance/registration area, persons should be able to move directly to the jury assembly and lounge area and the jury manager's office. 3

Paragraph Cbl Juror Lounge and Assembly Area

At the beginning of their term, prospective jurors in many jurisdictions assemble in one large space to be instructed and screened for duty. Two distinct functions must be accommodated in this facility: assembly and waiting. When potential jurors arrive for their first day of service, they are assembled, generally for at least an hour, in a large room for orientation. This may include a lecture, slide presentation, question and answer period, and distribution of handbooks. Administrative tasks, such as issuing parking stickers, distributing questionnaires, or ruling on requested excuses from jury duty, may also be handled.

Thereafter, jurors await assignments to a courtroom for voir dire. Because much of jurors' time is spent waiting for panel assignment, comfortable and accessible accommodations are paramount. Their surroundings will contribute to shaping the image of the judicial system in the jurors' minds. A multi-purpose space, suitable for reading, writing, playing card or board games, watching television, eating, and other suitable activities should be provided. Areas designated for telephones and desks, and separate areas for those who wish to read rather than watch television, should also be provided. 4 Many court.~ do not permit smoking in the assembly area in keeping with the trend toward smoke-free public buildings. For health considerations, jurors should be guaranteed a smoke-free environment.

An important consideration in determining spatial requirements for the lounge is the expected number of jurors that will occupy the lounge throughout the jury term. Although the number of jurors assembled at the beginning of the term may be high, as the term progresses the average number of jurors occupying the lounge will be less, because jurors will be in courtrooms for voir dire or trial, or in deliberation rooms. Designing a space for the initial number of jurors called could be impractical for the lounge area. For example, if 125

141 jurors are called at the beginning of the session, it is quite likely as the tenn progresses that only 60 to 70 persons will be in the lounge at any one time. Jury managers must ascertain their own needs, both peak and average. and decide what size space is needed for juror assembly and waiting.

Paragraph (c) Deliberation Rooms

A separate and private room adjacent to the courtroom is needed in which the jury can discuss the case and come to a verdict5 Facilities for jury deliberation consist mainly of a well-ventilated room large enough to accommodate a conference table and chairs as well as to allow some freedom of movement.6 Adequate writing facilities should be provided, including a blackboard and tackboard on the wall. Closets and restrooms should be near the room entrance. For security reasons, windows should not pennit public exposure, especially at ground level, and the room should be soundproof. The standard recommends that minimum facilities should include space and furnishings commensurate with the business of making unhurried, impartial, and important decisions. Jury deliberation rooms should be designated as nonsmoking areas.

Paragraph (d) Jurors Contact wjth Nonjurors

The standard encourages minimizing contact between the public, including all parties in the case, and the jurors. Procedures should be developed to ensure that jurors can leave the courthouse after returning their verdict without having to encounter persons with interest in the trial. During the trial, jurors should be protected from the intrusion of parties interested in the trial.

A technique to eliminate any confusion in identifying jurors is the use of visible juror badges. Badges or other means of identification help avoid inappropriate contact with jurors. (See Standard 16: Juror Orientation and Instruction.)

SUGGESIED SIEPS FOR IMPLEMENTATION

I. Investigate present facilities and equipment for jurors to detennine whether the court is meeting the standards.

2. Consider the need for an architect in planning for jury facilities in a new or existing building.

3. If needed, redesign and rearrange the space allotted for operation of the jury system to best accommodate the jurors and the daily functions of the system.

4. If needed, refurnish the areas used by jurors to provide for smoking and nonsmoking areas and for reading and other activities.

5. Provide adequ:n:: space, facilities, and security for jurors to deliberate.

142 6. Develop procedures to minimize contact between jurors, counsel and the parties, and the public.

7. Institute a visible identification system for jurors.

RELATEDSTANPARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Silent "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: 10.1(1), (3), (6) & (8) National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Silent Commission on Trial Court Performance, Trial Court Peiformance Standards: 1.2

FOOTNOTES

' American Bar Association and American Institute of Architects, The American Courthouse: Planning and Design for the Future (1973). See also Don Hardenburgh, The Courthouse: A Planning and Design Guide for Coun Facilities (1991).

2 National Clearinghouse for Criminal Justice Planning and Architecture, Jury Facilities, 1-5 [hereinafter cited as Jury Facilities].

3 /d.

4 Information obtained from LEAA Jury Incentive Program Sites.

5 American Courthouse, supra note I, at note 46.

6 Information obtained from LEAA Jury Incentive Program Sites.

143 REFERENCES

nJRY FACIT...IDES

American Bar Association and American Institute of Architects, The American Courthouse: Planning and Design for the Future (1973).

American Bar Association Commission on Standards of Judicial Administration, Courthouse Design (Supporting Studies No. 4) (1978).

George, Jody, et. al., Handbook on Jury Use in the. Federal District Courts (1989).

Hardenburgh, Don, The Courthouse: A Planning and Design Guide for Court Facilities (1991).

National Clearinghouse for Criminal Justice Planning and Architecture, Jury Facilities, Vol. B (1976).

Peck, Smith, and Hogg, Generalized Jury Simulator (GJS): A Simulation Model for the Analysis ofJury Systems in State Courts, working paper, Champaign, Ill.: National Clearinghouse for Criminal Justice Planning and Architecture, (1975).

Winters, Glenn R., and Alfini, James J., Courthouses and Courtrooms: Selected Readings (1972).

Wong, F. Michael, Space Management and the Courts (1973).

144 Standard 15: JUROR COMPENSATION

(a) PERSONS CALLED FOR JURY SERVICE SHOULD RECEIVE:

(i) A NOMINAL AMOUNT IN RECOGNITION OF OUT-OF-POCKET EXPENSES FOR THE FIRST DAY THEY REPORT TO THE COURTHOUSE;

(ii) A REASONABLE FEE FOR EACH SUCCEEDING DAY THEY REPORT.

(b) SUCH AMOUNTS AND FEES SHOULD BE PAID PROMPTLY.

(c) STATE LAW SHOULD PROHIBIT EMPLOYERS FROM DISCHARGING, LA YIN G-OFF, DENYING ADVANCEMENT OPPORTUNmES TO, OR OTHERWISE PENALIZING EMPLOYEES WHO MISS WORK BECAUSE OF JURY SERVICE.

COMMENTARY

While the daily fee paid to individual jurors is generally quite low,' the aggregate cost of compensating jurors constitutes a significant percentage of the court budget in most jurisdictions. The minimal size of the daily fee means that "[f]ew persons making more than the minimum wage can afford [the] ... sudden and involuntary cut in pay" 2 imposed by jury service. As a result, excuses from jury service because of economic hardship are common in many jurisdictions for laborers, sales people, unemployed parents with child care expenses, and sole proprietors of small businesses.3 Only those who are not employed or whose employer will continue to pay their salary are then available for jury service.4 This not only reduces the representativeness of the jury pool but, when coupled with the length of the term of service in many jurisdictions, transfers a significant portion of the cost of public service to private industry. 5 Yet, raising juror fees to compensate citizens for their time at current wage levels would place a nearly impossible burden on many financially hard pressed jurisdictions.

Paragraph fal and fbl Compensation

Jury service is one of the obligations of citizenship, and its importance cannot be recognized in monetary terms. The standard recommends a two-step juror compensation program that represents an equitable and practical way of limiting the number of persons precluded financially from serving on ajury.6 The intent of the standard is to provide an expense allowance in recognition of expenses incurred on the first day of service and a set fee in recognition of service on subsequent days.

Specifically, it urges that for the first day of jury service, persons reporting to the courthouse should receive a small payment, which at least, partially covers the meal, parking, child care, and transportation expenses that most jurors in the jurisdiction incur. Although it

145 would be possible to reimburse jurors for actual expenses, the administrative costs in filling out, checking, and processing actual expense vouchers can be quite substantial. It is far easier and a better use of court resources to pay a fixed amount to each person reporting for jury service. 7 In setting this amount, jurisdictions should consider the in-kind services such as free parking, meal vouchers at the courthouse cafeteria, bus tokens, and day care, which are or can be provided for persons reporting for jury duty. When in-kind services are available, first day out-of-pocket compensation can be reduced accordingly.

The standard recommends further that for each day jurors are required to report to the courthouse after the first day of jury service, they should be paid a reasonable fee recognizing their services. 8 Almost everyone is able to contribute one day of his or her time to public service, and under the one trial/one day system recommended in Standard 5, many people will be able to fulfill their obligation within this period:· In· order to preserve the representativeness of the jury, however, some compensation is necessary for those who are selected to serve on a jury and for persons in jurisdictions that have a longer term of service. In addition, the differentiation between the first and subsequent days of service provides an incentive to use the most effective jury management practices.9

No specific amount is included in the standard because of the variation in juror fees 10 and economic conditions around the country. A fee that is reasonable in one state or local jurisdiction may be far too low in another because of differing wage scales and living costs. Some jurisdictions may wish to use the federal minimum wage or the local average daily compensation as a convenient rule of thumb for determining a reasonable juror fee.

Many of these concepts are now a part of the fee structure and term of service adopted by the legislatures in Massachusetts, Connecticut, and Colorado. In these states, the term of service is one trial/one day, there are no exemptions from jury service, and a person has a right to a postponement of jury service. The employers of the jurors must pay the jurors' salaries for the first three days. In addition, those unemployed, including housewives, can receive actual expenses up to $50 per day for the first three days.

Paragraph (cl Protection of Employment

Persons should not be penalized for fulfilling their civic duty to serve as jurors. Thus, employees who are discharged or laid off, whose seniority is adversely affected, or who are otherwise penalized by their employers for missing work because of jury service should have a statutory right of action for monetary damages as well as equitable remedies. 11 Some jurisdictions may wish to consider whether criminal sanctions should be applicable as well.I2 It should be noted, however, that nothing in this standard is intended to prohibit employers who continue to pay employees during jury service from either deducting the amount of the juror fee from their employees' salaries or wages or requiring employees to remit those fees promptly. Fortunately, most medium and large organizations maintain the salary of those on jury duty. 13 Six states require the employers to continue the salaries of jurors.I4 The Supreme Court has upheld that statutory requirement in Alabama.I5

SUGGESTED STEPS FOR IMPLEMENTATION

146 1. Review current juror compensation policies and practices to determine whether they are consistent with the standard.

2. Initiate appropriate legislative or administrative changes if they are not.

3. Determine whether it is possible to provide persons on jury duty with in-kind services such as free parking, meal vouchers, public transportation tokens or passes, and day care for children and whether the provision of such services would cost more or less than reimbursements for out-of-pocket expenses.

4. Determine whether the state code includes a provision consistent with paragraph (b) of the standard and initiate appropriate legislative action if it does not.

RELAJEDSTANDARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Silent "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: 14 & 17 National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Silent National District Attorneys Association, National Prosecution Standards, Second Edition: Silent Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOQTNOJES

1 In 1986, the average juror fee was estimated to be $10.00 per day. Fees range from as little as $3.00 per day in Colorado for prospective jurors and $5.00 per day in Illinois, New Jersey, and some Arkansas counties, to $50.00 per day after the third day of service in Massachusetts; see "States Seek Ways to Reduce Juror Costs," 14 National Center for State Courts Report, February 1987, at 3.

2 Jon Van Dyke, Jury Selection Procedures: Our Uncenain Commitment to Representative Panels, 112 (1977)[hereinafter cited as Van Dyke]; See National Center for State Courts, Facets of the Jury System: A Survey, at 36 (1976).

3 Janice I. Munsterman, et. al., The Relationship of Juror Fees and Terms of Service to Jury System Performance ( 1991 )[hereinafter cited as Munsterman].

147 4 Van Dyke, supra note 2.

5 The overwhelming majority of major labor agreements include a paid jury leave provision. It has been estimated that as much as 68 percent of the jury system costs are being absorbed by private business. Newsletter, supra note 1, at 2-4. See William R. Pabst, Jr. & G. Thomas Munsterman, "The Economic Hardship of Jury Duty," 58 Judicature 494,498 (1975).

6 See also Standard 5: Term of Service; Standard 6: Exemption, Excuse and Deferral; and Standard 13: Juror Use.

7 When necessary, two or three standard reimbursementrates·could be set to accommodate those who must travel a considerable distance to reach the courthouse and those who are able to rely on public transportation. For example, Pennsylvania now pays $9 for the first three days and $25 thereafter; Maricopa County (Phoenix), Arizona, pays only mileage on the ftrst day; and Massachusetts pays neither a fee nor mileage for the first three days and $50/day (except in hardship cases) thereafter.

8 See examples in supra note 6.

9 Standard 13: Juror Use.

1° See note 1, supra.

11 See e.g., Alabama Code § 12-16-8.1 & 9 (1986). The Alabama provision was upheld as constitutional in Dean v. Gadsden Times Publishing Corp., 412 U.S. 543 (1973).

12 See National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act, §17 (1986); Nebraska Revised Statutes, §25-1640 (1989). n Munsterman, supra note 3.

14 The states requiring employers to pay the jurors salary are Alabama; Colorado, Connecticut, Massachusetts, Nebraska, and Tennessee.

15 412 u.s. 545 (1973).

148 REFERENCES

DJROR COMPENSATION

Do gin, HenryS. and David I. Tevelin, "Jury Systems of the Eighties: Toward a Fairer Cross Section and Increased Efficiency," I I University of Toledo ww Review 939 (1980).

Gallas, Edward C., "The Planning Function of the Court Administrator," 50 Judicature 268 (1967).

Gallas, Edward C., "The Profession of Court Management," 51 Judicature 334 (1968).

Hans, Valerie P., and Neil Vidmar, "The American Jury at Twenty-Five Years," 16 ww and Social Inquiry 323 (1991).

Hart, W., "Modem Plan for Wayne County Court Reorganization," 49 Michigan State Bar Journal I 8 (1970).

Lewis, Merlin, et. al., An Introduction to the Courts and Judicial Process, (1978).

Munsterman, G. T., and Janice T. Munsterman, Microcomputer Applications for Jury Systems Support (1989).

Munsterman, Janice T, et. al., The Relationship ofJuror Fees and Terms of Service to Jury System Performance (199 I).

National Center for State Courts, Facets of the Jury System: A Survey (I 976).

"States Seek Ways to Reduce Juror Costs," 14 National Center for State Courts Report, February I 987, at 3.

Van Dyke, Jon, Jury Selection Procedures: Our Uncenain commitment to. Representative Panels (I 977).

Van Dyke, Jon, "The American Jury," 10 The Center Magazine 36 (1977).

Wheeler, Russell R., and Howard R. Whitcomb, Judicial Administration: Text and Readings (1977).

149 Part D: Standards Relating to Juror Performance and Deliberation

Standard 16: JUROR ORIENTATION AND INSTRUCTION

Standard 17: JURY SIZE AND UNANIMITY OF VERDICT

Standard 18: JURY DELffiERATIONS

Standard 19: SEQUESTRATION OF JURORS

150 PART D: STANDARDS RELATING TO JUROR EDUCATION AND DELffiERA TION

Introduction

The role of the juror is not an easy one, yet most reports indicate that jurors view jury duty as a valuable opportunity, rather than an onerous burden, provided that courts use them efficiently. It is the responsibility of the court to provide prospective jurors with information on what is expected of them during their term of service and to give them specific instructions once they are selected as jurors. The standards in this section address these responsibilities and make recommendations on the size of juries, the unanimity of verdict, and sequestration.

Standard 16 on juror orientation and instruction recognizes the need to inform prospective jurors of their role and responsibilities as jurors. Included are methods to enhance the crucial communication task of instructing the jury on the law. The importance of the role of the juror as the fact finder needs to be conveyed early in the trial proceedings in order to alert the juror to the necessity for careful consideration of all facts presented. Recommendations are made as to what information should be provided to the jury and when it should be provided. Specific recommendations are given on instructions to the jury and on what to include in the orientation program.

Standard 17, entitled "Jury Size and Unanimity of Verdict," recommends standards for both criminal and civil cases with regards to the size of the jury and the unanimity of the verdict.

The standard on jury deliberations, Standard 18, places the responsibility for instructing the jury on the deliberative process, with the trial judge, reinforces the standards on facilities and sequestration, and recommends that the trial judge determine the appropriateness of evening or weekend deliberations.

Standard 19 addresses the limited purpose for which a jury should be sequestered. The standard urges that written procedures and training be provided for the personnel who assist sequestered jurors and clarifies the role of the trial judge in ordering and overseeing sequestration.

151 Standard 16: JUROR ORIENTATION AND INSTRUCTION

(a) COURTS SHOULD PROVIDE SOME FORM OF ORIENTATION OR INSTRUCTIONS TO PERSONS CALLED FOR JURY SERVICE

(i) UPON INITIAL CONTACT PRIOR TO SERVICE;

(ii) UPON FIRST APPEARANCE AT THE COURTHOUSE;

(iii) UPON REPORTING TO A COURTROOM FOR VOIR DIRE;

(iv) DIRECTLY FOLLOWING EMPANELMENT;

(v) DURING THE TRIAL;

(vi) PRIOR TO DELIBERATIONS; AND

(vii) AFTER THE VERDICT HAS BEEN RENDERED OR WHEN A PROCEEDING IS TERMINATED WITHOUT A VERDICT.

(b) ORIENTATION PROGRAMS SHOULD BE

(i) DESIGNED TO INCREASE PROSPECTIVE JURORS' UNDERSTANDING OF THE JUDICIAL SYSTEM AND PREPARE THEM TO SERVE COMPETENTLY AS JURORS;

(ii) PRESENTED IN A UNIFORM AND EFFICIENT MANNER USING A COMBINATION OF WRITTEN, ORAL AND AUDIOVISUAL MATERIALS.

(ii) PRIOR TO THE COMMENCEMENT OF DELIBERATIONS, INSTRUCT THE JURY ON THE LAW, ON THE APPROPRIATE PROCEDURES TO BE FOLLOWED DURING DELIBERATIONS, AND ON THE APPROPRIATE METHOD FOR REPORTING THE RESULTS OF ITS DELIBERATIONS. SUCH INSTRUCTIONS SHOULD BE MADE AVAILABLE TO THE JURORS DURING DELIBERATIONS;

152 (iii) PREPARE AND DELIVER INSTRUCTIONS WHICH ARE READILY UNDERSTOOD BY INDIVIDUALS UNFAMILIAR WITH THE LEGAL SYSTEM.

(d) BEFORE DISMISSING A JURY AT THE CONCLUSION OF A CASE, THE TRIAL JUDGE SHOULD

(i) RELEASE THE JURORS FROM THEIR DUTY OF CONFIDENTIALITY;

(ii) EXPLAIN THEIR RIGHTS REGARDING INQUIRIES FROM COUNSEL OR THE PRESS; AND

(iii) EITHER ADVISE THEM THAT THEY ARE DISCHARGED FROM SERVICE OR SPECIFY WHERE THEY MUST REPORT.

THE JUDGE SHOULD EXPRESS APPRECIATION TO THE JURORS FOR THEIR SERVICE, BUT THE JUDGE SHOULD NOT EXPRESS APPROVAL OR DISAPPROVAL OF THE RESULT OF THE DELIBERATION.

(e) ALL COMMUNICATIONS BETWEEN THE JUDGE AND MEMBERS OF THE JURY PANEL FROM THE TIME OF REPORTING TO THE COURTROOM FOR VOIR DIRE UNTIL DISMISSAL SHOULD BE IN WRITING OR ON THE RECORD IN OPEN COURT. COUNSEL FOR EACH PARTY SHOULD BE INFORMED OF SUCH COMMUNICATION AND GIVEN THE OPPORTUNITY TO BE HEARD.

COMMENTARY

This standard recognizes that jury service affords a unique opportunity for citizens to observe and participate in the judicial process. Accordingly, it is essential to inform prospective jurors of their role and responsibilities in the American legal system, to create a positive attitude toward jury service, and to emphasize that jury service is both a privilege and a civic duty.

This standard recognizes the many types of information received by the juror. The charge, or instructions on the law, is the most important information received by the jury concerning their deliberations; the jury will "find the facts" and arrive at their verdict. This information must be understood, requiring skill and careful preparation by the judge. This standard emphasizes the importance of clear, concise communication with the jury. While being central to the jury's function, the instructions on the law are but one part of the information received by the juror.

Paragraph Cal When Information Should Be Proyjded

!53 Typically, 80 percent of the prospective jurors summoned to the courthouse have never served on jury duty, 1 and accordingly many feel apprehensive over the prospect of serving. It is important, therefore, that the information provided to prospective jurors be sufficiently comprehensive and detailed to relieve their anxiety and aid them in their duty as jurors. Moreover, care should be taken to present the information in a manner that facilitates understanding and that does so at the stage of the proceedings at which it is most needed. The standard lists the points in the jury selection and trial process at which information should be provided. Outlined below are examples of the types of information that should be provided at each of these stages. 2

Paracraph Cal Cil Prior to Service

Courts are encouraged to include written materials addressing preliminary matters when the initial summons and the qualification questionnaires are .sent to prospective jurors. Such material includes information on the following:

• when and where to report • directions to the court • parking and transportation facilities • court hours • first-day activities • length of service • procedures and grounds for requesting a deferral or an excuse • penalties for not responding • procedures for reporting • compensation • appropriate dress • suggested eating establishments near the courthouse • what to bring to the court • stand-by procedures • where to call for additional information

Paracraph Cal Ciil First Aupearance

Upon their initial appearance at the courthouse, prospective jurors require information more pertinent to the trial process and to their role as jurors. (See discussion of paragraph (b), infra.) The following matters are illustrative of such information:

• how the names of prospective jurors are chosen • the function of the voir dire process in selecting trial juries • why more individuals are summoned than may be needed • why a certain amount of waiting may be necessary • the functions of the jury and the judge • the differences between civil and criminal trials • the responsibilities of various court employees

!54 • proper juror conduct and behavior, including the importance of wearing the visible juror identification (juror badges) provided by the court • a description of the jury room and the process of deliberation • an explanation of certain legal terms • a description of a typical courtroom layout • a description of the trial process • an explanation of the circumstances and conditions under which they would be sequestered and the likelihood of sequestration.

The use of slide, film, or videotape presentations and/or juror handbooks may be particularly appropriate at this stage. J

Para&raph Cal fiiil Voir Dire Proceedin&s

After prospective jurors are assigned to a courtroom for voir dire, they require more specific information regarding the function of the voir dire proceeding and how juries are selected. Such information might include, for example,

• an explanation of the purpose of the voir dire examination • an explanation of the difference between peremptory challenges and removals for cause • introductory information on the particular case • an estimate of how long the trial may last • an indication whether the jury will be sequestered and, if so, for how long and why.

Paramph Cal Cjyl Preliminary Trial Proceedin&s

After the jury is seated, but before opening statements of counsel, additional information about the trial process and preliminary instructions on basic legal principles is warranted. (See discussion of paragraph (c), infra.) The following are examples of information that might be provided at this stage:

• an explanation of the charge or subject matter of the action • an explanation of trial procedures • an explanation of the jury's function as the trier of facts • an explanation of the importance of evidence and a description of what constitutes evidence • an explanation of why delays and/or recesses may be necessary • an admonition not to discuss the case with anyone, including fellow jurors, or engage in any outside research on the case, including viewing the site(s) involved • an admonition not to read or view any media accounts of the case . • an admonition to report promptly to the court any incident involving an attempt by any person improperly to influence any juror or a violation by any juror of the court's admonitions

155 • an admonition not to fonn or express an opinion on any subject connected with the trial • instructions on how to communicate with the judge and other court personnel • an explanation on how the judge will handle juror questions • instruction on note-taking.

Paragraph lal lvl During Trial

Before any recess during the trial, the judge should again admonish jurors to avoid any outside discussion, media account, or other source of information or opinion about the case that might interfere with their impartiality.

Paragraph (al lvil Predeliberations

The court's instructions on the law and on the appropriate deliberation procedures should be recorded on tape or reduced to writing and made available to jurors during deliberations. (See discussion of paragraph (c), infra.)

Paragraph lal lviil Postverdjct or Upon Termination of the Proceeding

When the jury has completed its work on the case or a case is concluded without a verdict, the jurors should be informed of any rules that govern their behavior, such as their general right in most jurisdictions to speak with press or attorneys or to refrain from doing so at their own discretion. The judge should emphasize the importance of maintaining an appropriate regard for juror privacy in all postverdict contact Additionally, the court should acknowledge the efforts of all jurors. (See discussion of paragraph (d) infra.)

At each of these points, an effort should be made to impart the necessary technical information in language that can be easily understood by persons unfamiliar with legal principles and courtroom procedures. In addition, the role of jurors in the United States system of justice should be acknowledged, and jurors themselves should at all times be treated with courtesy and respect.

Paragraph lb l Orientation

Orientation materials should inform citizens of the nature of the judicial process and their role as jurors and familiarize them with trial procedure and legal tenninology.4 Ensure that all such materials are fair, accurate, and impartial. The trial bar should be infonned of the information given to prospective jurors during orientation and provided with an opportunity to comment.

The orientation should be presented in a unifonn manner throughout the jurisdiction. Although a personal greeting by a judge or senior court official is often appreciated, extemporaneous remarks should be brief and limited to welcoming the jurors to the courthouse and acquainting them with the facilities. Because there is no opportunity to challenge oral remarks and no basis for review on appeal if they are delivered in the absence

!56 of counsel or are not made a part of the record, extemporaneous oral remarks should be avoided. 5 An increasing number of jurisdictions are using slide, videotape, or film presentations to ensure that all the necessary information is provided to each group of prospective jurors in a consistent, appropriate, and interesting manner. 6

Paragraph Ccl Instructions

This section reflects the growing concern that jurors do not fully understand their role as triers of fact or the relevancy of the judge's instructions on the law. Jury instructions are the means for communicating to the jury the legal basis upon which its verdict is to rest. The instructions should be formulated and presented with primary concern for facilitating the jurors' understanding of the questions they must decide. A study of jury instructions reported that, on the average, jurors understand only about 50 percent of the instructions on the law. 7 The study concluded that jurors arrive at compromise verdicts because they either do not comprehend the relevant law or misapply the law to the facts in the case. 8 The study found that comprehension could be raised to 80 percent if instructions were rewritten in simple, comprehensible English. 9 Recent research on this topic confirmed that juror comprehension of patterned instructions is low and that improved comprehension can be dramatic when instructions are carefully rewritten for clarity.I0

The standard recognizes that courts have a responsibility to take measures that facilitate jurors' understanding. Because jury instructions perform a crucial function in advising jurors of the law on which their verdict should be based and the procedures they should follow, they must be formulated and presented in a manner that is easy to understand. Accordingly, the standard recommends that instructions be written in language and presented in a manner understandable to laypersons.ll To further aid comprehension, a written copy or tape recording of the instructions should be provided to jurors when they enter upon their deliberations. 12 Any supplementary instructions given by the judge during the jury's discussions should also be recorded or put in writing and provided to the jurors. It is suggested that proposed instructions be tendered by all parties in advance of the trial, for preliminary consideration by the judge. These proposed instructions can help determine appropriate and timely presentation of procedural and substantive information to the jurors. 13

Preliminary instructions should be given before the presentation oJ the parties' opening statements. As noted above, these instructions should explain the jury's role and responsibilities, the basic underlying principles of law to be applied in the case, and the order and nature of the presentations. As one prominent jurist has observed

it makes no sense to have ... juror[s]listen to days of testimony only then to be told that ... [they] are the sole judges of the facts, that the accused is presumed to be innocent, that the government must prove guilt beyond a reasonable doubt, etc. What manner of mind can go back over a stream of conflicting statements of alleged facts, recall the intonations, the demeanor, or even the existence of the witnesses, and retrospectively fit all these recollections into a pattern of evaluation and judgment given ... for the fust time after the events? ...Why should not the judge, when the jury is sworn, then and there tell them the rules of the game ... [?]' 4

157 Many judges offer instructions throughout the Uial at appropriate times such as before the first expert witness, or to explain proceedings, such as the purpose of a bench conference.15

The standard also calls for the judge to instruct the jury just before deliberations on the procedures that should be used during deliberations, the applicable law, as well as the appropriate method for reporting the results of its deliberations. Among the matters which should be explained in these instructions are that

• the foreperson is to chair the deliberations and to provide an opportunity for each juror to be heard on every issue before the jury • each juror should participate in the jury's discussions • although a juror should not surrender to an individual opinion or decision merely to return a verdict, each juror should not hesitate to reexamine his or her views in light of the discussion and to change those views or opinions if the juror is persuaded by the reasons presented • any attempt to influence a juror or a violation by a juror of the court's admonitions should be reported immediately • they may be asked, when the verdict is returned, if the verdict is in fact their individual verdict.

The judge should also advise the jurors of the proper techniques for handling and preserving the physical evidence, for responding to the forms of verdict and interrogatories, if any, and for requesting clarification on particular issues by the court. Use of standardized or patterned instructions for frequently recurring issues throughout the court system may be worthy of exploration, but care must be taken to ensure comprehensibility. All jury instruction techniques necessarily involve accommodations among the sometimes conflicting objectives of technical accuracy, intelligibility to a lay audience, and simplicity of procedural administration. The important responsibility of improving jury instruction technique rests with the judge and should be a continuing concern in the administration of the jury system.

In addition, courts are encouraged to permit jurors to take notes and use them during deliberations. 16 The court should establish guidelines for note-taking, inCluding procedures for security of the notes, appropriate use of the notes, final disposition of the notes, and admonitions against giving special weight to the notes taken. These ground rules for note taking and the use of those notes during deliberation should be explained to the jury by the Uial judge. The inappropriateness of the prohibition against juror note-taking was characterized as follows during the Second National Conference on the Judiciary:

[t]here sits the learned judge, scribbling away--along with the prosecutor, the defense lawyer, the press and even the defendant--while the least trained in the chamber must trust to memory. The strains of a three-week or even a three day Uial burden the storage and rettieval faculties of most jurors beyond tolerable limits.17

!58 ·A number of jurisdictions around the country allow jurors to take notes either as a standard matter or on an experimental basis. Experience in these jurisdictions indicates that the advantages of allowing jurors to take notes outweighs any disadvantages. 18

The same is true for permitting jurors to submit questions in writing for the judge to address to a witness.I9 Under the adversary system it is the province of the attorneys to develop the facts for the jury by asking questions of the witnesses. Accordingly. jurors are not encouraged to suggest questions to be posed to witnesses. Notwithstanding the foregoing. if a juror believes that there is a question that should be posed to a particular witness or that should be considered by the attorneys or the court, it should be written and presented in a timely manner to a member of the staff for presentation to the court. Following review with counsel the court will present any appropriate questions to the witness or otherwise assure that a response is presented to the jury. As one court has observed, "There is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses. If a juror is unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it. If nothing else, the question should alert trial counsel that a particular factual issue may need more extensive development. "20 Research has indicated that allowing questions or permitting note-taking resulted in none of the anticipated disadvantages associated with these practices.2I

Paragraph ld) Dismissing the Juey

Following the trial, jurors should not be left in a state of confusion about their rights and responsibilities. Accordingly, the standard recommends that before dismissing the members of a jury, the trial judge should release them from the admonitions that have been imposed; indicate that in talking about the case with others they should respect the privacy and feelings of their fellow jurors; should indicate to what extent, if any, they are required to respond to inquiries from counsel or the press regarding the case; and inform them whether they have fulfilled their obligation or must report back to the juror lounge.

An example of an appropriate discharge for jurors is as follows:

Ladies and Gentlemen:

Now that the case has been concluded, some of you may have questions about the confidentiality of the proceedings. Many times jurors ask if they are now at liberty to discuss the case with anyone. Now that the case is over, you are of course free to discuss it with any person you choose. You are, however, advised that you are under no obligation whatsoever to discuss this case with any person. If you do decide to discuss the case it is suggested that you treat such discussion with a degree of solemnity such that whatever you do decide to say you would be willing to say in the presence of your fellow jurors or under oath here in open court in the presence of all the parties. Also always bear in mind if you do decide to discuss this case, that your fellow jurors fully and freely stated their opinions with the understanding they were being expressed in confidence. Please respect the privacy of the views of your fellow jurors.22

159 In addition, if a case is settled, or a guilty plea entered, before the rendering of a verdict, the judge should explain to the jury what has occurred and indicate that the jury's mere presence may have contributed to the resolution of the proceeding. When a case is settled, jurors are often puzzled about what has happened and why they are no longer needed. A brief explanation can help to avoid misunderstandings and may improve attitudes toward jury service.

Finally, the standard recommends that when a verdict has been rendered, the trial judge should express appreciation to the jury for their cooperation and service. Care must be taken, however, to avoid any comment on the merits of the verdict.

Paragraph le) Communication

To safeguard impartiality, communications from the jury to the court should be in writing and delivered to the judge by the bailiff or other court personnel. Counsel for each party should be informed of the jury's note and should be heard, if they wish, before the judge responds. All communication between the judge and jury should be made part of a verbatim record.

SUGGESTED STEPS FOR IMPLEMENJATION

I. Review existing policy and/or procedures pertaining to orientation of jurors and obtain suggestions regarding possible changes from local bar and civic groups.

2. Prepare an initial information sheet or brochure to be sent to prospective jurors with the qualifications questionnaire and summons.

3. Initiate appropriate administrative changes to provide a uniform in-court orientation program that can be completed in less than one hour on the first day of the jurors' attendance at the courthouse.

4. Limit extemporaneous oral communication during orientation stage to welcoming remarks and information pertinent to jury service.

RELATED STANDARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15-4.2, 15-4.6(a), (b), (c), (e) & (f), 15-4.8, 15-5.1, 15-5.3 & 15-5.6 "Fair Trial and Free F'~ss": Chapter 8-2.3, 8-3.5 & 8-3.6(c) American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: 2.13 National Advisory Commission, Courts: 10.2(6) &4.15(4)

160 National Conference of Commissioners on Uniform Stale Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners Uniform State Laws, Uniform Rules of Criminal Procedure:. Rules 512(a), 513(b) & (c), 531 (a), (b) & (c) National District Attorneys Association, National Prosecution Standards, Second Edition: 86.1 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 William R. Pabst, Jr. and G. Thomas Munslerman, "The Economic Hardship of Jury Duty," 58 Judicature 494 (1975) and William R. Pabst, Jr., et. al., 'The Myth of the Unwilling Juror," 60 Judicature 164 ( 1976).

2 Because of the wide variety of procedures and practices that exist around the country, these examples should not be regarded as an exhaustive list of the subjects to be covered.

3 Under a grant from the Stale Justice Institule, the National Cenler for State Courts has produced a video tape to assist in the development of such presentations. The tape "Making a Juror Orientation Video" is available through the library of the National Cenler for State Courts, Williamsburg, Virginia.

4 See Center for Jury Studies, National Cenler for Stale Courts, Methodology Manual for Jury Systems, 5.1-5.9 ( 1981 )[hereinafler ciled as Methodology Manual]; National Cenler for Stale Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management ( 1987).

5 Law Enforcement Assistance Administration, National Institule of Law Enforcement and Criminal Justice, Guide to Jury System Management, 3-1 ( 1975).

6 For a list of available orientation presentations, contact the library of the National Center for Stale Courts in Williamsburg, Virginia.

7 See Amarim Elwork, et. al., Making Jury Instructions Understandable, at 12 ( 1982). s /d. at 13-15.

9 /d. at 46.

10 Walter W. Steele, Jr. and Elizabeth G. Thornburg, "Jury Instructions: A Persislent Failure to Communicale," 74 Judicature 249 (1991) and J. Alexander Tanford, "The Law and Psychology of Jury Instructions," 69 Nebraska Law Review 71 (1990).

11 American Bar Association Commission on Standards of Judicial Administration, Standards Relating to Trial Courts, Standard 2.13 (1992).

161 12 /d. A number of federal judges in the Second Circuit recently experimented with providing written or taped instructions. On balance, the results of the experiment were favorable. Leonard Sands and Steven Reiss, "A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit," 60 New York University Law Review 423 (1985)[hereinafter cited as Sands and Reiss]; see also Wisconsin Judicial Council, Final Report of the Committee on Improving Jury Communications ( 1985)[hereinafter cited as Wisconsin Judicial Council).

13 American Bar Association, Standards Relating to Trial Courts, Standard 2.13 ( 1992).

14 E. Barrett Prettyman, "Jury Instructions--First or Last?" 46 American Bar Association Joumall066 (1960).

15 Sands and Reiss, supra note 12 at 437-442; Wisconsin Judicial Council, supra note 12.

16 A recent study has been completed and adds further support to both note taking and allowing jurors to ask questions. See Larry Heuer and Steven Penrod, Toward More Active Juries: Taking Notes and Asking Questions ( 199l)[hereinafter cited as Heuer and Penrod].

17 Fred W. Friendly, On Judging the Judges, in State Courts: A Blueprint for the Future 70, 73 (T. Fettered., 1978).

13 Victor E. Flango, "Would Jurors Do A Better Job if They Could Take Notes?" 63 Judicature 436 ( 1980); Sands and Reiss, supra note 12, at 446-453; Wisconsin Judicial Council, supra note 12; Heuer and Penrod, supra note 16.

19 Sands and Reiss, supra note 12, at 442-446; Wisconsin Judicial Council,~ note 12, at 442-446.

20 United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir. 1978) cert. denied, 444 U.S. 826 (1979).

21 Heuer and Penrod, supra note 16.

22 Jury Management and Utilization Committee of the Ninth Circuit, A Manual on ]ury Trial Procedures (1990).

162 REFERENCES

JUROR ORIENTA TION AND INS1RUCTION

Allen, James L.,"Attitude Change Following Jury Duty," 2 Justice System Jouma/246 (1977).

"Can Jurors Question Witnesses?" 3 Center for Jury Studies Newsletter 8 ( 1981 ).

Center for Jury Studies, National Center for State Courts, Methodology Manual for Jury Systems (1981 ).

Elwork, Arniram, et. al., Making Jury Instructions Understandable ( 1982).

Flango, Victor E., "Would Jurors Do a Better Job if They Could Take Notes?" 63 Judicature 436 (1980).

Friendy, Fred W., On Judging the Judges in State Courts: A Blueprint for the Future 70 (T. Fettered., 1978).

Gamblee, Joanne D., "What It's Like to Serve on a Jury," 6 Barrister, Summer 1979, at 16.

George, Jody, et. al., Handbook on Jury Use in the Federal District Courts ( 1989).

Heuer, Larry and Steven Penrod, Toward More Active Juries: Taking Notes and Asking Questions (1991).

"Jurors' Bill of Rights," I Center for Jury Studies Newsletter, September 1979, at 3.

"Jurors' Rights Criticized," 2 Center for Jury Studies Newsletter, March, 1980, at I.

Kafker, Serena, "The Defendant's Right to an Impartial Jury and the RightS of Prospective Jurors," 48 University of Cincinnati I..nw Review 985 ( 1979).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Juror Usage (1974).

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Jury System Management ( 1974).

Lewis, Merlin, et. al., An Introduction to the Courts and Judicial Process (1978).

163 McLaughlin, Michael A., Comment, "Questions to Witnesses and Notetaking by the Jury as Aids in Understanding Complex Litigation," 18 New England Law Review 687 (1983).

Miller, J. D., "Some Thoughts on the Jury System," 17 Kentucky Bench and Bar 36 (July 1977).

Mills, Richard H., "Jury Duty--Right and Responsibility," 12 Judges' Joumal43 (1973).

National Center for State Courts, A Supplement to the Methodology Manual for Jury Systems: Relationships to the Standards Relating to Juror Use and Management (1987).

Pabst, Jr., William R. and G. Thomas Munsterman, "Economic Hardship of Jury Duty," 58 Judicature 494 (1975).

Pabst, Jr., William R. and G. Thomas Munsterman, "Myth of the Unwilling Juror," 60 Judicature 164 (1976).

Pabst, Jr., William R. and G. Thomas Munsterman, "Value of Jury Duty: Serving is Believing," 61 Judicature 38 (1977).

Penrod, Steven, and Larry Heuer, "Increasing Jurors' Participation in Trials," 12 Law and Human Behavior 231 (1988).

Richert, John P., "New Verdict on Juror Willingness," 60 Judicature 496 (1977).

Sands Leonard, and Steven Reiss, "A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit," 60 New York University Law Review 423 (1985).

Simon, Caroline K., "The Juror in New York City: Attitudes and Experiences," 61 American Bar Association Joumal207 ( 1975).

"Smoking Versus Non-smoking," 2 Center for Jury Studies Newsletter, July 1980, at 4.

Steele, Jr., Walter W. and Elizabeth G. Thornburg, "Jury Instructions: A Persistent Failure to Communicate," 74 Judicature 249 (1991).

Sylvester, Jeffrey R., Comment, "Your Honor, May I Ask a Question? The Inherent Dangers of Allowing Jurors to Question Witnesses," 7 Cooley Law Review 213 (1990).

Woleslagel, Frederick, Jury (1975).

Wolff, Michael A., Comment, "Juror Questions: A Survey of Theory and Use," 55 Missouri Law Review 817 (1990).

164 Wulser, Michael J., "Should Jurors Be Allowed to Ask Witnesses Questions in Criminal Trials?" 58 UMKC Law Review 445 (1990).

165 Standard 17: JURY SIZE AND UNANIMITY OF VERDICT

(a) JURIES IN CRIMINAL CASES SHOULD CONSIST OF

(i) lWELVE PERSONS IF A PENALTY OF CONFINEMENT FOR MORE THAN SIX MONTHS MAY BE IMPOSED UPON CONVICTION;

(ii) AT LEAST SIX PERSONS IF THE MAXIMUM PERIOD OF CONFINEMENT THAT MAY BE IMPOSED UPON CONVICTION IS SIX MONTHS OR FEWER.

A UNANIMOUS DECISION SHOULD BE REQUIRED FOR A VERDICT IN ALL CRIMINAL CASES HEARD BY A JURY.

(b) JURIES IN CIVIL CASES SHOULD CONSIST OF NO FEWER THAN SIX AND NO MORE THAN lWELVE PERSONS. IT IS ACCEPT ABLE TO HAVE EITHER UNANIMOUS OR NONUNANIMOUS VERDICTS IN CIVIL CASES, PROVIDED HOWEVER THAT A CIVIL JURY SHOULD NOT BE AUTHORIZED TO RETURN A VERDICT WHICH IS CONCURRED IN BY LESS THAN THREE QUARTERS OF ITS MEMBERS.

COMMENTARY

Until the early 1970s, the twelve-person jury and unanimous verdict were considered fixed features of the judicial process in most American jurisdictions. Then, in a series of decisions, the United States Supreme Court held that it was within the bounds of the Constitution for juries in state criminal cases to consist of as few as six persons, 1 for juries in federal (and, by implication, state) civil cases to consist of fewer than twelve persons,2 and for verdicts of twelve-person juries in state criminal cases not to be unanimous so long as there is a substantial majority (e.g., nine-three or ten-two).3 These decisions evoked considerable comment and investigation into the effect of the size of juries on the decision making process, representativeness, and the cost of the jury system.4 The studies draw no "bright line below which the number of jurors would not be able to function" 5 in the manner prescribed by the Constitution. This research suggests, however, that a cautious approach should be taken in reducing size and unanimity requirements,6 at least until more information on the impact of such changes is available.

Paragraph fa) Criminal Cases

The opprobrium and the threat to liberty inherent in a criminal conviction and the threat posed to society by an unwarranted acquittal require that the risk of erroneous verdicts be minimized.

166 [I]individual[s] going about ... [their] ordinary affairs [should] have confidence that ... [their] government cannot adjudge [them] guilty of a criminal offense without convincing a proper factfinder of ... [their] guilt with utmost certainty." 7

Paragraph (a) addresses the size and unanimity requirements that should apply in criminal cases. It recommends that juries in criminal proceedings, other than those for petty offenses, should consist of twelve persons and that a unanimous verdict should be required in all criminal cases heard by ajury.8 Jury decision-making studies suggest that discernible differences exist in the functioning of six- and twelve-person juries and that the decisions of small juries tend to be less consistent and reliable.9 Moreover, "the smaller the size of the jury, the less likely it is to represent a fair cross-section [of the] community ...." 10 This lack of cross-section was verified in a California study of civil juries. That study also found minimal time savings in the voir dire and trial. 11

A unanimity requirement also affects the decision-making process and ensures that minority group members have an equal voice in jury deliberations. 12 It forces jurors "to articulate their views rationally, to listen to each other, and to respond to the views of others." 13 The majority cannot simply refuse to listen to the position held by two or three members14 and render a verdict of guilt beyond a reasonable doubt. 15 Furthermore, as Mr. Justice Stewart observed in his dissent to Johnson v. Louisiana:

community confidence in the administration of criminal justice cannot but be corroded under a system in which a defendant who is conspicuously identified with a particular group can be acquitted or convicted by a jury split along group lines.I6

Because the risks to society and to defendants are considerably less in cases in which the maximum term of imprisonment that can be imposed is six months or fewer, the standard recommends that juries of fewer than twelve be permitted in those states that grant a right to a jury trial in petty offense cases. 17 However, it draws the line at six. This is consistent with the conclusion of the U.S. Supreme Court in Ballew v. Georgia:

the assembled data raise substantial doubt about the reliability and appropriate representation of panels smaller than six. Because of the fundamental importance of the jury trial to the American system of criminal justice, any further reduction that promotes inaccurate and possibly biased decision-making, that causes untoward differences in verdicts, and that prevents juries from truly representing their communities, attains constitutional significance. Is

It also endorses a unanimous-verdict requirement for all criminal cases--petty offenses and misdemeanors as well as felonies. 19 This unanimity requirement is particularly critical in those jurisdictions that choose to empanel six-person juries in minor criminal cases. As the Supreme Court stated in Burch v. Louisiana,

167 when a State has reduced the size of its juries to the minimum number of jurors permitted by the Constitution, the additional authorization of non unanimous verdicts by such juries sufficiently threatens the constitutional principles that led to the establishment of the size threshold that any countervailing interest of the State [e.g., reduced costs and fewer hung juries] should yield. 20

Paragraph {b) Civil Cases

Because in most instances the consequences of an erroneous decision in a civil case are less egregious than a mistaken conviction in a criminal proceeding, a lesser standard of proof and greater procedural flexibility has traditionally been applied to civillitigation.21 · Consequently, paragraph (b) recognizes that the size ofciviljuries·may vary and that non unanimous verdicts may be entered in civil cases. 22 With regard to jury size, six is set again as the minimum size that will consistently provide the kind of deliberations recognized as necessary for a jury decision.23 About 30 percent of the states require that juries in civil cases consist of twelve persons. About 20 percent of the states limit the size of juries in civil cases to six or eight persons. In the remaining states, the size of the jury varies with the court and the amount at issue. 24

As for unanimity, nothing in the standard is intended to discourage adherence to a unanimous verdict requirement in civil cases. Indeed, since non unanimous verdicts may discourage thorough consideration of minority views when the requisite majority is obtained on the first ballot,25 a unanimity requirement may be preferable in civil as well as criminal cases, particularly those involving economic, social, and political issues on which there are sharp divisions. Eighteen states require unanimous verdicts in all civil cases. The remaining states permit majority verdicts, with all but two requiring concurrence of at least three quarters of the jury.26 Three states, Iowa, Minnesota, and Nebraska, have adopted a procedure that appears to yield the benefits of both unanimous and majority verdicts.27 Under their codes, a split verdict can be accepted only after the jury has deliberated for six hours (a unanimous verdict can be rendered at any time). Thus, full consideration of all views is encouraged, and mistrials caused by a single irrational or obstructionist juror are avoided.

Because of the favorable experience with "deliberating alternates" in many state and federal courts, effective December I, 1991, the federal courts in civil trials "shall seat a jury of not fewer than and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court.... " 28 The court may excuse persons from the jury, and the verdict always must be unanimous. The jury delivering the verdict must have at least six members. 29 If any juror is unable to complete the deliberations, then the judge can excuse that juror, but deliberations continue as long as the minimum number of jurors is present.

The ABA House of Delegates in February 1991 endorsed a resolution from the Tort and Insurance Practice Section calling for the use of twelve-person juries in all federal civil trials and that verdicts of ten of twelve be permitted.

168 The research completed to date provides limited empirical proof regarding the benefits and costs of altering the traditional requirements regarding the size of juries and the unanimity of verdicts. There are, to be sure, intuitive inferences, suggestions and indicators pro and con, but little with a satisfying ring of conclusiveness.3° Consequently, it is urged that comprehensive empirical research be undertaken at both the state and national levels to determine the effects of altering the size of juries and the number of jurors who must agree on a verdict. 31 The variety of practice that exists among the states today32 can provide a rich database for thorough, carefully designed studies of the actual differences in the case decisions of juries of varying sizes and of juries under differing unanimity requirements. The states, in this instance, have served as "laboratories" for the legal system.33 It is time now to evaluate the results of the experiment.

SUGGESTED SIEPS FOR IMPLEMENTATION

I. Review the statutory or constitutional provisions governing the size of juries and unanimity of verdicts in both criminal and civil cases to determine whether they are consistent with this standard.

2. Initiate appropriate legislative changes if they permit juries that are smaller than those recommended or verdicts based on the concurrence of a lesser percentage of the members of the jury than that specified in the standard. 34

RELAIEDSTANQARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15-1.1 & 15-1.3 "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: 2.1 0 National Advisory Commission, Courts: 4.14 (Jury size), Silent on Unanimity National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Rules 511 (b) & (c) & 535 (c) National District Attorneys Association, National Prosecution Standards, Second Edition: 74.1&75.1 Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 Ballew v. Georgia, 435 U.S. 223 (1978); Williams v. Florida, 399 US. 78 (1970).

2 Colgrove v. Battin, 413 U.S. 149 (1973).

169 ' Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972); see also Burch v. Louisiana, 441 U.S. 130 (1979).

4 See, e.g., the studies listed in 435 U.S. 223,231-239 (1978).

s /d., at 231-232.

6 Richard 0., Lempert, "Uncovering 'Nondiscemible' Differences: Empirical Research and the Jury Size Cases," 73 Michigan Low Review 643,645 (1975)[hereinafter cited as Lempert]; Peter W., Sperlich, "... And Then There Were Six: The Decline of the American Jury," 63 Judicature 262, 266 (1980)[hereinafter cited as Sperlich]; J. R. Van Dyke, Jury Selection Procedures: Our Uncertain commitment to Representative Panels 193-214 (1977)[hereinafter cited as Van Dyke]; H. Dienstfrey, "Trial by Quorum: Unequal Justice," IS Psychology Today, July 1981, at 20[hereinafter cited as Dienstfrey]; L. G. Forer, "Six Years of Split Verdicts in Pennsylvania," 4 Pennsylvania Law Journal-Reporter 2 (Aug. 31, 198l)[hereinafter cited as Forer]; Amiram Elwork, et. al., The Trial: Research Review, in The Trial Process (B. D. Sales ed. 1981)[hereinafter cited as Elwork et al.]; Edward N. Beiser and Rene Varrin, "Six Member Juries in the Federal Courts" 58 Judicature 424 (1975); Victor H. Polk, et. al., "Do Smaller Juries Convict Fewer Defendants?" 61 Judicature 225 (1977).

7 In re Winship, 397 U.S. 358, 364 (1970).

8 Accord American Bar Association Commission on Standards of Judicial Administration, Standards Relating to Trial Courts, Standard 2.10(a)(l992)[hereinaftercited as ABA]. As of 1977, no state provides for a jury of less than 12 persons in capital cases, 7 states permit juries of less than 12 to decide non-capital felony cases, IS states have 12 person juries in all misdemeanor cases, and 22 others permit the use of smaller juries in misdemeanor cases heard in courts of limited jurisdiction. Van Dyke supra note 6, Appendix C.

9 435 U.S. 223,231-239 (1978); See Lempert, supra note 6, at 663-689. Michael J. Saks, Jury Verdicts: The Role of Group Size and Social Decision Rule (1977);_ StuartS. Nagel and Marian Neef, "Deductive Modeling to Determine an Optimum Jury Size and Fraction Required to Convict," 1975 Washington University Law Quarterly 933 (1975); Dienstfrey, supra note 6.

1° Colgrove v. Battin, 413 U.S. 149, 167 n.l. (1973)(Marshal, J. dissenting). This intuitive judgment is borne out by statistical projections. In a jurisdiction with a minority population of 25 percent, one of every six, six-person juries will have no minority members as compared with only one out of every thirty twelve-person juries. See also Lempert, supra note 6 at 669; 435 U.S. 223, 236-237 (1978); Van Dyke, supra note 6, at 196.

11 G. Thomas Munsterman, et. al., A Comparison of the Performance of Eight- and Twelve Person Juries ( 1990).

170 12 See Forer, supra note 6.

13 Van Dyke, supra note 6, at 211.

14 /d., but see Johnson v. Louisiana, 406 U.S. 356, 361 (1972).

15 Van Dyke, supra, note 6.

16 406 U.S. at 398 (Justice Stewart dissenting).

17 Accord, ABA supra note 8; the right to a jury trial applies to all state offenses punishable by incarceration for more than six months. See Baldwin v. New York, 399 U.S. 66 (1970); Duncan v. Louisiana, 391 U.S. 145 (1968). In implementing this standard, states should also consider whether there are other penalties which are so onerous as to warrant a full twelve person jury--e.g., forfeiture of a driver's license--even though no imprisonment is involved.

18 435 U.S. 223, 239; accord ABA, supra note 8, see also Burch v. Louisiana, 441 U.S. 130 (1979).

19 Accord ABA, &!lllil note 8. All states require a unanimous verdict in capital cases, and an overwhelming majority, as of 1977, require such verdict~ in other felonies and in misdemeanor cases. Van Dyke, supra, note 6, at Appendix C.

2D 441 u.s. 130, 139 (1980).

21 397 U.S. 358,371-372 (Harlan J. concurring); Van Dyke, supra note 6 at 210 n.(h).

22 Accord ABA, supra note 8.

23 435 U.S. 223 (1978); Burch v. Louisiana, 441 U.S. 130 (1980); ABA, supra note 8, at Standard 2.10(b)(3); see also Lempert, supra, note 6.

24 Van Dyke, supra note 6, at Appendix C. The federal courts currently empanel six person juries in civil cases.

25 See Lempert, supra note 6; Van Dyke, supra note 6; Forer, supra note 6.

26 Van Dyke, supra note 6.

27 Iowa Rules of Civil Procedure 203(a) ( 1993); Minnesota Statutes Annotated §546.17 (1988); Nebraska Revised Statutes §25-1125 (1989).

28 Federal Rules of Civil Procedure 48 (Supp 1992).

29 Notes of Advisory Committee on Proposed Rules.

171 3o E.g. Lempert, supra note 6; Elwork et. al., supra note 6.

31 Such research could include, inter alia, a comparison of records of jury decisions before and after a change in the size and unanimity requirements, and documentation by experienced trial judges of their agreements and disagreements with jury verdicts. For a thorough discussion of the types of jury research which have been conducted and their strong and weak points, see Lempert, supra note 6.

32 Van Dyke, supra note 6, at Appendix E.

33 New State lee Co. v. Liebmann, 285 U.S. 262, 311 (1932)(Brandeis, J. dissenting).

34 Given the possible impact on the representativeness of juries and the quality of jury decisions, it may be best for states that have not reduced the size of their juries or authorized non-unanimous verdicts to refrain from altering their size and unanimity requirements until the results of the research discussed in the commentary to this standard become available.

172 REFERENCES

JURY SIZE AND UNANIMITY OF VERDICT

Augelli, Anthony T., "Six-Member Juries in Civil Actions in the Federal Judicial System," 3 Seton Hall Law Review 281 ( 1972).

Beiser, Edward N., et. a/.," Six-Member Juries in the Federal Courts," 58 Judicature 424 (1975).

Bermant, Gordon, and Rob Coppock, "Outcomes of Six- and Twelve-Member Jury Trials: An Analysis of 128 Civil Cases in the State of Washington," 48 Washington Law Review 593 (1973).

Black, Ralph, "The Impact of Jury Size on the Court System," 12 Loyola of Los Angeles Law Review II 03 (1979).

Bogue, Andrew W., and Thomas G. Fritz, "Six-Man Jury," 17 S.outh Dakota Law Review 285 (1972).

Comment, "A Constitutional Renvoi: Unanimous Verdicts in State Criminal Trials," 41 Fordham Law Review 115 (1972).

Croake, Thomas F., "Memorandum on the Advisability and Constitutionality of Six Man Juries and 5/6 Verdicts in Civil Cases," 44 New York State Bar Journal385 (1972).

Cronin, A.M., "Six-Member Juries in District Courts," 2 Boston Bar Journal21 (1958).

Davidson, MarkS., Note, "Constitutional Law--Trial by Jury Guaranty of Seventh Amendment: Local Court Rule May Establish Number of Jurors to Six in Federal Civil Cases," 49 Washington Law Review 1146 (1974).

Devitt, Edward J., "Six-Member Civil Juries Gain Backing," 57 American Bar Association Journal II II (1971 ).

Devitt, Edward J., "The Six Man Jury in the Federal Court," 53 Federal Rules Decisions 273 (1972).

Diamond, Shari S., "A Jury Experiment Reanalyzed," 7 University of Michigan Journal of Law Reform 520 (1974) ·

Dolinko, Phyllis B., Note, "Constitutional--Johnson v. Louisiana: State Criminal Juries Need Not Reach Unanimous Verdicts," 22 DePaul Law Review 635 (1973).

173 Edelman, William W., Note, "Constitutional Law--Six-Man Civil Jury Satisfies Seventh Amendment Right of Trial by Jury," 48 Tulane Law Review 439 (1974).

Edelstein, Jerome L. "The Jury Size Question in Pennsylvania: Six of One and a Dozen of the Other," 53 Temple Law Quarterly 89 (1980).

Fisher, Richmond H., "The Seventh Amendment and the Common Law: No Magic in Numbers," 56 Federal Rules Decisions 507 (1973).

Fredrich, Dolores, Note, "Six-Person Nonunanimous Verdicts: Further Cutbacks on the Right to Jury Trial?" 7 HofStra Law Review 185 (1978).

Friedman, H., "Trial By Jury: Criteria for Convictions, Jury Size and Type I and Type II Errors," 26 American Statistics 21 (1972).

Gelfand, Alan E., "A Statistical Case for the Twelve-Member Jury," 13 Trial, February 1977, at 41.

Gibbons, David. J., "The New Minijuries: Panacea or Pandora's Box?" 58 American Bar Association Journal 594 ( 1972).

Greenberg, Robert A., Note, "Constitutional Law--Criminal Law--Maryland Declaration of Rights Requires Unanimous Jury Verdict, Unless Defendant Waives Right Effectively," 7 University of Baltimore Law Review 130 (1977).

Grofman, Bernard, "The Case for Majority Verdicts," IS Trial, December 1979, at 23.

Hinson, Lynn J., Note, "Jury Unanimity: Historical Accident or Safeguard of the Accused?" 25 University of Florida Law Review 388 ( 1973).

Institute of Judicial Administration, Comparison of Six- and Twelve-Member Juries in New Jersey Superior and County Courts (1972).

Institute of Judicial Administration, Juries of Less Than Twelve; Verdicts of Less Than Unanimous (1970).

Jacobsohn, Gary J., "The Unanimous Verdict: Politics and the Jury Trial," 1977 Washington University Law Quarterly 39 (1977).

Joiner, Charles W., "Jury Trials--Improved Procedures," 48 Federal Rules Decisions 79 (1970}.

Kessler, Joan B., "An Empirical Study of Six- and Twelve-Member Jury Decision-Making Processes," 6 University ofMichigan Journal of Law Reform 712 (1973).

174 Koehler, Thomas J., Note, "Civil Juries: Recent Legislation Allowing Nonunanimous Verdicts," 18 Washburn Law Journal269 (1979).

Katnik, Dana R., Note, "Statistical Analysis and Jury Size: Ballew v. State of Georgia," 56 Denver Law Journal659 ( 1979).

Kaye, David, "And Then There Were Twelve: Statistical Reasoning, the Supreme Court, and the Size of the Jury," 68 California Law Review 1004 (1980).

Lemly, Thomas A., "Constitutional Law--Jury Unanimity No Longer Required in State Criminal Trials," 51 North Carolina Law Review 134 (1972).

Lempert, Richard 0., "Uncovering 'Nondiscemible' Differences: Empirical Research and the Jury-Size Cases," 73 Michigan Law Review 643 (1975).

Lermack, Paul, "No Right Number? Social Science Research and the Jury-Size Cases," 54 New York University Law Review 95! (1979).

Lumbard, J. Edward, "Let the Jury Be--But Modified," 7 Trial, November/December 1971, at 17.

Morando, Anthony A., "Retreat from Unanimity and Reasonable Doubt in Criminal Cases," I University of Toledo Law Review 337 (1969).

Moss, Guy B., "The Twelve Member Jury in Massachusetts--Can It Be Reduced?" 57 Massachusetts Law Quarterly 65 (1971).

Munsterman, G. Thomas, et. at., A Comparison of the Performance of Eight- and Twelve Person Juries ( 1990).

Nagel, StuartS. and Marian Neef, "Deductive Modeling to Determine an Optimum Jury Size and Fraction Required to Convict," 1975 Washington University Law Quarterly 933 (1975).

Nagel, StuartS. and Mariam Neef, "Impact of Jury Size on the Probability of Conviction," 2 Justice System Journal 226 ( 1977).

Note, "Constitutional Law--Non-unanimous Jury Verdicts--The Fourteenth and Sixth Amendments Do Not Require Unanimous Jury Verdicts in State Criminal Trials," 61 Georgia Law Journa/223 (1972).

Note, "In the Wake of Apodaca v. Oregon: A Case for Retaining Unanimous Jury Verdicts," 7 Valparaiso University Law Review 249 (1973).

Note, "Right to Jury Unanimity on Material Fact Issues: United States v. Gipson (554 F 2d 453)," 91 Harvard Law Review 499 (1977).

175 Pabst, Jr., William R., "Statistical Studies of the Costs of Six-Man Versus Twelve-Man Juries," 14 William and Mary Law Review 326 (1972).

Pabst, Jr., William R., "What Do Six-Member Juries Really Save?" 57 Judicature 6 ( 1973).

Peck, Daniel D., Note, "The Unanimous Jury Verdict: Its Valediction in Some Criminal Cases," 46 Connecticut Bar Journal700 (1972).

Powell, David M., "Reducing the Size of Juries," 5 University of Michigan Journal of Law Reform 87 (1971).

Rosenblatt, Albert M., and Julia C. Rosenblatt, "Six-Member Juries in Criminal Cases: Legal and Psychological Considerations," 46 New York State Bar Journal259 (1974).

Saks, Michael, J.ury Verdicts: The Role of Group Size and Social Decision Rule ( 1977).

Seidler, Raymond M., Note, "Unanimity in Criminal Jury Verdicts: Antiquity or Necessity?" 26 University of Miami Law Review 277 ( 1971 ).

"Selected Checklist on Six-Member Juries," 35 Record 376 (1980).

Siddens, Edward H., Note, "Smaller Juries and Non-Unanimity Analyses and Proposed Revision of the Ohio Jury System," 43 University of Cincinnati Law Review 583 (1974).

"Six-Member and Twelve-Member Juries: An Empirical Study of Trial Results," 6 University of Michigan Journal of Law Reform 671 (1973).

Sperlich, Peter," ... And Then There Were Six: The Decline of the American Jury." 63 Judicature 262 ( 1980).

Stevens, William L, Note, "Constitutional Law--Defendant's Right to a Jury Trial--Is Six Enough?" 59 Kentucky Law Joumal996 ( 1971).

Thompson, Edward J., "Six Will Do," 10 Trial, November/December 1974, at II.

Thompson, Edward J., "What is the Magic of '12'?" 10 Trial Judges' Journal88 (1971 ).

Tucker, William L., Comment, "J.ohnson v. Louisiana and Apodaca v. Oregon: Unanimity in the Criminal Jury Verdict," 7 Georgia Law Review 339 (1973).

·U.S. Jury System: Pros and Cons, The Question of Curtailing the Size and Use of Juries," 50 Congressional Digest 193 ( 1971 ).

176 Van Dyke, Jon, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (1977).

Walbert, David F., Note, "The Effect of Jury Size on the Probability of Conviction: An Evaluation of Williams v. Florida," 22 Case Western Reserve Law Review 529 (1971).

Walker, Jr., H. William, Comment, "Vote Distribution in Non-unanimous Jury Verdicts," 27 Washington and Lee Law Review 360 (1970).

Wellman, Sally, Note, "Constitutional Law--Criminal Procedure--Jury Instructions and the Unanimous Jury Verdict," Wisconsin Law Review 339 (1978).

Zeisel, Hans, and Shari S. Diamond, "'Convincing Empirical Evidence on the Six-Member Jury," 41 University of Chicago Law Review 281 (1974).

Zeisel, Hans, "And Then There Were None: The Diminution of the Federal Jury," 38 University of Chicago Law Review 710 ( 1971 ).

Zeisel, Hans, "The Waning of the American Jury," 58 American Bar Association Journal367 (1972).

Zeisel, Hans, "Twelve is Just," 10 Trial, November/December 1974, at II.

177 Standard 18: JURY DELffiERA TIONS

JURY DELIBERATIONS SHOULD TAKE PLACE UNDER CONDITIONS AND PURSUANT TO PROCEDURES THAT ARE DESIGNED TO ENSURE IMPARTIALITY AND TO ENHANCE RATIONAL DECISION-MAKING.

(a) THE JUDGE SHOULD INSTRUCT THE JURY CONCERNING APPROPRIATE PROCEDURES TO BE FOLLOWED DURING DELIBERATIONS IN ACCORDANCE WITH STANDARD 16(c).

(b) THE DELIBERATION ROOM SHOULD CONFORM TO THE RECOMMENDATIONS SET FORTH IN STANDARD 14(c).

(d) A JURY SHOULD NOT BE REQUIRED TO DELIBERATE AFTER NORMAL WORKING HOURS UNLESS THE TRIAL JUDGE AFTER CONSULTATION WITH COUNSEL DETERMINES THAT EVENING OR WEEKEND DELIBERATIONS WOULD NOT IMPOSE AN UNDUE HARDSHIP UPON THE JURORS AND ARE REQUIRED IN THE INTEREST OF JUSTICE.

(e) TRAINING SHOULD BE PROVIDED TO PERSONNEL WHO ESCORT AND ASSIST JURORS DURING DELIBERATION.

COMMENTARY

The deliberations of the jury are the culmination of the entire jury selection and trial process. This standard urges that impediments to the jury's ability to consider the evidence be minimized and notes four areas of particular concern. Like several other of the standards in this volume, 1 it suggests that recognition be accorded to the basic human dignity and individual needs of jurors, and that whenever possible, jurisdictions shouid remove those aspects of jury service that tend to confuse jurors and that unnecessarily disrupt their occupations and home life.

Paragraph (al Instructions

Inasmuch as most persons will not have had previous experience sitting as a juror, 2 it is appropriate for the judge to instruct a jury, before commencement of its deliberations, regarding the procedures that should be followed. These instructions should be on the record. Specifically, the jury should be advised that the foreperson is to chair the deliberations and that it is his or her duty to provide for complete discussion before any vote. The judge should indicate further that each juror should have an opportunity to be heard on every issue before the jury and should be encouraged to participate in the jury's overall discussions. Finally, the

178 jury should be instructed that although a juror should not surrender an individual opinion or decision merely to return a verdict, each juror should not hesitate to reexamine his or her views in light of the discussion and to change those views or opinions if the juror is persuaded by the reasons presented. In accord with Standard 16, Juror Orientation and Instruction, these instructions should be couched in language readily comprehensible to individuals unfamiliar with the legal system. The trial judge should, at the conclusion of the case, express appreciation to the jurors for their service, but should not express approval or disapproval of the result of the deliberation.

Paragraph Cbl Deliberation Room

Juries should be provided with a pleasant, comfortable, and secure place in which to work. Standard 14 recommends that deliberation rooms should include space, furnishings, and facilities commensurate with the business of reaching a verdict in an uninterrupted manner. The commentary to that provision goes on to suggest that the room should be soundproof and that for reasons of security, windows should not permit the members of the jury to be seen by the public. The room should be well ventilated and provided with such aids as a chalkboard and tackboard or a newsprint pad and easel. Restrooms, not accessible to the public, should be located nearby. Deliberation rooms and restrooms should be designed, equipped, and accessible to accommodate jurors with disabilities.

Paragraph Ccl Sequestration

Standard 19 provides explicit guidelines regarding the purpose of sequestration and the manner in which sequestration should be carried out. It makes clear that juries should be sequestered only in the exceptional case in which it is necessary to insulate the jurors from improper information and influence. It also recommends that standard procedures should be promulgated to make certain that the purpose of sequestration is achieved and that the inconvenience and discomfort of the sequestered jurors is minimized.

Paragraph Cdl Deliberation During Normal Working Hours

In determining whether to require a jury to continue its deliberations into the evening or the weekend, the paramount concern should be whether the extension beyond normal working hours will enhance the rational deliberative process, which the jury is charged to perform. 3 Among the factors that the judge should weigh are the views and preferences of the jurors and of counsel, the length of time that the jury has been deliberating, the likelihood that the jurors would be exposed to improper information or influences, and the complexity of the case. The judge should make the options known to the jury and give them time to discuss these options among themselves. The request to the jury should be such as to determine its desire without disclosing the progress or verdicts achieved. This request should not be coercive of the jury. In addition, the judge should ascertain whether the jurors appear to be fatigued4 and should inquire, particularly when Friday evening and weekend sessions are at issue, whether the deliberations would interfere with the religious beliefs or practices of any member of the jury.

179 Paragraph fe) Training

Regular training regarding procedures and duties during deliberation should be provided to the persons assigned to assist the court. Such training will help to avoid inappropriate comments, actions, or decisions and to make certain that jurors are treated with respect and courtesy.

SUGGESTED STEPS FOR IMPLEMENTATION

I. Review current rules and policies to determine whether they address the issues discussed in the standard and if so, whether they are consistent with its recommendations.

2. Initiate appropriate administrative or legislative action if those provisions fail to address or are inconsistent with the standard.

3. Provide for training of those court personnel who will be assisting jurors.

RELATEPSTANQARDS

American Bar Association, Section on Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15-4.1, 4.2, 4.3 & 4.4 "Fair Trial and Free Press": Silent American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Silent National Advisory Commission, Courts: Silent National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure: Rule 532 National District Attorneys Association, National Prosecution Standards, Second Edition: Silent Commission on Trial Court Performance, Trial Court Performance Standards: Silent

FOOTNOTES

1 See, e.g., Standard 5: Term of Service: Standard 14: Jury Facilities; Standard 15: Juror Compensation; Standard 16: Orientation and Instruction; and Standard 19: Sequestration.

2 William R. Pabst, et. al., "The Myth of the Unwilling Juror," 60 Judicature 164 ( 1976).

3 See e.g., National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure, Rule 523(d) ( 1987); American Bar Association, Standards for Criminal Justice: Trial by Jury, Standard 15-5.4(b) (1986)[hereinafter cited as ABA, Trial by Jury]; United States v. Piancone, 506 F.2d 748 (3d Cir. 1974).

180 ------

4 See e.g., State v. Green, 254 Iowa 1379, 121 N.W. 2d 89 ( l963)(reversal of conviction based on a verdict returned after the jury deliberated 27 hours without sleep); Comnwnwealth v. Clark, 404 Pa. 143, 170 A.2d 847 ( 1961 )(reversal of conviction based on a verdict returned at 5:25a.m. following lengthly continuous deliberations); see also ABA, Trial by Jury, supra note 3, at Standard 15-5.4(b). See also 506 F.2d 748 (3d Cir. 1974).

181 REFERENCES

JURY DELIBERATIONS

Casper et al., "Juror Decision Making, Attitudes and the Hindsight Bias," 13 Law and Human Behavior 291 (1989).

Guinther, John, The Jury in America ( 1988).

Hans, Valerie P., and Neil Vidmar, "The American Jury at Twenty-five Years," 16 Law and Social Inquiry 323 (1991 ).

Hastie, Reid, et. al., Inside the Jury. (1983).

Kalven, Harry, and Hans Zeisel, The American Jury (1966).

Kerr and Haung, "How Much Difference Does One Juror Make in Jury Deliberation," 12 Personality and Social Psychology Bulletin 325 (1986).

Lewis, Merlin, et. al., An Introduction to the Courts and Judicial Process (1978).

Loftus and Greene, "Twelve Angry People: The Collective Mind of the Jury," 84 Columbia Law Review 1425 (1984).

MacCoun and Kerr, "A Symmetric Influence in Mock Jury Deliberation: Jurors' Bias for Leniency," 54 Journal of Personality and Social Psychology 21 (1988).

Saks, Micheal J., Jury Verdicts (1977).

Simon, Rita J., The Jury: Its Role in American Society ( 1980).

Van Dyke, Jon, "The American Jury," 10 The Center Magazine 36 (1977).

Wheeler, Russell, and Howard R. Whitcomb, Judicial Administration: Text and Readings (1977).

182 Standard 19: SEQUESTRATION OF JURORS

(a) A JURY SHOULD BE SEQUESTERED ONLY FOR THE PURPOSE OF INSULATING ITS MEMBERS FROM IMPROPER INFORMATION OR INFLUENCES.

(b) THE TRIAL JUDGE SHOULD HAVE THE DISCRETION TO SEQUESTER A JURY ON THE MOTION OF COUNSEL OR ON THE JUDGE'S INITIATIVE, AND THE RESPONSIBILITY TO OVERSEE THE CONDITIONS OF SEQUESTRATION.

(i) THE PURPOSE OF SEQUESTRATION IS ACHIEVED; AND

(ii) THE INCONVENIENCE AND DISCOMFORT OF THE SEQUESTERED JURORS IS MINIMIZED.

COMMENTARY

Most courts have the authority to isolate a jury during trial and during deliberations to insulate the jurors from the publicity surrounding a particularly controversial trial or to protect them from threats or attempts to influence their decision. 1 In most states, juries are almost never sequestered. In a few (e.g., Indiana, Illinois, and New York) jury sequestration during deliberation is relatively common due to statutory requirements. Regardless of its frequency, sequestration of a jury is often a primary concern of individuals when first called for jury service. In addition, it is costly to the court system, may reduce the representativeness of the panel, and may alter the deliberative process itself.2 Accordingly, this standard sets forth the limited purpose for which a jury should be sequestered, clarifies the role of the trial judge in ordering and overseeing sequestration, and urges that written procedures and training be provided for the personnel assigned to escort, protect, and assist sequestered jurors.

As noted in the commentary to Standard 16(a)(iii), Voir Dire Proceedings, the jurors should be made aware of the possibility of sequestration whether during the entire trial or during deliberation. The ability of some persons to serve may be determined by this probability of sequestration.

183 In extreme situations, the judge may wish to use the anonymous jury concept in addition to or in place of sequestration. The use of anonymous juries to protect the jurors from outside influence and intimidation has been permitted in state and federal courts. Juror anonymity prohibits the disclosure of juror identity at any time during the judicial proceedings and after the trial. Such total nondisclosure is not sanctioned for all cases but should only be used where the seriousness of the charges, the extensive pretrial publicity, or the defendant's willingness to interfere with the judicial process place the safety of the jurors in jeopardy. 3 Critics of anonymous juries contend that the procedures prohibit meaningful voir dire and undermine the defendant's right to an impartial jury in that telling jurors to guard their identities effectively violates the defendant's right to be presumed innocent until proven guilty. Guidelines that should be considered in determining the permissibility of an anonymous jury are:

I. Whether the defendant has participated in "dangerous and unscrupulous conduct." 2. Whether there is evidence of the defendant's past attempt to interfere with the judicial process. 3. The extent of pretrial publicity since the possibility of jurors' names becoming public subjects them to intimidation.

Paragraph Cal Puwose of Seguestration

Paragraph (a) makes clear that jurors should be sequestered during a trial or during deliberations only when "the case is of such notoriety or the issues are of such a nature that, in the absence of sequestration, there is a substantial likelihood that highly prejudicial matters will come to the attention of the jurors. "5 This includes both cases in which the media coverage is so intense that jurors may be unable to avoid hearing or seeing discussions of the case, and cases in which there is a substantial possibility that attempts may be made to influence or intimidate the jurors. When sequestration of a jury during a trial is necessary, every effort should be made to expedite the trial process to the extent feasible to reduce the hardship to individuals and the cost to the court system.

Paragraph lbl Responsibility for Segueslfation

The responsibility for determining whether the conditions necessitating sequestration exist should be vested in the trial judge. Sequestration should not be required automatically upon motion of a party.6 Since some members of a jury may resent being sequestered, neither the judge nor counsel should disclose to the jury which party requested sequestration. 7

Paragraph lcl Guidelines for Sequestration

Because sequestration of a jury is unusual and may occur under strained circumstances, detailed guidelines should be developed for restricting the access of the jurors to print and broadcast accounts of the trial, lodging and transporting the jurors, reimbursement or advance payment of meal expenses, and the arrangements for medical treatment, laundry, exercise, purchasing of personal necessities, and recreation. These guidelines should also cover the limitations imposed on contacts with family, friends, and the

184 public at large. Finally, they should contain detailed instructions to the bailiffs, who will be in close contact with the sequestered jury, describing their conduct and scope of authority. The decision to sequester a jury can be made at any time during the trial. Revelations in the press, planned demonstrations, or received threats could cause a judge to order immediate sequestration. In trials of notoriety, if sequestration is not ordered, its use at any time should be a part of pretrial planning.

If sequestration is ordered, the judge has the responsibility to oversee the conditions of sequestration. This includes the isolation of the jury from outside influences, provisions for juror privacy, and personal security and comfort. The previously mentioned guidelines and the availability of trained responsible personnel as set forth in paragraph (d) are essential to meeting this responsibility.

It must be emphasized that the promulgation of guidelines does not relieve the trial judge of the ultimate responsibility for the protection of the trial process and the conditions under which the jury must serve. Particularly during a lengthy trial, difficult questions are likely to arise in which the personal needs and desires of individual jurors are likely to be weighed against the risks to the trial process. 8 Although guidelines can help in make such determinations more consistent, no set of guidelines can address the myriad of situations that may occur with the care and sensitivity required.

Paragraoh fdl Training

Regular training regarding the arrangements, procedures, and duties during the sequestration of a jury should be provided to the persons assigned to assist the court. Such training will help to avoid mistrials and retrials following appeal caused by inappropriate comments, actions, or decisions and to make certain that jurors are treated with the respect and courtesy which they are due. The standard discourages the use of individuals actively engaged in law enforcement to escort, protect, and assist jurors during sequestration, particularly in criminal cases. The position is based on the concern that law enforcement personnel may have been directly or indirectly involved in the case or have some acquaintance with the parties due to their position. If law enforcement personnel are used, then the court has the responsibility to ensure proper training. The potential that an inadvertent comment may compromise the verdict is sufficiently great that'court system employees should escort, protect, and assist jurors during sequestration whenever possible. Nothing in the standard is intended to preclude such court employees from being classified as peace officers so long as their duties do not ordinarily include the investigation of criminal activity.

SUGGESTED STEPS FOR IMPLEMENTATION

I. Determine whether current sequestration procedures and practices are consistent with the standard.

2. If procedures are inconsistent, review relevant statutes and court rules to determine whether they permit the recommended procedures, guidelines, and training.

185 3. Initiate appropriate legislative or rule changes if those provisions do not pennit implementation of the standard.

4. Promulgate guidelines governing the protection, lodging, transportation, payment, and reimbursement of and the provision of services to sequestered jurors.

5. Promulgate guidelines governing the conduct of the personnel assigned to escort, protect, and assist sequestered jurors.

6. Provide training periodically to personnel assigned to escort and assist sequestered jurors regarding the purposes for sequestering a jury, the procedures established by the guidelines, and their duties vis-a-vis the sequestered jurors.

RELAIEDSJANDARDS

American Bar Association, Section of Criminal Justice, Standards for Criminal Justice "Trial by Jury": Chapter 15-3.7 "Fair Trial and Free Press": Chapter 8-3.6(b) American Bar Association, Judicial Administration Division, Standards Relating to Trial Courts: Defers to Standards Relating to Juror Use and Management National Advisory Commission, Courts: Silent National Conference of Commissioners on Unifonn State Laws, Uniform Jury Selection and Service Act: Silent National Conference of Commissioners on Unifonn State Laws, Uniform Rules of Criminal Procedure: Rules 513(d) & 532 National District Attorneys Association, National Prosecution Standards, Second Edition: 73.9 Commission on Trial Court Pertonnance, Trial Court Peiformance Standards: Silent

FOOTNOTES

1 Jon Van Dyke, Jury Selection Procedures: Our Uncertain commitment to Representative Panels, 181 (1977).

2 /d., at 182-183.

3 United States v. Barnes, 604 F. 2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 ( 1980). See also, United States v. Thomas, 757 F. 2d 1359 (2d Cir.), cert. denied, 474 U.S. 819 (1985).

4 United States v. Persico, 621 F. Supp. 842, 878 (S.D. N.Y. 1985).

186 5 American Bar Association, Standards for Criminal Justice: Fair Trial and Free Pres;;, Standard 8-3.6(b) (1986); see also National Conference of Commissioners of Uniform State Laws, Uniform Rules of Criminal Procedure, 513(d) (1987).

6 See, e.g., Arizona Rules of Criminal Procedure, Rule 19.4 (1973).

7 ABA, supra note 5.

8 See examples cited in Van Dyke, supra note I, at 182-183.

187 REFERENCES

SEQUESTRATION OF JURORS

Dogin, Henry S., and David I. Tevelin, "Jury Systems of the Eighties: Toward a Fairer Cross-Section and Increased Efficiency," II University of Toledo Law Review 939 (1980).

Hans, Valerie P., and Neil Vidmar, "The American Jury at Twenty-five Years," 16 Law and Social Inquiry 323 (1991).

Herring, Cathy I., "Anonymous Juries: Justice Served, Safety Preserved," 5 Journal of the Suffolk Academy of Law Annual49 (1988).

Kalven, Harry, and Hans Zeisel, The American Jury (1966).

Solomon, Maureen, Management of the Jury System (1975).

Van Dyke, Jon, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (1977).

Van Dyke, Jon, "The American Jury," 10 The Center Magazine, May/June 1977, at 36.

Wheeler, Russell R., and Howard R. Whitcomb, Judicial Administration: Text and Readings (1977).

188 APPENDIX

REPRESENIATIVENESS AND INCLUSIVENESS OF THE JURY SOURCE LIST

Measure of Degree of Underrepresentation

By definition, a jury source list is representative of (or is a fair-cross section of) the population of a jurisdiction to the extent that percentages of cognizable group membership in the source list equal the corresponding percentages in the population. With respect to race, for example, a source list would be representative of a population that was composed of 50% whites, 30% blacks, and 20% Hispanics if it also contained 50% whites, 30% blacks, and 20% Hispanics. The source list would not be representative if it included only 20% blacks while blacks constituted 30% of the population. In this situation the source list would be biased against blacks, since they would be underrepresented by 10% (20%-30% = -10% ).

The absolute difference between the source list and population percentages has been referred to as "absolute disparity." Since the possible size of the absolute disparity is constrained by the relative size of the cognizable group in the population, the appropriate quantitative index of underrepresentation expresses absolute disparity as a percentage of the cognizable group's relative size in the population. Continuing with the preceding example, the "comparative disparity" of blacks in the source list is the absolute disparity (I 0%) expressed as a percentage of the relative size of the group of blacks in the population (30% ), which equals approximately 33% (20% - 30% I 30% x I 00 = 33%). More explicitly, the comparative disparity is computed by subtracting a group's percent of the adult population from its percent of the source list, then dividing the absolute value of that difference by the group's percent of the population, and finally multiplying that quotient by 100 in order to express the result as a percentage. The term "comparative" refers to the fact that the absolute disparity is compared with the size of the cognizable group in the population.

Expressing the absolute disparity or bias as a function of relative group size enables comparisons to be made among different cognizable groups or ainong cases. In contrast to the absolute disparity value, the comparative disparity index (CDI) is a base free measure of underrepresentation.

The Supreme Court first used the comparative method of quantifying underrepresentation in Alexander v. Louisiana.1 Van Dyke quotes a decision of U.S. District Judge Charles B. Renfrew, of San Francisco, who acknowledged the advantages of the comparative disparity index.

This calculation [the comparative method] is useful because the importance of a difference of a given amount, for example, 10%, varies depending upon the magnitude of the group's representation in the population. A disparity of I 0% constitutes a far more significant

189 underrepresentation when the group comprises 12% of the population but only 2% of the grand jury ( -83%) [under the comparative method] than when the group comprises 60% of the population but only 50% of the grand jury (-20%) (sic: should be -17%).2

Kairys, Kadane, and Lehoczky provide an extensive discussion of the merits of the CD! as a measure of underrepresentation and give numerous illustrations of its application.3

There are three different approaches to interpreting the comparative disparity index, all of which yield insights into the degree of underrepresentation of a cognizable group. First, and most concretely, the comparative disparity expresses the absolute amount of underrepresentation of a cognizable group as a percentage of that group's relative size in the population. The CD! is a direct measure of degree of underrepresentation, or bias, that is independent of the relative size of the group. Thus, the CD! has the same meaning when computed for relatively large and small cognizable groups. Second, the CD! gives the expected percent reduction in the number of seats on jury panels, which a cognizable group would experience as a result of underrepresentation on the source list. In Alexander v. Louisiana, for example, Justice Byron White observed that blacks had 33% fewer positions in the jury pools than they would have had if the juries had constituted a fair cross-section of the community. Third, one may interpret the CD! as the percent reduction in the possibility that a member of a cognizable group, because of underrepresentation will be selected for jury service. If the CD! equals 33% as in the example above, then this would mean that an eligible black person has 33%, or one-third, less chance of being selected than the average person. In a representative or fair jury selection system, each eligible member of the population will have an equal chance of being included regardless of his or her membership in any cognizable classes. In a perfectly representative system, the comparative disparity index would be zero.

Amouot of Underrepresentation

The standard advocates making jury source lists as representative as possible, or reducing underrepresentation or disparity to the lowest level possible given financial and other constraints. Neither the courts nor the legislatures have established a quantitative standard for the maximum allowable underrepresentation beyond which a jury selection system automatically loses its presumption of validity. The standard does not specify a maximum allowable amount of underrepresentation; for purposes of an example, however, a criterion of 15% allowable underrepresentation relative to the size of the cognizable group in the population will be used. This criterion can be formulated in terms of both the absolute disparity index (ADI) and the comparative disparity index. Simply, the AD! would be Jess than 15% of the relative size of the cognizable group in the population. For example, if blacks constituted 30% of the jurisdiction's population but only 20% of the source list, then the maximum ADI value permitted by this example would be 4.5% (.15 x 30% =4.5% ). Since the observed absolute disparity index value of I 0% exceeds the allowable 4.5% , the source Jist fails to meet the criterion of the example. To reiterate, this example criteria specifies that the absolute disparity must be

190 less than 15% of the relative size of the cognizable group in the population. To determine if a given source list is in compliance with this example or any other specific criteria, one follows three steps: (1) the actual AD! value is calculated by subtracting the source list percentage from the population percentage; (2) the maximum ADI allowed is computed as 15% of the percentage of the adult population constituted by the cognizable group; and (3) the actual ADI and maximum allowable ADI values are compared. If the actual exceeds the allowable, the source list is not representative.

This example can also be expressed in terms of the comparative disparity index. It requires that the value of the CDI for each cognizable group must be less than 15%. This numerical cutoff value was recommended by Kairys, et.al., after considering typical CDI values for most jurisdictions in the U.S. and the ease of utilizing multiple source lists. They show that most jurisdictions currently have CD! values in the 10% to 15% range even without the use of multiple source lists. Furthermore, easy and inexpensive methods are presented which, "can provide, at small cost, sources that are within a 5% comparative disparity concerning every cognizable class." 4

Courts are strongly encouraged to use multiple source lists in a way that will decrease average underrepresentativeness in the system. A goal of 5% average comparative disparity across all relevant cognizable groups should be achievable in most jurisdictions. It must be recognized, however, that simply adding more names to the combined source list may not make it more representative. Indeed, expanding the source list can increase the comparative disparities for some groups.5 The additional names must supplement the cognizable groups that are underrepresented if the comparative disparity index is to be decreased.

It is the responsibility of the officials who prepare and maintain the jury source list to demonstrate periodically that it is representative of the significant cognizable groups in their jurisdiction. At a minimum, sufficient information should be collected to enable the calculation of comparative disparity values for cognizable groups based on race, age, and sex. Determinations of comparative disparity should be made at least every five years.

FOQINOTES 1 People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978).

2 Jon Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 146 (1977).

3 David Kairys, et. al., "Jury Representativeness: A Mandate for Multiple Source Lists," 65 California Law Review, 776, 1977.

4 /d.

5 /d.

191 REFERENCES

APPENDIX

Kairys, David, et. al., "Jury Representativeness: A Mandate for Multiple Source Lists," 65 California Law Review 776 (1977).

Munstennan, G.Thomas and Janice T. Munstennan, "The Search for Jury Representativeness," 11 The Justice System Journal 59 (1986).

Van Dyke, Jon, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (1977).

For more extensive references see Standard 2: JURY SOURCE LIST.

192 GLOSSARY

ABSOLUTE DISPARITY A measure of the degree of underrepresentation of a cognizable group. This is determined by calculating the absolute difference between the juror source list and the population percentages of that group.

See also: ABSOLUTE DISPARITY INDEX, APPENDIX "MEASURE OF DEGREE OF UNDERREPRESENTATION", COMPARATIVE DISPARITY, REPRESENTATION, COGNIZABLE GROUP REPRESENTATION

ABSOLUTE DISPARITY INDEX (ADI) A value calculated by subtracting the source list percentage from the population percentage of a defined cognizable group. When the resultant value is greater than the maximum allowable (AD I), the source list is not representative.

See also: APPENDIX "AMOUNT OF UNDERREPRESENTATION", COMPARATIVE DISPARITY INDEX, POPULATION, REPRESENTATIVENESS

ACTUAL TERM OF SERVICE The length of time that an individual has actually served on jury duty, i.e., reported to the courthouse and received a jury fee. Actual term of service is often less than the statutorily required term of service.