Michigan jury reform project receives national honor

Award recognizes significant improvements or innovations for juries

By Roberta M. Gubbins
Legal News

“I come today to present the 2012 G. Thomas Munsterman Award for Jury Innovation to this court and the trial court judges who participated in the Jury Reform Pilot project,” said Robert Baldwin, National Council of State Courts (NCSC) Vice President and General Counsel, speaking before the Michigan Supreme Court in the old Supreme Court courtroom in the state Capitol building on October 9th.

The award, given annually by the NCSC recognizes significant improvements or innovations for juries. Baldwin noted that there has been a decline in the number of trials and particularly jury trials. The losses suffered as a result of this trend include “the loss of (updated) public standards of conduct that come from jury decisions, the loss individuals experience by not having ‘their day in court,’” and the loss of experienced trial lawyers.

Michigan, he noted, has made great strides in improving the jury experience and has long been a leader in jury reform.
“As early as 1976, Wayne County led the way by adopting ‘one day, one trial term of jury service. This eventually became the standard for jury service in over two-thirds of the state courts.

In 1990, Michigan again led the way by converting the criminal law jury instructions into plain English. In 2003, the jury compensation system was reformed.

“We congratulate you on a history of jury reform,” said Baldwin. Even though there were many who disagreed with the changes suggested in 2005, the pilot project went forward with reforms such as:

• In civil cases, the judge “may instruct the jurors that they are permitted to discuss the evidence among themselves in the jury room during trial recesses.”

• Jurors can, with the judge’s permission, submit questions to witnesses through the judge. Criminal procedure court rules already contained such a provision, but the new rule includes jurors in civil cases as well.

• Jurors can, if permitted by the judge, take notes during trial; if the judge allows note taking, jurors must be allowed to use those notes during the jury’s deliberations.

• The jury can request to view “property or … a place where a material event [such as a crime scene] occurred.”

• After the jury is sworn, the judge “shall provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case,” covering “the duties of the jury, trial, procedure, and the law applicable to the case.” The rule also requires the court to give jurors copies of the instructions.

• The judge may “authorize or require” attorneys to provide jurors with “a reference document or notebook,” which would include a list of witnesses, relevant provisions in statutes, and copies of any documents at issue, such as a contract. Other items, such as preliminary jury instructions, trial exhibits, “and other admissible information,” can also be added to the notebook.

• Where it is appears likely that a deposition will be read to the jury, the judge “should encourage the parties to prepare concise, written summaries of depositions” for the jury instead of having the full deposition read aloud.

• In addition to making opening and closing statements, attorneys may, “in the court’s discretion, present interim commentary at appropriate junctures of the trial.”

• Judges may “fairly and impartially sum up the evidence” after closing arguments, while also reminding jurors that they must decide fact issues for themselves. The rule bars judges from commenting on a witness’s credibility or stating a conclusion “on the ultimate issue of fact before the jury.”

• Judges are required to give the jury a copy of the final jury instructions to take into the jury room for final deliberations. In addition, judges must invite jurors to ask any questions they may have to clarify the instructions.

• In addition to jurors’ notes and final jury instructions, the judge “may permit the jurors to take into the jury room the reference document … as well as any exhibits and writings admitted into evidence.”

• The judge “may not refuse a reasonable request” from jurors to review evidence or testimony as they deliberate.

• If the jury appears to reach an impasse during deliberations, the judge “may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.”

• The court can schedule expert testimony to assist jurors’ understanding of the issues – for example, by having expert witnesses testify sequentially. Another option is to allow each expert to be present for the opposing expert’s testimony, so that the expert can “aid counsel in formulating questions to be asked of the testifying expert on cross-examination.”

Ingham County’s Judge Thomas P. Boyd, 55th District Court was one of the Judges honored for participation in the jury reform pilot project.

“I want to take this opportunity to thank the lawyers and the jurors,” he said. “Each one of them had to complete a questionnaire after the trial. Stacia Buchanan and Kahla Arvizu held several trials under the new rules and they both participated in a panel discussion and training for the district court judges at the Hall of Justice. They talked about their experiences to  address the concerns of the judges. Susan Adams with the prosecutors office also contributed.”

“Initially, some of the pilot project judges were very skeptical about these rule changes,” Chief Justice Robert P. Young said. “By the end of the project, they had become converts and the most enthusiastic voices in favor of changing the rules. The pilot project judges displayed great courage, not only in testing these unfamiliar procedures, but also in becoming advocates for reform.”

In addition to Judge Boyd, the pilot project judges included:

• Judge William J. Caprathe (retired) and Judge Kenneth W. Schmidt, 18th Circuit Court, Bay County

• Judge Richard J. Celello, 41st Circuit Court, Dickinson/Iron/Menominee counties

• Judge Beth Gibson, 92nd District Court, Newberry, Luce/Mackinac counties

• Judge Timothy G. Hicks, 14th Circuit Court, Muskegon County

• Judge Richard W. May, 90th District Court, Charlevoix/Emmet counties

• Judge Wendy L. Potts, 6th Circuit Court, Oakland County

• Judge Donald L. Sanderson, 2B District Court, Hillsdale County

• Judge Paul E. Stutesman, 45th Circuit Court, St. Joseph County

• Judge David Viviano, 16th Circuit Court, Macomb County

• Judge Peter J. Wadel, Lake County Trial Court/79th District Court, Ludington

“NCSC is a resource founded in 1971 by Chief Justice Warren Burger. That was the beginning of a new profession, the profession of Judicial Administration,” said Baldwin.

The NCSC is devoted to improving the administration of justice, conducting research and acting as a clearinghouse for information. NCSC seeks out best practices that can be transferred from one state to another.

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