By Roberta M. Gubbins
The Michigan Supreme Court recently announced a set of jury rules aimed at “giving the jurors the tools they need for their very demanding job: seeking the truth,” said Chief Justice Robert P. Young, Jr.
Jurors can ask questions of witnesses, take notes and use them during deliberations, and take trial exhibits into the jury room, under the comprehensive jury rule package.
“Taking notes, asking questions—that is not the big change,” said Hon. Thomas Boyd, 55th District Court who participated in the two-year pilot program involving 11 other courts, both District and Circuit.
“The interesting changes are in the instructions to the jury, which are mandatory.”
In the preliminary instructions to the jury, given before the trial begins, the new court rule reads:
After the jury is sworn and before the evidence is taken the court shall provide the jury with pre-trial instructions that will reasonably likely to assist in its consideration of the case.
Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence.
The jury also shall be instructed about the elements of all civil claims or all charged offenses, as well as the legal presumptions and burdens of proof.
The court shall provide each juror with a copy of such instructions. (MCR 2.513)
“That is a radical shift,” he said. “The way I did it before the pilot project was to read the preliminary instructions to the jury, have a trial and in the end instructions, give the elements that had to be proven.”
This rule is mandatory—judges have to give the elements that need to be proven at the beginning and give the jurors a copy of the instructions, which Boyd believes “makes more sense.”
He believes this rule is the most important change. In his opinion, “the other things, if the judges were going to do them, they would have done it before.”
“Traditionally, the legal system has been somewhat conflicted about juries,” Young said. “On the one hand, lawyers and judges tell jurors how important they are to the justice system and how much we value their service. Then we proceed to tie their hands – they can’t take notes, ask questions, or talk to other jurors about the evidence while it’s still fresh in their minds.
“We ask them to make tremendously important decisions and then take their decision-making tools away. The last time any of us were expected to learn while sitting quietly like jurors was in kindergarten.”
By contrast, the new rules “permit jurors to be truly involved, rather than sitting in enforced passivity,” Young explained. “The rules allow jurors to be more engaged and make well-informed decisions.”
Boyd gives each juror a notebook. “The notebook has the instructions before trial, one page of which has to be changed with each trial since it contains the names of the lawyers and the actual charge against the defendant. The copy of the preliminary instructions stays the same for each trial with one page added, which is the elements of the offense.” There also are blank pages to take notes.
During the trial, Boyd takes notes including which instructions will have to be included at the end of the trial. “While the lawyers get their closing arguments ready, I have them prepared.”
“The biggest change for the District Court isn’t here yet,” he said, “which is letting the jurors talk about the evidence prior to deliberation. It’s in here for civil cases, but not for criminal. The reason is that the Supreme Court has agreed to hear a criminal appeal where this (discussing evidence prior to deliberation) is an issue.”
Looking at some of the other rules that are not mandatory, Boyd noted:
• The rule that allows judges to sum up the evidence at the close of the case, Boyd noted that no judge (in the pilot project) tried it and one judge only agreed to participate in the pilot if he never had to do it. Boyd tried to do it once but decided he couldn’t sum up without giving his own opinion on the evidence.
• The rule allowing scheduling of experts sequentially “makes a lot of sense.” The rule allows the courts to create their own procedure for expert testimony. In the pilot project, the experts were allowed to testify as a panel. Boyd did not recall a single judge using that procedure.
• Commenting on the rule that allows interim commentary, Boyd said, “I can see a place for that. It could provide context for what is going on” such as why a particular witness is called.
• A rule added that was not in the pilot program is the rule allowing the judge to ask the jurors to list the issues that divide or confuse them if they reach an impasse in the event the judge can clarify an issue. “It is tempting when they are stuck to ask why.” Boyd said. “I will try it.”
The Supreme Court began working on jury reforms in 2005 and started the pilot program in 2008. In surveys, jurors who participated in the pilot program strongly favored the reforms. For example, 91 percent of jurors who participated in the survey agreed that being able to discuss the evidence before final deliberations helped them understand the case, focus on and recall the evidence, and reach a correct verdict.
The new rules will begin this fall in September. The Court plans to review their impact in 2014.