Panel pushes plan to empower jurors

first_img March 1, 2002 Jan Pudlow Associate Editor Regular News Panel pushes plan to empower jurors Associate EditorThe Jury Innovation Committee, said Third District Court of Appeal Judge Robert Shevin, was on a mission to join the nation’s “jury reform revolution” and “push the envelope” to empower Florida’s jurors.“The traditional adversarial courtroom model, which views jurors as passive triers of fact, is being correctly challenged,” Shevin, the committee’s chair, said in oral arguments February 4 at the Florida Supreme Court.“It is antiquated. It does not reflect the way that adults learn and process information. The new learning model treats jurors not as children, but as intelligent, informed adults who possess the ability to multitask and interactively process information. It recognizes that jurors are not and should not be bystanders, but, rather, full partners in the trial proceedings.”Of the committee’s 48 recommendations — that include allowing jurors to ask witnesses questions and take notes during trial — “the most cutting-edge” and “probably the most important one,” Shevin said, was allowing jurors in civil trials to discuss the testimony as a group before actual deliberations begin.The “most hotly debated issue,” Shevin said, was whether to reduce or eliminate peremptory challenges, when lawyers get to dismiss prospective jurors from serving without giving a reason. In the past, the justices noted, peremptory challenges were abused to exclude racial groups and others from serving on juries.Even though the Jury Innovation Committee, of the Judicial Management Council, merely suggested studying the peremptory challenges matter further, even thinking about changing the status quo sparked strong concern from both Tom Scarritt of Tampa, chair of The Florida Bar Trial Lawyers Section, and Dave Dunlap, Jr., of Tallahassee, on behalf of the American Board of Trial Advocates.“Peremptory challenges is a subject that is very dear and near to the hearts of trial lawyers,” Scarritt said. “We state it plainly that we do not think that there should be any change whatsoever.. . . It is really a de-selection process, some people think, and judges do not have as good of knowledge, and they can’t, of the facts of a particular case, than do the advocates. And so the advocates should be allowed to have some control over the de-selection process, with the peremptory challenges.”Justice Harry Lee Anstead asked how they would explain the need for peremptory challenges to the public at large, when it is something as amorphous as “the vibes weren’t there” with a particular prospective juror.Dunlap responded: “Is that a good reason for doing away with it, if it is difficult to explain to the general public? I don’t think so.”The litigants involved have the right to a fair and impartial jury, Dunlap said.“They are the ones that we ought to focus on, and not whether this is going to be something that we can easily explain to the general public, in my opinion.”Peremptory challenges are very necessary, Dunlap said, “because they fill the gap between challenges for cause and those situations in which you inherently know that someone is not going to be objective.”On that contentious issue, Shevin said, “We took many votes, and most of them turned out to be ties. Just as many people supported reducing or eliminating and going to challenges for cause and having them issued more rapidly, readily, and liberally. And half of our group took the position it shouldn’t be changed at all. So we kind of punted and said, ‘OK. Let’s recommend this study.’ We recognized that, because of the financial condition of the state, a study would be very, very difficult to fund at this point. At the same time, we felt that at least it merited more review. And I do believe that there ought to be more liberalization of the court’s ability and desire to challenge for cause, so that we wouldn’t need peremptory challenges. But we understand the lawyers’ viewpoint that they know the case better than anyone else, and that they have views and feelings and instincts that they need to carry out through peremptory challenges.”The Jury Innovation Committee was firmer in its recommendation that jurors be allowed to discuss witnesses’ testimony before retiring to deliberate at the end of a civil trial.Justice Barbara Pariente had two questions: Why was the recommendation limited to just civil cases, and “is there some concern that this may be an adverse affect, as far as jurors making up their minds at the beginning of the case, when they are supposed to have an open mind?”Shevin said his committee followed what has been tried for four years in Arizona and proven successful: Jurors in civil trials can only discuss testimony when they are in the jury room together, and they can only discuss it as a group. This practice is not only allowed in Arizona, but also in North Dakota, Colorado, Massachusetts, and Washington, D.C.Arizona has a proposed rule before its supreme court to extend the practice to criminal cases, as well.“We felt that because it may run into some constitutional restraints, that we ought to tread lightly, and that is why we recommended it at the present time only for civil cases,” Shevin explained.A survey in Arizona showed that up to 44 percent of jurors admitted to discussing evidence even though the judge directed them not to, anyhow.Shevin shared the findings of a study presented to the Arizona Supreme Court:“Juror discussions during breaks in the trial help them understand the evidence as it comes in,” Shevin said. “It serves as an aid in remembering the evidence. It allows deliberations to be more focused, because they have already discussed much of the evidentiary foreground, and it helps reduce juror stress. Judges in Arizona report no known instances of new trials having to be granted at the trial level or on appeal, due to jury discussions.“And the study dispels the notion that allowing such discussion will encourage premature judgments about who should prevail. In addition, the report reflects high levels of judge and juror support for the change. Notably, jurors reported that, as a result of the discussions, they gained a much better grasp of the evidence. And that has been the report in all of the states that have tried it. We think it is a very important recommendation that was made by our committee.”For a synopsis of all 48 recommendations of committee, see the sidebar to the right. To read the complete 111-page report on the Supreme Court’s web page, go to Panel pushes plan to empower jurorslast_img

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