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AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
FEBRUARY 11, 2013
RESOLUTION
RESOLVED, That the American Bar Association amends Principles 1(C) through (F), 6(C),
10(C) and 11(A) of the 2005 Principles for Juries and Jury Trials dated February 2013.
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PRINCIPLE 1–THE RIGHT TO JURY TRIAL SHALL BE PRESERVED
***
C.
Judges and lawyers have a duty to preserve jury trial rights by using procedures that
enhance the fairness of jury trials and enable jurors to determine the facts, apply the law,
and reach a verdict in every jury trial.
D,
In civil cases the right to jury trial may be waived as provided by applicable law, but
waiver should neither be presumed nor required where the interests of justice demand
otherwise.
D.E.
With respect to criminal prosecutions:
1. A defendant’s waiver of the right to jury trial must be knowing and voluntary,
joined in by the prosecutor and accepted by the court.
2. The court should not accept a waiver unless the defendant, after being advised by
the court of his or her right to trial by jury and the consequences of waiver,
personally waives the right to trial by jury in writing or in open court on the
record.
3. A defendant may not withdraw a voluntary and knowing wavier as a matter of
right, but the court, in its discretion, may permit withdrawal prior to the
commencement of trial.
4. A defendant may withdraw a waiver of jury, and the prosecutor may withdraw its
consent to a waiver, both as a matter of right, if there is a change of trial judge.
E.F.
A quality and accessible jury system should be maintained with budget procedures that
will ensure adequate, stable, long-term funding under all economic conditions.
PRINCIPLE 6--COURTS SHOULD EDUCATE JURORS REGARDING THE
ESSENTIAL ASPECTS OF A JURY TRIAL
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C.
Throughout the court of the trial, the court should provide instructions to the jury in plain
and understandable language.
1. The court should 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, including the elements of the
charges and claims and definitions of unfamiliar legal terms.
2. The court should advise jurors that once they have been selected to serve as jurors or
alternates in a trial, they are under an obligation to refrain from talking about the case
outside the jury room until the trial is over and the jury has reached a verdict. At the
time of such instructions in civil cases, the court may inform the jurors about the
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permissibility of discussing the evidence among themselves as contemplated in
Standard 13 F. they must consider only the applicable law and evidence presented in
court, and must refrain from communicating about the case with anyone outside the
jury room until the trial is over and the jury has reached a verdict. This instruction
should explain that the ban on outside communication is broad, encompassing not
only oral discussions in person or by phone, but also communications through emails, texts, Internet postings, blog postings, social media websites like Facebook or
Twitter, and any other method for sharing information about the case with another
person or gathering information about the case from another person. At the time of
such instructions in civil cases, the court may inform the jurors about the
permissibility of discussing the evidence among themselves as contemplated in
Standard 13 F. The court should also instruct jurors that they must respect the jury
process, including the fundamental premise of a fair trial: that each party must have a
chance to examine and discuss each item of evidence in the case. Accordingly, jurors
must understand that it is critically important they do not themselves investigate the
facts of the case, the law governing the case, or the parties, lawyers, or judges in the
case. The court should explain that a juror’s duties to avoid communicating about the
case outside the jury room and to refrain from independent investigations about the
case are extremely important, and that the court has the authority to impose serious
punishment upon jurors who violate those duties.
3. The court should give such instructions during the course of the trial as are necessary
to assist the jury in understanding the facts and law of the case being tried as
described in Standard 13 D. 2.
4. Prior to deliberations, the court should give such instructions as are described in
Standard 14 regarding the applicable law and the conduct of deliberations.
PRINCIPLE 10–COURTS SHOULD USE OPEN, FAIR AND FLEXIBLE PROCEDURES
TO SELECT A REPRESENTATIVE POOL OF PROSPECTIVE JURORS
***
C.
Exemptions, excuses, and deferrals should be sparingly used.
1. All automatic excuses or exemptions from jury service should be eliminated.
2. Eligible persons who are summoned may be excused from jury service only if:
a. Their ability to perceive and evaluate information is so impaired that even
with reasonable accommodations having been provided, they are unable to
perform their duties as jurors and they are excused for this reason by a judge,
provided, however, that the court shall make every effort to provide
reasonable accommodations for non-English speaking jurors, including the
provision of a court-approved translator, to the extent that the use of the
translator does not otherwise adversely affect the efficient and fair
administration of justice or the conduct of the trial; or
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b. Their service would be an undue hardship or they have served on a jury during
the two years preceding their summons and they are excused by a judge or
duly authorized court official.
3. Deferrals of jury service to a date certain within six months should be permitted by a
judge or duly authorized court official. Prospective jurors seeking to postpose their
jury service to a specific date should be permitted to submit a request by telephone,
mail, in person or electronically. Deferrals should be preferred to excusals whenever
possible.
4. Requests for excuses or 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.
PRINCIPLE 11–COURTS SHOULD ENSURE THAT THE PROCESS USED TO
EMPANEL JURORS EFFECTIVELY SERVES THE GOAL OF ASSEMBLING A FAIR
AND IMPARTIAL JURY
A.
Before voir dire begins, the court and parties, through the use of appropriate
questionnaires, should be provided with data pertinent to the eligibility of jurors and to
matters ordinarily raised in voir dire, including such background information as is
provided by prospective jurors in their responses to the questions appended to the
notification and summons considered in Standard 10 D. 1.
1. In appropriate cases, the court should consider using a specialized questionnaire
addressing particular issues that may arise. The court should permit the parties to
submit a proposed juror questionnaire. The parties should be required to confer on
the form and content of the questionnaire. If the parties cannot agree, each party
should be afforded the opportunity to submit a proposed questionnaire and to
comment upon any proposal submitted by another party.
2. Jurors should be advised of the purpose of any questionnaire, how it will be used and
who will have access to the information.
3. All completed questionnaires should be provided to the parties in sufficient time
before the start of voir dire to enable the parties to adequately review them before the
start of that examination.
4. After trial, jury questionnaires that are not a part of the record should be disposed of
to preserve a juror’s privacy, consistent with Principle 7 and the applicable law.
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REPORT
The Commission on the American Jury Project recommends amendments to four of the
Principles for Juries and Jury Trials that were approved by the House of Delegates in 2005. The
first recommendation includes a change to the first Principle addressing judges’ and lawyers’
duty to preserve the jury trial. The second expands the concept of jurors talking about the case to
any form of communication and their responsibilities as jurors. The third is a recommendation
for including non-English speakers in the jury pool. The last is a recommendation with regard to
juror questionnaires in order to protect juror privacy.
Principle 1
The first change adds a new Principle 1(C) which affirms the duty of judges and lawyers to
preserve jury trial rights. Judges and lawyers should have an affirmative duty to use procedures,
old or new, that enhance fairness and assist the jury in its role of role as fact-finder. Lawyers and
judges have an affirmative duty to work to protect the integrity of the judicial system. An
important component to our American system of justice is the jury trial. Jury trials consume a
substantial portion of judicial time. As the courts face funding issues and cutbacks, pressure may
begin to mount on courts, lawyers, and judicial systems to sacrifice the rights of people to trial
by jury. Recently in the State of New Hampshire, the Chief Justice suspended all civil jury trials
in some courts due to the backlog in the system and to avoid the prospect of failing to meet the
speedy trial demands of criminal defendants. Such a prospect should not befall citizens who are
entitled to their right to a jury trial.
Lawyers already have a professional duty to preserve the integrity of the adjudicative process
under Rule 3.3 of the ABA Model Rules of Professional Responsibility. Under Rule 3.4, the
attorney has a duty of fairness to the opposing party and to opposing counsel. The new Principle
1(C) merely recognizes how these professional responsibilities apply within the context of a jury
trial. In addition, it articulates a duty on the part of the lawyer to assist the jury in its fact-finding
duty. Attorneys should not try to obfuscate the truth but rather give the jury the tools to make a
sound decision. The better a jury is able to make a decision in a case, the more it enhances the
justice system as a whole. Other principles set out new and old ideas that will assist the jury. This
new section is intended to encourage judges and practitioners to embrace concepts that will make
trials better.
Principle 6
The second set of recommended changes is to Principle 6(C)(2). The original concern of this
principle was making sure that the court clearly advised jurors that they should not talk to people
about the case. One of the fundamental concepts of a jury trial is that the jurors should only get
their evidence from the trial and not from any other source outside of the courtroom. Patterson v.
Colorado, 205 U.S. 454, 462 (1907). Thus, Principle 6(C)(2) addressed the issue of jurors
“talking” to other people about the case. Advances in phones, computers and other devices
illustrate the need to broaden the wording to include all types of communication. It has become
apparent that the admonishment on talking to other people is far too narrow. Since these
Principles were in 2005, the United States has seen unprecedented growth in various
communication technologies and other yet uncontemplated changes will surely follow.
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Facebook, one of the dominant social networking sites, was founded in 2004. The Principles
need to be amended to adapt to this new technology and the communication habits of potential
jurors. Therefore, it is recommended that “talking” be changed to the broader concept of
“communicating.” Much communicating can take place without talk by emailing, texting,
tweeting, or using other social media. Since 2004, the number of people owning cell phones has
more than doubled and the number of text messages has more than quadrupled. According to a
study by the Pew Research Center, 73% of all cell phone users’ text each other. On average, each
cell phone user sends or receives 41.5 messages a day. For younger people between the ages of
18 and 25, it is a staggering 110 messages sent and received each day. Technology platforms
allow individuals to instantly broadcast their thoughts and ideas to many people outside the
courtroom and to receive instant feedback from people all over the world.
Personal research by a juror interferes with the right of the parties to present their own case and
to challenge the strength of other evidence. Because electronic research is so easy to undertake
and because search engines and other computer tools have made doing research easier, this is
becoming more of a problem. Nor do jurors have to wait until they get home or to the office to
have access to the Internet. Smart phone technology gives individuals the ability to undertake
this kind of research when they step into the hall during a break. This interferes with the basic
principle that jurors should only be making their decision based on the evidence at trial. The
court cannot limit access to evidence or testimony that may be unreliable such as hearsay or that
may be highly prejudicial. A defendant’s prior conviction can rarely be used in a criminal trial if
the defendant does not testify yet it may be easily discovered by a simple “Google” search.
Caren Myers Morrison, Jury 2.0, 62 HASTINGS L.J. 1579, 1590 (2011). Therefore, the
Principle needs to affirmatively assert that jurors need to be reminded that they should not
undertake any research on their own. It is the ease by which this research can be done and the
fact that it is such a common and ordinary aspect of life for many people, that increases the need
to admonish potential jurors. The importance of the instruction that all evidence should come
only from the courtroom should be reinforced. The revised Principle urges that jurors should be
warned that the court has the power to punish jurors through its contempt power. Jurors should
be reminded that the court may enforce the restriction on self research and the prohibition against
openly discussing the case or the evidence in public or on any virtual platform that may be
available.
Principle 10
The third recommended change is to Principle 10C. The Commission recommends that Principle
10(C)(2)(C) should be added suggesting that courts make reasonable accommodations to include
non-English speaking jurors. “The perceived fairness of the jury system depends in part on its
ability to reflect a cross-section of the community.” Shari Seidman Diamond, Destiny Peery,
Francis J. Dolan & Emily Dolan, Achieving Diversity on the Jury: Jury Size and the Preemptive
Challenge, 6 J. EMPIRICAL STUD. 425, 425 (2009). This can include allowing those who do
not speak English on the jury. In some communities, there are large portions of the population
that would meet all the qualifications for jurors except for the lack of English language
proficiency. If the jury pool is to reflect the makeup of the community, the courts should not
continue to exclude these citizens if a reasonable accommodation can be made.
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A higher level of language proficiency is required for meaningful participation in court
proceedings because of the use of legal and other technical terms that may be part of the
testimony or evidence being reviewed by jurors. A person may have sufficient vocabulary for
day-to-day language needs, but may not be able to participate as a juror without the assistance of
additional language translation assistance in order to be an effective juror. The experience in
New Mexico is instructive. The New Mexico constitution, adopted in 1901, provides that citizens
have a right to sit on juries even if they cannot speak English. N.M. Const. art. VII Sec. §3.
According to the New Mexico Chief Justice, the frequency and therefore the cost of making such
an accommodation are both relatively low. Edward L. Chávez, New Mexico’s Success with NonEnglish Speaking Jurors, 1 J. Ct. Innovation 303, 308 (2008).
The ABA House of Delegates recently passed language access standards to assist courts to
develop a comprehensive system for language access. The purpose of these standards was to
make the justice system accessible to the entire population. Citizens should not merely have
access as a party to litigation. Being able to fully participate in all aspects of the justice system
enhances public support for the system as a whole. Participation as a juror is a right and a
responsibility of citizenship that should not be foreclosed to those with limited English language
proficiency where reasonable accommodation can allow them to serve.
The limitation on exemptions, excuses, and deferrals included in Jury Principle 10 C is based on
the Supreme Court decision in Taylor v. Louisiana 419 U.S. 522 (1975), that held it is essential
to the Sixth Amendment rights of an individual that the jury pool be drawn from a group
representative of the community as a whole. This change is offered to help protect and enhance
those Sixth Amendment rights.
Principle 11
The fourth recommendation involves the use of jury questionnaires. The proposal adds an
additional provision, Principle 11(A) (4), which recommends that jury questionnaires be
disposed of in order to protect jurors’ privacy. A number of states have chosen to expressly
inform jurors that their questionnaires will remain confidential and will be destroyed at the
conclusion of their service. Although there are opinions on both sides of this issue, several states
have made it clear that jury questionnaires are not to be disclosed to the public. For example,
Rule 632 of the Pennsylvania Code provides that “the original and any copies of the juror
information questionnaires shall not constitute a public record.” 234 Pa. Code § 632(C).
The rule further provides that:
(F)
The original questionnaires of all impaneled jurors shall be retained in a sealed
file and shall be destroyed upon completion of the jurors’ service, unless
otherwise ordered by the trial judge. Upon completion of voir dire, all copies of
the questionnaires shall be returned to the trial judge and destroyed, unless
otherwise ordered by the trial judge at the request of the defendant(s), the
attorney(s) for the defendant(s), or the attorney for the Commonwealth.
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(G)
The original and any copies of questionnaires of all prospective jurors not
impaneled or not selected for any trial jurors shall be destroyed upon completion
of the jurors’ service.
234 Pa. Code § 632(F)–(G). In addition to asking general questions about the jurors’
demographics, the sample jury questionnaire attached to Rule 632 asks jurors whether they or
anyone close to them has been witnesses to or victims of a crime, whether they would believe
less or believe more testimony coming from a law enforcement officer, and whether they have
any religious, moral or ethical beliefs that would prevent them from sitting in judgment on a
criminal case.
The Superior Court in the State of Maine has a Standing Order for Limited Access to Juror
Information. The Order provides that an attorney, an attorney’s authorized agent, or an
unrepresented party may request juror information for the limited purpose of preparing for and
participating in voir dire. The person making the request may receive “a copy of the list of juror
names, but not the juror questionnaires, from the Clerk’s office, which list shall not be further
copied.” Furthermore, the person to whom juror information is disclosed or disseminated:
a. Shall maintain the confidentiality of the juror information;
b. Shall use the juror information only for the limited purposes of preparing for and
conducting voir dire examination in this case;
c. Shall not disclose or disseminate or permit the disclosure or dissemination of any juror
information, except as specifically authorized by this or any subsequent court order; and
d. Shall return all written juror information to the Clerk's office at the end of the trial or the
earlier disposition of the case(s).
Massachusetts state courts follow the practice of disposing of juror questionnaires after their use.
The state courts have a juror questionnaire located on their website,
http://www.mass.gov/courts/jury/CJQword.pdf, and caption it a “Confidential Juror
Questionnaire.” The questionnaire states:
You are required by law to complete and sign this form, which is not a public record and
will be destroyed by the court as soon as practicable after you are excused. Answer all
questions even if the answer is ‘none.’ Complete answers help ensure selection of fair
and impartial jurors.
Jury questionnaires are used by different jurisdictions in different manners and for different
purposes. Some courts mail the questionnaires to the prospective jurors along with the subpoena
and the jurors are instructed to fill them out and mail them back prior to reporting for jury duty.
Some courts instruct the jurors to log on to the jury commissioner’s website and fill out the
questionnaires online prior to reporting for jury duty. Other courts provide the jurors with the
questionnaires upon their arrival at the courthouse for jury duty. And then there are those courts
and jurisdictions that use the jury questionnaires to determine a person’s eligibility and
availability to be a juror in the first place. In those instances, the questionnaires ask potential
jurors whether they are residents of the county, U.S. citizens, of legal age, physically or mentally
impaired and unable to serve and, in some areas, whether they can read and understand English.
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Jury commissioners then assess the information to determine whether a certain person is able and
eligible to serve on a jury, i.e., whether to subpoena that person for jury duty.
Jury questionnaires also differ in terms of the kinds of questions they ask: Some are shorter and
more general in scope (limited to the juror’s demographics), and others inquire into much more
detailed and personal aspects of a juror’s background, beliefs and biases. The latter are typically
created with a particular case or kind of case in mind and are quite detailed. Jury questionnaires
are used in an effort to make jury selection more efficient and expedited. They are also used to
elicit more honest and forthcoming responses from the jurors. By answering the questions in a
written format, rather than in front of others, jurors will avoid “peer group pressure” where they
feel compelled to answer a question a certain way because of other jurors’ responses to the same
question. The jury questionnaires are typically made available to the judge, attorneys and
unrepresented parties in a case either a few hours or, in some jurisdictions, a few days prior to
the commencement of trial, to be reviewed in preparation for jury voir dire. Without clear
direction from the United States Supreme Court regarding the disclosure of information gathered
through jury questionnaires, states are left to decide for themselves whether to disclose, to whom
and when.
The United States Supreme Court has spoken on the issue of access to voir dire but has yet to
specifically address access to jury questionnaires. In its 1984 decision in Press-Enterprise Co. v.
Superior Court (Press-Enterprise I), 464 U.S. 501 (1984) (“Press-Enterprise I”), the United
States Supreme Court affirmed the presumption of access to voir dire, noting that such
proceedings have been open to the public for centuries, even prior to the United States’
independence from England. The Court found:
The value of openness lies in the fact that people not actually attending trials can have
confidence that standards of fairness are being observed; the sure knowledge that anyone
is free to attend gives assurance that established procedures are being followed and that
deviations will become known. Openness thus enhances both the basic fairness of the
criminal trial and the appearance of fairness so essential to public confidence in the
system.
Press-Enterprise I, 464 U.S. at 508, (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 569-571 (1980)). However, the Press-Enterprise I Court noted that the right to open jury
voir dire proceedings is not absolute. It acknowledged that “[t]he presumption of openness may
be overcome only by an overriding interest based on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.” Press-Enterprise I, 464 U.S. at 510.
The Court further explained that the overriding interest “is to be articulated along with findings
specific enough that a reviewing court can determine whether the closure order was properly
entered.” Id. It also acknowledged that there could be situations where a prospective juror may
be embarrassed to answer certain questions publicly, and that a juror’s privacy interest must be
balanced against the need for openness.
Some jurisdictions, including Ohio, Nevada, and California, consider jury questionnaires to be an
integral part of voir dire and, therefore, available for public inspection. Those jurisdictions have
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looked to the United States Supreme Court’s holding in Press-Enterprise I with respect to voir
dire proceedings and have extrapolated the same and applied it to jury questionnaires that are
used as an extension of voir dire. However, these courts have also acknowledged that the privacy
of jurors is a strong interest that must be balanced against other competing concerns.
In State ex rel Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781
N.E.2d 180, the Ohio Supreme Court found that “[j]uror names, addresses, and questionnaire
responses are not ‘public records’ as contemplated by R.C. 149.43,” The Ohio Supreme Court
recognized, however, that “[t]he First Amendment qualified right of access extends to juror
names, addresses, and questionnaires, thereby creating a presumption of openness that may be
overcome only ‘by an overriding interest based on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.’” Id., at paragraph two of the
syllabus (quoting Press-Enterprise I, 464 U.S. at 510).
In Stephens Media, LLC v. Eighth Judicial District Court, 221 P.3d 1240 (Nev. 2009), the
Nevada Supreme Court likewise acknowledged that, at least with respect to criminal trials, “the
presumption of an open court is firmly rooted in American jurisprudence,” noting that said
presumption is “grounded both in history and in logic.” Stephens Media, LLC, 221 P.3d at 1247,
citing Press-Enterprise I, 464 U.S. at 505-08. The Nevada Court found the same rationale for
open jury voir dire proceedings applies to open access to jury questionnaires prepared in
anticipation of oral voir dire. However, it too explained that the right of access to jury
questionnaires is not absolute but may be overcome by “‘an overriding interest based on findings
that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’”
Stephens Media, LLC, 221 P.3d at 1249, (quoting Press-Enterprise I, 464 U.S. at 510).
In Bellas v. Superior Court,102 Cal. Rptr. 2d 380 (Cal. Ct. App. 1st Dist. 2000), an Appellate
court in California acknowledged that jury questionnaires, which are an extension of jury voir
dire, are subject to the same openness that applies to voir dire proceedings. The California Court
of Appeals in the First Appellate District, Division Four, expressed the same sentiments in
Lesher Communications, Inc. v. Superior Court, 274 Cal. Rptr. 154 (Cal. Ct. App. 1st Dist.
1990). However, the appellate court in that case acknowledged that the trial court promised
prospective jurors filling out the questionnaires that the information provided therein “will not be
seen by anyone except the lawyers, their staffs, the defendant, my staff and myself.” Id. at 778.
The jury questionnaires in this triple murder trial were requested by the publisher of the Contra
Costa Times; they were requested prior to oral examination of the prospective jurors. The
appellate court held the jury questionnaires should be disclosed but,
[t]he prospective jurors should be informed of this court’s decision and afforded the
opportunity to fill out a new questionnaire with appropriate alternatives for protecting
privacy in legitimate cases; or the entire process could be recommenced with a new jury
panel, as respondent court prays, ‘correctly instructed as to the law requiring public
disclosure of their answers to the jury questionnaires.’
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Id. It further found that, because the questionnaires of venires persons never called to the jury
box for voir dire play no role in the jury selection process, there was no legitimate public interest
in their disclosure. Id. at 779.
Some federal courts have likewise acknowledged that the presumption of openness that applies
to voir dire proceedings also applies to access to jury questionnaires. In United States v. Bonds,
No. C-07-00732 SI, 2011 WL 902207 (N.D. Cal. Mar. 14, 2011), the high-profile trial of the
former Major League Baseball star, trial judge Susan Illston found that, because jury
questionnaires are used to facilitate the jury selection process and are used as an extension of
voir dire, and because voir dire has traditionally been open to the public, there is a presumption
that the jury questionnaires completed by jurors actually seated for voir dire are open records.
However, the Judge limited the presumption of openness only to the questionnaires of those
jurors actually seated for questioning, explaining that unless the juror is seated for voir dire,
his/her questionnaire does not serve a function during voir dire and there is no reason to disclose
the contents of the same. The Judge explained, “[w]ritten jury questionnaires are only part of the
jury selection process to the extent that they are used to select jurors… Although other
individuals will have filled out questionnaires in preparation for possible participation in the voir
dire process, they will not actually have participated in the criminal trial, and their questionnaires
will have served ‘no function in the selection of the jury.’” Id. at *3.
In another highly publicized trial, that of Ingmar Guandique, the illegal immigrant
accused of murdering Congressional intern Chandra Levy, the eleven-page, 55-question jury
questionnaires in the trial of Mr. Guandique asked potential jurors standard demographics
questions but also probed into their knowledge of the case and their views on illegal immigrants,
Latino ethnicity and gangs. The Court of Appeals for the District of Columbia found the trial
court erred in refusing to disclose the jury questionnaires and in promising the jurors that their
jury questionnaire responses would be kept confidential. The appellate court acknowledged there
may be instances where jury questionnaire responses touch on intimately personal matters and
found that, in such situations, the “court should recall those jurors to provide them with an
opportunity to raise any concerns they might have in camera and on the record,” and, if
appropriate, the questionnaires may be redacted prior to their disclosure. In re Access to Jury
Questionnaires, 37 A.3d 879, 889 (D.C. Cir. 2012).
Respectfully Submitted,
Hon. James F. Holderman
Chair, Commission of the American Jury Project
February 2013
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GENERAL INFORMATION FORM
Submitting Entity: Commission of the American Jury Project
Submitted By: Hon. James F. Holderman, Chair
1. Summary of Resolution(s).
The resolution asks the house to amend the Principles for Juries and Jury Trials Principles
1(C) through (F), 6(C), 10(C) and 11(A).
2. Approval by Submitting Entity. The change to the Principles was approved by an email vote
of the members of the Commission with notice to the chairs of the sponsoring sections and
divisions.
3. Has this or a similar resolution been submitted to the House or Board previously?
No
4.
What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption? The Resolution asks the House of Delegates to amend the
Principles for Juries and Jury Trials adopted previously by the House of Delegates at the
ABA Midyear Meeting in 2005.
5. What urgency exists which requires action at this meeting of the House?
As the Commission begins to more broadly promote the adoption of the Principles it is
critical that they address issues facing judges and lawyers especially in the area of new
modes of communication, language access, and the protection of jurors privacy.
6. Status of Legislation. (If applicable)
N/A
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the House
of Delegates.
The Commission intends to create curriculum and programming for training judges based on
the Principles for dissemination to all state and federal trial judges and judicial educators.
8. Cost to the Association. (Both direct and indirect costs)
N/A
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9. Disclosure of Interest. (If applicable)
N/A
10. Referrals.
Commission Partners:
Judicial Division
Section of Criminal Justice
Section of Litigation
Section of Tort Trial and Insurance Practice
Other Sections and Divisions:
Administrative Law and Regulatory Practice
Antitrust Law
Business Law
Dispute Resolution
Environment, Energy and Resources
Family Law
Government and Public Sector Lawyers Division
Health Law
Individual Rights and Responsibilities
Intellectual Property Law
International Law
Labor and Employment Law
Law Practice Management
Law Student Division
Public Contract Law
Public Utility, Communications and Transportation Law
Real Property, Trust and Estate Law
Science and Technology Law
Senior lawyers Division
Solo, Small Firm and General Practice Division
State and Local Government Law
Taxation
Young Lawyers Division
Affordable Housing and Community Development Law
Air and Space Law
Communication Law
11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Judge James F. Holderman
US District Court
Ste 2548
219 S Dearborn St
Chicago, IL 60604-1833
312-435-5600
James_Holderman@ilnd.uscourts.gov
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12. Contact Name and Address Information. (Who will present the report to the House? Please
include name, address, telephone number, cell phone number and e-mail address.)
Judge James F. Holderman
US District Court
Ste 2548
219 S Dearborn St
Chicago, IL 60604-1833
312-435-5600
James_Holderman@ilnd.uscourts.gov
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
The Resolution amends 4 of the 19 Principles for Juries and Jury Trials previously
passed by the House in 2005. The first amendment to Principle 1 reminds judges and
lawyers of their affirmative duty to protect and enhance parties’ jury trial rights. The
second amendment addresses Principle 6 and instructs jurors that they should not
“communicate” rather than merely “talk” about the case and tries to address other issues
created by the ubiquity of the use of the internet. The third amendment is to Principle 10
and encourages the inclusion of non-English speaking citizens in the jury pool. The
fourth amendment encourages the destruction of juror questionnaires that are not part of
the record to protect juror privacy.
2.
Summary of the Issue that the Resolution Addresses
1. The decline in the use of jury trials and improving the jury trial experience. 2. The use
of the internet and social media by jurors to research the case and to communicate about
the trial. 3. The inclusion of non-English speakers in the jury pool. 4. The best practice
for the handling of juror questionnaires after trial.
3.
Please Explain How the Proposed Policy Position will address the issue
These amendments are needed to address critical issues that have arisen since the
Principles were first drafted. Courts have been under strong fiscal and time pressure that
can result in diminution of the use of jury trials. In addition the application of the
Principles enhances the fairness of the trial. Judges and lawyers are encouraged to
protect these rights and to use these procedures. Second, the use of the internet, smart
phones and similar technology has expanded exponentially since 2005. Without ever
speaking or talking about the case a juror could text friends, post comments about the
case on Facebook or other internet sites, and can easily undertake his or her own
research. These issues are addressed by these changes. Third, last year the House passed
language access standards to make the justice system accessible to the entire population.
Being able to fully participate as a juror enhances public support for the justice system
where reasonable accommodation can allow non-English speakers to serve. The
amendment encourages such participation. Fourth, reluctance to serve as a juror can in
part stem from the potential incursions into the privacy of potential jurors as part of the
jury selection process. The court should take the necessary steps to protect that privacy
to the extent it is able and therefor there is a recommendation that juror questionnaires
that are not part of the record be disposed of by the court.
4.
Summary of Minority Views
None are known.
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