Atlanta Injury Law Blog

In recent years there have been movements to make jurors more actively engaged in the trial prior to deliberations at the end. A State Court judge in DeKalb County experimented with allowing jurors to discuss the case during the trial and to propose questions for witnesses. The Court of Appeals disapproved of those innovations and reversed.

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

A report prepared by the Blue Ribbon Commission on the Judiciary for the Supreme Court of Georgia in May of 2001 recommended several changes in the state's jury system. Notably:

* That courts adopt a "one day / one trial" system wherever practicable.

* That the Judicial Council propose uniform rules requiring that written instructions be provided to jurors for use in their deliberations.

* That uniform rules and jury instructions be developed to allow and govern the taking of notes by jurors during every trial and the asking of questions by jurors.

* That all civil juries be composed of six persons, rather than twelve.

* That all divorce, alimony, equitable division of property, and child support cases be decided by bench trial, rather than by jury trial.

A copy of that report is available on-line at http://www2.state.ga.us/courts/supreme/Blueribbon.htm#juries

The Blue Ribbon Commission also called for the Judicial Council of Georgia and the Institute of Continuing Judicial Education to sponsor a "Georgia Jury Summit" meeting in the coming year to introduce the commission's various jury innovations to judges, court administrators, jury managers and clerks, and the bar.

The Summit took place in May of 2002 and, among other topics, addressed the issue of allowing jurors to discuss witnesses and testimony during trial. Another interesting proposal was allowing lawyers to reopen argument to avoid a mistrial when the jury is hung.

An article on the Summit is available in the "Georgia Courts Journal" at http://www.georgiacourts.org/aoc/publications/CJ-July-2002.pdf

Although the details of their discussions and any subsequent decisions aren't reported, I'd note that similar recommendations to those above were made in Florida by the Jury Innovations Committee in May of 2001. Their thorough & enlightening analysis of allowing jurors to discuss the case prior to deliberations is included below:

(the full report is available on-line at http://www.flcourts.org/gen_public/pubs/bin/JuryInnovationsFinalReport.pdf)

Jurors in civil trials only should be instructed that they are permitted to discuss the evidence in the jury room during recesses from trial, when all jurors are present, as long as they reserve judgment about the outcome of the case until deliberations commence. The Supreme Court should incorporate this right in the rules of civil procedure and/or the standard jury instructions for civil cases. Extension of this innovation to the criminal area should await further study in light of the significant constitutional rights which could be affected.

Juries are presently prohibited from talking among themselves about the case
until the judge directs them to deliberate. Through enforced passivity, jurors are expected to merely store all evidence for later use and to suspend all
judgments until the trial is over. The assumption is that pre-deliberation
discussions of the evidence by jurors will inevitably lead to premature
judgments about the case. We believe that expecting jurors to wait for final
deliberations is unnatural, unrealistic, and unwise. Prohibiting jurors from
talking about the case as the trial progresses may be contrary to basic human
psychological needs and the adult learning process, and contribute to juror
boredom/inattentiveness and juror stress.

The Committee believes that the ability to discuss trial evidence prior to the
start of deliberations is an essential part of the reform necessary to enable jurors to make competent decisions and restore the public's faith in the jury system. We also believe that the traditional rule forbidding all discussions is anti-educational, and not necessary to ensure a fair trial.

Some observers of the courts also suggest that in view of the fact that pre-deliberation discussions will occur regardless of whether or not they are
permitted, the interests of justice are better served by giving jurors guidance on when and how such discussions should take place. By their own admission to
jury researchers, at least 11 to 44% of jurors discuss the evidence among
themselves before deliberations. (Arizona Jury Report, 1994, 97). Jury reform commissions in Arizona, California, Colorado, and Washington, D.C. have recommended that jurors be allowed to discuss among themselves the evidence as the trial progresses, rather than wait until the final deliberation.

Opponents argue that all trials are a piece-by-piece presentation of evidence,
with one of the parties going first and the other(s) waiting to present their
evidence at a later time. The fear is that if the jury discusses the matter prior to hearing all of the evidence, the arguments of counsel, and the instructions on the law of the particular case, the jury could reach a decision and become intractable, or certain jurors could dominate the process. Trial experience in Arizona suggests otherwise.

The State of Arizona has implemented this recommendation for civil trials (Rule 39(f) of the Arizona Rules of Civil Procedure) providing four years of
experience regarding this practice. Studies of trial participants and jurors
attitudes/perceptions have revealed a number of benefits for jurors, including:
comprehension of evidence and preliminary instructions on the law are
enhanced; memories and impressions of testimony are better shared and
questions are answered on a timely basis; jurors get to know each other better and some "bonding" occurs; group questions can be better framed and
submitted to the court; juror stress is reduced; and deliberations are more
focused and efficient since the jurors have already dealt with much of the
evidentiary background. (Jurors: The Power of 12, 1999).

The National Center for State Courts (NCSC) conducted a six-month
experimental study in the Fall of 1997 of 200 civil trials in four Arizona
counties. The trials were randomly assigned to two groups - one allowing
discussions of evidence prior to deliberations, and the other one not allowing any discussion among jurors until all of the evidence, attorney arguments, and the judge's instructions on the law had been presented and the jury instructed to begin its final deliberations. The final study consisted of 161 civil cases: 76 in group one allowing discussion of evidence and 85 in group two limiting discussion of evidence to final deliberations. The NCSC administered post-trial
questionnaires to participating judges, attorneys, litigants and jurors to
determine if the ability to discuss the evidence affected the trial outcomes, the
jury deliberation process, or perspectives of the trial participants.

Notable findings of the study included the following: (1) There was no
difference in juror's self reports of when they started leaning and when they
made up their minds about who should win the case between the two groups.
(2) Jurors who were permitted to discuss the case reported that they were more sure about their verdict preferences at the beginning of final deliberations
than jurors who were prohibited from discussing the case. (3) There was no
difference in the rate of judicial agreement with the verdict between the two groups. (4) Jurors who were permitted to discuss the evidence during trial were more likely to engage in informal, albeit prohibited, discussions among themselves, but were slightly less likely to discuss the case with family or
friends.

Suggested jury instruction in civil cases only, based on Colorado and
Arizona language:

There is only one exception to this rule (the prohibition against discussing
the case with anyone). During the trial you may talk with each other about the evidence, but only privately in the jury room during recesses when all jurors are present. However, remember your oath as a juror to not make up your minds about who should prevail in the case until you have heard all the evidence, my instructions of law, arguments of counsel, and you are in the jury room deliberating on a verdict.