“In fact, 90 percent of the world’s jury trials take
place in the United States, where the practice is thriving.”[1]
Dear Colleagues,
We begin this issue with this uplifting reminder. Although the number of jury trials has declined somewhat over the years, we remain the leader among countries that grant to its citizens the opportunity to participate in this most democratic form of dispute resolution.
Many of those critical of the jury system cite countries which have pulled back from juries. So, when a country turns to the jury system, we wish to highlight that. In what will be our third report regarding civil juries in Argentina, our good friend and colleague, Andrés Harfuch, writes a compelling first-person account of how that came to be.
Until Covid is conquered, remote jury trials or partial remote jury trials will help provide access to justice and alleviate the backlog of cases. How the appellate courts deal with objections to remote proceedings will have a great impact on how amenable trial judges will be in ordering a remote jury trial over objection. With that in mind, our Research Fellow, Michael Pressman, reports on an appellate court case from the state of Washington that gives some good guidance on what a trial judge might want to consider when making a record.
In our last newsletter we outlined our work in updating Steve’s chapter, Innovations to Improve Jury Trials in Texas, for ALM’s Texas Business Litigation. ALM has kindly agreed that we can share that work with you in this newsletter. The update focuses on how eight jury innovations are affected in the remote jury trial setting.
Finally, I hesitated in dusting off and reprinting a piece that Steve and I did last year around this time. However, since our last newsletter, the second impeachment “trial” has prompted me to reprint our joint piece objecting to the U.S. Senators being described in the media as “jurors".
Here are our goals for this year and I plan on keeping these up front in each introduction just in case something comes to mind in your world that can assist us. The goals are:
1. We want to continue to be of assistance to court systems and individual judges as they navigate the restart of jury trials. In our November newsletter we outlined our work with the state of Illinois in crafting protocols for remote jury selection which were adopted by the Illinois Supreme Court. If your court system would like our assistance, we are ready, willing and able to work with you.
2. If you wish to contribute any article or resource to the Project, we are pleased to announce that the NYU School of Law will continue our website as a resource for years to come. In addition to all of our remote jury trial resources we have a wealth of information on our innovations for improving the jury system. If you wish to be a part of that, now would be the time to submit your work.
3. We all want to get back into our courtrooms. However, remote jury selection may be one aspect of the pandemic that may offer benefits post-pandemic. Selecting a jury remotely may save transportation costs, time and helps cut down the carbon footprint of the court system. Moreover, there is anecdotal evidence that remote selection results in a greater representative cross-section of the community.
However, some court systems record demographic data, and some do not. If your court does keep demographic statistics and is currently doing remote jury selection, we would welcome the opportunity to assemble those statistics to see if remote jury selection is having an impact for the better in achieving a more inclusive representative cross-section of the community.
4. Finally, if you have any thoughts or ideas of funding opportunities that we could explore to continue our work past August of this year, please send them to us.
If you would like to be involved in any of our goals listed above please feel free to email me directly at markd56.md@gmail.com.
Last but not least: Before turning to our articles, we include below an announcement regarding an upcoming event that may be of interest to many readers: The Pound Civil Justice Institute's 29th annual Forum for State Appellate Court Judges.
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Sincerely,
Hon. Mark A. Drummond (ret.),
Executive/Judicial Director
[1] Fred Graham, American Juries, 14 U.S. Department of State e-Journal USA 7 (2009) ("Anatomy of a Jury Trial"), at 4; see also Kalven, Harry and Zeisel, Hans. "Jury". Encyclopedia Britannica, 29 Mar. 2019, https://www.britannica.com/topic/jury. Accessed 26 February 2021.
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Due to the ongoing COVID-19 pandemic, all in-person events are canceled. |
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The Pound Civil Justice Institute will hold its 29th annual Forum for State Appellate Court Judges, titled Juries, Voir Dire, Batson, and Beyond: Achieving Fairness in Civil Jury Trials, on Saturday, July 17, 2021 in Chicago, IL. The Forum will feature two academic papers presented by law professors Shari Diamond (Northwestern) and Valerie Hans (Cornell); panel discussion among legal academics, jurists, and members of the defense and plaintiff bars; and small discussion groups for attending judges.
The Institute will accommodate as many trial judges as possible at this complimentary conference (either in person or via remote access, depending on pandemic conditions). If the Forum is held in person, the Institute will pay coach travel, hotel and program costs for registered judges. Pound gives in-person registration priority to sitting state appellate judges. We accept as many trial judges as possible, budget permitting. If conditions do not allow for an in-person event in July, the Forum will be held virtually or as a hybrid event, allowing many more judges to attend. CLE/CJE credit will be obtained in states where judges request this.
Judges may express their wish to attend the Forum via the link below. Formal registration will take place later this spring, once the logistical details are finalized.
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The Story Behind Argentina's New Civil Jury System: Part 1
By Andrés Harfuch, PhD
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December 16th, 2020, will be remembered in the days to come as the date on which everything changed for the Argentine civil process. In a session that had dramatic overtones, typical of the clamorous legislative debates, the legislature of the province of Chaco passed into law the Civil Jury Act, which establishes Section 24 of the Constitution and rewrote the history of constitutional law in Argentina.
Thus, the Chaco's House became the first in all of the civil law countries to pass a law that establishes juries in civil matters. A difficult feat to accomplish. Memorable. But this remarkable story began many years ago (see the Civil Jury Project's June 2020 Newsletter).
The bill was submitted by the executive branch in September. How could Governor Jorge Capitanich, in a country like Argentina, accept the idea of implementing a civil jury seemingly out of nowhere? The answer requires that a wonderful story be told.
The criminal jury in nine Argentinian provinces was such a success that it even helped to cultivate the necessary conditions to establish a world-class civil jury system. Our ultimate goal was to realize compliance with our constitutional mandate. As a result, in 2019, a group of top Argentine scholars, lawyers and judges worked hard on drafting the law.
When we finished our task, I spoke, among many others, to Chaco's Minister of Justice, Gloria Salazar (formerly a brilliant trial judge), and her Undersecretary of Justice, Lourdes Polo Budzovsky (a great lawyer / feminist activist, and just 28 years old), and told them we had a civil jury bill.
I will talk in depth in Part 2 about its characteristics. But let's say it is the same model as the U.S. federal civil jury: twelve members, presided over by a judge who would instruct on the law, a general unanimous verdict and a special verdict in certain cases. However, ours differed in some respects, as we also provided that the jury panel must have gender equality, and twelve indigenous members if the plaintiff and the defendant belong to the Indigenous Peoples of Chaco.
With respect to the Civil Jury Bill, 2019 was uneventful. When 2020 arrived, so too did the Covid pandemic, which shut down all activity. Unfortunately, both Salazar and Polo were infected with the coronavirus. When hope for the Civil Jury Bill was dwindling, I received a call in August 2020, while I was walking through a ghostly Buenos Aires. It was the Minister who told me:
“Andrés, we are going to pass the civil jury law. The Governor is delighted with the idea of a jury for class actions, consumer rights collective disputes, tort cases, environmental and land disputes and any controversy involving the freedom of speech, belief or press. Take the first plane to Chaco immediately.”
I was so surprised, the phone almost fell out of my hands. I could not believe it. It was a miracle.
Perhaps a few years will need to go by and several more laws will have to be passed to truly assess the importance of that memorable day in December. Those who follow the progress of justice reform and trial by jury in Latin America know the resistance generated by the end of the inquisitorial obscurantism, especially in criminal matters. That opposition multiplies exponentially when we speak of civil justice.
It is no wonder: controversies over tort liability, class action cases, environmental litigation, and cases of freedom of speech, among other issues of great political and economic importance, were historically handled by large interest groups, thanks to the arbitrary discretion allowed by the culture of written procedure. A feudal and medieval justice in the 21st century.
Now the people will decide those cases, in public and oral trials that will forever transform the logic of a justice system so important for democratic coexistence. Citizens themselves will be in charge of demonstrating, once again, that those who trust in the participation of the people in deciding matters of public importance are not only not making mistakes, but are building the foundations of a true republic. The one that our framers envisioned in our 1853 Constitution.
The discussion in the legislature was not exempt from the tension typical of such a transcendent change and with great interests in dispute. It is a story that deserves to be told, so that future generations who enjoy the benefits of the civil jury will not forget all that was at stake. What happened in that venue was memorable, an epic feat with a happy ending for the jury of Argentina's Constitution.
The very idea of a law that establishes full orality in the civil jurisdiction--and with juries--unleashed the fury of the most old-fashioned sectors of the legal profession and scholarship: "embarrassment," "shameful session," "it is unconstitutional," "untrained lay people cannot render a verdict on a complex civil matter," "people are not qualified," "a law imported from Buenos Aires," "the civil jury is a fossil."
It is impossible not to evoke the parliamentary debate in the House of Representatives of the United States, at the end of the Civil War in 1865, to reform its Constitution. President Abraham Lincoln's goal was to pass the 13th Amendment to abolish slavery.
Spielberg's immortal film "Lincoln" portrayed the fierceness of these debates like no other. The abolition of slavery won by just a handful of votes and after several scenes of fighting, blackouts, insults and feverish last-minute negotiations. In Chaco, representative Pedrini had to be hospitalized with a blood pressure of 25 after finishing the debate.
While I was there in those frantic days of December, my mind went immediately to Spielberg's film. President Lincoln in person toured the city of Washington trying to convince reluctant representatives to pass the 13th Amendment to abolish slavery, no less. And we were doing the same thing in Chaco in 2020 to pass the Civil Jury Act! That's democracy in motion. And an aspect of parliamentary democracy that I think we all love.
Let's go back to Chaco and its jury law. In the morning, representative Luis Obeid (Liberal Party) suggested a valuable contribution to the law: that there be a special master next to the judge to assist him in class action litigation. The majority party accepted it and thus secured a vote that was fundamental. Two legislators from the UCR (Radical Party) were not present, which reduced the opposition by two key votes.
When everything was ready for the vote, after six hours of extreme tension in which two other laws were tightly voted, Congressman Aurelio Díaz (Workers Party) had to leave to see the eye doctor because of a severe eye condition. The UCR and CER bench (Peronists not aligned with the current administration) took advantage of the situation and rose from their benches in order to prevent a quorum. The session was down.
That is when the cunning and experience of Hugo Sager, president of the legislature, were set in motion. The majority party remained seated in their benches, while the opposition--determined to give the Governor a political defeat at all costs in such an important project--remained in the building, but abandoning their benches. There were insults, yelling, recriminations and cross-taunting. It was a dramatic and suspenseful 20 minutes. The session was falling apart and, with it, the civil jury law, caught up in a local political dispute.
And, suddenly, the unexpected. The majority leader, Juan Manuel Pedrini, went in person together with representative Liliana Spoljaric to the eye doctor to look for the Trotskyist legislator Aurelio Díaz, who agreed to give a quorum only if it was accepted that the State could also be sued in the collective actions. The majority party agreed and Díaz returned to his bench and voted against. When all was lost, the session was revived. There was a quorum again.
The atmosphere was charged with total tension and drama. You had to see the faces of the opposition when they saw Díaz sitting back on his bench. The move to overturn the Civil Jury Act had failed. Leaving a session without a quorum is a valid parliamentary resource, but one that carries very high risks that the opposition paid dearly: the ruling party, now with quorum, could vote with the members present who had remained in their seats. They decided to do it immediately and without the usual speeches. The opposition flocked to the venue to try to twist the outcome, but it was too late. The civil jury became law.
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Andrés Harfuch, PhD, is a professor of law at the University of Buenos Aires, the Director of the Institute of Comparative Studies in Criminal and Social Sciences (INECIP)'s Jury Center, and Vice President of the Argentine Association of Trial by Jury (AAJJ).
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Guidance from an Appellate Court in Washington State:
Which Details a Trial Court Might Want to Note on the Record When Allowing Remote Testimony
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By Michael Pressman, Research Fellow |
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In light of the ongoing pandemic, courts throughout the country have been confronted with the benefits of conducting proceedings over remote platforms—be it full jury trials, full bench trials, portions of trials, or other non-trial proceedings. A key component of many such proceedings is, of course, witness testimony, and, as a result, two common questions arise: What must a court do to ensure that testimony over a remote platform is reliable? And, relatedly, what details should a court note on the record when allowing remote testimony?
These questions were recently discussed by the Court of Appeals of Washington, Division 3, in State of Washington v. Sweidan, 13 Wash. App. 2d 53 (2020). Although this was a criminal case and these topics arose in the context of a Confrontation Clause analysis, the discussion in Sweidan also has broader implications—both (1) for criminal cases even in contexts where the Confrontation Clauses is not at issue, and (2) for civil cases. Further, in light of the Sweidan court’s discussion being about what, in its view, passes muster in the criminal realm, it seems that the practices endorsed by the court should also suffice in the civil realm, where safeguards are typically either less stringent or equally as stringent—but not more stringent—than in the criminal realm.
In Sweidan, the defendant-appellant argued that it was error for the trial court to allow video conference testimony of a particular witness. In exploring the issues, the court wrote: “Assuming the trial court allows video conference testimony, this court assesses whether other components of the Confrontation Clause were left intact, including ‘oath, cross-examination, and observation of demeanor by the trier of fact’ to determine if testimony is reliable. Maryland v. Craig, 497 U.S. at 837, 110 S.Ct. 3157. These components ensure the reliability of testimony in the absence of physical presence.” Sweidan, 13 Wash. App. 2d at 74. After examining these components, the Sweidan court held that the reliability of the evidence in question (i.e., the video conference testimony) was assured.
The Sweidan court continued:
“Despite our ruling, we encourage the trial court or the State, with the court’s concurrence, to verify on the record the structure and the mechanics of the video conference presentation. Such details should include the number and location of the video screens in the courtroom, the technology present at the location of the witness, the dimensions of the respective screens, and what sections of the witness’s body that the jury can see on the screen. The record should confirm that the jury and the defendant see the witness and the witness’s body language, and that they hear the witness. The record should also verify that the witness sees the jury and the defendant. Finally, at the conclusion of the testimony, the trial court or the State should substantiate that no errors in the transmission occurred. We do not hold, however, that any of these suggestions must necessarily be followed to fulfill the strictures of the Confrontation Clause.” Sweidan, 13 Wash. App. 2d at 75. “In United States v. Bordeaux, 400 F.3d at 555 (8th Cir. 2005), the federal appeals court commented that, before approving of two-way video testimony, the court would wish to know answers to a myriad of logistical questions. Important concerns included the size of the monitor, placement of the monitor, and placement of the cameras.” Sweidan, 13 Wash. App. 2d at 75.
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To be clear, Sweidan is a criminal case, and the discussion above is in the context of a Confrontation Clause analysis. Further, the Sweidan court does not state in this passage that the steps it mentions are required; it explicitly states that it merely is encouraging courts to take these measures. The Sweidan court states: “We do not hold, however, that any of these suggestions must necessarily be followed to fulfill the strictures of the Confrontation Clause.” Sweidan, 13 Wash. App. 2d at 75 (emphasis added). Further, these are merely suggestions for a criminal case. Accordingly, Sweidan certainly is not articulating requirements for an order allowing remote testimony in a civil case.
Notwithstanding this, these considerations still are relevant more generally—both (1) in criminal cases even in contexts where the Confrontation Clauses is not at issue, and (2) in civil cases. Take, for example, the context of civil cases: In the State of Washington, remote testimony is governed by CR 43(a)(1), which states:
“CR 43 TAKING OF TESTIMONY (a) Testimony. 1) Generally. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” (Emphasis added.)
Interestingly, some courts in Washington have used the considerations articulated in the passage of the Sweidan opinion, quoted above, to help provide substance to the phrase “with appropriate safeguards” in CR 43(a)(1). For example, Judge Matthew W. Williams of King County (Washington) Superior Court, Department 41, has used the list of considerations in Sweidan in his orders as a starting point for applying CR 43(a)(1).
Further, not only do the Sweidan considerations provide a good starting point, but, in light of the fact that safeguards in criminal cases are typically at least as stringent as analogues in civil cases, it seems as though the Sweidan considerations likely would suffice in the civil context.
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The use of remote technology for witness testimony certainly is not new, and, similarly, questions about which requirements—practical and legal—must be met for it to be permissible also are not new. But, with the significant increase in the use of remote technology amid the pandemic, it is useful for courts to be cognizant of both what is required for witness testimony over remote technology to be permissible, and of what details a court should note on the record when allowing remote testimony.
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Michael Pressman, Research Fellow at the Civil Jury Project, holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D. in philosophy from the University of Southern California.
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Chapter 22A: Remote Advocacy and Innovations to
Improve Jury Trials in Texas
By Hon. Mark A. Drummond (ret.), Executive/Judicial Director of the Civil Jury Project[1]
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22A-1 INTRODUCTION
In March of 2020 Steve Susman turned the focus of the Civil Jury Project at NYU School of Law to the effect of the pandemic on jury trials, both civil and criminal. The April issue[2] of our newsletter was devoted entirely to issues surrounding remote jury trials.
The purpose of this supplement to Steve’s original chapter is to address how remote advocacy affects these eight innovations: (1) Limiting the Length of Trials; (2) Preliminary Substantive Instructions; (3) Juror-Posed Questions; (4) Pre-Voir Dire Questionnaires; (5) Opening Statements Before Voir Dire; (6) Interim Arguments by Counsel; (7) Back-to-Back Expert Testimony; and (8) Juror Discussion of Evidence Before Deliberation. Where applicable, references will be included to Trial by Agreement.[3]
22A-2 LIMITING THE LENGTH OF TRIALS
This innovation meshes well with remote jury trials. Although there are numerous video conferencing platforms that can be used for remote trials, the phrase “Zoom Fatigue” has become the catch phrase.
While research[4] on the downsides of remote testimony provides counsel opposing remote trials with grounds to object, participating remotely may be of great benefit to jurors and the court system. Jurors who know that court and counsel respect and value their time are better, and less distracted, jurors.
We have outlined in the past that the number one complaint by jurors against attorneys is repetition. Time limits on trials help combat unnecessary repetition. Some studies[5] argue that time limits can actually increase satisfaction with the trial process, at least for jurors.
Unrelated directly to time limits but pertinent to time overall, research[6] reveals that potential jurors who are not chosen have negative feelings about the system. Understandably, many of them have had to take off from work, find day care, drive to the courthouse, find parking and then sit in a room all day and perhaps not even be called into the courtroom for questioning.
Jurors who are chosen and serve generally have a positive view of the system and, in fact, show increased civic participation, such as voting.[7] Simply stated, serving makes them better citizens.
Finally, remote jury selection is one aspect of remote trials that may outlast the pandemic. Instead of having to travel to a courthouse and perhaps sit around all day and not even be called into the courtroom, jurors can be given a time slot to log in for jury selection. The jury would be selected remotely and only those jurors selected would travel to the courthouse for an in-person trial. This would save time, expense and cut down on the carbon footprint of the court system. Even after the virus has been conquered, attorneys should prepare themselves for some judges finding that the benefits of remote jury selection outweigh any downside of selecting jurors through the screen on a computer.
PRACTICE POINTER:
The “all day” 8:30 or 9:00 in the morning to 4:30 in the afternoon schedule is not a good idea for remote jury trials. Jurors, counsel, witnesses and the judge need shorter court sessions with more frequent breaks. Courts should consider 4 or, at most, 5 sessions of no more than 60 minutes each with 10- or 15-minute breaks. Since many jurors will be at home, 30 minutes for lunch should be sufficient. This schedule may also allow jurors to be done by early afternoon. This will perhaps help some jurors with being able to work a half day or eliminate the need for after-school daycare. Inventive judges with accommodating counsel may want to involve the jurors in crafting the best daily schedule for any particular case.
Trial by Agreement #3 provides:
“The length of the trial (excluding openings and closings) will be ___ days and that time will be split equally. Each party will get ___ to open and ___ to close.”
22A-3 PRELIMINARY SUBSTANTIVE INSTRUCTIONS
PRACTICE POINTER:
This innovation is easily accomplished in the remote setting. Preliminary substantive instructions may be given orally or sent to the jurors through the chat function as an attachment or via email. However, if the preliminary instructions are given to the jurors in writing, court and counsel should confer on how to instruct the jury to delete or disregard the preliminary jury instructions so only the final instructions are used by the jurors.
Trial by Agreement #16 provides:
“The parties will (a) exchange proposed preliminary and final jury instructions on ______ and ____, respectively; (b) ask the Court to give preliminary substantive instructions; and (c) try to reach agreement on preliminary instructions before the trial begins and on final instructions before the court sets a charge conference. If a pattern instruction is available, it will be used.”
22A-4 JUROR-POSED QUESTIONS
PRACTICE POINTER:
Remote advocacy may make this innovation easier to administer. For in-person trials, most judges request that each juror submit a piece of paper that may or may not have a question written on it. The purpose of this is so that counsel do not know which juror posed the question. Also, each juror’s input should be viewed by the other jurors in the same light, regardless of whether any particular juror asked no questions, some questions or a lot of questions. Keeping both counsel and all jurors in the dark on who is asking questions accomplishes these two goals.
Jurors would send any questions to the judge only via the chat function. Before sending in the questions, the judge would instruct the jurors to turn off their cameras so that no one—counsel or their fellow jurors—would see them typing or not typing questions. The judge would then share the questions with counsel via chat or by going into a breakout room with counsel only to sort out any objections.
Trial by Agreement #13 provides:
“Jurors can direct, through the judge, questions to each witness before he or she leaves the stand. Attached as Exhibit B is a protocol of doing this.”
22A-5 PRE-VOIR DIRE JURY QUESTIONNAIRES
PRACTICE POINTER:
Detailed questionnaires agreed on by both sides are especially valuable for remote jury selection. If the questions are carefully crafted, the court and counsel may save time for themselves and the remaining prospective jurors by excusing those people who should not serve on a particular jury due to their responses.
Trial by Agreement #10 provides:
“The parties will ask the court to administer a questionnaire to the venire and to provide the completed questionnaires to counsel as early as possible. The parties will exchange proposed jury questionnaires on _____ and try to reach agreement before the final pretrial conference.”
22A-6 OPENING STATEMENTS BEFORE VOIR DIRE
PRACTICE POINTER:
No modification need be made to use this innovation in a remote trial.
22A-7 INTERIM ARGUMENTS BY COUNSEL
PRACTICE POINTER:
No modification need be made to use this innovation in a remote trial.
Trial by Agreement #21 provides:
“Each side will be allowed ____ minutes of interim argument that can be used in increments no greater than ___ minutes when no witness is on the stand.”
22A-8 BACK-TO-BACK EXPERTS
PRACTICE POINTER:
No modification need be made to use this innovation in a remote trial. Remote trials would allow sequential testimony from opposing experts as well as both experts appearing simultaneously for concurrent testimony.
22A-9 JUROR DISCUSSION OF EVIDENCE BEFORE DELIBERATION
PRACTICE POINTER:
If this innovation is used, then the court should assure that any discussion before deliberation be in the presence of all jurors. For example, during the lunch break some jurors may choose to have lunch “together” in the jury breakout room whereas other jurors may take that time to check email or attend to other things. The judge should instruct the jurors that no preliminary discussions should be held without all jurors being present.
22A-10 CONCLUSION
All of the eight innovations may be adapted for remote jury trials. Even post-pandemic, remote jury selection may remain as the best way to save time and expense for the jurors—our citizens who are taking time out of their lives to participate in this most democratic of all methods of dispute resolution.
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[1] The author would like to thank Michael Pressman, our Research Fellow at the Civil Jury Project, for his research and assistance with this chapter and our administrative assistant, Kaitlin Villanueva.
[2] 5 Jury Matters 4 (2020), available at https://myemail.constantcontact.com/April-Newsletter-of-the-Civil-Jury-Project.html?soid=1127815376566&aid=gdpEH5xV60Q.
[3] Stephen D. Susman, Paul C. Sanders, & Fred Bartlit, Trial by Agreement: Agreements for Opposing Counsel (2017). All references to Trial by Agreement may be found at https://trialbyagreement.com.
[4] See, e.g., Jena Lee, “A Neuropsychological Exploration of Zoom Fatigue,” Psychiatric Times (Nov. 17, 2020), available at https://www.psychiatrictimes.com/view/psychological-exploration-zoom-fatigue.
[5] Data compiled from results submitted to the Committee of the Jury Innovations Project, Jury Innovations Project: An Effort to Enhance Jury Trials in Texas State and Federal Courts (2009), available at https://www.justex.net/JustexDocuments/0/CourtsAndLaw/Jury%20Innovation%20Project%20Manual%20101411.pdf.
[6] See Shari Seidman Diamond, What Jurors Think: Expectations and Reactions of Citizens Who Serve as Jurors, in Robert E. Litan, Verdict: Assessing the Civil Jury System 298 (1993).
[7] See Valerie P. Hans & Neil Vidmar, The Verdict on Juries, 91 Judicature 226, 230 (2008) (“Jury service itself educates the public about the law and the legal system and produces more positive views of the courts. What is more, jury service can increase other forms of civic participation such as voting. Research done by the Jury and Democracy Project has discovered that citizens who vote only infrequently and then deliberate with fellow citizens in criminal jury trials are subsequently more likely to vote.” (citation omitted)).
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The Hon. Mark A. Drummond (ret.) is the Executive / Judicial Director of the Civil Jury Project. He was a trial lawyer for 20 years before serving on the bench as a trial court judge in Illinois for 20 years. He is currently licensed to practice in Illinois and has applied to be licensed in New York.
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We sent the Op-ed below to several major newspapers but were told by one Op-ed editor that the paper was inundated with impeachment article submissions. So, while this is still timely, we share this with you—our most loyal and interested readers.
Objection! Senators are not jurors!
We wish to lodge an objection on behalf of all past, present and future jurors who are following the impeachment proceedings. Some Senators themselves, other members of Congress and the media keep referring to the Senators as "jurors." One aim of the Civil Jury Project is to honor those who serve as jurors in the courts throughout the land. To label the Senators "jurors" is both inaccurate and damaging to our jury system. The differences between real jurors and the Senators are stark.
In a January 18, 2020 Op-ed in the Washington Post, former U.S. Senator Tom Harkin (D-Iowa) asked his former colleagues and the media to stop referring to the Senators sitting in the Trump impeachment trial as "jurors." This was not the first time he had taken this position. In 1999, he rose on the Senate floor to object to the term during the impeachment trial of Bill Clinton. U.S. Supreme Court Chief Justice William Rehnquist sustained the objection.
Sen. Harkin’s argument not only is based upon Chief Justice Rehnquist's ruling in the Clinton impeachment trial. He also cites Article 3 of the U.S. Constitution which states, "The trial of all crimes, except in cases of impeachment, shall be by jury;"
We agree with former Senator Harkin from the perspective of real jurors. Real jurors are washing dishes, mowing lawns and paying bills on the day the jury summons arrives in their mailboxes. Suddenly, their lives change. Employers need to be told, childcare arranged and vacation plans changed. For many, income is lost.
For the Senators, this is their job. This is what they signed on for. The jurors arrive at the courthouse with other citizens from their community. Each is given a badge identifying them as a juror. They file into a courtroom and a bailiff asks all to rise as a show of respect for them. Then starts a selection process which takes hours or, in some cases, days. They answer questions designed to determine if they can be fair and impartial. If chosen to serve, they take an oath to truly and fairly decide the case before them. In contrast, the Senators already are chosen. No party on either side of the impeachment may excuse them for bias or for any cause for that matter. The judge tells the jurors to speak to no one about the case while it is pending. Violation of that rule could result in a contempt charge and appropriate sanctions. Senators can and do speak to anyone they desire and the media seeks them out. Verdict with Ted Cruz (R-Texas) podcasts the Senator's opinions.
The judge tells the jurors to not make any decision until all evidence is presented, arguments are made and instructions are given by the judge. Some Senators say their minds were made up even before the current impeachment proceedings began. Some Senators do not want to hear from any witnesses. Therefore, it is not accurate to call these Senators “jurors.” It is also a disservice to both the title of “juror” and to those jurors past, present and future who have dutifully fulfilled their duty as citizens of this great country.
In survey after survey that we have done, jurors report approaching jury duty with a bit of trepidation. However, after having served, an overwhelming majority felt pride in doing so. Many expressed a new appreciation for our system of justice.
In addition to voting, jury service is the closest our citizens come to our founders and the Constitution they crafted. No other country places this much trust in its citizens.
The Senators may be many things, but they are not jurors.
Stephen D. Susman, Executive Director
Hon. Mark A. Drummond (Ret.), Judicial Director
Civil Jury Project at NYU School of Law
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Look out for the April Newsletter!
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Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
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Samuel Issacharoff
Faculty Director
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Mark Drummond
Executive/Judicial Director
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Michael Pressman
Research Fellow
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Kaitlin Villanueva
Admin. Assistant
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