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| D. TRIAL: 25. Set and Enforce Time Limits for Trials Given the benefits to the parties, jurors and the court system of trials that are as short as fairness permits, judges ought to be given express authority, by rule, to impose reasonable time limits on trials or portions of trials. 26. Guidelines for Severance in Complex Cases are Needed Existing authority to sever parties or claims for trial purposes ought to be utilized more often, at least in especially lengthy trials or trials in complex cases, to keep trial time to a minimum and to reduce juror overload and confusion. The Supreme Court should promulgate guidelines for severance for the benefit of trial judges. 27. Jury Trial Time Should be Maximized Jurors and attorneys should be surveyed to determine whether there is a preference for trials lasting full days (6 hours) and full weeks (5 days) or trials lasting only half days (3 hours) and 4 days a week. A study should be undertaken of the relative advantages and disadvantages of various options for hours for trial. 28. Trial Interruptions Should be Minimized The conduct of a jury trial ought to take precedence over all other trial court business except emergencies. Trial judges should receive training in the effective use of specific trial management techniques that would reduce unnecessary disruption and delay. When in a jury trial, the judge should allow no more than one hour for lunch, absent special circumstances. 29. Juror Notebooks Should be Provided in Some Cases In all lengthy trials and trials of complex cases jurors should be supplied with juror notebooks for the keeping of documents or information, e.g., juror notes; preliminary and, eventually, final instructions; lists of witness names (and possibly photos); copies of key exhibits; and, where helpful, a glossary of terms. 30. Expand Use of Preliminary Jury Instructions Preliminary jury instructions should be expanded in scope to include elements of the charge or claim and any known defenses. They should be case-specific where possible and always in plain English. In complex or technical cases, definitions of terms and other information that would help orient the jury to the case should be included. 31. Ensure Note taking by Jurors in Civil Cases For over 20 years, jurors in criminal trials in Arizona have had the right to take notes. Experience has shown that the obvious benefits of the practice (aid to memory, increased attention to the trial, etc.) outweigh any supposed drawbacks. The civil rules should be amended to grant jurors the same right in trials of civil cases. All jurors should be able to review their own notes during any recess. 32. Improve Management of Trial Exhibits The trial judge should control the number of exhibits, have relevant portions of documents that are admitted highlighted for the jury and provide copies of key documents to the jurors. In document-intensive cases, the judge should provide an index or retrieval system for the jury's use during deliberations. For the control and safeguarding of documents in an especially paper-intensive trial, a document depository should be considered. 33. Deposition Summaries Should be Used To reduce the tedium of reading the contents of a deposition to the jury, and in order to improve juror comprehension of the relevant deposition testimony, counsel should be encouraged, and in some cases, required to prepare concise written summaries of depositions for reading at trial. Copies of the summaries should be provided to the jurors before they are read. 34. Allow Jurors to Ask Questions Jurors should be allowed to ask questions during trials of civil and criminal cases, subject to careful judicial supervision. At a minimum the safeguards should include: telling the jurors in advance of trial of the procedures to be followed; having questions put in writing and left unsigned; discussing the question with the attorneys and allowing them to object to the question out of the jury's presence; the asking of the question of the witness by the judge; and telling the jurors that the law may prevent some of their questions from being asked. 35. Educate Attorneys and Judges Concerning Interim Summaries During Trial Trial judges and attorneys should be made more aware of the advantages of interim summaries for the jury after discrete segments of especially long trials or trials in unusually complex cases. 36. Use Modern Information Technology More Often in Trials Trial lawyers and judges should become more aware of the availability, advantages and costs of the technologies, present and future, that can aid the parties in case presentation and the jury in understanding and recalling the evidence. 37. Allow Jurors to Discuss the Evidence Among Themselves During the Trial After being admonished not to decide the case until they have heard all the evidence, instructions of law and arguments of counsel, jurors should also be told, at the trial's outset, that they are permitted to discuss the evidence among themselves in the jury room during recesses. 38. Use Only Plain English in Trials, Especially in Legal Instructions Judges and lawyers should keep legalese and other technical terms to an absolute minimum at trial. Instructions on the law should be in clear and understandable language. 39. Do not Keep Jurors Waiting While Instructions are Settled The trial judge and counsel should have the final jury instructions substantially ready by the close of evidence. If additional preparation is needed following the close of evidence, the jurors should be released, overnight if necessary, in order to avoid keeping them waiting. 40. Make Jury Instructions Understandable and Case-Specific and Give Guidance Regarding Deliberations In addition to couching jury instructions in plain English, they should be case-specific where possible (e.g., use of parties' names) and should give the jury some suggestions regarding the deliberation process. 41. Do not Instruct Juries on Jury Nullification; However, the Rules of Evidence Ought to be Expanded in Recognition of the Jury's Power to Nullify Except in extraordinary situations or where required by the Arizona Constitution, juries should not be instructed on the subject of jury nullification. However, relevancy rules should be amended or interpreted to permit greater latitude in evidence in recognition of the jury's undoubted power to nullify the law. For example, evidence of the defendant's intent and motive ought to be received. 42. Give Jurors Copies of the Jury Instructions The judge's preliminary and final instructions should be in writing. Each juror should be given copies of both. The jurors should be able to take their copies of the jury instructions with them to the jury room, especially during deliberations. 43. Read the Final Instructions Before Closing Arguments of Counsel, Not After To increase juror understanding of the law and its relation to the case, and their understanding of closing arguments, and to facilitate the arguments, the final instructions ought to be read before closing arguments by counsel. 44. Alternate Jurors Should Not Be Released From Service in Criminal Cases Until a Verdict is Announced or the Jury is Discharged Because of the ever-present risk of losing a deliberating juror to illness or other personal emergency, which would reduce the jury in a criminal case below the minimum number required for a verdict, alternate jurors should be admonished that they might be needed for deliberations and to continue to observe all the rules governing jurors' conduct until notified of a verdict. If an alternate is substituted, the jurors should be instructed to begin deliberations anew. 45. Allow All Jurors Remaining at the End of a Civil Trial to Deliberate and Vote No juror should be designated an alternate and excused at the end of civil cases. All jurors who remain at the close of arguments should deliberate upon and decide the case. The number of jurors' votes needed for a verdict should be determined by the trial judge to assure that the requirement of three-fourths vote is met. 46. The Trial Judge Should Decide on a Schedule for Jury Deliberations and Inform Jurors in Advance The scheduling of days and times for jury deliberations should be left to the discretion of the trial judge, taking into account individual case and other local requirements. Jurors should be informed of the schedule in advance. 47. Encourage Juror Questions About the Final Instructions Judges should solicit questions from jurors about the final instructions before and during deliberations by, among other things, telling them in the written charge that such questions are welcome and by soliciting their questions, if any, after a reasonable period of deliberations has passed. 48. Fully Answer Deliberating Jurors' Questions and Meet Their Requests The trial judge should fully and fairly respond to all questions asked and requests made by deliberating jurors concerning the instructions and the evidence, recognizing that the jurors are capable of defining their needs in deciding the case. 49. Offer the Assistance of the Judge and Counsel to Deliberating Jurors who Report an Impasse After hearing from deliberating jurors that they feel they are at an impasse, the trial judge should invite the jurors to list the issues that divide them in the event that the judge and counsel can be of assistance, e.g., by clarifying instructions or rearguing certain points. 50. When Juries Reported to be at Impasse are Returned for Further Deliberations They Should Not Be Instructed Any Further If the judge and trial attorneys are unable to be of further assistance after dialoguing with a jury at impasse, or if after those further proceedings the jurors are returned for additional deliberations, no further instructions should be given asking or encouraging them to reach a verdict, at least in criminal cases. 51. Become Proactive in Detecting and Treating Juror Stress After trials likely to cause unusual stress or trauma for jurors, the judge should conduct an immediate jury debriefing with the help of a mental health professional. One follow-up visit with the professional ought to be provided at no cost. Any juror needing further assistance should be referred to community resources. 52. Assist Jurors in Coping with Fears of Contact or Retaliation When jurors express what appear to be reasonable concerns about the dangers of being contacted or made the target of retaliation during or following trial, the court should, after notice to the parties, conduct a debriefing and make referrals to law enforcement authorities as necessary. 53. Solicit Jurors' Reactions to their Courthouse Experience The jury commissioner and trial judge should conduct regular surveys of juror responses to jury service in general and to the trial in particular. Survey results should be tallied and reviewed by judges, jury commissioners and court policy makers. 54. Advise Jurors Concerning Post-Verdict Conversations with the Judge, Attorneys and the Media When trial jurors are discharged, the judge should advise them that they are free to discuss the case with the attorneys and parties, the judge, media and the public if they wish, but that they are free not to do so if they choose. The judge should offer to meet with any jurors who wish to do so, to thank them personally and to answer questions of a general nature. 55. Promulgate A Proposed Bill of Rights for Arizona Jurors A Jurors' Bill of Rights listing the more important rights and expectations of jurors, both those presently existing and those created as a result of this report, should be promulgated to aid in educating all concerned and to better assure that the rights are observed. |
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