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Tools to keep jurors engaged: the era of the passive juror is over. Research has shown that allowing jurors to actively participate in the trial process yields a more engaged and motivated panel - and promotes justice for all.

Article Excerpt
The juror is slouched in his seat and looking at the ceiling, out the window, at the floor. He s looking at everything but the witness stand. Another juror stares at the witness stand appearing attentive, but she's actually making mental lists of errands to run during the lunch break and groceries to pick up on her way home. Jurors are required to attend the trial, but they can't be required to focus their attention once they get there.

Why do jurors mentally wander in and out of the courtroom? In post-trial interviews, jurors have said:

* "They used so many technical terms that I couldn't follow what they were saying, so after a while I kind of gave up."

* "Nobody gave a real explanation of what they were trying to prove until the end, so it was hard to sort out what was important."

* "I had trouble remembering who said what, and there was no way to sort it out. When you're confused, it's hard to stay focused."

When jurors become confused or overwhelmed and don't know how to evaluate the information provided, they lose the motivation to stay focused on the trial--and they may not be mentally "present" for your key testimony or crucial cross-examination.

Tools that can help jurors start out and remain fully engaged in their task are sometimes called jury trial innovations. They include a "mini-opening" at the beginning of voir dire; preliminary instructions on the law that include a definition of the claims and relevant legal concepts before jurors hear evidence; the opportunity to take notes and use trial notebooks; interim summations; and--most controversial--the chance to ask questions.

The first two tools give jurors a framework for the questions they are asked in voir dire and for what they will see and hear once the trial begins. The remaining tools help jurors understand, organize, and retain more of the information they receive during trial.

Calling these tools "innovations" is a partial misnomer. They are still new in many courtrooms, but they have been studied and practiced for more than 20 years. In 1985, Second Circuit judges experimented with several innovations, including allowing jurors to take notes and ask questions, giving jury instructions before the trial, and providing jurors with a written copy of the judge's final charge. (1) Note-taking and juror questions received their first systematic academic study in the late 1980s. (2)

Since then, courts in California, Colorado, Hawaii, New Jersey, New York, Ohio, and Tennessee have begun jury innovation pilot programs; (3) Arizona mandated that these and other tools be provided to jurors in 1995; (4) and leading scholars continue to examine the impact of these practices. (5) A 2007 nationwide survey of jury-improvement efforts in the states by the National Center for State Courts (NCSC) provides a comprehensive snapshot of jury operations and practices in state courts. (6)

Although there is ample authority for using these tools, they are not used uniformly. In many jurisdictions, judges decide what will be permitted on a case-by-case basis, and unless an attorney specifically requests that the tools be given to jurors, they may not be made available. An attorney making such a request may encounter resistance from the judge and from other attorneys.

Some fear that giving jurors a more active role in the trial will undermine the adversary system. These skeptics ask, "If it's not...

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