Jul 7

final-jur-e headline

The Role of Juries in Prosecutorial Discretion

In his piece “Did the Durham report’s criticism of juries go too far,” Washington Post staff writer Aaron Blake questions the suggestion made by Special Counsel John Durham in his report that that some juries may be too biased for prosecutors to bring charges in high-profile cases. In the Durham Report, released following the Special Counsel’s investigation into the FBI’s investigation of former President Trump’s relationship with Russia during the 2016 election, Durham writes “There are also reasons why, in examining politically-charged and high-profile issues such as these, the Office must exercise — and has exercised — special care. First, juries can bring strongly held views to the courtroom in criminal trials involving political subject matters, and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence and despite a court’s best efforts to empanel a fair and impartial jury.” While some legal scholars believe that considering the jury’s makeup is not an unethical practice when deciding whether to bring charges, others express concern that Durham’s sentiment could erode public trust in the legal system.  Others hold the view Mr. Durham’s thesis disregards the benefits of careful questioning of potential jurors by trial counsel and the judge during voir dire. Principle 11 of the ABA Principles for Juries & Jury Trials comes to mind as a model for effective voir dire.

Six States Increase Juror Pay

The National Center for State Courts informs that in 2023, six states have increased compensation rates for jurors. In 2022, NCSC found that jurors were paid $16.61 on average on their first day of duty in state courts. In almost all states, jury pay levels fall below federal and state minimum wage laws. This year, Indiana, Nevada, North Dakota, Oklahoma, Texas, and Virginia have approved higher compensation rates for jury service. In some of these states, the daily amount allotted to jurors doubled; North Dakota, for example, increased the pay rate jurors receive from $25 for one half of a day’s service to $50 and from $50 for a full day’s service to $100. In Oklahoma, juror compensation rates more than doubled – from $20 to $50 – for each day’s attendance before any court. Advocates of raising juror pay argue that it attracts a more diverse jury pool by mitigating the costliness of jury duty for lower-income communities.

Jurors Can Experience High Levels of Trauma

On a recent episode of the Criminal Podcast, produced by VoxMedia, host Phoebe Judge sat down with several guests, including Judge George O’Toole, Jr., who presided over the 2015 trial of Dzokhar Tsarneaev (the Boston Marathon bomber) and frequent Jur-E Bulletin contributor Pamela Wood, Jury Commissioner for Massachusetts, to discuss jury trauma. Judge O’Toole recounts the graphic images jurors were exposed to and the emotional impact it had on them, which was exacerbated by their inability to confide in close friends and family members for comfort. He describes trying to monitor the jury’s composure during the trial, knowing that they were subject to gruesome evidence that the rest of the courtroom was not. Ms. Judge also interviewed Wisconsin Supreme Court Justice Jill Karofsky, who described some of the anxiety expressed by jurors to her after trials. Justice Karofsky described the worry felt by some jurors about whether they reached the right decision and the worry they felt for their physical safety after trials involving violence.  Commissioner Wood also describes the statewide juror counseling program that the Massachusetts courts have implemented.

Jurors are Just Who We Need to Decide Cases

In their newly published research paper, Mikaela Spruill and Valerie Hans argue that jurors are the appropriate body to decide legal cases, despite their limited knowledge of the law, because of the psychological theories underlying individual and collective juror behavior. On an individual level, jurors often organize evidence into a chronological model to create a storyline, leaving out evidence that they believe is irrelevant according to their own biases, and then interpret the information. When juries deliberate, individual jurors can draw from others’ accounts to either support or re-evaluate their own narratives and, if successful, forge consensus. The authors assert the jury’s fact-finding function is enhanced by the presence of diverse jurors, which may mitigate the effects of preexisting prejudices.

Should Jurors be Permitted to Ask Questions?

In the latest issue of Judicature, published by the Bolch Judicial Institute at Duke Law School, Florida circuit court judge Jennifer Bailey posits the idea that jurors should be allowed to ask questions during both civil and criminal trials. Judge Bailey suggests that this practice would enhance jurors’ engagement with the evidence and engage their critical thinking skills, thus making them better deliberators and deciders of the facts. She also points to safeguards put in place by some jurisdictions, such as Florida, that permit juror questions. These protections include having jurors submit potential questions on a piece of paper, unsigned, for the judge’s and attorneys’ review, at which time they may handle any objections away from the jury’s purview. The questions, whether answered or rejected, are made part of the court record. Judge Bailey believes juror questioning handled under the watchful eye of the judge gives jurors a greater comprehension of the evidence without compromising the parties’ rights to a fair trial. Permitting jurors to submit questions to witnesses has been extensively studied and found to be effective for increasing juror comprehension without prejudice to the parties and without disrupting trial proceedings.