The National Center for State Courts (NCSC) recently published a report addressing “unprecedented challenges” facing juries and jury trials. The report opined that these challenges include both affirmative attacks on juries and jury trials due to unpopular verdicts as well as enervation on the part of the public regarding civil engagement generally and jury service specifically. Follow-on effects are an erosion of public trust in the jury system and jury pools that are less representative of the communities from which they are selected, according to the report’s authors. The report also highlighted the decline in the number of jury trials in criminal and civil cases, which it said meant that younger lawyers gain less trial experience. The authors posited that when those lawyers become trial judges, they are less prepared to oversee jury trials, creating a “feedback loop . . . leading to even fewer trials and greater pressure to settle or plea bargain cases.” The overarching identified concern was that the jury system might become a “marginalized part of the justice system, with fewer people participating and less public trust in the outcomes.” The report went on to identify four critical vulnerabilities related to the future of juries and jury trials and recommended strategies to address them.
Before I get to the four critical vulnerabilities, I’ll briefly address how the report developed them.
Methodology. NCSC convened an array of justice system stakeholders and asked them to explore a range of possible futures of juries and jury trials. There were four contemplated futures–ranging from a scenario in which juries and jury trials are “marked by a transformative embrace of technology, collaboration, and civic engagement” to one in which “[p]rivatization and community-specific justice systems replace traditional public adjudication.” Stakeholders were asked to consider the impact of these potential futures, to identify additional drivers of change, to identify potential weaknesses that could undermine the effectiveness and fairness of jury trials, and to propose strategies to address those vulnerabilities.
I, along with a group of North Carolina trial judges, recently had the opportunity to visit the NCSC and to hear from two of the project’s lead researchers: Paula Hannaford-Agor and Miriam Hamilton. They facilitated our participation in a modified version of the stakeholder exercise; I found it intriguing to think about how various futures might shore up or erode the jury trial system and the values it protects and what the implications of those developments might be for trial judges and other justice system stakeholders.
Critical Vulnerabilities. The report identified four critical vulnerabilities, defined as areas of weakness that threaten the current jury trial system if not addressed:
- The lack of public education and engagement regarding the jury system and jury service;
- Failure to focus on the juror-centered experience;
- Insufficient capacity within the legal profession for conducting jury trials and growing disincentives for taking cases to trial; and
- Disparities between the values that the system is supposed to uphold and the actual practices in court.
For each vulnerability, the report provides suggested strategies and examples of strategies in action.
Several points related to particular weaknesses stood out to me.
As to lack of public education and engagement, the report urges courts to lead efforts to educate and engage the public. At the same time, it characterizes the task as too large for courts alone to resolve. The report suggests a role for businesses, which benefit from a civically engaged workforce, as well as for educators and other civic and community groups.
Jurors’ experiences (which may influence the attitudes of future jurors) could be improved, the report suggests, by trial procedures that support active learning and engagement. Those procedures include allowing jurors to take notes and providing them with written copies of jury instructions. Many, but not all, trial court judges in North Carolina have already adopted these practices.
Two other innovations may strike the bench and profession as more radical. The first is permitting jurors to submit written questions to witnesses, currently a routine practice in civil trials in Florida’s state courts, and a practice that other state and federal courts have employed in both criminal and civil trials. See Marina Garcia Marmolejo, Jack of All Trades, Master of None: Giving Jurors the Tools they Need to Reach the Right Verdict, 28 Geo. Mason L. Rev. 149 (2020) (reviewing courts’ implementation of the practice and discussing the author’s experience with permitting juror questioning in her role as United States District Court Judge for the Southern District of Texas). The second is remote jury selection, a practice that saves juror time and reduces associated costs of participation. While at least one district in the state permits jurors to seek a deferral of their service via remote proceedings, I am not aware of any North Carolina trial in which the jury was selected via remote proceedings.
These are just a few of the many suggestions and strategies put forward in the report. I encourage those who are interested to read the document in its entirety.