Improving the Deliberating Process

Recommendation 37
Washington’s Pattern Jury Instructions should provide jurors with suggested deliberation procedures. The suggested procedures should include selecting a presiding juror, organizing the discussion, encouraging full participation by all jurors, handling disagreements, and taking votes.

Recommendation 38
Trial judges should make every effort to respond fully and fairly to questions from deliberating jurors. Judges should not merely refer them to the instructions without further comment or tell them to rely upon their memories of the evidence. In doing so, judges should be careful not to pressure the jury or state or imply any view of the case’s merits.

Recommendation 39
The final jury instructions should explain the procedures for requesting clarification of instructions. The judge should advise the jury to submit any questions about instructions in writing to the bailiff.

Recommendation 40
When a jury question arises during deliberations regarding the evidence, the judge should notify the parties or their counsel of the question. The judge should read the question and solicit comments regarding the appropriate response. The response and any objections to it should be made a part of the record. This process should be mandated by court rule.

The judge should, after consulting with the parties or counsel, respond to all jury questions, even if the response is no more than a directive to rely upon their memories of the evidence. The court may allow the jury to review evidence (e.g., replaying audio or video tapes) if such review is not unfairly prejudicial to either party. The court may grant a jury’s request to rehear or replay trial testimony, but should do so in a way that is least likely to constitute a comment on the evidence and that minimizes the possibility that jurors will give undue weight to the selected testimony.

Recommendation 41
When deliberating jurors in a civil case report that they cannot reach a verdict, the judge should take additional steps after confirming that the jury is, in fact, deadlocked. The judge should invite the jury to state, in writing, the points of law or evidence upon which it cannot agree and desires help. The judge should discuss the jury’s response with counsel before deciding how to proceed. The judge can provide additional instructions, permit additional closing arguments, reread or replay testimony, reopen the trial for more evidence, or allow a combination of these. In communicating with jurors, the judge must avoid any appearance of coercing a verdict.