Washington State Courts - Jury Commission

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Improving the Deliberating Process

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.
Questions from Deliberating Jurors	The failure of trial judges to be of greater assistance to jurors during deliberations is a primary source of juror confusion. Research shows that the vast majority of the time, judges answer jurors’ requests for clarification of instructions by simply referring the jurors to the instructions without further comment. Questions regarding the evidence are similarly dealt with by telling jurors to rely upon their memories of the evidence.
Providing Full Responses	Although many judges and lawyers consider juror questions an inconvenience, they should be welcomed as opportunities to determine whether additional or corrective action is necessary to ensure juror comprehension. Judges should exercise their discretion to respond more fully to deliberating jurors’ questions. As long as the judge does not impermissibly comment on the evidence, imply a view on the merits, or pressure the jury, the judge’s response will not constitute error. This procedure will reduce the frequency of juror confusion and mistaken verdicts.
	See Recommendation 39 for procedures to follow in responding to juror requests for clarifying instructions. See Recommendation 40 for procedures to follow in responding to juror requests relating to the evidence.
	References: CR 51(i), (j); CRLJ 51(i), (j); CrR 6.15(f); CrRLJ 6.15(e). Jury Comprehension in Complex Cases, 1989 A.B.A. Litig. Sec. Rep. 43, 52-53. Robert F. Forston, “Sense and Non-Sense: Jury Trial Communication”, 1975 B.Y.U. L. Rev. 601, 628-29. Lawrence J. Severance & Elizabeth F. Loftus, “Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions”, 17 Law & Soc. Rev. 153, 172-73 (1982). Vincent J. O’Neill, Jr., “Famous Last Words: Responding to Requests and Questions of Deliberating Jurors in Criminal Cases”, 11 Crim. Just. J. 381 (1989). Stephen P. Garvey, Sheri Lynn Johnson, & Paul Marcus, “Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases”, 85 Cornell L.Rev. 627 (2000) (emphasizing the importance of directly responding to jurors’ questions about jury instructions instead of simply referring the jurors back to the original instructions). Bernard S. Meyer & Maurice Rosenberg, “Questions Juries Ask: Untapped Springs of Insight”, 55 Judicature 105 (1971) (explaining a system of monitoring jury deliberations through jury questions in order to better understand how civil juries bring community standards to bear in deciding the legal issues presented to them). B. Michael Dann, “Educated & Democratic Juries”, 68 Ind. L. J. 1229, 1260-61 (1993). G. Thomas Munsterman, et al., Jury Trial Innovations, 177-179 (3^rd ed. 1997).