Civil Jury Reform: Is Missouri Ready for Changes?

W. Dudley McCarter

Over the past decade, greater jury participation in civil trials has been the subject of not only academic debate, but also actual implementation in several states and in federal courts. Jurors in Missouri have been permitted to take notes in civil cases since 1997. In the past year, the Supreme Court of Missouri specifically authorized trial courts to permit questioning of witnesses by jurors if done according to guidelines and procedures established at the commencement of the trial. Other states have allowed jurors to discuss the case under controlled conditions prior to receiving the instructions and closing arguments. This article will discuss these and other changes in civil jury trials within Missouri and in other jurisdictions.

I. Introduction

On September 14, 1999, Chief Justice William Ray Price, Jr., with the authorization of the Judicial Conference of Missouri, appointed a committee to study civil jury reform.² The Civil Jury Study Committee commissioned a study by Professor Greg Casey from the University of Missouri-Columbia, who surveyed more than 940 jurors from both federal and state civil trials. The Casey report was included in the report of the committee.

The committee was requested to examine how jurors might participate in civil trials and to recommend to the Supreme Court changes that might be desirable. The committee was asked to focus on issues that could be addressed by Supreme Court Rule, rather than by statutory change. The committee was given broad authority to examine all potential areas of meaningful jury reform, including such issues as juror questioning during trial, guides for juror deliberations, revision of explanatory instructions, discussion of the case by jurors prior to final deliberation, use of juror notebooks, and any other trial procedures that might enhance jury participation and effectiveness. The committee submitted its report to the Supreme Court in October of 2000.

During 2000, I distributed questionnaires to all Missouri circuit and associate circuit judges to gauge their reaction to several ideas on jury reform. The same questionnaire was submitted again to the trial judges in 2004. As will be discussed in more detail below, there was no significant change in the trial judges' opinions regarding note-taking, questioning by jurors or deliberations during trial, but the percentage of trials in which jurors have taken notes has increased.

II. Juror Notetaking

A. Background

Juror note-taking in civil cases was first allowed in Missouri under Supreme Court Rule 69.03 (effective January 1, 1997), which stated:

If the court allows juror note-taking, the court shall supply each juror with notebooks and pencils. Jurors shall not have their notes during recesses but may use their notes during deliberations. The court shall collect all juror notes immediately before discharge of the jury. After the jury is discharged, the court shall destroy the notes promptly without permitting their review by the court or any other person. Juror notes shall not be used to impeach a verdict.

The Civil Jury Study Committee analyzed the results of Professor Casey's juror surveys, which found that when jurors were permitted to take notes, "80% [of the jurors] believed notes were helpful in recalling testimony and the lawyers' arguments, . . . 64% found notes . . . useful in recalling the judge's instructions" and "74% used the notes during deliberations."³ Of jurors who were not permitted to take notes, 81% believed notes would have been helpful in recalling testimony, 76% thought they would be useful in recalling lawyers' arguments and "67% thought notes would have been . . . useful in recalling judge's instructions."⁴ The committee recommended amendment of Rule 69.03 to encourage trial judges to permit jurors to take notes.

After the Civil Jury Study Committee submitted its report to the Supreme Court, Rule 69.03 was amended, effective January 1, 2002, to read as follows:

Upon the court's own motion or upon the request of any party, the court shall permit jurors to take notes. If jurors are permitted to take notes, the court shall supply each juror with suitable materials.

Jurors shall not take their notes out of the courtroom except to use their notes during deliberations.

The court shall collect all juror notes immediately before discharge of the jury.

After the jury is discharged, the court shall destroy the notes promptly without permitting their review by the court or any other person.

Juror notes shall not be used to impeach a verdict.

When note-taking is permitted, the court is required to read the three bracketed paragraphs at the end of MAI 2.01. These paragraphs read:

[(11) NOTE TAKING

Each of you may take notes in this case, but you are not required to do so. I will give you notebooks. Any notes you take must be in those notebooks only. You may not take any notes out of the courtroom before the case is submitted to you for your deliberations. No one will read your notes while you are out of the courtroom. If you choose to take notes, remember that notetaking may interfere with your ability to observe the evidence and witnesses as they are presented.

Do not discuss or share your notes with anyone until you begin your deliberations. During your deliberations, if you choose to do so, you may use your notes and discuss them with other jurors. Notes taken during trial are not evidence. You should not assume that your notes, or those of other jurors, are more accurate than your own recollection or the recollection of other jurors.

After you reach your verdict, your notes will be collected and destroyed. No one will be allowed to read them.]⁵

B. Results of Missouri Trial Judges Survey

As shown in Charts 1 & 2, the results of the survey taken of Missouri trial judges in 2000 and 2004 on juror note taking indicated that the practice increased during the past four years.

 

Surprisingly, most of the judges' comments to the 2004 survey on note-taking by jurors were critical of the process. The comments made more than once were:

• In writing down the answer, they invariably miss the next two or three statements, which often modify the answer. Also, the demeanor of the witness is lost.

• Not all jurors take notes; this can lead to a tyranny of note-takers versus non-note-takers.

• Juror concentrates on notes and cannot judge credibility of witness as well.

• Juror with lengthy notes may have too much influence on other jurors.

• The best note-takers think they are experts.

• Note-taking should only be used in complex cases.

• Note-taking is a distraction.

• It is possible that too much emphasis would be placed on some testimony early in the trial; note-taking decreases as the trial proceeds.

Despite these comments, more than three-fourths of Missouri trial judges believed note-taking should be continued and more judges are permitting jurors to take notes than was the practice four years earlier.

III. Questioning by Jurors

A. Background

In his 1990 article "Juror Questions; A Survey of Theory and Use,"⁸ Michael A. Wolff, now Chief Justice of the Supreme Court of Missouri, presented an exhaustive survey of juror questioning, which included not only a thorough discussion of both state and federal court decisions addressing this subject, but also a practical discussion about the advantages and disadvantages, the observations of judges who allow questioning by jurors and an analysis of the various procedures used in implementing juror interrogation. He also provided "a comprehensive model [of] juror interrogation procedures."⁹

Judge Wolff determined that juror questions were first explicitly approved in Missouri in Schaeffer v. St. Louis & S. Ry. Co.¹⁰ in 1895. He also concluded that the first formal system for jurors to ask questions was addressed in Sparks v. Daniels.¹¹ In Sparks, "a juror raised his hand, was recognized by the court, and asked a question. . . . [T]he Court conferred with counsel . . . and then instructed the witness to answer."¹²

As stated by Judge Wolff, "[t]he benefit of juror interrogation can be summarized [as follows:] 'the better informed the jury, the more likely it is to render a just verdict.'"¹³ He further stated that "[b]ecause juror interrogation involves jurors as active participants in the trial, they will become more interested in the trial and pay more attention."¹⁴ He reports U. S. District Court Judge Scott O. Wright, a long-time proponent of juror questioning, as saying that "it is better for jurors to ask their questions immediately, even if improper, than to leave them unresolved and open for speculation in deliberation."¹⁵

The model juror interrogation procedure proposed by Judge Wolff allows oral questions of each witness by the jurors after both counsel have examined the witness. The trial judge must reject improper questions - either sua sponte or on counsel's objection - and explain to the jury why the question was improper. After the jury's interrogation, all counsel would be allowed further questions on direct or cross-examination, but limited to the subject matter raised by the jury's questions.

The concerns about juror questioning raised most often include: (1) fear of trial counsel that jurors will be offended if their question is objected to or not asked; (2) "the propriety of juror questions because most jurors are not familiar with the rules of evidence; (3) the disruption of courtroom decorum" if jurors interrupt and ask questions; "(4) the fear that active participation in questioning may lessen juror objectivity and impartiality" and result in jurors becoming advocates for a position; "(5) the possibility of deliberations [among] the jurors beginning prematurely" by jurors becoming aware of the thoughts of jurors through the questions asked; and (6) the delays caused during the trial, possible distractions caused by the questions and the lengthening of the time spent in trial.¹⁶ The consensus among the federal circuit courts is that juror questioning is a matter within the discretion of the trial judge, but "the practice should be used sparingly and . . . the number of questions submitted by the jury should be limited."¹⁷

Some empirical studies of juror questioning have concluded that it does not result in the jurors departing from neutrality, but did result in jurors themselves feeling very positive about being able to ask questions because they felt better informed and had sufficient information to reach a sound verdict.¹⁸

The Casey report concluded that when jurors were permitted to submit questions, 87% of the jurors found the answer of the witness to be helpful.¹⁹ The Civil Jury Study Committee recommended that pilot programs be implemented to study the advantages and disadvantages of juror questioning.

Missouri now permits jury questioning. In City of Springfield v. Thompson Sales Co.,²⁰ the Supreme Court upheld submission of questions by jurors. The Court reaffirmed its prior holdings that trial judges have discretion to permit jury questioning: "While excessive questions by one or more jurors of one or more witnesses should be avoided, limited jury questioning according to pre-set rules and clear guidelines may, in a particular case, assist jurors in clarifying and understanding the factual issues presented to them for decision."²¹ The Court further commented that, before the trial commences, the judge and the parties should discuss in advance the jury questioning procedures to be used.

After the Thompson Sales decision, the Supreme Court of Missouri adopted new Rule 69.04, effective July 1, 2004, which states:

(a) Upon the court's own motion or upon motion of any party, the court may permit jurors to submit questions to witnesses. The court shall resolve any such motion before the jury is impanelled.

(b) If the court permits jurors to submit questions:

(1) The court shall instruct the jurors:

(A) On the procedure to be followed for asking such questions; and

(B) That no adverse inference is to be drawn against any party if any juror question is not allowed;

(2) After all parties have completed examination of each witness, any juror may submit written, anonymous questions;

(3) All parties shall be given an opportunity outside the hearing of the jurors to object to the substance or the form of any question;

(4) The court may limit the number of questions;

(5) The court may revise any question's form and shall read the question to the witness or the parties may stipulate to the answer; and

(6) The court may allow any party to ask follow-up questions after consideration of the juror questions.

Thus, if Missouri trial judges previously had doubts about allowing questions from jurors, it is clear now that the practice is permitted.

B. Recent Decisions from Other States

Appellate courts in other states have taken differing approaches to the practice of allowing juror questions. In Steele v. Atlanta Maternal-Fetal Medicine, P.C.,²² the Court of Appeals of Georgia found that the trial court abused its discretion by allowing jurors to submit questions for witnesses. In this medical malpractice case, the trial court instructed the jurors after opening statements that, at the conclusion "of a witness's testimony they would retire briefly to the jury room, discuss whether they had questions for the witness, write any questions on a piece of paper, and give the paper to the bailiff."²³ Discussing the trial court's instructions, the Steele court held, "[T]he principle that the parties are responsible for producing the evidence upon which the decision will be based is 'intimately connected with the requirements of decision maker passivity and neutrality.' . . . In Georgia, 'a trial court may receive written questions from the jury and ask those questions the court finds proper,' but, as when propounding its own questions to witnesses, must exercise great caution to avoid the appearance of commenting on the evidence. . . . [A] trial court should not solicit such questions from the jury."²⁴ "Although the trial court cited many sources in support of its opinion that the nationwide trend is to allow juries to discuss the evidence before final deliberations and to submit questions for witnesses, we are not persuaded that Georgia has embraced that trend."²⁵ "Although these reforms may well be worthwhile - and may ultimately be formally adopted in Georgia - we think it more prudent at present to refrain from imposing them on unwilling litigants."²⁶

On the other hand, the Supreme Court of Vermont held in State v. Doleszny²⁷ that it was within the trial court's discretion to permit jurors in criminal cases to submit written questions for the witnesses. This case contains both an analysis of juror questioning practices in state and federal courts and a discussion of professional commentary and empirical studies on this practice. Specifically, the Vermont Supreme Court reached a number of conclusions in support of the practice. "Juror questioning is neither radical nor a recent innovation. The practice was historically part of the trial process and considered a useful tool in ascertaining the truth."²⁸ "The vast majority of states that have ruled on the issue allow juror questioning in some form."²⁹ "In addition to the state court decisions, of the ten federal circuits that have considered the juror questioning issue, all allow the practice in some form in the trial court's discretion."³⁰ The Doleszny court specifically found "a significant recent trend towards endorsement of the practice and emphasis on its benefits. Thus, recent decisions allow the trial courts greater freedom in utilizing juror questioning. . . . Many decisions conclude that juror questioning of witnesses aids in the ascertainment of truth and the overall achievement of justice in trials."³¹ In addition, "juror questioning may also increase juror understanding and participation."³²

Further, the Doleszny court pointed out that many state commissions have studied methods of improving juror understanding of the evidence and that "[t]hese commissions have overwhelmingly supported adoption of policies that allow juror questioning of witnesses at least in some cases."³³ "In addition, scholarly and professional commentary is near unanimous in its support for allowing jurors to question witnesses."³⁴ Addressing the criticism that jurors who question witnesses become advocates rather than remaining neutral, the Doleszny court commented upon several recent studies of actual juries and that "uniformly, the researchers have concluded that jurors who ask questions do not thereby become advocates for a particular trial result."³⁵

"Moreover, the concept of a jury as a passive receptacle of information on which it will make critical decisions is now recognized as totally inconsistent with how we view the process of informed decision making in other contexts. . . . Active jurors, like active students, are more likely to learn and will thereby become more precise and qualified decision makers."³⁶ Assessing the criticisms and benefits of juror questioning, the Doleszny court concluded that the reasons for prohibiting juror questioning of witnesses in criminal cases, as found in State v. Costello,³⁷ trade "a speculative increase in neutrality for a likely reduction in juror comprehension of the evidence, a trade-off we are unwilling to force on our trial judges."³⁸

The Doleszny court concluded that "the purpose of a trial is to determine the truth" and that the remedy for "inappropriate juror questions lies in effective screening by the trial judge."³⁹ The Vermont Supreme Court then gave specific instructions regarding this practice, as follows:

In summary, the overwhelming endorsement in other jurisdictions of allowing jurors to question witnesses through the judge, and the lack of persuasiveness of the criticisms of the practice, lead us to hold that trial judges in Vermont have authority to allow jurors to question witnesses, through the judge, in criminal cases. The procedure should follow that employed in this case: (1) the jurors must submit the proposed questions to the judge and be made part of the record; (2) the judge must disclose the proposed questions to the parties and give them the opportunity to object or request the question be narrowed or rephrased; and (3) the judge must rule on each proposed question on the record, allowing, rejecting or modifying the question. The procedures should be explained to the parties and the jurors at the commencement of the trial.⁴⁰

C. Missouri Trial Judges Survey

The Missouri trial judges' responses to the following question on juror questioning in 2000 and 2004 are shown below.

"Do you believe jurors should be permitted to submit questions to the Judge who will decide whether or not they should be submitted to the witness?"⁴¹

Judges' comments in 2004 on questioning by jurors were:

• Absolutely not.

• If a question is not asked, the jury may resent the refusal and put more emphasis on that issue than on the evidence.

• It can be a big distraction from the elements required to be proved.

• Will result in increase in reversible error; parties are entitled to have their disputes finally decided.

• Jurors should never be allowed to ask questions of a witness in any form.

• Jurors will become frustrated/upset if their question is not asked.

• Very hard to control; jurors get mad if their question is not asked.

• Will make trials longer and disrupt flow of trial.

• Attorneys should present evidence, juries should go on evidence presented.

• Through questions being asked, jurors actually begin deliberation process and form opinions prior to submission.

The attitude of Missouri trial judges to questioning by jurors was almost identical in both the 2000 and 2004 surveys and is overwhelmingly opposed to the practice.

IV. Juror Deliberations During Trial

A. Background

Other states have considered permitting pre-deliberation discussions by jurors. Some jurisdictions are conducting pilot programs that, upon stipulation of counsel, permit pre-deliberation discussions, particularly in lengthy or complex cases.

Arizona was the first jurisdiction to expressly permit jurors to discuss evidence during civil trials. Ariz. R.Civ.P. 39(f) states:

Admonitions to jurors; juror discussions. If the jurors are permitted to separate during the trial, they shall be admonished by the court that it is their duty not to converse with or permit themselves to be addressed by any person on any subject connected with the trial; except that the jurors shall be instructed that they will be permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Notwithstanding the foregoing, the jurors' discussion of the evidence among themselves during recesses may be limited or prohibited by the court for good cause.

Currently, jurors in Missouri are prohibited from discussing the case until they receive the final jury instructions. MAI 2.01 states, in part:

(6) OPEN MINDS AND NO PRELIMINARY DISCUSSIONS

Justice requires that you keep an open mind about the case until the parties have had the opportunity to present their cases to you. You must not make up your mind about the case until all evidence, and the closing arguments of the parties, have been seen or heard. You must not comment on or discuss with anyone, not even among yourselves, what you hear or learn in trial until the case is concluded and then only when all of you are present in the jury room for deliberation of the case under the final instructions I give to you.

The comments to this instruction suggest that the trial judge give a similar admonition to the jury before a recess.

"Articles on this subject suggest that prohibiting jurors from talking about the case as the trial progresses may be contrary to basic human psychological needs" and the learning process utilized during years of attending high school or college.⁴² "Other commentators have stated that, because pre-deliberation discussions will occur regardless of whether they are permitted, the interests of justice are better served by giving jurors guidance on when and how such discussions should take place. The jurisdictions . . . experimenting with this process have implemented" new instructions similar to the following:⁴³

Discussions of this case among yourselves while the evidence is being presented to you may occur only in the jury room and only while all jurors are present. . . . During your discussions of the case before you have heard all the evidence, the argument of counsel and all the jury instructions, you must keep in mind your oath as a juror to withhold judgment until you have had this opportunity.⁴⁴

Obviously, "[t]here are concerns about this practice. All trials involve piecemeal presentation of evidence, with the plaintiff (or party with the burden of proof) going first and the other party" (or parties) presenting its evidence at a later time.⁴⁵ "An understandable fear is that, if the jury discusses the case [before] hearing all the evidence," counsel's arguments and the court's instructions, "the jury could reach a decision prematurely," or some jurors with strong opinions could persuade other jurors to form opinions before they otherwise would.⁴⁶

B. Recent Court Decisions

Juror deliberations during trial were squarely disapproved in Steele v. Atlanta Maternal-Fetal Medicine P.C.⁴⁷ In Steele, the trial court had instructed the jury that it would allow them during their breaks to discuss the evidence received to that point. While noting that this procedure contrasts "markedly with those traditionally followed in Georgia," the Steele court further commented that "[r]ules of procedure and evidence were honed to enforce" the concept of a jury as a completely "neutral and passive decision maker."⁴⁸ The Steele court adopted the following reasons for the:

"generally accepted principle of trial administration that jurors must not engage in discussions of the case before they have heard both the evidence and the court's legal instructions and have begun formally deliberating as a collective body":

[O]nce a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion. Consequently, the mere act of openly expressing his or her views may tend to cause the juror to approach the case with less than a fully open mind and to adhere to the publicly expressed viewpoint.[T]he jury system is meant to involve decision making as a collective, deliberative process and premature discussions among individual jurors may thwart that goal.⁴⁹

"Because the court provides the jury with legal instructions only after all the evidence has been presented, jurors who engage in premature deliberations do so without the benefit of the court's instructions on the applicable legal standards. . . . Also, because any premature discussions are likely to occur before the defendant has presented all of his evidence, it is likely that any initial opinions formed by some jurors, which may influence other jurors, will be unfavorable to the defendant for this reason."⁵⁰ The Steele court concluded that "[t]hese same concerns pertain to civil litigants who . . . are entitled to . . . 'a fair trial in a fair forum,'" and found that the juror questioning and premature deliberation "procedures implemented by the trial court modified the traditional roles of the jury, the trial judge and the lawyers. . . . Clearly these changes have an effect on the traditional adversary system."51

On the other hand, some commentators believe that in addition to enhancing juror comprehension, another "rationale for permitting jurors to discuss [the] evidence" is that "[i]f biases develop during the presentation of evidence that shape how later evidence is considered, then timely deliberation about evidence during trial could serve to correct individual errors and biases."⁵²

C. Missouri Trial Judges Survey

In response to the questionnaire submitted to Missouri trial judges in both 2000 and 2004, most judges opposed allowing jurors to discuss the case before deliberation. The question and responses were:

"Do you believe jurors should be permitted to discuss the case among themselves prior to deliberation, so long as they are admonished to do so only with all jurors present and to not make up their minds until deliberations?"⁵³

	Yes	No	Other
2000	22%	78%	0
2004	20%	80%	0

Judges' comments in 2004 to this question were:

• This would greatly prejudice defense of case and lead to pre-deciding case; we live in a society prone to "quick fixes" and "short attention spans."

• Absolutely not.

• They do it anyway.

• This should be tried based on instructions and experiences of other states.

• Should not be done because they could make up their mind before they hear the whole case.

As shown by this survey and the comments, Missouri trial judges show little support for juror deliberations during trial.

V. Other Recommendations to Improve Jury Trials

Both the 2000 survey and the 2004 survey requested Missouri trial judges to provide any suggestions to improve civil jury trials. The most popular response - by a significant margin - in both surveys was to relax the restrictions and give the trial judge more flexibility in answering jurors' questions during deliberations. (A close second was "to shorten and simplif[y]"⁵⁴ the instructions)

The Casey study found that, during deliberations, 59.8% of the jurors talked about sending questions to the judge and 45.5% of the jurors sent a question to the judge.⁵⁵ In response to open-ended questions in the questionnaire used in the Casey study, the most frequent suggestions for improvements to the trial were: (1) allow jurors to ask questions of the judge, (2) permit questions of witnesses, (3) allow note-taking, and (4) reduce the waiting.⁵⁶

This issue of juror questions during deliberations was specifically addressed in several of the 55 recommendations for improving jury trials contained in the 1993 report of the Arizona Supreme Court Committee On More Effective Use of Juries entitled, "Jurors: The Power of Twelve."⁵⁷ Included among those recommendations regarding jury deliberations were the following:

47. Encourage juror questions about the final instructions.

48. Fully answer deliberating jurors' questions and meet their requests.

49. Offer the assistance of the Judge and counsel to deliberating jurors who report an impasse.⁵⁸

 

Chart 3

2001 1.  Give judges more discretion to answer juror's questions during deliberation. 2.  Use everyday, common words, simple language and plain old English in instructions and shorten them. 3. Allow judge to explain why some evidence (e.g. depositions that have been read) cannot be sent to the jury room. 4. Reduce civil juries to 6 or 8 people. 5. Provide courtrooms with technology and equipment to display evidence. 6. Give instructions on elements of case and burden of proof to jury before evidence is presented. 7. Shorten the jury selection process.

2004 1. We should relax our restrictions on answering questions from the jury during deliberation. 2. Simplify, shorten and reduce the number of instructions given. 3. Allow testimony to be re-read to jury on request of jury on a specific point of dispute among the jurors. 4. Find a way to shorten voir dire; jury exhausted before sworn. 5. Clarify ability of jurors to ask for admitted exhibits. 6. Give jurors more instructions at the beginning of the case. 7. Make visual presentation equipment available in all courtrooms for all trials. 8. The more we involve jurors, the better it is for the system, the jurors and each trial.

In response to the question of "Do you have any suggestions to enhance the jury's understanding of the evidence or improve civil jury trials in any other way?", the comments from Missouri trial judges that were provided in 2000 and 2004 more than once were very similar (as shown above in order of frequency in Chart 3).

VI. Assisting the Jury during Deliberations

Obtaining assistance from the court, whether in the form of further clarification of the judge's instructions or reconsideration of some of the evidence, has been shown to improve the efficiency and quality of jury deliberations.⁵⁹ The practice of merely instructing jurors to re-read the instructions they already have is often not particularly helpful, and may even frustrate the jury. Jurors' understanding of the judge's instructions is increased and their general sense of confidence in performing their duties is likely heightened when they may ask questions and receive reasonable responses.⁶⁰ In its publication, "A Guide for Jury Deliberations," the American Judicature Society recommends that the jury be told that it can ask the judge for assistance if it does not understand the instructions and that it may also ask the judge for some types of information, including the trial exhibits or the reading back of the testimony of witnesses. The jury is also told that it may not receive documents that may have been referred to during the trial, but were not received in evidence as an exhibit.

Colorado has addressed some of these recommendations. Rule 47(n) of the Colorado Rules of Civil Procedure states:

After the jury has retired for deliberation, if it desires additional instructions, it may request the same from the court; any additional instructions shall be given it in court in the presence of or after notice to the parties.

Colorado courts have held that "[t]he reading of all or part of the testimony of one or more of the witnesses at the trial, . . . at the specific request of the jury during its deliberations, is discretionary with the trial court."61

Under Rule 39(h) of the Arizona Rules of Civil Procedure, if a "jury advises the court that it has reached an impasse in its deliberations, the court may, in the presence of counsel, [ask] the jurors . . . how [the] court and counsel can assist them in their [deliberations.] After receiving the jurors' response[s], . . . the judge may direct that further proceedings occur as appropriate." The comments to that rule provide a suggested response to the jurors' report of impasse, which includes an instruction to the jury that it may identify for the court what issues or questions of law or fact with which it needs assistance. The comment further states that if the jury identifies one or more issues that divided them, the court may consider a number of options, including: giving additional instructions, clarifying earlier instructions, directing the attorneys to make additional closing arguments, reopening the evidence for limited purposes, or a combination of these measures. The comment further states that it might not be legally or practically possible to respond to the jury's concerns. Also, Rule 39(b)(10) allows the jury to submit written questions to the court.

There is no Missouri Rule of Civil Procedure that guides a trial judge on how to assist a jury during deliberations.

VII. Summary

When first permitted, note-taking was controversial, but now is a fairly common practice. Proposals being considered in other states that would result in a more "active" jury, or would allow greater jury participation in civil trials, have not been considered desirable in Missouri. Juror questioning of witnesses is now permissible in most jurisdictions. Missouri trial judges show little support for allowing jurors to submit questions for the witnesses or to discuss the case before final deliberations. The trial bar does not seem interested in promoting those changes either. Based on both the survey of Missouri trial judges and the survey of jurors conducted by Professor Casey, however, allowing jurors to ask questions of the judge during deliberations and permitting the judge to respond to questions submitted would certainly be a change that should be considered. Any significant change in the way jury trials are conducted needs more popular support and then will require adjustments in attitudes and procedures before trial judges and attorneys become comfortable with the new practices. Just as with juror note-taking, juror questioning may become common practice in years to come.

Footnotes

¹ W. Dudley McCarter is a partner of the St. Louis firm of Behr, McCarter & Potter, and is a former president of The Missouri Bar.

² Members of the committee were Walter H. Bley, Jr., Honorable Kathianne Knaup Crane, Alan B. Gallas, Honorable Calvin R. Holden, Thomas G. Kokoruda, James W. Newberry, Gerard T. Noce, Daniel T. Rabbitt, Stephen H. Ringkamp, Honorable Vernon E. Scoville III, Steven W. White and W. Dudley McCarter.

³ Report to the Supreme Court of Missouri From the Civil Jury Study Committee 7, 28 (Oct. 2000) (unpublished report on file with author).

⁴ Id. at 30.

⁵ MAI 2.01 (2002 West) p. 24-25. In State of Missouri v. Smith, 154 S.W.3d 461 (Mo. App. W.D. 2005), the Court of Appeals reversed the conviction where the jury was allowed to take notes, but had not been given MAI CR3d 302.01 - the required instructions on note-taking. Without these instructions, the "jurors might abdicate their responsibilities to listen to and observe the evidence, and to remember the evidence individually, choosing instead to rely on their own notes or the notes of other jurors." Id. at 470. The jury did not receive sufficient guidance regarding the proper role of notetaking.

⁶ Report to the Supreme Court of Missouri From Civil Jury Study Committee 7, 48 (Oct. 2000) (unpublished report on file with author).

⁷ Id.

⁸ 55 Mo. Law Rev. 817 (Summer 1990).

⁹ Id. at 821.

¹⁰ 30 S.W.331 (Mo. 1895).

¹¹ 343 S.W.2d 661 (Mo. App. E.D. 1961).

¹² 55 Mo. Law. Rev. at 818.

¹³ Id. at 821.

¹⁴ Id. at 825.

¹⁵ Id. at 823.

¹⁶ David R. Edsey & Margo Ornelas Fusselman, Recent Developments in Trial Techniques, 38 Tort Trial & Ins. Prac. L.J. 729, 737-38 (Winter 2003). See also Jonathan M. Purver, Propriety of Jurors Asking Questions in Open Court During Course of Trial, 31 ALR 3d 872 (2004).

¹⁷ 38 Tort Trial & Ins. Prac. L.J. at 739.

¹⁸ Valerie P. Hans, U.S. Jury Reform: The Active Jury and the Adversarial Ideal, 21 St. Louis U. Pub. L. Rev. 85, 92 (2002) commenting on Larry Heuer & Steven Penrod, Increasing Jurors' Participation in Trials: A Field Experiment with Juror Notetaking and Question Asking,12 Law & Hum. Behav. 231 (1988). During the Arizona Filming Project, juror discussions and questions for witnesses were filmed during 50 civil jury trials. The researchers who participated in this study reached several conclusions. Jurors submitted questions during 48 of the 50 trials; the average was 17.5 questions per trial. Judges allowed answers to 76% of the jurors' questions. When the jury was told that the witness would not be allowed to answer a juror's question, the jurors generally accepted that decision. For further discussion of this project, see Shari Seidman Diamond, Mary R. Rose & Beth Murphy, Jurors' Unanswered Questions, 41 Court Review 20 (2004).

¹⁹ Report to the Supreme Court of Missouri From Civil Jury Study Committee 7, 34 (Oct. 2000) (unpublished report on file with author).

²⁰ 71 S.W.3d 597 (Mo. banc 2002).

21 Id. At 602, citing Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852,867 (Mo banc 1993); and Schaefer v. St. Louis & S. Ry. Co., 30 S.W. 331, 333 (Mo. 1895). See also Hancock v. Shook, 100 S.W.3d 786, 795-97 (Mo. banc 2003) (trial court has the discretion to permit jurors the privilege of asking questions of the witness. "It is proper for a juror to ask a question through the trial judge in order to clarify some point in the juror's mind. It has been said that among the trial court's inherent powers in the administration of justice is his power to interrogate witnesses. The trial judge is in the best position to determine whether or not a question (including a juror's question) is proper to submit to a witness"). Id. at 795-96

²² 610 S.E. 2d 546 (Ga. Ct. App. 2005).

²³ Id.

²⁴ Id.

²⁵ Id.

²⁶ Id.

27 844 A.2d 773 (Vt. 2004).

²⁸ Id. at 778.

²⁹ Id. at 778-9, citing appellate court decisions from 27 states.

³⁰ Id. at 779, citing opinions from the 11th, 6th, 3rd, 7th, 2nd, 9th, 8th, 4th, and 5th Circuit Courts of Appeal.

³¹ Id. at 779.

³² Id.

³³ Id. at 780.

³⁴ Id. at 781.

³⁵ Id. at 784.

³⁶ Id. at 784 5.

³⁷ 646 N.W.2d 204 (Minn. 2002).

³⁸ 844 A.2d at 785 (The Doleszny court recognized that the highest courts in Mississippi and Nebraska and appellate court decisions in Minnesota, Texas and Kansas have either prohibited or discouraged the practice of allowing jurors to question witnesses).

³⁹ Id. at 786.

⁴⁰ Id at 786-7.

⁴¹ Report to the Supreme Court of Missouri From Civil Jury Study Committee 7, 49 (Oct. 2000) (unpublished report on file with author).

⁴² Id. at 14.

⁴³ Id. at 14-15.

⁴⁴ Id. at 15.

⁴⁵ Id.

⁴⁶ Id.

⁴⁷ 610 S.E.2d 546.

⁴⁸ Id. at 626-27.

⁴⁹ Id., citing United States v. Resko, 3 F.3d 684, 688-689 (3rd Cir. 1993).

⁵⁰ Id. (Ironically, the verdict for defendants was reversed for improper closing argument made by defense counsel).

⁵¹ Id.

⁵² Hans, 21 St. Louis U. Pub. L. Rev. 85, 93-94, discussing the work of retired Arizona Judge B. Michael Dann. See Paula L. Hannaford, Valerie P. Hans & G. Thomas Munsterman, Permitting Jury Discussions During Trial: Impact of the Arizona Reform, 24 Law & Hum. Behav. 359 (2000). Juror discussions during trial were also analyzed during the Arizona Filming Project. Researchers concluded that jurors who were permitted to talk about the case during trial availed themselves of that opportunity 89% of the time. In addition, "63% had at least one juror who made an early verdict statement." The researchers did not believe that the opportunity to discuss the case during trial resulted in the jurors being more favorable to the plaintiff. Jurors frequently ignored the admonition to discuss the case only when all jurors were present. Sharie Seidman Diamond, Neil Vidmar, Mary Rose, Leslie Ellis & Beth Murphy, Inside the Jury Room: Evaluating Juror Discussions During Trial, Judicature, 54, 56 (September - October 2003). Also see Shari Seidman Diamond, Neil Vidmar, Mary Rose, Leslie Ellis & Beth Murphy, Jury Discussions During Civil Trials; Studying an Arizona Innovation, 45 U. Ariz. L. Rev. 1 (2003).

⁵³ Report to the Supreme Court of Missouri From Civil Jury Study Committee 7, 49 (Oct. 2000) (unpublished report on file with author).

⁵⁴ Id. at 54.

⁵⁵ Id. at 30.

⁵⁶ Id. at 31.

⁵⁷ Ariz. Supreme Court Committee On More Effective Use of Juries, Jurors: The Power of Twelve (1994).

⁵⁸ Id.

⁵⁹ Behind Closed Doors: A Resource Manual to Improve Jury Deliberations 19 (American Judicature Society) (1999).

⁶⁰ Id.

⁶¹ Settle v. People, 504 P.2d 680 (Colo. 1972).

JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 5 - September-October 2005