Tuesday, March 9, 2010

Judge-Jury Relationship: The Deliberation Phase

By John DiMotto
In the seventh and final phase of a jury trial, the jury deliberations, the jury finally gets the opportunity to discuss the evidence and the law and, using their common sense and long experiences in life, return a verdict.
In most of my juries we have selected one extra juror, and before deliberations can begin one juror must be excused. This occurs "by lot." Years ago, in the 1970's, when more than 12 people were selected to serve on a jury there were two tiers of jurors. First, you had the "regular" panel of 12 and then you had a designated alternate or two. The regular jurors knew they were "regular" and the alternate knew he/she was the "second class" juror - one who would play no role unless a "regular" juror was struck prior to deliberations. This process sent a poor message to the alternate. In the 1980's this was changed. Now when you select a jury of more than 12, all jurors are on the same level. All have the same "investment" in the trial. Only at the end of closing arguments and instructions is one juror excused and then the remaining 12 can begin deliberations. While it is often disappointing to the juror who is struck, this process keeps all jurors "into" the trial to the end.
In my final instructions, I give the jurors some parameters to guide them in their deliberations.
1) I usually make the decision that, on my own, I will not provide them with any exhibits when the jury begins deliberations, and I tell them this fact. It is my belief that I should not give them some exhibits and not others because this might give them the impression that what I give them is more important than what I don't give them. I tell them this and also tell them that if they do want to see any exhibit all they have to do is ask and in most instances they will get the exhibit. However, I also tell them that if the exhibit they want to see is one not appropriate for the jury room (ie. voluminous medical records of which only a few pages were used) they won't get it but can still consider it to the extent it was used during trial. I tell the jury that it is my belief that if they know they can ask for an exhibit and don't ask, that tells me they don't need it in the jury room.
2) I have a law clerk who is the liaison between the jury and the court/attorneys during deliberations and I tell the jury that if they need anything, they can use our buzzer system to call for the law clerk and give him/her their request. This usually pertains to requests for exhibits, question for the court, requests for food or beverages, etc.
3) If the jury has a question or request, I tell them that I will discuss it with the attorneys before I take action.
4) Any questions or requests made by the jury are dealt with on the record with the attorneys before a response is made unless the attorneys make themselves incommunicado with the jury. If that happens, I tell the attorneys that I will deem this circumstance to be a waiver by them to giving input in how I deal with the request/question. I do this in civil, not criminal cases.
Once the jury reaches a verdict, we convene in open court and read the verdict. I routinely individually poll the jury once the verdict is read to ensure it is the verdict of the jury. The jury is then excused with my gratitude for their service.
Before the jury leaves the jury room, I usually stop in to personally thank each of them for their service and inquire if they have any questions about the process that I can answer. I do not want to get into specifics about the case since there may be motions after verdict, but I generally speak with the jury about their experience and what I can do to enhance the experience for future juries. I also tell them that now the case is over and they can talk to anyone in the world about their service - in person or on line via social networking.
The bottom line is this. Our jury system WORKS because of the willingness of people to step up and answer the call of jury service. Our jury system is the best in the world because of the people who serve.


  1. As the judge, what are you doing while the jury is deliberating?

  2. Deal with any motions the attorneys might want to address. Deal with any juror questions that arise during deliberations. Handle other cases that are on the calendar for that day. Prepare other cases for upcoming trials.