Judicial Reform: How to Cut Down on Hung Juries

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After coming up with only a single conviction on 24 counts of corruption, federal prosecutors eager to send former Illinois governor Rod Blagojevich to prison will in January 2011 begin his second trial with what they hope will be a more effective strategy. What won't change is the fact that the 12 jurors who will hear the case will be bound by the same ancient — and some argue outdated — rules for criminal juries that have changed just a little since King John signed the Magna Carta in 1215.

Blagojevich's first jury was hung on 23 counts, and the federal judge in Chicago quickly declared a mistrial. Mistrials are already rare in federal court, but some say they would be rarer still if the federal courts were to adopt the string of reforms that have revamped the actions of state court juries in the past 20 years, upending centuries of tradition. By some counts, the measures have halved the hung-jury rates in state criminal trials. The aim, says one of the nation's leading reformers, is to prevent the kind of outcome that happened in Chicago: a mistrial that leaves no one happy. "Much of the elements of jury reform has reflected on the phenomenon of hung juries," says Chief Justice Randall T. Shepard of the Indiana Supreme Court, a former trial judge in Evansville. "And what happened [in Chicago] is akin to what would have happened in most state courts 15 years ago — but wouldn't happen in a great many places today."

In federal criminal trials, unlike in many state courts, judges usually forbid jurors from asking questions of witnesses as they hear the cases. Most jurors are barred from taking notes — for fear that the juror might miss something important while jotting things down — and federal jurors are still told before every break to avoid discussing the case at all until the lawyers stop talking and the judge reads them their instructions. Those rules are falling fast in some state courts and have already been replaced entirely in many others.

Even unanimity, the most cherished rule of all — and the one that spared Blagojevich on the charge that he tried to sell a seat in the U.S. Senate — is open for debate in the states. While the Supreme Court has insisted that federal criminal trials have a unanimous verdict, states have been permitted to experiment. Unless a defendant's life is on the line, criminal juries in Oregon and Louisiana need only 10 votes or nine, respectively, to convict. "I describe this in general as treating jurors like adults," says Shepard, who has helped lead major changes in Indiana but credits the states of Arizona and New York with giving momentum to jury reform. "We want to give them room to make decisions like adults typically make decisions."

Rules are different from state to state, but in many places where reforms have been embraced, jurors are allowed to take a more prominent role in a trial as it unfolds. In complex cases, jurors are at the outset given "jury books" containing many of the key pieces of evidence the lawyers from each side plan to introduce, and they are encouraged to take notes during the trial. In some states, they are allowed to interrupt to ask lawyers or even witnesses questions — though they must first let the judge evaluate each question. And once they begin deliberations, jurors who are confused about evidence or testimony can ask the judge to call the lawyers back to offer brief presentations on the particulars.

The new rules haven't prevented hung juries, but they tend to make them less likely. Multiple studies of jury decisionmaking have shown that jurors deadlock most often when they don't understand the evidence presented or when they feel prosecutors are overreaching. Allowing jurors to ask more questions can help them understand both sides' arguments better and better understand the evidence presented. That doesn't resolve differences about whether the charges are fair, but it makes it easier to agree on the basic facts of the case.

There is another taboo being broken in state courts. Judges in Indiana, for example, encourage jurors to talk about the case as it unfolds — on their breaks, at lunch, anytime when all the jurors are present. "The idea behind not allowing jurors to talk about the trial unfolding before them was part of the desire that they not reach any judgments about the case until they have everything presented to them," Shepard says. "But the idea now is to ... trust them to process the information as they hear it."

The push for reform is spreading to federal courts. In 2008, the 7th Circuit of the American Bar Association published a report on an experiment that had tested some of the reforms under way in state courts in 50 different trials, involving 22 participating federal judges. The experience was good, says one of the commission's co-chairmen, Chief Judge James F. Holderman of the Northern District of Illinois. Most of the judges and lawyers who participated in the trials liked the changes, he says. Still, he tells TIME, few federal judges around the country, or even the 7th Circuit, have permanently instituted them.

Those who have, including Holderman, have limited the changes to civil trials, leaving criminal-jury rules unaltered. Holderman's district includes the court where Blagojevich was tried and where he'll be tried again (he would not discuss the case). But he says he has adopted some of the new rules for his civil trials, including allowing jurors to ask questions of witnesses. "My belief is that jurors are going to be asking these questions anyway, so we might as well allow them to get responses," he says. "That's what we would all do if we were asked to make an important decision."

There are judges who think there is no need for reform at all. U.S. District Judge Robert Gettleman is one who thinks the system works fine the way it is — occasional mistrials like Blagojevich's notwithstanding. "I like the way things work," Gettleman tells TIME. He says some changes now common in state courts would trouble him less than others. Allowing jurors to take notes, he says, could be a good idea. But other changes are more worrisome, even if they sound as innocuous as allowing jurors to ask questions during the trial. "One of the main principles of the system we have is that the jury as a group stays away from coming to conclusions until they hear all the evidence and are sent to deliberate. Asking questions could prompt jurors to begin solidifying their position on aspects of the trial earlier than they should. That doesn't seem fair to either party."

Gettleman, too, declines to talk about the Blagojevich trial, but he says that in general, lone holdouts on the jury — like the woman who would not convict Blagojevich on the charge of selling the Senate seat — serve the aim of justice even if their stubbornness results in a costly mistrial. "I've only had two hung juries in 16 years," he says. "In occasions like that, somebody feels strongly enough to stand against the tide. To me, that means the system is working as it should. It means that the case wasn't proven for everyone beyond a reasonable doubt." Holderman says it's no surprise that state courts have experimented more quickly than federal courts. He says "innovators" in state high courts, like Shepard, and in state legislatures can simply require the changes. At the federal level, for the most part, the Supreme Court has left it to district judges to set their own rules.

And members of the bar, says Shepard, share this trait in common: when it comes to the law, they are conservative to the core. But now that state courts have evolved their rules, it's hard to see what all the fuss was about, he says. "We judges and lawyers tend to be a little on the controlling side," says Shepard, who adds that change comes to everyone, even the judiciary. "The common sense behind some of these proposals is just so powerful."