Audio video recording produced by the Office of the Jury Commissioner in association with the Boston Neighborhood Network. Transcript produced by Approved Court Transcriber Donna H. Dominguez. For more information visit our website JuryDuty.MAjury.gov or call 1-800-THE-JURY, 1-800-843-5879.
Executive Producer: Pamela J. Wood, Jury Commissioner for the Commonwealth
Producer: Michael Ryan, Communications Coordinator, Office of Jury Commissioner
Director: Cullen Cockrell
Audio and Video Tape Operator: Wallace Fashaw
Camera Operators: Marcela Maroso and Vsevolod Iskiyaev
Studio Manager: David A. Palomares, BNN
Assistant Studio Manager: Cullen Cockrell
Project Manager/Editor: Gregory W.R. Fulchino, Office of Jury Commissioner
“Jury Duty” was produced in association with the Boston Neighborhood Network, 3025 Washington Street, Roxbury, Massachusetts 02119.
Copyright 2015/2016 [Episodes 01-11/Episode 12] - the Office of the Jury Commissioner for the Commonwealth of Massachusetts, 560 Harrison Avenue - Suite 600, Boston, Massachusetts 02118. Website: MAjury.gov.
CAPTION: Jury Duty, Michael Ryan, Host
MICHAEL RYAN, BNN LIVE HOST: Hello. My name is Mike Ryan. The name of the show is Jury Duty: You Make a Difference on BNN, the show that should answer all your questions about the one day, one trial jury system.
HOST RYAN: Our special guest today is Paula Hannaford-Agor from the National Center for State Courts. Welcome.
MS. HANNAFORD-AGOR: Thank you. It’s good to be here.
HOST RYAN: Thank you for coming here all the way from beautiful Williamsburg, Virginia. And Paula is the director for jury studies at the National Center for State Courts where she’s worked since 1993.
MS. HANNAFORD-AGOR: Correct.
HOST RYAN: And she is a proud graduate of the College of William and Mary. She got her Master’s Degree in Public Policy from there, and her Juris Doctorate at College of William and Mary, the oldest law school in, in the country, correct?
MS. HANNAFORD-AGOR: The oldest law school in the country.
HOST RYAN: And she’s a prolific writer of articles, books, reports about jury studies across, across the United States. She’s also an adjunct professor at William and Mary and on the National Center for State Courts Institute for Court Management.
What exactly for, for our viewers, what is the National Center for State Courts?
MS. HANNAFORD-AGOR: Well, the National Center for State Courts is a nonprofit organization. We’re actually sort of a quasi-government in that a good portion of our funding actually comes as a line item out of all of the state judiciary budgets. And we exist to provide leadership and support and services to the State Courts all over the country on everything that state Courts do, so criminal, civil, appellate, technology, Traffic Court, Family Court. If the State Courts are involved with anything, then the National Center is working on it. I happen to be the in house expert on jury system management and jury trial procedure.
HOST RYAN: So what, what is the Center for Jury Studies do?
MS. HANNAFORD-AGOR: The Center for Jury Studies does research both on the summoning and qualification. How do State Courts do it cost effectively, efficiently, communicate better with their citizens as jurors? We work with attorneys and Judges for how do you do jury selection better. How do you facilitate the trial so that jurors actually can understand and follow the evidence and perform at their, their very, very best?
How to work with deliberation, services for jurors, improving, you know, how much we pay jurors, you name it.
HOST RYAN: We were disappointed to learn that Jamestown beat us out for having the first jury trial in the United States. When was that?
MS. HANNAFORD-AGOR: The first jury trial in the United States was at Jamestown in 1607.
HOST RYAN: The year it was founded?
MS. HANNAFORD-AGOR: The year it was founded. Interestingly enough, it was a civil trial, not a criminal trial, and one of the plaintiffs was Captain John Smith. So those of you who remember your history of Pocahontas and Captain John Smith, he was suing the former president of the Virginia Company for libel and won 200 pounds sterling in that case.
HOST RYAN: Okay. So we, we have to settle that our first case was in 1630. Today, we’d like to talk about jury innovation. And I can't think of a better person to talk about. Over the years, you hear that Maricopa County in Arizona. Is that the hotbed of jury reform?
MS. HANNAFORD-AGOR: It has been. It was probably the hotbed of jury reform on in-Court innovations. They were doing an awful lot of almost heretical things like allowing jurors to take notes and allowing jurors to submit witness, questions to witnesses during the trial. And they even allow jurors in civil cases, not in criminal cases, but in civil cases to talk about the evidence among themselves while the trial is going on, before they actually get into final deliberations.
HOST RYAN: So in Mass, they finally, jurors can take notes during a trial. Has that happened in all states or some of the states?
MS. HANNAFORD-AGOR: That’s pretty much all states. It’s not very controversial anymore. There’s only two states that I know of that supposedly prohibit juror note taking. It’s South Carolina and I believe Pennsylvania. But as a practical matter, even most of the Trial Judges kind of disregard and actually allow jurors to take notes anyway.
HOST RYAN: And jurors in some instances can ask questions of the witnesses, but that’s routed through the, the Judge, correct?
MS. HANNAFORD-AGOR: It is routed through the Judge. They, they allow jurors to submit questions in writing. And so they, as they, as the trial’s going on, if they have a question for a witness, they write it down on a piece of paper. It gets sent up to the Judge. The Judge allows the attorneys, because jurors are not allowed to actually ask questions that a lawyer would not be allowed to ask, and there are certain rules of evidence. And so the Judge will review the question with the attorneys. If the attorneys want to object to a question because it’s an inadmissible question, the Judge will not allow the question to go forward. As a practical matter though, probably about 80 percent of juror questions actually do end up going to the witness as, you know, this is a perfectly acceptable, intelligent question. And in fact, most of the Judges say that the, the jurors often ask better questions than the lawyers.
HOST RYAN: Is this more commonplace now across the country?
MS. HANNAFORD-AGOR: It is. It’s not, there are pockets. There’s about five states that still prohibit juror questions to, to witnesses. Most of them, it’s, the phrase is it’s in the sound discretion of the Trial Judge. But probably in about 20 percent of trials, jurors are allowed to, to submit questions. It’s more prevalent in civil trials than in criminal trials, but.
HOST RYAN: And, and you say in Maricopa County, they, jurors on a civil case, they can discuss the case while it’s ongoing?
MS. HANNAFORD-AGOR: Uh-huh.
HOST RYAN: Whereas, just about everywhere else, you can't talk about the trial if you’re on the jury until the trial wraps up and you’re in the deliberation room.
MS. HANNAFORD-AGOR: Yeah. Arizona was the first to actually do that. Now, Colorado allows some juror discussions, and Indiana, and Indiana actually does it in both civil and criminal trials. So those are the three states that I know of that allow juror discussions.
HOST RYAN: And what do you envision in the future for juror reform, juror Wi-Fi?
MS. HANNAFORD-AGOR: Probably not Wi-Fi. There’s, that’s actually one of the, the hot topics with lots of Judges and, and attorneys that are gnashing their teeth about the, the Googling juror, jurors who go online and look up information about the case. Ironically, that’s been one of the reasons why a lot of Judges and attorneys are rethinking their objections to juror questions, as that they would much rather have the jurors, if they have a question about the evidence, actually write it down and allow the Court to, to bring that information in as part of the trial evidence itself, rather than have a juror go home and say I’m really confused about this and I think it’s important, so therefore, I’m going to, you know, look it up, look up that legal term on Wikipedia or something.
So I don’t think we’re, we’re likely to go there, but it’s certainly a topic that is causing a lot of Judges and attorneys to rethink about what we mean about juror impartiality, how reasonable is it with people who use the internet for every important decision that they make, for education, finance, healthcare, everybody, you are a responsible adult if you go online and you actually find out as much as you can, and, and to inform your decisions. And so it’s very counterintuitive for a lot of jurors to say what do you mean, I can't use this very valuable tool for a very important decision like a jury verdict. And so it’s, it’s a real, it’s a real challenge. And so we’re, Judges are really starting to think about maybe we don’t need to, you know, how much information or how much exposure can jurors actually have before it actually jeopardizes the litigant’s right to a fair trial.
HOST RYAN: So social media you touched on. It seems to be becoming a big problem with jurors in this country and in Great Britain.
MS. HANNAFORD-AGOR: In Great Britain and all over the, all over the world. The internet I, I think is here to stay. And so this is a, part of the issue is trying to think about what is actually prejudicial. If somebody tweets something about, hey, I’m on jury service today, you know, does that say that they can't, that they’re impartial? As opposed to somebody who’s, you know, posting something on Facebook going, oh, and, yes, the defendant’s definitely guilty, I can tell already, which would be prejudicial.
HOST RYAN: Yeah. And we have posters in all our jury pools instructing jurors, and I, and we, Judges usually tell the jurors stay off the internet, don’t be doing the legal research, and unfortunately, people are still --
MS. HANNAFORD-AGOR: They --
HOST RYAN: -- tied in with the internet.
MS. HANNAFORD-AGOR: They do. It’s a, it’s a very hard habit to break. Any, anybody who has their, their smartphone and you will take it from my cold dead hands.
HOST RYAN: And how does Massachusetts rank nationally as far as juror reform?
MS. HANNAFORD-AGOR: Well, Massachusetts has actually been very much at the forefront for a very long time. It was the first state on a statewide basis to have one day, one trial. And you actually have one of the highest compensation, the 50 dollars a day for, for jurors is one of the highest in the country. There’s a couple of local Courts that sometimes have higher, but on a statewide basis, they’re, they’re --
HOST RYAN: We’re still up there.
MS. HANNAFORD-AGOR: You’re still up there.
HOST RYAN: Okay, good.
MS. HANNAFORD-AGOR: So you’re taking very good care of your jurors and trying to, to reduce the amount of financial hardship which means that more people can actually serve. You’ve eliminated pretty much all of your exemptions, I think --
HOST RYAN: There are none.
MS. HANNAFORD-AGOR: -- there are none.
HOST RYAN: No exemptions, yeah.
MS. HANNAFORD-AGOR: So that’s, that’s actually, you know, way out in front. And in fact, Massachusetts, your Office of the Jury Commissioner and the Jury Management Advisory Committee won the very prestigious National Center for State Courts Munsterman Award in 2011 for some just tremendous things that the state was doing to improve its technology and its automation, to improve jury utilization, a new, a new website, just all sorts of things that you were doing.
HOST RYAN: You mentioned a, a popular buzzword, juror utilization. What does that mean?
MS. HANNAFORD-AGOR: Juror utilization is a, like so many of us today sort of working by performance measurement, how good are you doing. Jury utilization is a performance measurement in jury operations that says how effectively are you using the people who actually report for service. Are they making it out of the jury assembly room, getting up to a courtroom, having a very meaningful experience even if they’re not actually selected for, for jury service on a particular case because they may have knowledge of the case or they may be related to a witness, and so then they’re not selected. But having, having that very useful experience. And there’s, there’s two reasons for that. One is important for the Courts because it’s a, it’s a cost measure. It’s, jury, jury service is actually one of the most expensive Court, aspects of Court operation. It’s not only the, the cost of printing and mailing the summonses, all of the staff costs involved with processing those. And that’s about, typically nationally at about 20 percent of the cost. But then there’s the cost of the lost income for jurors who have come in and may not be compensated. Or at the very least, if their employers do compensate them while they’re on jury service, then their employers are out of pocket. And so it’s a, heavily subsidized.
So there’s a lot of costs involved, and so you don’t actually want to bring in jurors unnecessarily if in fact a trial is not going to go forward or if you have too many jurors and you actually don’t need that many to be able to pick a jury for this case. So that’s an important one. The other part is just the public trust and confidence. Jurors hate to waste. I mean most of, most of the people I talk to when they’re summoned to jury service, they, they recognize it’s really important. They feel really positive, especially if they’ve actually gotten to go through the chance, the opportunity to be jurors. But they hate to wait, and they hate having their time wasted. And there is nothing that is more aggravating than to come in, you know, as nice as some of the jury assembly rooms are, you know, a gilded cage is still a cage. And when they’re missing work or they’re missing school or they’re missing their family life, and it’s just really unfair.
And so when jurors have that wonderful opportunity to participate in the justice system, to be trial jurors, to see the justice system at work, they love it. And they go out and they tell their friends and families about what a great experience that is, and that’s wonderful for public trust and confidence in the justice system. When they’re basically sitting alone in the jury assembly room all day, it’s not such a great experience. And it, it really, and they go and tell their friends and family about that.
HOST RYAN: Would you say that’s fair to say that is the biggest complaint you hear nationally about jury duty, is the wait?
MS. HANNAFORD-AGOR: Yes. Is the waiting. It’s, the waiting, and it’s, it’s interesting. It’s, for the people who go through it, they forget about the waiting. They forget about the --
HOST RYAN: If they’re picked on a trial.
MS. HANNAFORD-AGOR: If they’re picked on a trial, they forget about the waiting. They forget about the, the time. They forget about the bad food, the lack of parking, how, you know, all of the, all of the, the things that, you know, we would all really complain about. People who actually have a meaningful experience, you know, they come in, they see the system working, it’s working efficiently, they’re out, the Judge knows what he or she is doing, the attorneys know what they’re doing, they’re treated very, very well by the Court staff, and they’re like okay, this is, this is fine even if I didn't get picked.
HOST RYAN: So under jury utilization, it’s to bring enough jurors but not too many jurors, not waste their time, not waste also any resources for sending too many jurors to a particular courthouse?
MS. HANNAFORD-AGOR: Exactly. Exactly.
HOST RYAN: Now, a lot of people in, in Massachusetts, they think that we select jurors from the voting list, which we do not. We select jurors randomly from the street list. Are we the only state that does that?
MS. HANNAFORD-AGOR: You are the only state, you are the only state that does that. In fact, you, I think you are the only state that still has the street listing process on a, on a statewide basis. The good part is you’ve got great addresses. It’s, you know, your undeliverable rate for when the jury office is sending out their summonses, it’s very unusual to get the, the jury summonses coming back undeliverable. In other states that use either the voter’s list or the driver’s lists which are the two most common lists that we see, typically it’s running about 15 percent is a, is a --
HOST RYAN: On the undeliverables?
MS. HANNAFORD-AGOR: On undeliverables. The only other list that states use that I, may be superior to yours, as I, I hesitate --
HOST RYAN: I find that --
MS. HANNAFORD-AGOR: -- to say that.
HOST RYAN: I find that hard to believe.
MS. HANNAFORD-AGOR: Is Alaska, and Alaska uses what they call their permanent fund, and these are, if you are a resident in the state of Alaska, every man, woman, and child every year gets a check from the state as the profits from the Alaskan pipeline.
HOST RYAN: Okay.
MS. HANNAFORD-AGOR: And so they make very sure that those addresses are very good.
HOST RYAN: Didn't, didn't know that. So if we ever get a pipeline, then --
MS. HANNAFORD-AGOR: So if you get an, if you get an oil pipeline and, and promise to distribute that to your citizens, I’m sure that they will happily, happily accept that check, you know, in lieu of the risk that they might get called for jury duty.
HOST RYAN: We’re talking about innovation. Here in Mass this year, we’ve had a pilot program for attorney participating voir dire where, you know, the lawyers now can question prospective jurors. How many states has, how many states is that in place?
MS. HANNAFORD-AGOR: That’s actually the predominant model in State Courts. Massachusetts is one of the few with I think Delaware, District of Columbia, and South Carolina that are predominantly Judge conducted voir dire. The rest of the states, typically it’s either a 50/50 with the Judge and the attorneys.
In some states, it’s almost exclusively attorney conducted voir dire.
HOST RYAN: Is, what about Virginia?
MS. HANNAFORD-AGOR: Virginia’s about 50/50.
HOST RYAN: And what’s the benefit of attorney participating voir dire?
MS. HANNAFORD-AGOR: Well, there’s a couple of things. One is that the attorneys know their case usually better than the Judge. They’ve been living with the case for, you know, six months, a year, two years, for however long it took to actually bring the case to trial. And so they’re going to be much more attune to nuances of the case that, that might actually provoke biases. So they know what to ask for. So if it’s a, if it’s a particular witness who might be speaking through a foreign language interpreter, do we need to actually ask about how they feel about people who don’t speak English in this country.
So the attorneys are better prepared to ask questions of what are sort of the sensitive points in their, in their case and where could people actually have biases that they would actually like to know about before the jury gets impaneled. So that’s one. The other one that’s probably the biggest advantage is that a lot of jurors, actually most people when you meet a Trial Judge, you tend to be a little bit intimidated and on your best behavior, and you don’t actually want to say something that would be, you know, the Judge would think badly of you. And so when the attorneys are asking questions, typically the responses that they’re getting from jurors as actually more candid.
HOST RYAN: You think they’re more relaxed?
MS. HANNAFORD-AGOR: They’re more relaxed. They’re more candid. They’re more honest than they might actually do when, with a Judge asking the exact same question.
HOST RYAN: What about preemptory challenges? Are they something that should exist? I mean people are challenged from the jury box and there’s really no reason given to, as why they were challenged. What, what’s the reason behind those?
MS. HANNAFORD-AGOR: Well, the, the reason is, this is very difficult because it’s such a controversial --
HOST RYAN: Issue.
MS. HANNAFORD-AGOR: The number of preemptory challenges, it’s, it’s, it’s quite remarkable across the country.
HOST RYAN: It varies from jurisdiction?
MS. HANNAFORD-AGOR: It varies from as few as I think in felony cases it’s three per side in New Hampshire to 20 per side in California and New Jersey. So there’s, so part of it is that are they just misused. And from the Courts, are they, are they misused to eliminate people and disenfranchise people, especially minorities and women, from the jury system. And so it’s very much tied up with, with civil rights in this country.
The other side of why it’s useful is sometimes the Judges are, actually don’t want to excuse people, and they have a very high standard for how much, how much bias can a juror have and still remain on the, on the, on the jury panel. And so if you have no preemptory challenges and no opportunity for the litigants to say, no, the Judge is not going to remove this person because they’re actually biased, I need to have an escape valve so that I can take this person off because I think this person is actually not going to be able to decide impartially.
HOST RYAN: Should people take it personally if they’re challenged peremptorily?
MS. HANNAFORD-AGOR: No. No. It’s, it’s not a question of, of it being personal. But it is, sometimes just a hunch about whether or not the person will, you know, if, if they’re working full time and very busy and perhaps they don’t, wouldn't be able to sit for a long period of time even though the Judge hasn’t excused them for hardship. But they want the best jurors that they can who are going to listen attentively and keep an open mind.
HOST RYAN: Has Paula Hannaford-Agor been selected for jury duty?
MS. HANNAFORD-AGOR: I have never been selected.
HOST RYAN: That is amazing. You’ve never been selected.
MS. HANNAFORD-AGOR: I have never been selected. Unfortunately, I was actually this last summer, I was on call for jury duty in Federal Court in Richmond for two weeks, and for better or for worse, the Federal Courts do many, many fewer jury trials than the State Courts. In this country, our best guestimate is about 150,000 jury trials take place in State Courts each year, and it’s about 5,000 in Federal Courts. And so over that entire two week period, I had to call in four different times, and each time they said, no, we don’t have any trials going on, thank you very much, and they let me go. And I’m, I tried very hard to believe that they weren’t actually seeing me coming and saying we’re just going to waive her off because she’s going to make trouble.
HOST RYAN: As, as a lawyer and the director of the jury studies program, were you disappointed that you didn't get to go in?
MS. HANNAFORD-AGOR: I was so disappointed. I so badly wanted to go in. I, I didn't expect that anybody, you know, particularly if a lawyer who had, you know, googled me online and found out what I did for a living would ever actually leave me on a jury. And I, I probably would take it personally if they used a preemptory challenge to take me off. But I wanted in the worst way to go in, and it just didn't happen. So I’ve, now, I just need to wait for the next summons to come.
HOST RYAN: What’s the average length of jury duty in Virginia?
MS. HANNAFORD-AGOR: In Virginia, it, it’s a lot longer. Most, most of the counties in Virginia typically have terms of service that are two weeks to, to a month. Some of them are as few as one week. But it’s, it’s a longer term of service than you have here in, in Massachusetts.
HOST RYAN: The good old one day or one trial. What is the ideal juror experience? Who do you envision if someone says I’m going to jury duty, what you hope would happen to them when they go to jury duty?
MS. HANNAFORD-AGOR: They go to jury duty. They are treated well by all of the Court Officers, by the Judges, the attorneys. They get an opportunity to think about, you know, have an interesting case. Not all cases are interesting, although they’re typically more interesting than, than you would imagine.
That they get an interesting case, they have other fellow jurors who are equally engaged and equally serious. I mean one of the things that we know about jurors is that they take their, take their jobs very seriously, and they’re very earnest and try very hard. And so they have an opportunity. I kind of would hope that they get a case where the evidence is not just a slam dunk for one side or the other because just that opportunity to, to really deliberate and see how reasonable people can disagree about how do you interpret this and to talk about that, and I think that’s probably one of the most satisfying experiences for people to, to, to really just dig in and have a chance to, to think about this and to think about well what is, you know, what is justice? What, what are the facts here? What’s a reasonable inference to make out of this person’s testimony, and can we really believe it? And how does it jive because these two seem to be inconsistent? And so I think that would be ideal. To be able to arrive at a verdict after that where everybody is in agreement, unanimous agreement, and to go out and just have the satisfaction of knowing that you’ve actually participated in this absolutely fabulous experience of democracy in action.
HOST RYAN: Well, we’ve run out of time. We’d like to thank you at home for joining, joining us, joining us today on Jury Duty: You Make a Difference on BNN. Just remember, if you have any questions regarding your juror service, you can always contact us online at MAJury.Gov or call us toll free at the Office of Jury Commissioner at 1-800-THE-JURY, that’s 1-800-843-5879. Just remember you do make a difference. Please serve when called. It’s important to all of us. Thank you at home. And thank you, Paula.
MS. HANNAFORD-AGOR: Thanks, Mike.
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