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The Arizona JuryPast, Present and Future ReformHon. Michael A. Yarnell (Ret)Adjunct ProfessorJudicial Education, Courts & TechnologyUniversity of Canberra School of LawNovember 7, 2005

The Arizona Jury: Past, Present and Future ReformJurors are rarely brilliant and rarely stupid,but they are treated as both at once. 1The jury system is an integral part of America’s rule of law and judicial system. Juryservice impacts hundreds of thousands of Arizona citizens every year.2 Jury reform is allabout identifying, facilitating and maximizing the positive benefits of jury service – forjustice, for the community, and for the individual juror.During late summer 2005 in Judge Rebecca Albrecht’s courtroom, a civil trial jury isbeing selected. 3 The case is not unusual among pending civil trials, involving a workplaceinjury where plaintiff sought money damages based on negligence. During the questioningof thirty-five potential jurors by the judge and attorneys 4 , several jurors seek to be excusedfor hardship. One potential juror, among several others, complains he cannot afford to beaway from work, explaining he has a report to finish that is crucial and too important to putoff. 5During a recess out of the presence of the jury panel, requests for dismissal forhardship are resolved on the record with the attorneys, challenges for cause are heard,1W. Schwarzer, Reforming Jury Trials, 1990 U. Chi. Legal. F. 119, 137 (quoting Warren K. Urborn, TowardBetter Treatment of Jurors By Judges, 61 Neb. L. Rev. 409,425 (1982), reprinted in 132 F.R.D. 575, 590(1991).2An estimated one million Americans serve as jurors every year, and more than five times that number reportto local court houses for duty. American Bar Association, The American Jury Initiative, Online Media Kit(2005). Available at http://www.abavideonews.org/ABA301/index.htm All web citations in this paper werelast visited within two weeks of November 7, 2005.3Judge Rebecca Albrecht was appointed in 1985 to the Arizona Superior Court of Maricopa County.4Here the judge used the “struck” method of jury selection. The entire panel is questioned before anypotential juror is excused for qualification, hardship, cause or by peremptory strike. Arizona Rules of CivilProcedure, Rule 47(a)(1), 1995 Comment.5As to workplace hardship, Arizona statutes specify a juror may be excused only if service wouldsubstantially, materially and adversely affect the public interest or welfare or service would cause undue orextreme physical or financial hardship to the person or the person’s family. A.R.S. 21-202B. Available inDoc /ars/21/00202.htm&Title 21&DocType ARS2

The Arizona Jury: Past, Present and Future Reformand the attorneys exercise their peremptory strikes. 6 Insufficient hardship is found toexcuse the reluctant juror and he is not struck by either side. The jury panel is called backinto the courtroom. The clerk calls the names of the eight jurors selected to serve. 7 Aseach name is called, each juror takes a seat in the jury box as directed by the court bailiff.The reluctant juror, when his name is called, is obviously very upset and angrily takes hisseat in the jury box. After all eight are called and seated, those not selected return to thejury assembly room – perhaps to be discharged and return home or to be sent to anothercourtroom for another jury selection that day. 8The reluctant juror is obviously unhappy at being chosen. Even as the trial juroroath is administered by the clerk 9 his attitude is clear. He -- perhaps a bit indignantly –states he just cannot serve. The judge tells him he has to serve anyway. The PreliminaryJury Instructions are read to the jury by the judge. The reluctant juror does not read alongon his written copy of the preliminary instructions and appears not to listen. 10The lunch break is taken. During the lunch break, the reluctant juror demands tosee the judge. He is told by court staff to return at the end of the lunch break. He doesnot return. After conferring with counsel and obtaining their stipulation to proceed withseven jurors rather than declaring a mistrial, court reconvenes. The judge, in the presence6In Arizona civil matters, each side normally has four peremptory strikes. Arizona Rules of Civil Procedure,Rule 47(e).7Civil juries in Arizona consist of eight persons. A.R.S. 21-102(C).8Maricopa County has for many years used, and now all Arizona uses, a one-day/one trial jury summoningprocedure.9After voir dire, Arizona trial jurors are required to swear of affirm that they will “. . . give careful attention tothe proceedings, abide by the court’s instructions, and render a verdict in accordance with the law andevidence presented. . . “ Arizona Rules of Criminal Procedure, Rule 18.6(b).10Arizona Jury Instructions, both Preliminary and Final, must be in writing and each juror is given a copy.Arizona Rules of Civil Procedure, Rules 51(a) and 51(b)(3); Arizona Rules of Criminal Procedure, Rules18.6(c) and 21.3(d).3

The Arizona Jury: Past, Present and Future Reformof the jury, finds the absent juror in direct criminal contempt of court, issues a benchwarrant for his arrest, and directs the Sherriff to arrest the absent juror. The trial proceeds.The next morning, the reluctant juror had been found, arrested and brought beforethe judge. The judge sentenced the reluctant juror to jail for the duration of the trial, untilthe final verdict was returned or the jury discharged. When the trial reconvened, with theapproval of counsel, the jury was told of the arrest and contempt sentence.Here is the rest of the story. A few weeks later, James N. Giordano, the CourtPrograms Jury Analyst for the Oregon Judicial Department, was returning to Oregon fromthe National Center for State Court’s Institute For Court Management (ICM) JuryManagement Course in Phoenix.11 Mr. Giordano, overhead a fellow passenger mentionservice on a Maricopa County Jury. He explained he was returning from a jury seminar inPhoenix, asked “How was your experience as a juror?” The juror replied: "Oh, it was veryinteresting. I was a bit hesitant going into it but I'm glad I had the chance to serve." Towhich Mr. Giordano replied:That is very common. Many people are nervous and don't know what toexpect. While others find it a great inconvenience. But most who servecome out saying it was a very positive experience. You are particularlyfortunate. Maricopa county is known for having one of the best run andinnovative courts in the country. 12The juror then continued with a full recitation of her experience. She had been oneof the selected jurors on Judge Albrecht’s case! The juror reported that when the trialstarted on the second day:11National Center for State Courts (NCSC), Institute for Court Management (ICM) , Jury ManagementCourse, September 28-30, 2005, Phoenix, Arizona.12National Center for State Courts (NCSC) Jur-E Bulletin, October 7, 2005. Available athttp://www.ncsconline.org/Juries/bulletin.htm4

The Arizona Jury: Past, Present and Future Reform. . , the judge looked quite happy. She reported to us that this [reluctant]juror had been arrested. The judge said that she told him he would remainin jail until the trial ended! 13Mr. Giordano asked "How did you feel about that?” and "Did you feel she was tooharsh on him?" The juror replied “Oh, not at all, " explaining while she has three children,a business to run, and a husband who is on the road much of the time. She said:It was an inconvenience to me and many others I'm sure. But I see thevalue of having a jury trial. If I had a problem, I would want the benefit of ajury hearing my case. 14As this story demonstrates, most persons called to jury duty are reluctant to serve,but having served, feel the better for it. Citizens who serve also expect the courts to applythe duty to serve fairly. The judicial branch, including administrators, judges and lawyers,have an affirmative obligation to fairly maintain and promote the jury system and juryservice. A judge’s obligation runs the gambit from promoting good jury systems, to makingthe jury experience as painless and effective as reasonably possible, to fairly enforcing acitizen’s obligation to serve.INTRODUCTIONThis paper presents the genesis, implementation and future of Arizona jury reformfrom the author’s viewpoint . 15 In association with the University of Canberra School ofLaw this paper is a supporting reference document for a series of jury workshops andother lectures presented in Australia during November 2005. The author retired from full-13Id.Id. Mr. Giordano asked for the name of the judge, receiving the reply: “It was Judge Rebecca Albret. Wait,it was Albrecht. I remember. Her name had a C-H in it. A-L-B-R-E-C-H-T." In Mr. Giordano’s words:“Albrecht that juror will be more willing to serve the next time he is called.”15While the constitutional provisions, statues, and rules that apply to jury trials in Arizona will be summarized,this paper is not intended to be a primer on Arizona trial practice. Similarly, while many of the researchprojects and reports on the American jury are noted and discussed, this paper is not intended as anexhaustive collection or analysis of the existing American jury research.145

The Arizona Jury: Past, Present and Future Reformtime trial court judging on the Arizona Superior Court of Maricopa County at the end ofJanuary, 2005, after serving some thirteen years from his appointment on October 1,1991. Prior to appointment to the bench, the author spent twenty years in the privatepractice of law, primarily commercial litigation in the areas of real property, finance, andconstruction. 16What follows is divided into six sections. Section One presents a basic overview ofArizona jury structure. Section Two summarizes the Arizona jury reform movement.Section Three summarizes various jury studies based primarily on Arizona jury research.Section Four presents a discussion of Arizona jury practice, with reference to both theArizona jury reform recommendations and the August 2005 American Bar AssociationPrinciples for Juries & Jury Trials. 17 Section Five deals with future jury reform in Arizona,identifying areas of continuing opportunity and discussing various issues relating to theimpact of technology. Section Six presents a brief conclusion.ARIZONA JURY STRUCTUREEvery system of rule of law, judicial system, and jury system is particular to thehistory, culture and practices of the respective jurisdiction. In the United States, jurysystems and practices vary significantly between the federal system and the systems ineach of the fifty states. 18 Jury systems also vary between various federal district courts,between the fifty states, among local jurisdictions within states, and even between judges16See generally http://www.michaelyarnell.com A copy of this paper, with Internet hyperlinks, is available atthe author’s web page and at the University of Canberra School of Law’s web page erican Bar Association, Principles for Juries & Jury Trials, August, 1005. Available iples.pdf Hereinafter sometimes cited as the ABA JuryPrinciples.18A detailed summary of all state court systems, including jury systems, is found at David B. Rottman, CarolR. Flango., et al., State Court Organization 1998 (June, 2000). Conference of State Court Administratorsand the National Center for State Courts. Available at http://www.ojp.usdoj.gov/bjs/pub/pdf/sco98.pdf6

The Arizona Jury: Past, Present and Future Reformin a single court. While jury reform efforts of the past twenty years in the United Stateshave benefited from this rich tapestry of varying practices, there is an underlyingconstitutional right to jury trial, in both criminal and civil matters, which ties these disparatesystems to common goals and aspirations. 19 This section presents an overview of theconstitutional and statutory provisions controlling the use of juries in Arizona as they existin November 2005. 20The Arizona Constitution, Article 2, Section 23, titled “Trial by jury; number of jurorsspecified by law,” guarantees the right to jury trial in both civil and criminal cases in theArizona courts, providing:The right of trial by jury shall remain inviolate. Juries in criminal cases inwhich a sentence of death or imprisonment for thirty years or more isauthorized by law shall consist of twelve persons. In all criminal cases theunanimous consent of the jurors shall be necessary to render a verdict. In allother cases, the number of jurors, not less than six, and the number requiredto render a verdict, shall be specified by law. 21The Seventh Amendment to the United States Constitution guarantees the right tojury trial in civil cases in federal court. 22 While the federal guarantee of a jury in civil trials19A good resource guide to jury trial innovations in the United States is found at National Center for StateCourts, Jury Trial Innovations, Resource Guide (2005). Available de.htm See also the American Judicature Society,National Jury Center Homepage (2005). Available at http://www.ajs.org/jc/index.asp A bibliography ofresources on jury reform is found at Maricopa County Law Library Web Pages, Jury Reform (2004). Availableat ocuments/Html/Bibliographies/JuryReform.asp Aleading resource on jury systems throughout the world is Neil Vidmar, ed., World Jury Systems, OxfordUniversity Press (2002) Available for purchase w/CriminalLawandProcedure/?view usa&ci 019829856020A diagram of the Arizona State Court system is included in the Appendix. A good overview of jury practicein the United States Federal courts is found in the Manual For Complex Litigation, Section 12.4, Jury Trials,Federal Judicial Center (4th Ed., 2004). Available at ona Constitution, Article 2, Section 23. Available inDoc /const/2/23.htm22The Seventh Amendment reads: “In suits at common law, where the value in controversy shall exceedtwenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” Available amendment07/7

The Arizona Jury: Past, Present and Future Reformhas not been extended to civil cases in state courts, 23 the law of most states guarantees ajury in civil cases above the level of small claims. 24The Sixth Amendment to the United States Constitution guarantees the right to jurytrial in criminal cases in federal court.25 The Supreme Court extended the SixthAmendment guarantee of jury trial in criminal cases to the states in Duncan v. Louisiana,stating:[T]he deep commitment of the Nation to the right of jury trial in seriouscriminal cases as a defense against arbitrary law enforcement qualifies forprotection under the Due Process Clause of the Fourteenth Amendment,and it therefore must be respected by the States. 26The Arizona constitutional jury provisions are implemented by statute and courtrule. Civil and criminal juries are called to sit in all Arizona trial courts – the Superior Courtand the courts of limited jurisdiction such as the Justice of the Peace Courts and the city ormunicipal courts. The Superior Court of Arizona is the general jurisdiction statewide trialcourt, 27 is a court of record, 28 and is organized and separately sitting in each of Arizona’sfourteen counties. 29 In those counties with more than 250,000 population (MaricopaCounty – the Phoenix metropolitan area ; and Pima County -- the Tucson metropolitanarea) the Superior Court Judges are merit system appointed and stand for retention every23See Gasperini v. Ctr. for the Humanities, Inc., 518 U.S. 415, 432 (1996).American Judicature Society, Juries in-depth: Right To A Jury Trial (2004). Available athttp://www.ajs.org/jc/juries/jc right overview.asp25The Sixth Amendment reads, in part: “In all criminal prosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury of the State and district wherein the crime shall have beencommitted, . . . .” Available at endment07/26Duncan v. Louisiana, 391 U.S. 145, 156-58 ( 1968). Available ?navby case&court us&vol 391&invol 14527Arizona Constitution, Chapter 2, Section 14. Available inDoc /const/6/14.htm28Arizona Constitution, Chapter 2, Section 30. Available inDoc /const/6/30.htm29Arizona Constitution, Chapter 2, Section 14. Available inDoc /const/6/13.htm248

The Arizona Jury: Past, Present and Future Reformfour years in non-partisan elections. 30Juries for Superior Court are “summoned from thebody of the county” as provided by statute. 31The Justice Courts are orgainized within geographical precincts within counties.Justice Court civil jurisdiction is limited to controversies where the sum sought is tenthousand dollars or less, exclusive of interest and costs, and their criminal jurisdiction islimited to misdemeanors. 32 City Court jurisdiction is limited to city or municipal ordnanceviolations and traffic offenses, but includes misdemeanor driving under the influence ofalcohol traffic offenses. In Arizona, jury trials are provided for all misdemeanor offenseswhere six months or more jail time may be imposed 33 and for driving under the influenceviolations. 34Statutory provisions related to juries are contained in various titles of the ArizonaRevised Statutes. 35 The basic provisions for the trial jury size and unanimity in Arizonaare contained in A.R.S. 21-102, which provides:A. A jury for trial of a criminal case in which a sentence of death orimprisonment for thirty years or more is authorized by law shall consist oftwelve persons, and the concurrence of all shall be necessary to render averdict.30See Arizona Constitution, Chapter 2, Sections 30 and 37. Available inDoc /const/6/30.htm ?inDoc /const/6/37.htm In Arizona’s other twelvecounties, Superior Court judges are elected.31Arizona Constitution, Chapter 2, Section 17. Available inDoc /const/6/17.htm32Arizona Constitution, Chapter 2, Section 32. Available inDoc /const/6/32.htm33Derendal v. Griffith, et al., 209 Ariz. 416, 104 P.3d 147 (2005), Available 0037PR.pdf34A.R.S. 28-1381(f). Available inDoc /ars/28/01381.htm&Title 28&DocType ARSSee State v. Smith, 1 CA-SA 05-0082, Arizona Court of Appeals August 25, 200535See Title 12, Courts and Civil Proceedings; Title 21, Juries; Title 13, Criminal Code ; Title 22, JusticeCourts; and various other miscellaneous titles The complete un-annotated text of the Arizona RevisedStatutes is available at s.asp While Arizona uses thegrand jury procedure to return indictments in criminal felony charges, discussion of grand jury procedures isbeyond the scope of this paper.9

The Arizona Jury: Past, Present and Future ReformB. A jury for trial in any court of record of any other criminal case shallconsist of eight persons, and the concurrence of all shall be necessary torender a verdict.C. A jury for trial in any court of record of a civil case shall consist of eightpersons, and the concurrence of all but two shall be necessary to render averdict.D. In a court not of record, a jury for trial of any case shall consist of sixpersons. The concurrence of all in a criminal case and all but one in a civilcase shall be necessary to render a verdict.E. The parties in a civil case, and the parties with the consent of the court ina criminal case, may waive trial by jury, or at any time before a verdict isreturned consent to try the case with or receive a verdict concurred in by alesser number of jurors than that specified above. 36Thus in all criminal cases in Arizona the verdict must be unanimous, however, thesize of the jury varies depending on the severity of the matter. If the possible punishmentequals or exceeds thirty years in prison, the criminal jury must be twelve persons. In allother criminal cases in Superior Court the jury consists of eight persons. In criminal casesin the courts of limited jurisdiction the jury consists of six persons.In civil cases in Arizona civil jury verdicts need not be unanimous. In civil cases inSuperior Court the jury consists of eight persons, with at least six of eight returning averdict. In civil cases in the courts of limited jurisdiction the jury consists of six persons,with at least five of six returning a verdict.Potential jurors are summoned from a jury list maintained by the jurycommissioner. 37 The jury list consists of all registered voters and all those with driver’s36A.R.S. 21-102. Available inDoc /ars/21/00102.htm&Title 21&DocType ARS37A.R.S. 21-131. The jury commissioner in smaller counties is the court clerk, while in counties over 250,000the presiding judge appoints a jury commissioner. Available inDoc /ars/21/00131.htm&Title 21&DocType ARS10

The Arizona Jury: Past, Present and Future Reformlicenses. 38 To be qualified to sit as a juror in Arizona, a person must: 1) be a citizen of theUnited States; 2) be a resident of the jurisdiction where summoned to serve; 3) never havebeen convicted of a felony, unless his or her civil rights have been restored; and, 4) not becurrently adjudicated mentally incompetent or insane. 39 The Arizona law provides:It is the policy of this state that all qualified citizens have an obligation toserve on juries when summoned by the courts of this state, unlessexcused. 40In 2003 Arizona passed a version of the “Jury Patriotism Act,” generally eliminatingjury service loopholes, tightening up the rules for seeking excusal from service, andestablishing a lengthy-trial fund for juror compensation in long trials. 41 Otherwise qualifiedjurors may be temporarily excused by the jury commissioner or the judge in a particularcase, only for specific statutory reasons. 42 These reasons include:1. A mental or physical condition causing the person to be incapable of performingjury service, supported by a doctor’s certification;2. That service would substantially, materially and adversely affect the publicinterest or welfare;3. That the person cannot currently understand the English language;4. That service would cause undue or extreme physical or financial hardship to theperson or the person’s family;38A.R.S. 21-301(B). Available inDoc /ars/21/00301.htm&Title 21&DocType ARS39A.R.S. 21-201. Available inDoc /ars/21/00201.htm&Title 21&DocType ARS40A.R.S. 21-202(A). Available inDoc /ars/21/00202.htm&Title 21&DocType ARS41V. Schwartz, M. Behrens and C Silverman, The Jury Patriotism Act: Making Jury Service More Appealingand Rewarding to Citizens, April, 2003. The Jury Patriotism Act reforms are discussed in more detail infra.Available at http://www.icjl.org/images/contentpdfs/030416 ALECJuryReport.pdf42A.R.S. 21-202(B). Available inDoc /ars/21/00202.htm&Title 21&DocType ARS11

The Arizona Jury: Past, Present and Future Reform5. The person is currently certified and employed as a peace officer;6. The judge or jury commissioner finds good cause for excusal based on ashowing of undue or extreme hardship under the circumstances, including beingtemporarily absent from the jurisdiction or a lack of transportation; and7. The person is over seventy-five years of age.An otherwise qualified potential juror must be disqualified under certaincircumstances. The Arizona statutes 43 provide:The following persons shall be disqualified to serve as jurors in anyparticular action:1. Witnesses in the action.2. Persons interested directly or indirectly in the matter under investigation.3. Persons related by consanguinity or affinity within the fourth degree toeither of the parties to the action or proceedings.4. Persons biased or prejudiced in favor of or against either of the parties.The jury commissioner randomly creates a summons list 44 from the master juror listand supplies a juror questionnaire, generally with the initial summons, covering the basicqualifications to serve. 45 A copy of the current Maricopa County jury summons andquestionnaire is reproduced in the Appendix. An original summons is mailed to theprospective juror. 46 A juror who actually serves on a trial is exempt from being called43A.R.S. 21-211. Available inDoc /ars/21/00211.htm&Title 21&DocType ARS44A.R.S. 21-312. Available inDoc /ars/21/00312.htm&Title 21&DocType ARS45A.R.S. 21-314. Available inDoc /ars/21/00314.htm&Title 21&DocType ARS46A.R.S. 21-333. Available inDoc /ars/21/00331.htm&Title 21&DocType ARS Theactual practices involved in sending jury summons, resending summons, yield rates, and enforcement inMaricopa County are discussed in more detail infra.12

The Arizona Jury: Past, Present and Future Reformagain for a period of two years. 47 A potential juror may postpone service two times only,unless particular hardship findings are made. 48 The Arizona statutes mandate a statewideone-day/one-trial rule. 49 This requirement is fulfilled by:1. Serving on one trial until being excused or discharged;2. Appearing but not assigned for selection before the end of that day;3. Assigned for jury selection and serves through the completion of jury selection oris excused;4. Complies with a request to telephone a court or check a court's web site todetermine whether to report on a particular day, for four days within a thirty-day period; or5. Provides the court with a valid telephone number and stands ready to serve onthe same day, for a period of two days.The constitutional and statutory provisions related to juries are further defined andimplemented in Arizona by the Arizona Code of Judicial Administration, 50 the ArizonaRules of Civil Procedure, 51 and the Arizona Rules of Criminal Procedure.52 A summary ofthe provisions for jury service in Arizona, including links to various court web sites, isavailable on the Arizona Supreme Court web pages. 53Much of Arizona jury reform has dealt with the juror experience after summons –such as voir dire procedures, trial procedures, jury instructions, juror satisfaction, and thelike. Section Three discusses the Arizona jury reform movement and Arizona based jury47A.R.S. 21-335. Available inDoc /ars/21/00335.htm&Title 21&DocType ARS48A.R.S. 21-336. Available inDoc /ars/21/00336.htm&Title 21&DocType ARS49A.R.S. 21-336.01. Available at Doc /ars/21/0033601.htm&Title 21&DocType ARS50Arizona Code Of Judicial Administration. Available at izona Rules of Civil Procedure. Available at wl52Arizona Rules of Criminal Procedure. Available at wl53Arizona Supreme Court, Jury Service (2005). Available at http://www.supreme.state.az.us/nav2/jury.htm13

The Arizona Jury: Past, Present and Future Reformresearch. Following sections discuss in more depth the particulars of current jury selectionand service practice in Maricopa County.Jury service in Maricopa County Arizona is typical of that in most states. On theday of jury service, those summoned jurors not excused via telephone or web check in,report for service to the jury assembly room. The potential jurors check in and receive anorientation. Panels for particular trials, either criminal or civil, are randomly drawn, theprospective jurors are assigned sequential numbers, and the panel is sent to a courtroomwith the particular court’s bailiff for voir dire. After voir dire is conducted, the trial jury isselected in juror number order of from those not excused by the judge for hardship, forcause, or peremptorily stricken by the parties.The trial jury is sworn, preliminary jury instructions given, opening statementsheard, the trial evidence presented, final jury instructions given, closing arguments heard,and the jury retires to deliberate. In criminal cases involving capital punishment, after adecision of guilt, the jury hears the aggravation/mitigation sentencing portion of the trial. Incriminal cases involving aggravating sentencing factors not an element of the underlyingcharge, the jury hears evidence on aggravating factors. A final verdict is reached, or amistrial is declared if the jury reaches impasse, and then the jury is discharged.Sometimes jury counseling services are suggested to jurors by the court after they aredischarged.THE ARIZONA JURY REFORM MOVEMENTArizona jury reform finds its genesis in the efforts of several key Arizona judges,court administrators and lawyers. 54 Judge B. Michael Dann’s 1993 paper “Learning54See American Bar Associa

10 Arizona Jury Instructions, both Preliminary and Final, must be in writing and each juror is given a copy. Arizona Rules of Civil Procedure, Rules 51(a) and 51( b)(3); Arizona Rules of Criminal Proced