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When all eyes are watching: Trial characteristics and practices in notorious trials

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When all eyes are watching: Trial characteristics and practices in notorious trials
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   Volume 91, Number 4 January-February 2008 JUDICATURE 197 Focus The term “notorious trial” bringsto mind images of celebrity partiesor witnesses (and sometimescelebrity lawyers and even judges),heinous crimes, unusual legal issuesor factual situations, and unrelentingmedia coverage in the press, on tele- vision and radio, and even online.But notorious trials come in many shapes and sizes. Most often we thinkof criminal trials, but civil cases suchas the Vioxx product liability trials,the Walmart employment discrimi-nation case, and even complexshareholder suits in business fraudcases qualify as notorious. The termconnotes national notoriety, but local or regional notoriety is alsoquite common, especially in politicalcorruption cases or cases involvingsignificant local or regional employ-ers. For present purposes, the sim-plest definition of a notorious trial issimply one that is widely known anddiscussed. 1 Nationally, notorious trials are very rare. Approximately 150,000 jury trials are conducted each year instate and federal courts, but only adozen or so receive sustainednational coverage. But because they are so closely watched, how courtsmanage them has a disproportionateimpact on public trust and confi-dence in the justice system. Ironi-cally, because they are so closely  watched, notorious trials also pose atremendous challenge for judges,court administrators, and lawyers toensure actual fairness for the parties.Extensive pretrial publicity shapespublic opinion, potentially jeopard-izing the ability of prospective jurorsto be fair and impartial. Notorioustrials also complicate the logistics of trial practice by placing unusualdemands on courtroom seats forspectators, on courthouse security tomaintain order, and on others tryingto carry out business in the otherparts of the courthouse as the trialgoes forward.In part because of their relativescarcity and the uniqueness of eachnew notorious trial, it is difficult togeneralize the effects of trial notori-ety. However, a recent study by theNational Center for State CourtsCenter for Jury Studies reveals infor-mation about the prevalence of notorious trials and their impact ontrial procedures and practices. TheState-of-the-States Survey of Jury Improvement Efforts collected trialreports from nearly 12,000 jury trialsconducted in state and federalcourts in all 50 states and the District of Columbia. 2 The vast majority of trials took place between 2002 and2006.In the survey, judges and lawyers were asked to describe their most recent jury trial, including the typeof case, the location of the trial, andthe procedures employed during voir dire and trial. One survey ques-tion asked whether the respondent’smost recent jury trial was a notoriousor high profile trial. Respondentsidentified a surprising 718 trials (6.2percent) in the dataset as notorious.This article discusses the characteris-tics that are most often associated with those notorious trials and thetrial practices most often employedby judges and lawyers in notorioustrials. Trial characteristics  As a preliminary matter, it is clearthat trial notoriety does not strikerandomly across the country. Rather,the rate at which judges and lawyersreported notorious trials variedtremendously from state to state, andnot necessarily in predictable ways.(See Table 1). Overall, the frequency of notorious trials ranged from zeroin Delaware to 17 percent in Wyoming. California and New York,two states that frequently appear inthe press as the location of many notorious trials, had rates just at oronly slightly higher than the nationalaverage (6.1% and 6.7%, respec-tively).There did not appear to be any relationship between the notorioustrial rate and either the rates of jury trials per 100,000 population orother plausible statewide factors(e.g., state population, geographicproximity). Nor were notorious trials When all eyes are watching: Trialcharacteristics and practices in notorioustrials by Paula L. Hannaford-Agor  1. See  Timothy R. Murphy, Paula L. Hannaford,Genevra Kay Loveland and G. Thomas Munster-man,M  ANAGING N OTORIOUS T RIALS (1998).2. See  Gregory E. Mize, Paula L. Hannaford- Agor & Nicole L. Waters, The State-of-the-StatesSurvey of Jury Improvement Efforts: A Com-pendium Report (April 2007) (available at http://www.ncsconline.org/D_Research/cjs/stat e-survey.html.  198 JUDICATURE  Volume 91, Number 4 January-February 2008 significantly more prevalent in fed-eral courts as compared to statecourts. But some trial characteristicsdid correlate with notoriety rates.(See Table 2). For example, criminaltrials generally, and capital felony trials specifically, were much morelikely to be identified as notoriouscompared to civil trials. Trial com-plexity was also a factor in notorioustrials. On a scale of 1 (not at all com-plex) to 7 (extremely complex), evi-dentiary and legal complexity innotorious trials was rated 40 percent higher than that in routine trials.Not surprisingly, jurors impaneledin notorious trials were more thanfour times more likely to exhibit symptoms of stress than those inroutine trials. What was surprising,however, was the rate of notorioustrials in suburban and rural jurisdic-tions, which was more than 50 per-cent higher than rates in large,urban jurisdictions. In smaller com-munities, a trial involving local per-sonalities or institutions may, inreality, be the only news in town. Voir dire practices  A major finding of the State-of-the-States Survey of Jury Improvement Efforts was the extent to which voirdire practices varied from jurisdic-tion to jurisdiction across a variety of measures. In some jurisdictions, thequestioning of jurors is done exclu-sively or predominantly by the trial judge, but in others, attorneys takethe lead. Some jurisdictions rely almost entirely on questions posedto the entire jury panel while othersengage jurors individually either inthe jury box or at sidebar. Some jurisdictions routinely supplement oral questioning with written ques-tionnaires, yet others almost neverdo so. The average amount of timeto impanel a jury ranged from lessthan 30 minutes in South Carolinato more than 10 hours in Connecti-cut. 3 Regardless of statewide and local jurisdictional practices, however,trial notoriety has an impact on how judges and lawyers conduct voir dire.(See Table 3). For example, we seethat trial notoriety exerts a moderat-ing influence on who actually doesthe bulk of questioning. Less than 24percent of questioning in notorioustrials was conducted exclusively orpredominantly by judges comparedto nearly 30 percent in routine trials.On the other end of the spectrum,fewer than 9 percent of notorious tri-als involved voir dire conductedexclusively by lawyers compared to12 percent of routine trials. In con-trast to the extremes of exclusively  judge or exclusively attorney-con-ducted questioning, the proportions 3. Mize et al., supra  n. 2, at 27-31. Table 1: Frequency of Trial Notoriety Percent of Notorious TrialsStates (# of notorious trials) 0 to 3.9 percentAR (1), CT (3), DE (0), ID (2), LA (6),MD (12), WA (6), WI (1), WV (3)4 to 5.9 percentAZ (8), CO (10), DC (6), GA (19), IL (39),IN (14), MA (10), MN (18), MO (14), NV (7),NJ (7), OR (22), PA (30), SD (11)6 to 7.9 percentAL (7), AK (17), CA (27), MI (48), MS (10),MT (5), NH (3), NM (7), NY (30), ND (12),OH (16), SC (5), TX (36), VA (17), WY (8)8 to 9.9 percentFL (33), HI (6), IA (16), KY (20), NE (12),OK (15), RI (6), TN (17), UT (39),More than 10 percentKS (12), ME (7), NC (28), VT (6) Table 2: Characteristics of Notorious Trials Notorious RoutineTrials Trials(n=718)(n=10,837) Case Type (% of trials) Capital Felony36.563.5Felony9.091.0Misdemeanor2.297.8Civil3.696.4 Court Type (% of trials) State Court6.393.7Federal Court6.793.3 Location Size (% of trials) Population more than 1 million4.895.2Population 500,000 to 1 million5.494.6Population 250,000 to 500,0007.692.4Population 100,000 to 250,0007.292.8Population less than 100,000”7.093.0 Trial Complexity (mean score) Evidentiary Complexity5.13.6Legal Complexity4.93.5 Juror Stress (% of trials) 20.54.7  www.ajs.org JUDICATURE 199 of equally judge and lawyer-con-ducted voir dire and predominantly lawyer-conducted voir dire werehigher in notorious trials comparedto routine trials. Even controlling forprevailing state practices and casetype (criminal versus civil), trialnotoriety was a significant factor in who did the majority of questioningduring voir dire. 4 For trial lawyers, this is good newsinsofar that the bulk of empirical lit-erature supports the contention that  jurors respond more candidly toquestions posed by lawyers. 5 Thereare also compelling arguments that litigant participation in voir direthrough counsel increases litigant and public perceptions of fairness. 6 By the same token, the shift away from exclusively lawyer-dominated voir dire suggests that trial judges areconcerned that an appropriate levelof judicial supervision be exercisedin notorious trials, ostensibly to pro-tect jurors’ dignity and expectationsof privacy and to ensure a reasonably efficient voir dire. 7 Similarly, trial notoriety affectedthe methods judges and lawyersemployed during voir dire question-ing. They were significantly morelikely to question jurors individually at sidebar or in chambers in notori-ous trials and to supplement oralquestioning with case-specific writtenquestionnaires, even after control-ling for prevailing state practice andcase type. Possibly this is done toscreen jurors for the influence of pretrial publicity and other poten-tially prejudicial knowledge or viewsabout the case without exposing allprospective jurors to each individ-ual’s responses to questions. Suchpractices have also been shown toimprove the likelihood of juror will-ingness to disclose personal infor-mation completely and candidly. 8  While highly effective for improv-ing the quality and quantity of infor-mation available to the court andparties during jury selection, someof these methods tend to increasethe amount of time needed toimpanel a jury. This is well illus-trated by the amount of timeneeded for voir dire in notorious tri-als, which averaged more than 50percent to nearly 250 percent longer, depending on case type,than the time needed for voir dire inroutine trials. Trial and deliberation practices  A major objective of the State-of-the-States Survey of Jury Improvement Efforts was to document the extent to which various jury trial tech-niques designed to improve jurorcomprehension and performanceare routinely employed in jury trials.Examples of such techniques includepermitting jurors to take notes (andproviding them with notepads and writing utensils with which to do so);providing jurors with trial note-books; permitting jurors to submit  written questions to witnesses; per-mitting jurors to discuss the evidencebefore final deliberations; pre-instructing jurors on the substantivelaw governing the alleged charges orclaims; and providing written copiesof instructions to the jury. 9 In most jurisdictions, these tech-niques are permitted “in the sounddiscretion of the trial court,” but until the State-of-the-States Survey, we had little idea how often trial judges exercised their discretion todo so. We were pleasantly surprisedto find that some of these techniquesappear to be the prevailing practicein many jurisdictions and even themore controversial techniques, suchas juror questions and juror discus- 4. The level of statistical significance is indi-cated by asterisks in Table 3.5. Susan E. Jones,  Judge- Versus Attorney-Con- ducted Voir Dire, 11 L  AW & H UM . B EHAV  . 131 (1987);David Suggs & Bruce D. Sales,  Juror Self-Disclosure in the Voir Dire: A Social Science Analysis, 56 I ND . L. J.245 (1981).6. American Bar Association, P RINCIPLESFOR   J URIESAND  J URY  T RIALS Principle 11(B) (2005).7. Id. 8. Gregory E. Mize, Be Cautious of the Quiet Ones, available at http://www.abota.org/publications/article.asp?newsid=94 (2003); Gregory E. Mize, On Better Jury Selection: Spotting UFO Jurors Before They Enter the  Jury Room, 36C T . R  EV  . 1 (Spring 1999); Kimba M. Wood, The 1995 Justice Lester W. Roth Lecture: Reex- amining the Access Doctrine, 69 S. C  AL . L. R  EV  . 1105,1118-20 (1996).9. G. Thomas Munsterman, Paula L. Han-naford-Agor, and G. Marc Whitehead, J URY  T RIAL I NNOVATIONS 61-67, 102-03, 124-29, 132-33, 151-52(2d ed. 2006). Table 3: Voir Dire Practices in NotoriousTrials Notorious RoutineTrials Trials(n=718)(n=10,837) Questions posed … (% of trials) Exclusively by judge8.19.3Predominantly by judge15.420.3**By judge and lawyers equally21.518.6Predominantly by lawyers46.349.2**Exclusively by lawyers8.812.5* Jurors questionned … (% of trials) Collectively in the jury box83.484.2Individually in the jury box65.761.1Individually at sidebar or in chambers46.129.5*** Written questionnaires used (% of trials) General Questionnaire36.833.4Case-Specific Questionnaire22.64.5*** Voir dire length (mean # of hours) Capital Felony18.411.9Felony7.22.9***Misdemeanor 3.71.6***Civil3.52.1*** * p < .1** p < .01*** p < .001  200 JUDICATURE  Volume 91, Number 4 January-February 2008 sions before final deliberations, were more prevalent that we initially believed. But are trial judges moreor less willing to employ these tech-niques in notorious trials? For themost part, use of these techniques was substantially greater in notori-ous trials compared to routine trials.(See Table 4).In particular, jurors were signifi-cantly more likely to be permitted totake notes and to be given note tak-ing materials; to be given trial note-books; to be permitted to submit  written questions to witnesses; to bepre-instructed on the substantive law;to be given final instructions beforeclosing arguments; to be given guid-ance on conducting deliberations;and to be given a written copy of thefinal jury instructions for use duringdeliberations. The only techniquethat showed reduced use in notori-ous trials was permitting jurors to dis-cuss evidence before finaldeliberations. Jurors in notorious tri-als were not sequestered at any greater rate than those in routine tri-als. Using regression analyses to con-trol for additional factors that affect their frequency use (e.g., trial com-plexity, case type, state law governingthe use of specific techniques, andprevailing state practice), we findthat trial notoriety continues to be afactor in juror note taking, jurorquestions in criminal trials, pre-instructions on substantive law, andguidance on deliberations (indicatedby asterisks in Table 4).In the State-of-the-States Survey, we found that deliberation length was affected by the use of some of these techniques. Jurors who werepermitted to take notes, given trialnotebooks, and given written copiesof the final instructions tended tospend more time on average in delib-erations than jurors who were not given these aids. Jurors who wereinstructed before closing arguments,in contrast, tended to spend less timein deliberations. The asterisks inTable 4 indicate that trial notoriety isalso a factor in deliberation length. After controlling for all of these fac-tors, as well as case characteristicsthat were found to affect delibera-tion length (e.g., evidentiary andlegal complexity, number of jurors, whether the jury was sequestered,and whether the verdict was requiredto be unanimous), we find statisticalevidence that trial notoriety contin-ues to increase the length of deliber-ations for all case types other thancapital felony trials. Compliance with state law In the earlier analyses of the use of  jury trial techniques in notoriouscases, we thought it important to con-trol for state law governing the use of  various techniques. Most jurisdictionspermit the use of these techniques “inthe sound discretion of the trial judge.” Yet some states are moreexplicit in their advocacy for ordenunciation of these techniques,explicitly mandating or prohibitingthe practices in court rules, statutes, orcase law. Other states are completely silent on the issue. For example, bothPennsylvania and South Carolina pro-hibit juror note taking in criminal tri-als, while Arizona, California, 10 Colorado, Indiana, and Wyomingrequire judges to permit juror notetaking. Juror questions are prohibitedin criminal trials in 11 states and incivil trials in 10 states, but mandated in Arizona, Colorado, and Indiana.One of the more intriguing find-ings from the State-of-the-States Sur- 10. California mandated that jurors be permit-ted to take notes in 2007. California Rules of Court, Trial Court Rule 2.1031 ( eff  . Jan. 1, 2007).None of the California trials in the State-of-the-States Survey data set were conducted under thisrule. Table 4: Trial Practices in Notorious Trials Notorious RoutineTrials Trials(n=718)(n=10,837) Juror notetaking (% of trials) Civil trials82.668.9*Criminal trials74.165.4** Jurors provided with trial notebooks (% of trials) 9.75.7 Jurors permitted to submit questions towitnesses (% of trials) Civil trials21.015.1Criminal trials15.013.3* Jurors permitted to discuss evidence beforefinal deliberations (% of trials) Civil trials.72.1Criminal trials.41.8 Jury instructions (% of trials) Jurors pre-instructed on substantive law23.016.7**Jurors instructed before closing arguments43.639.2Jurors given guidance on deliberations58.953.6*Jurors given written copies of instructions79.167.8 Jurors sequestered (% of trials) 24.524.3 Length of deliberations (mean # of hours) Capital Felony9.48.0Felony7.14.0***Misdemeanor 3.42.2*Civil9.04.0*** * p < .1** p < .01*** p < .001  www.ajs.org JUDICATURE 201  vey was the extent of judicial non-compliance with legal prohibitionson the use of these techniques. 11 Forexample, despite the explicit prohi-bition, judges in Pennsylvania andSouth Carolina permitted jurors totake notes in 27 percent of criminaltrials and 42 percent of civil trials,and provided note taking materialsin 23 percent of trials regardless of case type. As a general matter, judgesare more likely to violate prohibi-tions on the use of these practicesthan to fail to comply in those juris-dictions where they are mandated,although the extent of noncompli-ance in both situations varied some- what according to the technique inquestion. 12  What impact does trial notoriety have on noncompliance rates? Inter-estingly, it appears to enhance thetendency for some techniques, espe-cially those that are widely supportedand practiced in other jurisdictions.For example, there were 230 crimi-nal trials in Pennsylvania and SouthCarolina, the two jurisdictions that prohibit juror note taking, of which20 were reported to be notorious tri-als. Yet judges permitted jurors totake notes in more than half (55 per-cent) of the notorious trials, but only 25 percent of the routine trials, a sta-tistically significant difference. In thefour jurisdictions that require judgesto permit jurors to take notes, 26 of the 349 criminal trials were reportedto be notorious, all of which com-plied with the mandate althoughonly 94 percent complied with themandate in routine trials. We see similar effects of trial noto-riety in the use of other techniques.For example, providing jurors with written copies of the final instruc-tions is widely regarded as an effec-tive way to improve jurorcomprehension of and ability toaccurately apply the law. In jurisdic-tions that do not permit jurors tohave a written copy of the instruc-tions, judges nevertheless providedthem in one-third of notorious trialscompared to only 20 percent of rou-tine trials. In jurisdictions that man-date written instructions for jurors, judges complied with the require-ment in 95 percent of notorious tri-als compared to only 90 percent of routine trials. On the other hand,permitting jurors to submit writtenquestions to witnesses is a more con-troversial technique. Even in jurisdic-tions that mandate the practice, judges in notorious trials were actu-ally less likely to comply compared to judges in routine trials. Conclusions Practices employed in jury trials havebeen increasingly scrutinized overthe past two decades in response toconcerns about the competence of  jurors to decide today’s more com-plex trials and about jurors’ satisfac-tion with jury service and itsrelationship to trust and support forthe justice system. These have led todramatic changes in voir dire andtrial procedures. Some of these tech-niques are designed to elicit candidand complete information fromprospective jurors while protectingtheir dignity and legitimate expecta-tions of privacy. The intent of othertechniques is to provide jurors withcommon-sense tools to facilitaterecall and comprehension of evi-dence, and juror confidence and sat-isfaction with deliberations. A largebody of empirical research confirmsthe effectiveness of many of thesetechniques and a number of promi-nent bench and bar organizationshave endorsed their use, includingthe American Bar Association, whichespoused them in its 2005 Principles  for Juries and Jury Trials.  What is clear from this analysis of  voir dire and trial practices in notori-ous trials is that many of these tech-niques are even more likely to beemployed in a notorious trial than ina routine trial, especially in criminalcases. Those of us who spend our livesobserving courts know that judges,lawyers, and court staff can beextremely reluctant to adapt to andimplement change. So in some ways,this finding is very counter-intuitive. Why would judges and lawyers bemore likely to employ such innovativetechniques in cases that are beingclosely watched in local, regional, oreven national media?One possibility may be an inherent selection bias in the judges whopresided in the notorious trials that  were included in the State-of-the-States Survey dataset. To the extent that these judges were deliberately selected based on experience and judicial demeanor, rather than ran-domly assigned, they may be moreconfident in their ability to managethese types of trials, more knowl-edgeable about the benefits of inno- vative jury trial techniques, and thusmore comfortable using them innotorious trials. 13  A second possibility is purely inresponse to the increased publicscrutiny on notorious trials. Judgesand lawyers may be more willing toemploy these techniques precisely because the appearance of a casetried by a fair and competent jury is asimportant as its reality. Thus, judgesand lawyers may be willing to spendextra time to question jurors morethoroughly using methods designedto solicit more candid and completeinformation than is generally possible with traditional voir dire methods.They may also be more willing to pro- vide jurors with tools to facilitate jurorcomprehension and performancebecause jurors, and the watching pub-lic, believe that they are likely to help jurors arrive at a fair and accurate ver-dict. Indeed, we see in some instancesthat judges and lawyers are even will-ing to blink at state and local prohibi-tions of these techniques in order topromote juror competence and theappearance of a fair trial. Which begsthe question, if these techniques areperceived by judges, lawyers, and thepublic as effective methods toimprove jury trials, why don’t judgesand lawyers employ them in routinetrials when the eyes of the world arenot watching? g PAULA L. HANNAFORD-AGOR is director of the Center for JuryStudies, National Center for StateCourts. (phannaford@ncsc.dni.us) 11. Mize et al., supra  n. 2, at 32-37.12. Id. 13. Murphy et al., supra  n. 1, at 
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