Should Jurors Deliberate Throughout Trial?
Closing arguments are wonderful. You have a huge amount of flexibility in what you’re allowed to say and in most jurisdictions anything in evidence is fair game to use. And in contrast to cross examinations or oral arguments, the soliloquy nature of the presentation makes it hard for a closing to go truly catastrophically. As an attorney, if you don’t enjoy closing arguments, call me right now and I’ll happily take them off your hands.
But as enjoyable as they are, the impact of closing is somewhat limited. While nobody would say that closings don’t matter at all, the truth is that it’s a very rare case indeed that’s won or lost in closing. I was always taught that opening statements matter far more than closings and I think that most trial lawyers would agree.
Why? Some of it is framing, momentum, and the power of first impressions on how people receive and understand facts. But there’s a much simpler truth at play as well. Opening statements matter more because most jurors have already made up their mind by closing and often there isn’t a whole lot that you can do it change it.
On the one hand, this isn’t news. Everyone in the trial business knows that jurors make up their minds early. From voir dire to opening statements to witness order, a huge amount of trial strategy is predicated on the need to get the jury on your side immediately. But on the other hand, in most jurisdictions the instructions that the jury receives are completely at odds with the notion that jurors are thinking about the case before deliberations begin. For example, in the Eleventh Circuit, jurors are instructed:
You shouldn’t even talk about the case with each other until you begin your deliberations. You want to make sure you’ve heard everything – all the evidence, the lawyers’ closing arguments, and my instructions on the law – before you begin deliberating. You should keep an open mind until the end of the trial. Premature discussions may lead to a premature decision. [1]
And this isn’t an outlier. The Third Circuit’s model instructions tells jurors essentially the same thing:
First, I instruct you that during the trial and until you have heard all of the evidence and retired to the jury room to deliberate, you are not to discuss the case with anyone, not even among yourselves. If anyone should try to talk to you about the case, including a fellow juror, bring it to my attention promptly. There are good reasons for this ban on discussions, the most important being the need for you to keep an open mind throughout the presentation of evidence. [2]
But is this actually a sensible instruction? Given that just about everyone assumes that jurors will make up their minds before the trial is over, shouldn’t jurors be allowed to discuss the case amongst themselves throughout the trial? And are there jurisdictions where they can?
Like most rules concerning trial, the primary justification for the rule against pre-deliberation discussions is tradition. The admonition is rarely considered, rarely challenged, and is thoughtlessly copied from jury instruction to jury instruction as though it were the directions to the courthouse bathrooms.
But on the rare occasions where it does come up, there are a few standard arguments against allowing jurors to discuss the case before deliberations. First, some courts argue that allowing jurors to talk about the case will cause them to make up their minds early in the trial and ignore any evidence presented after they reach a decision. [3] The words “premature” and “open mind” get thrown around a lot in such opinions. One could certainly argue about what “premature” really means in this context – after all, how many judges genuinely wait until summation before deciding who deserves to win? But in any event, it’s not altogether clear that early discussion about a case is more likely to convince jurors to make up their minds early.
In fact, the opposite may be true. If a juror is leaning toward voting for the plaintiff but knows that other jurors are leaning the other way, he might be more inclined to listen to additional evidence. He may want to have more evidence to use in convincing the other jurors. Or alternatively, he might be more receptive to evidence that changes his initial impression because he knows that others do not share it.
And even if discussions among jurors are more likely to lead to an early consensus decision, that might still be an improvement over the status quo. Most attorneys assume that jurors currently make up their minds early in the case anyway, without even talking to other jurors. If that’s true, allowing jurors to discuss the case might improve the quality of those early judgements. In essence, the pre-deliberation discussions might replace poorly reasoned early decisions with better reasoned ones.
Second, some courts argue that the interpersonal dynamics involved in early discussions might lead to aberrant results. There’s a lot of pop-psychology involved, but these arguments boil down to the idea that either (1) once a juror expresses an opinion to other jurors they’ll feel compelled to stick to it in the face of contrary evidence out of some fear of embarrassment; or (2) more assertive jurors will browbeat the others with their opinions throughout the whole trial, such that the verdict is never in any real doubt. [4]
Whether credible or not in the abstract, there’s no serious social science evidence supporting these theories. As such, while weird personality issues cannot be completely dismissed, it’s hard to imagine that any of these scenarios are so intrinsically likely that a ban on pre-deliberation discussions is appropriate. Indeed, it’s easy to dream up contrary interpersonal dynamics that seem equally likely. For example, if jurors are embarrassed to change their mind because of something they see at trial, how embarrassed are they going to be to change their mind because of something another juror said? If anything, expressing opinions while the trial is still ongoing is safer – the new evidence offered afterwards give jurors a socially acceptable “excuse” to move off of positions that other jurors have questioned without appearing to back down. And if one of the jurors is a genuinely a loudmouthed know-it-all, the rest of the jury may become more skeptical about his or her opinions over time, not less.
Because the arguments against allowing jurors to discuss the case are so thin, a few jurisdictions have begun to experiment with eliminating the rule. The first was Arizona, which eliminated the prohibition in 1995 in connection with modernizing its civil procedure rules. [5] A few other jurisdictions have since followed suit. [6]
How have the results been? Under normal circumstances, it would be difficult to tell – most changes to civil procedure rules are not rigorously studied. But in a remarkably forward-thinking move, the Arizona Supreme Court actually permitted a substantial amount of social science inquiry in connection with the rule change. The court issued an administrative order permitting trial judges to vary the rule – permitting pre-deliberation discussions in some cases, but not others – so that researchers could gather data and compare the results. A number of social scientists took advantage of this opportunity to survey jurors in “discuss” and “no discuss” pools and study how the rule change influenced jury behavior. [7]
The results, while not overwhelming, were broadly positive. Researchers found no measurable change in the verdicts rendered by each pool or the degree to which judges agreed with the jury’s outcome. [8] But there were other benefits. As one researcher wrote:
“[T]he data document some important matters related to Rule 39(f). The first is the frequent incidence of one or more jurors seeking opinions from other jurors, expressing differences in view, commenting on missing evidence and discussing jurors' questions. In other words, jurors make use of discussion periods available not only in terms of the frequency of case-relevant discussion, but also in terms of substantive exchange. The second is that discussion about what was actually said at trial does assist the jurors in reconstructing the evidence, as reflected in our five intensive case studies of relatively complex trials. [9]
But in addition to helping jurors to understand the evidence as it comes in, pre-deliberation discussions were also associated with modest increases in juror satisfaction – both with the process and with each other – as jurors rated in “discussion” pools tended to rate other jurors as more open-minded and agreeable than those in “no discussion” pools. [10] It’s not hard to imagine why. If you take a dozen strangers and force them to hang out together, they’re more likely to get along if they actually have something to talk about.
Will this trend continue? Will more jurisdictions permit pre-deliberation discussions? One can certainly hope. But given the persistence of other weird jury rules (e.g. the prohibition on note-taking), it may be a very long time before most courts come around. Until then, if you’re on a jury in most parts of the country, be sure to bring a book to read. Because you might not have much to talk about with your fellow jurors.
[1] See Eleventh Circuit Pattern Civil Jury Instructions § 1.1, available at: https://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCivilPatternJuryInstructionsRevisedAPR2024.pdf
[2] See Third Circuit Pattern Civil Jury Instructions § 1.3, available at: https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%20June%202024%20meeting.pdf
[3] See, e.g., Winebrenner v. United States, 147 F.2d 322, 328 (8th Cir. 1945) (“If, however, the jurors may discuss the case among themselves, either in groups of less than the entire jury, or with the entire jury, they are giving premature consideration to the evidence”).
[4] See, e.g., United States v. Resko, 3 F.3d 684, 689 (3d Cir. 1993) (“Second, once a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion. Consequently, the mere act of openly expressing his or her views may tend to cause the juror to approach the case with less than a fully open mind and to adhere to the publicly expressed viewpoint.”).
[5] See Ariz. R. Civ. P. 39(f).
[6] See Ind. Jury R. 20(a)(8) (“[J]urors, including alternates, are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. The court shall admonish jurors not to discuss the case with anyone other than fellow jurors during the trial.”); N.D. R. Ct. 6.11 (“In a civil case, the court may, without objection, allow the jury to engage in predeliberation discussion.”).
[7] Jessica L. Bregant, Let’s Give Them Something to Talk About: An Empirical Evaluation of Predeliberation Discussions, 2009 U.Ill. L. Rev. 1213, 1218-1220 (2009).
[8] Paula L. Hannaford et al., Permitting Jury Discussions During Trial: Impact of the Arizona Reform, 24 L. & Hum. Behav. 359, 363-4 (2000).
[9] Shari Seidman Diamond et. al., Juror Discussions During Civil Trials: Studying an Arizona Innovation, 45 Ariz. L. Rev. 1, 47 (2003).
[10] Id. at 72.
