New ideas to be tried
in isles’ Circuit Court

Attorneys worry, however, about jurors
taking notes and asking questions

By Susan Kreifels
Star-Bulletin

You could loosely compare jurors to students taking a required course. There are many instructors and speakers, but the students can't ask questions, take notes or talk about the class to each other. Some resent being there.

The final test may be confusing, but it's important to get it right. Your answer could put somebody away for life.

At the request of the Hawaii Committee on Jury Innovations for the 21st Century, the state Supreme Court has ordered 11 innovations to be tried among Circuit Court juries. They include allowing jurors to ask witnesses questions, take notes and talk with one another about the trial before deliberation starts. Some innovations have been adopted by other states.

Maui Circuit Judge Shackley Raffetto, committee chairman, said Chief Justice Ronald T.Y. Moon wants trial judges to "do as much as possible to make jurors' experiences meaningful and reasonable.

"We want to provide the tools necessary to do an effective job of deciding facts and applying the law to the facts. That is the definition of justice."

Raffetto cited a study that showed 63,700 people were called in 1994 for jury duty in Hawaii. "In 10 years, that's half of the population of the entire state," Raffetto said. "The potential for educating and enhancing the belief in the citizenry of the rule of law is very great."

Moon started the process about three years ago by convening a temporary committee to survey jurors statewide on their feelings about the jury system. The committee also looked at what other states had done.

That led to the current committee, made up of 20 judges, attorneys and former jurors. They developed the innovations that are to be tried in the courtrooms of Oahu Circuit Judges Bambi Eden Weil, Marie Milks, Michael Town, Richard Perkins and Melvin Soong on Oahu and Raffetto on Maui.

The judges will submit a final report to Moon by Jan. 15 on the effectiveness of the proposed innovations and jurors' responses to them.

While civil and criminal attorneys agreed that some of the innovations might be good, they were concerned about others, such as allowing jurors to ask questions and talk among themselves about evidence before deliberation.

Judges in civil and criminal trials will allow jurors to submit written questions for witnesses. Attorneys may object to the questions, and the judge will determine if they can be asked. Questions can be asked only to clarify facts, not explore jury theories or discredit a witness.

Attorneys who were interviewed said they opposed the idea.

"It's the responsibility of lawyers on both sides to present the case as they see it and to make all kinds of tactical and strategic decisions," said attorney David Gierlach.

"Allowing jurors to ask questions turns them into quasi-lawyers."

Gierlach said jurors may not "listen objectively with an open mind.

"It's important for the Judiciary to always look at ways to improve the system. But we have to be careful that we don't throw out the baby with the bath water and change things that don't need changing."

Raffetto said 22 states allow jurors to ask questions. He said defense attorneys worry that "jurors might ask a question that the prosecutor forgot, and the person might be convicted as a result."

Jon Van Dyke, a law professor at the University of Hawaii and committee member, said studies of jury innovations "indicate the fears that lawyers have don't always emerge as real problems.

"Judges are being extremely cautious....They're not in any way going to prejudice the litigant."

Other ideas:

At the discretion of the judge, jurors may be allowed to discuss the evidence in civil cases only while the evidence is still being presented.

Raffetto said studies show jurors talk to each other even when they are instructed not to. "We should recognize reality. We admonish them not to make up their minds until the end of the trial. We ought to be able to trust them."

But David Dezzani, a civil trial lawyer for more than 30 years, disagreed. "Prior deliberation interrupts the process."

Judges may allow brief opening statements by attorneys in both civil and criminal cases to the entire jury panel prior to jury selection. Knowing about the case will help jurors themselves determine if they can serve.

Raffetto also said studies show that people not selected go away "with a lower value of jury service. They leave never even knowing why they were there."

Upon agreement of the parties in criminal cases, jurors may be pre-instructed on the elements of the charged offenses and defenses.

Van Dyke said this innovation has been controversial because jurors might be misled to expect certain evidence that is not there.

The judge may allow jurors to take notes during the trial but will instruct them that note-taking cannot distract them from court activity and shall not take priority over memory.

Gierlach said jurors might rely too heavily on the notes of one person.

The judge shall give instructions to jurors on the law before closing arguments and give them copies to take into deliberation.

Dezzani said jurors could focus too much on interpreting individual words of the law.