which gives jurors the opportunity to disclose sensitive
information to the judge and attorneys without having
to do so orally in open court. This technique is also use-
ful for trials involving substantial pretrial publicity
because it permits jurors to disclose their knowledge of
the case without tainting other jurors who may not have
read or heard as much about it.
Many judges now invite jurors to indicate if they
would prefer to respond to questions about potentially
embarrassing or sensitive information (e.g., criminal
background, substance abuse, or criminal victimiza-
tion) privately in a sidebar conference or in chambers
with the attorneys; approximately 30% of jurors take
advantage of this opportunity. A small, but increasing,
number of judges now advocate giving all prospective
jurors an opportunity for individual voir dire, regard-
less of the nature of the case or the questions to be
posed, as it alleviates some of the intimidation of the
courtroom environment and invites jurors to disclose
any information that they believe relevant to their
impartiality even if no question has directly solicited
that information.
In spite of increased awareness about how tradi-
tional voir dire techniques can discourage fully candid
and complete self-disclosure by jurors, trial judges in
many areas of the country have been reluctant to
embrace voir dire reforms, largely out of concern over
the additional time and effort that they might cause in
the jury selection process. Many judges also voice
skepticism about the need for a more expansive voir
dire, claiming that lawyers’ desire for more informa-
tion about jurors’ backgrounds too often intrudes on
jurors’ privacy without actually eliciting useful infor-
mation about jurors’ ability to serve impartially.
Because of the traditional deference given to judges’
management of the voir dire process by reviewing
courts and legislatures, reforms to voir dire have taken
place more slowly and incrementally than reforms to
other stages of the trial process.Jury Comprehension
and Performance
The most dramatic reforms to jury trials in recent
years are those designed to enhance juror comprehen-
sion and decision making during the trial and deliber-
ations. The growing popularity of these reforms
among judges, lawyers, and policymakers reflects a
change in the traditional understanding of how jurors
perceive and process evidence and what, given thisnew understanding, the appropriate role of jurors
should be in the trial.
Traditional jury trial procedures were developed
with the intent of reinforcing juror passivity, which
was believed essential to maintaining their neutrality
throughout the evidentiary portion of the trial. Con-
sequently, jurors were traditionally discouraged from
taking notes because it might distract them from
observing the witnesses’ demeanor or they might con-
fuse their own notes with the evidence actually pre-
sented. Jurors were prohibited from asking questions
of witnesses because they might become inappropri-
ately adversarial. They were prohibited from dis-
cussing the evidence among themselves or with others
because they might begin to draw conclusions before
hearing the entire case. And they were not informed
about the legal principles that they would be required
to apply until just before deliberations because it might
cause jurors to disregard evidence that seemed unre-
lated to those principles. All these restrictions were
intended to ensure that nothing interfered with jurors’
ability to accurately remember, understand, and con-
sider all the evidence presented to them at trial.
A substantial body of research from the field of
social and cognitive psychology emphatically contra-
dicts this traditional understanding of juror decision
making. Empirical studies have conclusively estab-
lished that jurors are not simply “blank slates” or
“empty vessels” waiting to be filled but instead actively
process and interpret information as it is received dur-
ing the trial, in spite of the restrictions imposed on
them. Indeed, many of those restrictions have been
found to actually hinder jurors’ ability to efficiently and
effectively process information. Thus, the reforms that
have been introduced in recent years are intended to
capitalize on jurors’ natural ability to understand and
process information while emphasizing to jurors the
continued importance of their neutrality during trial.
The least controversial reform, and the one that
appears to have caught the attention and support of the
legal community most strongly, is permitting jurors to
take notes during trial, which helps jurors remember
evidence. In a recent study of jury trial practices
nationwide, jurors were permitted to take notes in
70% of trials in state and federal courts. Moreover,
jurors in 64% of the trials were actually given notepa-
per and writing instruments with which to do so. Only
two states—Pennsylvania and South Carolina—
prohibit juror note taking in criminal trials, and only
South Carolina prohibits it in civil trials; all other418 ———Jury ReformsJ-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 418