Encyclopedia of Psychology and Law

states either mandate that jurors be permitted to take

notes (Arizona and Indiana) or make the practice

discretionary.

Other techniques have encountered somewhat greater

resistance in actual practice, in spite of empirical

studies documenting their effectiveness, favorable

reports from jurisdictions that have implemented those

techniques, and endorsement by prominent judicial

and bar organizations (e.g., the American Bar Association,

the Conference of Chief Justices). Two of the tech-

niques involve permitting jurors to submit questions in

writing to witnesses and permitting jurors to discuss

the evidence among themselves during trial provided

that they refrain from making conclusions about ulti-

mate issues (guilt/innocence, liability/no liability).

Both of these techniques are intended to provide jurors

with an opportunity to clarify confusing or ambiguous

evidence while it is still reasonably fresh in their

minds. The vast majority of states (37 in civil trials, 36

in criminal trials) grant trial judges the discretion to

permit juror questions to witnesses; however, only

15% of judges routinely exercise this discretion. Only

11 states permit civil jurors to discuss the evidence

before the final deliberations, and only 10 states permit

criminal jurors to do so. Nationally, juror discussions

were permitted in less than 2% of all trials.

Juror comprehension of instructions also continues

to be a challenging area for many courts. Unlike dis-

agreements over factual issues, in which jurors rou-

tinely combine their collective memories and judgments

to make accurate conclusions, jurors’ unfamiliarity

with the form and substance of the law often prevents

them from correctly interpreting and applying the law.

In addition to poorly drafted jury instructions, the

form and timing of their delivery—typically orally

and immediately before deliberations—also con-

tributes to juror confusion. To address these issues, the

majority of judges and lawyers (69%) now provide

jurors with a written copy of the instructions—if not

during the oral delivery of the jury charge, at least for

their use during deliberations. Increasingly, judges are

delivering jury instructions earlier in the trial. More

than 40% of judges instructed juries before the clos-

ing arguments in their most recent trial, and 18% gave

preliminary instructions on substantive issues before

the evidentiary portion of the trial. In addition to pro-

viding jurors with the legal context in which to

consider the evidence and closing arguments, the rep-

etition of instructions at different points in the

trial also helps jurors understand and retain that

information. Finally, judicial and bar leaders have

become increasingly aware of the importance of pat-

tern jury instructions, especially their credibility to

trial judges, lawyers, and reviewing courts in terms of

both legal accuracy and clarity to jurors. This has led

to efforts by pattern jury instruction committees

across the country to improve the comprehensibility

of instructions for laypersons and to increased educa-

tion for trial judges on the appropriate use of pattern

jury instructions.

Empirical studies of these various techniques pre-

sent a mixed picture of their effectiveness. Juror note

taking has conclusively been found to enhance juror

recall of evidence, but it has a less apparent effect on

juror comprehension. Studies of juror questions and

juror discussions have arrived at differing conclusions

about their impact on juror comprehension—most

finding a small effect in longer, more complex cases

but little or no impact in routine trials. Improvements

in the clarity and organization of jury instructions

have been found to improve juror comprehension of

the law, but recent revisions to pattern jury instruc-

tions have not been rigorously evaluated. Virtually all

investigations of these techniques have reported

greater juror satisfaction in jury service and confi-

dence in their verdicts, and concerns initially raised

about these techniques—for example, that they

would disrupt the trial process or undermine juror

impartiality—have been unfounded.

Paula L. Hannaford-Agor

See alsoJuries and Judges’ Instructions; Jury Competence;

Jury Deliberation; Jury Questionnaires; Jury Selection;

Pretrial Publicity, Impact on Juries; Story Model for Juror

Decision Making; Voir Dire

Further Readings

American Bar Association. (2005). Principles for juries and

jury trials. Chicago: Author.

Batson v. Kentucky, 476 U.S. 79 (1986).

Dann, B. M. (1993). “Learning lessons” and “speaking

rights”: Creating educated and democratic juries.Indiana

Law Review, 68,1229–1279.

Hannaford-Agor, P. L., Waters, N. L., Mize, G. E., & Wait,

M. (2007). The state-of-the-states survey of jury

improvement efforts: A compendium report. Williamsburg,

VA: National Center for State Courts.

Hastie, R., Penrod, S. D., & Pennington, N. (1983). Inside

the jury. Cambridge, MA: Harvard University Press.

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