Imagine receiving a notice to appear in court for jury duty during a pandemic. Then imagine that you put your life on hold to pay close attention during a multi-day jury trial, but never get to participate in deliberations. You find out that it was never all that likely that you would participate in deliberations because, although nobody told you, you were designated an alternate juror from the very beginning. If you are like most potential jurors, this scenario sounds about as appealing as a hotdog machine at a truck stop.
This scenario is bad enough in normal times, but would be even worse for alternate jurors who sit through trial in a mask during a pandemic. Jury trials in Utah are currently on hold, but they will restart at some point. This is the perfect opportunity to consider whether we can do more to ensure that alternate jurors have a positive experience and feel satisfied with their service. We should not just blindly go back to doing what we did before the pandemic.
Under the current rules, the vast majority of Utah jury trials begin the same way. All of the potential jurors are randomly given a number and they are placed in numbered-order. The attorneys then use challenges to eliminate potential jurors. In the usual multi-day jury trial, the remaining jurors with the lowest numbers will be the jurors who deliberate. The next one or two with the lowest numbers will be the alternates, depending how many alternates are needed. The alternates are not told that they are alternates and that they probably won’t participate in deliberations when the trial is over.
This system works well when the number of jurors who end up getting excused during the trial is the same as the number of alternates, and every remaining juror gets to deliberate. However, it causes anger and irritation when there are alternates left who do not get to deliberate. Many of these alternates have negative feelings towards the system. They feel that the process was unfair and misleading. Anybody who really thinks about this process should not be surprised that it can lead to these negative feelings.
Alternate jurors deserve to be informed about how the process works, but that will not be enough. Alternates who are told they are alternates and are unlikely to participate in deliberations may be less attentive than jurors who know they will be deliberating. This will be a real problem if it ends up that those alternates are needed for deliberations and they have not been actively paying attention.
We should not just blindly go back to doing what we did before the pandemic.
A better procedure is one that requires jurors to be informed about how the process works, and then uses a statistically fair, random method to determine which jurors will actually deliberate. First, the judge should explain to the jury at the beginning of trial why alternate jurors are needed and how they will be selected at the end of trial. Second, the judge should determine which jurors will deliberate by a drawing held in open court after closing arguments and final jury instructions.
A transparent method of randomly selecting alternate jurors at the close of trial will create the incentive for all jurors to pay attention during the trial. It will also allow all jurors to feel that they were treated fairly and none of them were given a second-class status. It is time to fully inform jurors and treat them fairly, and time to stop expecting them to have no more emotions than a Soviet-era farm tractor.
Blake R. Hills is a prosecutor who focuses on special victims, domestic violence and child abuse cases. Brian C. Hills is a personal injury attorney who focuses on catastrophic injury and wrongful death cases.