JURY SERVICE AND JURY TRIAL IMPROVEMENTS JIM PARSONS_ Palestine .pdf by tongxiamy

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									JURY SERVICE AND JURY TRIAL IMPROVEMENTS




           JIM PARSONS, Palestine
            Jim Parsons Law Offices




              State Bar of Texas
           STATE BAR COLLEGE
        “SUMMER SCHOOL” COURSE
              July 19 – 21, 2007
                  Galveston

                CHAPTER 18
                        JIM PARSONS
                        Curriculum Vitae

jparsons@jimparsons-law.com

Law Offices of Jim Parsons
Athens, Crockett, Dallas, Palestine & Tyler
Principal Office
1007 N. Mallard
Palestine, Texas 75801
Phone and Fax (email/pdf): 903-723-0580
www.jimparsons-law.com


EDUCATION:
Lon Morris College, A.A. 1963
Baylor University, B.B.A. 1965
University of Houston, Bates College of Law, J.D. 1968
Asbury Seminary, Master Courses, 1994, 1995
National Judicial College, 1997, 1998

STATE AND COMMUNITY SERVICE:
Texas Board of Corrections, Member and Secretary (1985-1987)
Judge, 3rd District Court of Texas (1996-2006)
Texas Supreme Court Appointee:
   Texas Judicial Council 1997-2001
   Supreme Court Task Force on Jury Assembly and Administration 2006

PROFESSIONAL HONORS AND ACTIVITIES:
President, Texas Association Certified Civil Trial Lawyers
American Board of Trial Advocates, Board of Trustees
Litigation Section, SBOT, Board of Trustees
Special Prosecutor, Grievance Committee, District 2-C, District 2-B
State Bar of Texas:
    • SBOT Board of Directors- 1986 to 1989
    • President, State Bar of Texas, 1990-1991:
    • Dedicated year of presidency of SBOT to The Year of Inclusion
    • Recognized by minority bars for advancing minority participation in the SBOT
    • Resigned his seat as an ABA delegate so that he could appoint (in his place) the first
        woman, first African-American delegate to the ABA from Texas
    • SBOT Presidential year was also the year of Legislative Sunset for the Bar;
    • SBOT, by referendum, passed a new grievance system and doubled their dues to
        finance the reforms
    • While Bar President traveled to the Soviet Union and brought judges, lawyers and
        professors from the Soviet Union and various republics who attended the SBOT annual
        bar convention, under the title of Rule of Law or Rule of Man.
Alumnus of the Year, Bates College of Law, University of Houston
Alumnus of the Year, Lon Morris College
Lawyer of the Year, Mexican-American Bar Association
Triple Board Certified prior to assuming the bench Texas Board of Legal Specialization in
Personal Injury, Civil Trial and Family Law (lapsed      while on bench)
Tried over 300 jury trials as a lawyer and Judge
AUTHOR AND LECTURER:
  • SBOT Advanced Personal Injury Courses, Advanced Civil Trial Courses, Advanced
    Family Law Courses, Personal Injury and Wrongful Death Institutes, Use of Experts in
    Litigation Institute, Expert Institutes, Advanced Discovery and Evidence Courses.
  • Subjects of papers and lectures include: A Practical Primer on Proof of Value in a Trial
    Setting; Discovery-Use of Sanctions, Sanctions: The Two-Edged Sword, Physic Injury;
    The Impact of Kelly v Allstate; Professional Malpractice-Non-Medical: Architects,
    Engineers, Lawyers and Accountants; Voir Dire: Plaintiffs View; Substantive Rules of
    Evidence Concerning Experts; Expert and Lay Opinion Evidence; Tactical Use of
    Motions: Punitive and Additional Damages; Substantive Rules of Evidence Concerning
    Experts; Basis of Expert Testimony and Disqualifications; The Hearing You Never Want
    to Attend-and the Suit You Don’t Want Filed (Avoiding Professional Misconduct and
    Legal Malpractice)
Proposals for Improving the Jury System                                                                                                                     Chapter 18

                                                                  TABLE OF CONTENTS

1.    INTRODUCTION................................................................................................................................................... 1

2.    JUROR SATISFACTION, COMPOSITION AND COMPENSATION................................................................ 2
      a. One Day, One Trial ......................................................................................................................................... 2
      b. Juror Time Utilization ..................................................................................................................................... 2
      c. Juror Accommodations.................................................................................................................................... 2
      d. Juror Compensation......................................................................................................................................... 3
      e. English Language Requirement ...................................................................................................................... 3

3.    TRIAL PROCEDURES .......................................................................................................................................... 3
      a. Voir Dire and Jury Selection ........................................................................................................................... 3
      b. Pre Charging the Jury ...................................................................................................................................... 3
      c. Video Depositions ........................................................................................................................................... 4
      d. Daubert Motions.............................................................................................................................................. 4
      e. Multiple Copies of the Charge ........................................................................................................................ 4
      f. Juror Notes ...................................................................................................................................................... 4
      g. Juror Notebooks .............................................................................................................................................. 5
      h. Pre-Marking of Exhibits and Stipulations of Admissibility ............................................................................ 5
      i. Questions by the Jury ...................................................................................................................................... 5
      j. Interim Summations ........................................................................................................................................ 5
      k. Interim Deliberations by the Jury .................................................................................................................... 6
      l. Juror Debriefing .............................................................................................................................................. 6


1 APPENDIX - Jury Opening .....................................................................................................................................1-i

2 APPENDIX - Jury Opening .....................................................................................................................................2-i

3 APPENDIX - Bill Analysis......................................................................................................................................3-i

4 APPENDIX - Senate Bill 1300 ................................................................................................................................4-i

5 APPENDIX - Report to the Supreme Court of Texas..............................................................................................5-i




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                     PROPOSALS FOR IMPROVING THE JURY SYSTEM
1.   INTRODUCTION                                                    i. Allow interim summations by attorneys;
     The significance of jury trials is not limited to the           j. Allow the court to set time limits on trials;
adjudication of disputes, civil or criminal. Equally                 k. Allow limited judicial control of voir dire;
important is the participatory opportunity for citizens              l. Eliminate the jury shuffle when the jury is
to learn, observe and participate in a democratic                       randomly seated: and,
society and its judicial process. Education of the citizen           m. Adopt a uniform statewide juror summons
jury in the role of citizen-jurors is fundamental to the                form.
preservation of the jury system. The court should
introduce jurors to the adjudication process by                       The wheels of jury trial improvement move as
elevating their conscious to the higher plain of citizen         slow as justice. On March 22, 2007 Senator Wentworth
service in the democratic process. See appendices 1              introduced Senate Bill 1300. See Sponsors Analysis,
and 2.                                                           appendix 3; Senate Bill 1300, appendix 4. Senate Bill
     Efficient, effective and exemplary court                    1300 expands the recommendations of the 1997 Task
administration is the primary juror teaching tool. The           Force to the inclusion of:
responsibility for efficiency and effectiveness falls
equally on the bench and the bar. Jurors should be                   a.   After empanelling allowing the trial court to
treated as a fragile resource, not as a necessary tool.                   instruct jurors on the “elementary legal
The economy of their time, privacy and patience                           principles that will govern the proceedings.”
should be the primary goal of the attorney and judge.                     A Judge would instruct in negligence cases
Preparation and anticipation are the hallmark of a                        on duty, negligence, proximate cause and
proficient bench and bar.                                                 damages. In other cases similar basic legal
     Jurors have a number of legitimate complaints.                       instructions which would be contained in the
For instance, some people are summoned for jury duty                      “broiler plate” of the charge;
regularly while others are never summoned; jurors are                b.   Jury would be allowed to submit written
sometimes subjected to long delays before and during                      questions to a witness or the court, with the
the trial; some lawyers and judges use complex legal                      opportunity of counsel to object outside the
language and do not communicate clearly with the                          presence of the jury;
jury; and jurors are not permitted to pose questions to              c.   Interim jury discussions of the evidence
witnesses or talk about the case among themselves                         would be permitted, with and instruction to
until formal deliberations. In short, the process is not                  reserve judgment about the outcome until
always responsive to the jurors' needs.                                   deliberations following submission. Note, the
     On September 17, 1996, the Supreme Court                             bill would not prohibit the jurors from
appointed a 100-person Jury Task Force, composed of                       forming      conclusions     concerning    the
the bench, the bar and the public. The Task Force was                     testimony, issues of the trial, credibility of
given a broad charge to study the jury system in Texas                    witnesses, damages or other predicates
and make recommendation both to the Supreme Court                         necessary to determine the outcome of a trial;
and the Legislature on needed reforms. The Task Force                d.   Note taking by jurors would be permitted
examined a wide range of jury related issues and                          with instructions. The notes would be
returned its final report on September 8, 1997. The                       collected daily by the bailiff, used during
principal recommendations of the 1997 Task Force                          deliberations and destroyed following trial,
were to:                                                                  and not used in an appeal from the verdict;
                                                                          and,
     a.   Study the effect forming the jury pool from                e.   Interim jury arguments (summations) would
          drivers’ license lists and voter registrations;                 be permitted.
     b.   Encourage the “one day, one trial” system of
          excusing jurors;                                       Unfortunately Senate Bill 1300 was pulled from the
     c.   Minimize the jurors waiting times and                  Senate intent calendar after being voted out of the
          provide comfortable waiting areas;                     Senate Jurisprudence committee.
     d.   Increase juror pay for extended service;                   The recommendations of Senate Bill 1300 are
     e.   Tax jury fees as costs;                                consistent with the national trend concerning jury trial
     f.   Increase jury fees;                                    improvements. See Jury Trial innovations, National
     g.   Allow verdicts in criminal cases to be less            Center for State Courts, www.nsconline.org.
          than unanimous;                                            On July 11, 2006 the Texas Supreme Court
     h.   Allow jurors to take notes;                            appointed a Task Force on Jury Assembly &
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Proposals for Improving the Jury System                                                                       Chapter 18

Administration. The author was appointed a member.             etc.), jurors should not be required to maintain a status
The charge of the Task Force was to review Texas’              of availability for longer than one week.
rules for summoning jurors, particularly Texas                       Inclusiveness is directly affected by the length of
Government Code sections 62.001-501 and Texas                  service and availability. Economic sacrifice and
Rules of Civil Procedure 216-36. In particular to make         income are directly related for jury service. The
recommendations to harmonize the various rules,                economic hardship for laborers, sales people,
ensure random summoning of jurors representing a fair          unemployed parent with child care expenses, and sole
cross-section and eliminate any opportunity for local          proprietors of small businesses mandates a jury service
manipulation. The Task Force recommendations were:             standard of short duration as well as adequate
                                                               compensation for actual service.
     a.   Continue the source lists for Texas jurors                 Fortunately the recently increased jury fees have
          (voter’s registration and drivers licenses)          alleviated some of the hardship for service. Depending
          with computer insured randomness to assure           on local county option a juror now is paid
          a fair cross section;                                approximately a minimum wage for jury service.
     b.   Source lists would be maintained updated
          and continually cleaned-up (eliminate felons,        b.   Juror Time Utilization
          deceased, moved from county) by the                       There is a direct correlation between juror
          Secretary of State, with counties required to        dissatisfaction and wasted time. The less organized the
          obtain and utilize updated source lists;             courts and/or counsel the greater the jurors’
     c.   Rescheduled jurors would be mixed into the           dissatisfaction. The bench and the bar should not:
          pool randomly (not at the end of the pool, but
          randomly; i.e. prior random juror number                    i.   unnecessary removal of the jury from the
          joined in the current pool);                                     courtroom during trial;
     d.   Local discretion concerning length of service              ii.   unnecessarily asking to approach the bench;
          (one day, one trial or for a period);                     iii.   the jury waiting while the charge is being
     e.   Misdemeanor theft would not be a                                 prepared: (a proposed charge should be
          disqualification;                                                presented upon announcement of ready. be a
     f.   Exemptions for members of the legislature                        work in progress during the trial and
          discontinued (note Senate bill 1300 modifies                     completed by the court when the parties
          but does not discard this exemption); and,                       close);
     g.   Express rulemaking authority for the                      iv.    the jury awaiting witnesses;
          Supreme Court (note Senate bill 1300                       v.    the jury sitting idle while Daubert and similar
          prohibits the Supreme Court from amending                        evidentiary hearings are being held: by
          or adopting rules which conflict with S.B.                       pretrial order Daubert type motions should be
          1300).                                                           filed and heard pretrial. or waived.

     The Jury Assembly Task Force recommendations              Most jurors are accustomed to reporting to work at
were reduced to a bill which met the same fate as              8:00 A. M. Trial should normally start at 8:30. Starting
Senate Bill 1300. The report of the Task Force on Jury         at 8:30 instead of 9:00 affords another half day’s
Assembly and Administration is attached, appendix 5.           testimony during the week. Starting at 8:30 also avoids
     The following are the author’s personal                   the jurors spending idle time awaiting the start of trial.
observations for improving the jury system. The                Jurors are normally prepared and ready to proceed
observations are based on 40 years of trial practice,          before the court and counsel.
including 10 years on the District Court bench. Some                The court should meet with counsel daily, at 8:00
of the recommendations are similar to those of the             or 8:15, to work on the charge and discuss anticipated
1997 Jury Task Force and Senate Bill 1300; others may          issues.
be in addition or opposition.
                                                               c.   Juror Accommodations:
2.   JUROR SATISFACTION, COMPOSITION                                Jury rooms are not known for sumptuousness or
     AND COMPENSATION                                          commodiousness. To those in charge of the county
                                                               purse, the comfort of the seat of a county maintainer
a.   One Day, One Trial                                        has historically been more important than the comfort
     Jurors should be summoned for the shortest                of the jury room. Accordingly, the time spent by the
period. Ideally, those jurors who are not selected are         jury in the jury room should be limited to necessary
dismissed at the end of their first day. Service of one        time.
week or the completion of one trial should be the
standard. Absent exigent circumstances (capital cases,
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Proposals for Improving the Jury System                                                                      Chapter 18

d.   Juror Compensation:                                        3.    TRIAL PROCEDURES
     Statistics show that 80% of jury compensation is           a.    Voir Dire and Jury Selection:
for the first day. The actual cost of the jury panel and              The recent significant substantive changes in the
jury service should be charged as court costs. To               law of voir dire are beyond the scope of this article.
encourage settlement before trial and avoid settlements         See Cortez v. HCCI-San Antonio, 159 S.W.3d 87 (Tex.
that are made the morning of trial, the Court should            2005); El Hafi v. Baker, 164 S.W.3d 383 (Tex. 2005);
assess the cost of the panel to the parties or either of        and Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743
them as the facts dictate.                                      (Tex. 2006). Careful counsel will read and reread these
     The 1997 Jury Task Force recommended:                      cases prior to beginning voir dire; most will reexamine
                                                                their voir dire techniques concerning questioning,
     i.   Requiring the party requesting a jury trial to        disqualification and rehabilitation. Jurors formerly
          pay the estimated jury costs in advance;              disqualified will now be qualified.
     ii. Allowing the district court litigants to agree               The 1997 Jury Task Force recommendations were
          to a 6-person jury with a five out of six             a precursor to these recent Supreme Court decisions. In
          verdict;                                              part the voir dire recommendations were:
     iii. Taxing all jury payments as costs;
     iv. Increasing jury fees in district court to $400;               i. Empowering the trial court to limit
          and,                                                            unreasonable examination which is “leading
     v. Allow counties to give incentives, such as                        and suggestive”;
          free movie passes. Reduced airline fares, etc.              ii. Creating a new rule of procedure providing;
          for first day summoned jurors.                             iii. An initial voir dire by the trial court;
                                                                     iv. An attorneys initial questioning be by written
See 1997 Jury Task Force Summary, Appendix 2,                             questionnaire;
pages 34-36.                                                          v. Limitation of examination that is unduly
                                                                          invasive, repetitious, argumentative; and,
e.    English Language Requirement.                                  vi. Permitting rehabilitation questioning.
      Statutorily, a person is disqualified to serve as a
petit juror unless the juror “is able to read and write.”             The recommendations of the Task Force, if
V. T. C. A., Government Code Sec. 62.102 (5). The               implemented, would result in greater participation by
Government Code does not specify the language of                the court and more restricted voir dire by counsel. The
required proficiency. Is the well-educated Hispanic             end result would be a shorter voir dire mirroring voir
juror, who is fluent in Spanish and is able to                  dire in Federal court.
communicate in English, but barely able to read and                   Voir dire is a valuable right of the litigants. The
write English, disqualified from jury service? The              need for voir dire needs to be balanced against
cases are divided. In a civil case, the qualification to        reasonable constraints of judicial time and the privacy
read and write can be waived and the verdict of a jury);        of the jurors. Voir dire should not be used as an
which includes a juror who cannot read and write, is            opening statement. Efficient and effective voir dire can
not void. Coca Cola Bottling Co. v. Mitchell (Civ.              be conducted, in most cases, within 30 to 45 minutes
App. -Corpus Christi, 1967), 423 5. W 2d 413. In Coca           per side. Excessive voir dire is an intrusive imposition
Cola Bottling v. Mitchell, the juror expressed an               on both the court and the jury. Voir dire excesses and
understanding and ability to communicate English,               the lack of trial court control resulted in the
though he was unable to read and write the English              recommendations of the 1997 Task Force. Current
language.                                                       rules provide the diligent court with sufficient
      The American Bar Association recommends that              discretion to avoid an intrusive and unreasonable voir
the literacy qualification for a jury service focus on          dire.
“The ability to communicate in the English language”
as distinguished from “read and write the English               b.   Pre Charging the Jury:
language.” Standards Relating to Juror Use and                       Juries in criminal cases, before opening
Management (1993), Standard 4 (d).                              statements, are instructed on the burden of proof, the
      The Texas Government Code qualification of                presumption of innocence, the right to remain silent
“able to read and write” should be replaced with “able          and reasonable doubt. Civil juries should be given
to communicate in the English language.” Texas has              similar preliminary instructions globally tracking the
great ethnic diversity. Texas should be particularly            special issues they will be deciding. Currently, civil
sensitive to the exclusion of potential jurors based            juries listen to days of conflicting testimony only to be
upon a standard of English proficiency.                         told at the conclusion of the evidence the ultimate
                                                                issues they will be deciding. Senate Bill 1300 Sec.

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Proposals for Improving the Jury System                                                                         Chapter 18

25.051(a)(4) mandates pre charging the civil jury in the         summation in the Rainmaker? The deceased spoke
“elementary legal principles” of the case.                       from the grave through magic of video.
     The requested special issues should be filed when
the parties announce ready. The court can then pre               d.   Daubert Motions:
charge the jury, prior to opening statements, on                      Daubert type motions, requiring testimony,
standard definitions, anticipated special issues and any         should be filed and heard before a trial date or waived.
case specific concerns. The court’s pre charge would             Jurors should not be required to wait on lawyers and
provide the jurors with a frame work to view the                 the judge to do what they could and should have done
testimony and statements of counsel.                             before the jury arrives. Interrupting the trial to hear
                                                                 competing expert egos decide how many angels can fit
c.    Video Depositions:                                         on the head of a pin is an unnecessary waste of juror
      The indiscriminate playing of video depositions is         time.
the bane of the trial lawyer. The video deposition is                 My former pretrial order required that Daubert
like a violin in the right hands we hear and see magic,          motions be filed and heard before trial, or they are
in the wrong hands we know the strings are made of               waived.
cat gut.
      The editing of the video deposition is more                e.    Multiple Copies of the Charge:
important than the actual taking of the deposition. Too                Each member of the jury should have a copy of
many lawyers simply turn on the video and attempt to             the charge. The charge should be individually
play it through, without editing. Valid testimonial              distributed prior to arguments and the Court’s reading.
objections are made and the lawyer simply tries to play          The possibility of the jury misunderstanding the issues
the objectionable portions, while turning the sound off.         or the instructions is greatly lessened when each juror
The lawyer wastes the juror time and loses the                   has a personal copy of the charge. We learn more by
advocates intensity. Cases are lost to the tune of the           hearing and seeing than we do by merely hearing.
hourly drone of the video machine.                               When each juror has a personal copy of the charge,
      A well edited, tightly prepared video presentation         they are better prepared and less likely to mislead.
can be extremely effective. Television is the primary                  Prior to reading the charge, the trial judge may
source of information for the juror. They obtain their           want to step down from the bench, into the well of the
news by sound bite and their entertainment in thirty             courtroom, and address the jury directly. By merely
minute intervals. Woe to the lawyer who tries to                 stepping down and addressing the jury the court
remake the jury into minutia junkies.                            conveys the importance of the charging phase of the
      Texas Rule of Evidence 611(a) grants the trial             trial. Stepping down also allows the court to closely
court control over the presentation of evidence and the          communicate instructions and admonitions.
interrogation of witnesses. Counsel should reorganize                  Those opposed to providing multiple copies of the
the video testimony to concise subject matter.                   charge to the jury should be read a ten page
      The introductory information, the repetition, the          engineering report. Upon completion of the reading
objections, the false starts, and the pregnant pauses            they should be asked to decide questions of fact,
should be eliminated. The deposition question itself             involving engineering issues, without benefit of
might not need to be played, if the answer is self               physically examining the engineering report.
explanatory. At pretrial, provide opposing counsel with
the reorganized tape to avoid a claim of unfairness and          f.    Juror Notes:
resolve objections before trial.                                       Jurors should be allowed to take notes during trial.
      Impeachment by video has been insufficiently               I instructed the jurors that I would be taking notes, the
utilized. The recalcitrant or lying witness should be            lawyers would be taking notes and they may take
confronted with the technology of a digitally indexed            notes.
video deposition. The video then is synchronized with                  The 1997 Task Force recommended that Rule
the written deposition to provide the attorney with              226a, Texas Rules Civil Procedure, be amended to
instant voice and visualization of contradictory                 specifically give the trial court discretion to allow juror
testimony on the screen. The impeachment moves from              note taking. When permitted, instructions should be
verbal to visual while the witness is still on the stand.        given by the court that:
      For summation, counsel can combine same
subject testimony of multiple witnesses. To show                        i. Notes are not evidence;
contradiction     or    impeachment,        counsel    can             ii. Notes should not be considered more accurate
juxtaposition one witnesses’ testimony with that of                        than memory;
another or string together snippets of one witness                    iii. Notes should not be shown to or read to
conflicting testimony. Who can forget the Plaintiffs                       another juror;

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     iv. Notes are the jurors’ personal memory joggers;         ask questions, but the questions must be in writing and
         Senate Bill 1300 provides for the taking and           are subject to the same objections as lawyer’s
         utilization of notes. See Sec. 25.053.                 questions. The jurors are then told that we cannot have
                                                                14 lawyers asking questions, and to ask them sparingly
g.    Juror Notebooks:                                          and specifically.
      In the complex or exhibit intensive case, jurors                The written questions are then handed to the
should be provided with notebooks containing witness            bailiff during the trial or during a break. They are
and exhibit lists, copies of exhibits, pictures and             reviewed with counsel for objection, or stipulation.
descriptions of witnesses, a glossary of technical terms,       Many times the parties can stipulate to the response,
time lines, party identification and any other                  and if they can’t stipulate, the court reads the question
information helpful to the jury. Juror notebooks also           and advises the jurors that the parties and attorneys will
are convenient for the juror to make their own notes.           respond to the question during the evidence or upon
      The notebooks should be prepared pretrial and             argument.
distributed before the opening statements. Exhibits                   Through the use of jury questions, counsel learn
during the trial, can be multiple copied and added to           before the verdict the thoughts and issues in the jurors’
the notebook.                                                   mind while they can still respond. Allowing the jurors
                                                                to participate in the trial as it unfolds, provides the
h.    Pre-Marking of Exhibits and Stipulations of               jurors with control over the trial that is otherwise
      Admissibility:                                            lacking.
      All exhibits should be exchanged prior to trial and             The jury is moved from a passive, absorbing role
prepared for admission. The parties should stipulate to         to an inquiring and active role. This new power in the
admissibility, absent a legitimate legal dispute.               hands of the jury causes some courts and lawyers to
      The jury should not have to endure predicate              fear the process. Others believe that juries should not
proof of admissibility of non-controverted evidence. A          be grown like mushrooms.
trial is not a “gotcha” test on the business record                   Currently, every jurisdiction except Georgia
exception or other mundane predicate proof. The jury            allows juror questioning in some form. Some states are
is rightfully bored when it sits and has to watch the           more supportive than others.
clerk number and mark evidence and hear attorneys, by                 Senate Bill 1300 Sec. 2503 specifically authorizes
rote, prove predicates for admission.                           jury submitted written questions.
      Pre marked, stipulated exhibits are offered and                 Texas disallows jury questioning in criminal
admitted prior to opening.                                      cases. Morrison v. State, 845 S. W. 2d 882, (Ct. Crim.
                                                                App. 1992)(en banc). The constitutional protections
i.    Questions by the Jury:                                    afforded a criminal defendant including the right
      Do we allow questions by the jurors of witnesses          against self-incrimination prohibited jury submitted
and/or about the case? I personally allow questions by          questions.
jurors, in writing, about the case, but not of specific               The 1997 Task Force declined to approve jury
witnesses. The First Court of Appeals has approved              questions in civil trials and recommended that they be
juror questioning of witnesses, but the procedural              prohibited, or in the alternative, allowed in the trial
safeguards for individual witness questioning are both          court’s discretion, but with the maximum amount of
cumbersome and necessary. Fazzino v. Gido, 836 S.               procedural protection
W. 2d 271, 275 (Tex. App.—Houston [1st Dist] 1992,
writ denied); See also Hudson v. Markum, 948 S.W.2d             j.   Interim Summations:
1 (Tex. App.-Dallas, no writ). Under Fazzino and                     In long or complex trials, the lawyers should be
Hudson the jury is removed from the courtroom, the              given the opportunity to briefly address the jury every
question is submitted in writing, objections are made,          morning before the presentation of evidence. The
the jury is brought back into the courtroom and the             statements should be brief; the author limited the
question asked. Oral juror questioning of individual            lawyers to 5 minutes per side. Used and monitored
witnesses is too time consuming and fraught with the            correctly, interim summations permit counsel to
likelihood of prejudice.                                        repeatedly focus the jury’s attention on the significant
      Individual questioning by jurors of individual            developments of a trial as they occur.
witnesses is time consuming when the jury is required                Prior to the interim summations, the court should
to leave the jury box then return after objections and          advise the jury that the purpose of the summations is to
arguments.                                                      aid the jury in marshaling the evidence and organizing
      When the jury is allowed to ask written questions         its evaluation. The jury is also reminded that what the
about the case, but not of individual witnesses, the            lawyers say is not evidence, but merely an aid to
procedural safeguards are fewer and the trial is not            understanding the evidence and they should base their
disrupted. The jurors are first instructed that they may        decision on the evidence.
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      Interim summations help in focusing the jury and               Prior to the debriefing the trial Court should state
explaining complex factual issues. If the lawyer                that the court cannot comment on the verdict and will
becomes argumentative, the Court can sua sponte                 not agree or disagree with it. Additionally, no one
address the lawyer before the jury to the extent that the       should discuss or comment on the way the jury arrived
lawyer recognizes it is not in the best interest of the         at the verdict or anything that was said during
client to continue violating the court’s instructions.          deliberations. The trial Court should then answer the
      Interim summations facilitate the adage of: “Tell         jurors remaining questions. The Court should listen
‘em what you are going to show ‘em; show ‘em; and,              without interruption and with an empathetic attitude.
tell ‘em what you have shown ‘em”.

k.    Interim Deliberations by the Jury:
      Texas Rule of Civil Procedure 284 requires that
the jury be admonished to not begin their deliberations
until the conclusion, of the evidence and after the
charge and final arguments. There is a difference
between deliberating the final decision and discussing
the evidence for clarification. Deliberating for final
decision is the process of conclusion. Discussing for
clarification is the process of understanding. “What did
the picture show” or “What did he say about ...“is
seeking understanding. Drawing a conclusion from the
discussion of the facts, such as “Well that must mean
that the Plaintiff ran the red light” is deliberating not
seeking understanding.
      Should we require our jurors to be passive and
inactive, day upon day, without having the opportunity
to test other jurors understanding of the facts? Is it
unrealistic to believe that jurors do not, despite the
courts instructions, discuss the evidence?
      Upon agreement of all counsel, the author
instructed the jury that they may discuss the facts of
the case, but not reach any conclusion about the facts. I
use the examples that it is permissible to ask “What did
he say about ...“; but it is impermissible to draw
conclusions. I had rather the jury have a daily
opportunity to discuss and understand the facts as they
unfold, then proceed under a factual misunderstanding
for days if not weeks. However, the law in Texas is
such that interim discussions are permitted only upon
agreement.
      Senate Bill 1300 Sec. 25.004 allows for the
discussion of the facts with an instruction to reserve
judgment about the outcome. The Court can prohibit or
limit discussions upon good cause.

l.   Juror Debriefing:
     Jurors who serve and reach a decision or an
impasse go through emotional stress, particularly in
criminal cases. Capital trials are extremely hard on
both jurors and the Court. The trial judge should take
the time to meet with the panel, in the jury room, to
reassure the jury that their service was valuable and
proper. Jurors need and want to be reassured. The trial
has moved them from 30 minute sitcoms to an arena of
controversy. Instead of evaluating decisions made by
others they have been called upon to become
personally decisive.
                                                            6
Proposals for Improving the Jury System                                             Chapter 18



1. Appendix
The following is an opening that I gave to jury panels before September 11th. These are
given prior to qualification of the panel.

Jury Opening
       “Good Morning ladies and gentlemen:
       My name is Jim Parsons and I am the Judge of the 3rd District Court of Anderson,
       Houston and Henderson Counties.
       You have been summoned as jurors for this week.
       The cases set for this week are civil/criminal (explain difference)
       In a moment we will review the qualifications for and exemptions from Jury service.
       But before we begin, I would like to review with you the history of Jury Trials
       Look around you. You will see that there is a mixture of our community. That is
       the way the system has been designed so there will be a cross section of the
       community on the jury.

       If you look in the Pentateuch, the first five books of the Old Testament, you will find
       that the Jewish Nation would empanel Juries to decide issues of property value and
       property ownership.
       The Greeks began using the Jury system in about 1500 BC.
       The Romans adopted the Jury system from the Greeks.
       The Romans brought Jury trials to England in the 4th century AD.
       By the 1201 Century Jury Trials had been part of the Judicial system in England for
       over 800 years. A tyrannical king attempted to do away with the right to trial by
       Jury and in the 12th Century in a misty meadow in Runny Meade England, the
       MAGNA CARTA was signed guaranteeing the right to Jury Trials for the English
       people.
       28 States have adopted the language of the Magna Carta verbatim and placed in
       their State Constitutions.
       The MAGNA CARTA’S guarantee of a right to Jury Trial

       The concept of jury trials was ingrained in the colonists in the settling of America.
       Again a tyrannical king attempted to deny the right to jury trials to his citizens.
       Thomas Jefferson in penning the complaints against the Crown set out the denial of
       the right to Jury trials as a basis for separation from England.

       The United States Constitution guarantees the right to Jury Trials

       The Texicans in their revolution complained of the denial of due process and the
       right to Jury Trials.
       The Texas constitution guarantees the right to Jury Trials.
       In fact the Texas constitutional guarantee has been judicially declared to be
       stronger than the U. S. constitutional guarantee.

       My Court the 3rd Judicial District Court is in fact older than the State of Texas. It
       was created on December 22, 1836 when President Sam Houston touched quill to
       paper and created four Republic of Texas Courts.

       In the past 130 years there have been 30 Judges of the 3rd Court. I am the 30th
       Judge of this Court. I succeeded the Hon. R. W. Lawrence who held this bench for

                                          Appendix 1- i
Proposals for Improving the Jury System                                           Chapter 18


       31 years. R. E. Baylor, for whom Baylor University is named, is a former Judge of
       this court.

       For the past 120 years my Court has sat in this County. This Courtroom is 84 years
       old. Many of your parents, their parents and fore parents have sat in this very
       room in response the call for jury service.

       Democracy makes very few demands on its citizens. We are required to pay taxes
       and render service in time of War. I have heard it said that Jury service is equal to
       service to your country in time of War. I have no quarrel with that statement.

       In a moment your name will be called by your elected District Clerk. When you
       respond to the call of your name REMEMBER there were no juries summoned for
       Jury duty today in Castro’s Cuba. There were no persons were summoned for jury
       duty today in Mother Russia.

       MADAM CLERK please call the roll!”




                                          Appendix 1- ii
Proposals for Improving the Jury System                                             Chapter 18



2. Appendix
Jury Opening


This qualification talk was given after September 11th.


“Before we begin the process of actual jury selection I think it's always beneficial to go
over why we're here.

We're here because we live in a democratic society that trusts its people to make decisions
that affect the community and affect members of the society. In other words, we live in a
constitutional society.

Now, all of you know that we're in difficult times right now. All of us realize that we're not
too far away from 9-11 of 2001. We're not too far away from 7-7 of 2005 in London. All of
us are really on the forefront right now with regard to the issues that face our nation.

I have the honor of succeeding Judge R. W. Lawrence, who sat on this bench for some
thirty years. Actually I think it's 31, if memory serves me correctly.
I sat where these lawyers are seated from 1969 until 1996. Every year that I would sit
before Judge Lawrence, and I would sit before Judge Lawrence with jurors such as yourself
several times a year, about five or six times a year. Judge Lawrence would always say that
he thought jury service was equal to service to your country in time of war. Let me repeat
that: Judge Lawrence said that he thought jury service was equal to service to your
country in time of war.

Now, I knew that that was important to Judge Lawrence because Judge Lawrence was one
of the Greater Generation. He floated around on a tin can in the Pacific Ocean during World
War II. So, when he spoke and said that jury service was equal to service to your country
in time of war, he said it with a tear in his heart.

Judge Lawrence, bless his soul, has a son Martin, who's a lawyer here in town, still drives
him every year to the annual meeting of that ever-dwindling group of shipmates that still
meet on a regular basis, on an annual basis.

There's a young captain who was in Afghanistan recently. He served also in Iraq. He's from
Palestine. Some of you may know him. His name is John David Williams. John David is my
son's age, and I had the fortune to be around John David as he grew up. He's a fine young
man. He's made a fine man. John David's father was a lawyer here in Palestine, who died
on the courthouse square when he was a young boy, about three or four years of age.
That would have been probably 25 years ago plus. He died right over here in front of the
old jail. He got in his car and keeled over going home.

So, since John David was my son's age, we were fairly close, as was Felix Thompson, who
had a boy his age, too. We kind of kept John David under our wing and kept up with him.
John David entered the Reserves to go to college at a young age. I think his mother had to
give him permission, and I recall some of the stories about him having a rude awakening
at 17 waking up at 3:00 clock in the morning or 4:00 o'clock in the morning. But he
weathered through it. He graduated from A&M. Went through the Corps. Now he's a

                                          Appendix i
Proposals for Improving the Jury System                                             Chapter 18


capitain in the Artillery in the United States Army, and now currently now as I sit here and
as we sit here he's teaching desert warfare out in the West somewhere, in the western
United States.

But John David communicates with me fairly frequently. He's a wonderful young man. He's
also a wonderful writer. He wrote me a letter that I read now. Ever since I received the
letter I read it to jurors to kind of focus our minds on why we're here and what's
important.

Now, this letter that I'm about to read to you was written by Captain John David Williams,
United States Army, from Palestine, Texas. He was in the hills and mountains of Kandahar.
He packed in. They would pack through those mountains. Everything they had was on their
back. And here's what he wrote in his tent one night. He said there are 74 men under my
command. 54 here at Kandahar airfield with me and 20 are at Bagram Airfield. They're a
beautiful mosaic of an ethnically diverse America in the 21st century. We have 18 and
19-year-olds just a year removed from their high school graduation; mid-forty-something-
old NCO's that have made the Army their life; and 20 to 30 year old men that are just
beginning family life and life as adults; we have inner-city kids from the Bronx, LA, Detroit,
and Houston. There are guys from the rural areas like Georgia and Utah and Montana and
Alabama and the Carolinas. We have soldiers from Puerto Rico, American Samoa. And
some are earning their citizenship to this country from the Dominican Republic. There are
black, white, Hispanic, and Asian men shoulder to shoulder. There are Catholics, Baptists,
Methodists, Lutherans, Presbyterians, and Episcopals, all serving alongside with Jews,
Buddhists, and those who worship the tribal religion of the South Pacific.

There are some who claim to be atheists, but I firmly agree with the saying that, quote-
unquote, there are no atheists in a foxhole. Everyone is a believer when the bullets start
flying. We have Army brats, children of middle class America, and children of felons, all
serving together. Some men came into the Army for a way out their lives back home.
Some came in for college money. Some felt forced into. And some came in out of patriotic
responsibilities. All are proudly serving, proudly representing America, and proudly doing
whatever it takes over here to prevent attacks like 9-11 from ever happening again back
home. And of course this Methodist, Aggie, and product of East Texas proudly serves right
alongside with them.

Now, that's John David Williams, captain, United States artillery in the mountains of
Kandahar in Afghanistan.

You know, we're in two wars, really. We're in a war in Afghanistan and we're in a war in
Iraq. I know there are questions about the Iraqi war. I don't think many of us have
questions about the Afghanistan war. I believe --I don't know, everybody is entitled to
believe what you want to believe, but I believe they attacked us and that's a righteous
war, moral war. John David wrote me later and told me that he lost almost one-fourth of
his command during his tour of duty in Afghanistan. That's one-fourth of the men that he
was writing about.

So, these are serious times. These are serious issues that our nation faces. And these are
serious times and these are serious issues that you will be facing this week.

There were no jurors called this morning in Mother Moscow, a teeming town of ten million
people where they all come in by subway and the buildings look the same and there's no
distinction either personally or by personality either within the community at large or
individual persons. There were no jurors summoned this morning ninety miles off the

                                          Appendix ii
Proposals for Improving the Jury System                                           Chapter 18


United States coast, off the Florida in Castro's Cuba. There were no jurors summoned this
morning in Red China. For, you see, all of those countries, along with most of the world, do
not trust their people to make decisions such as the ones that will be made this week. Join
with me, take pride in your country, and raise your right hand and take your oath of
office.”




                                          Appendix iii
Proposals for Improving the Jury System                                      Chapter 18



3. Appendix
                                          BILL ANALYSIS

Senate Research Center                                                      S. B. 1300
80R10082 JRH-D                                                         By. Wentworth
                                                                           3/22/2007
                                                                               As Filed

AUTHOR’S/SPONSOR’S STATEMENT OF INTENT

Under current law, the range of actions that a juror can take while on jury duty
may be considered limited. Note-taking, limited juror discussion, and the
submission of anonymous written questions to a witness, among other actions, are
prohibited. Statutory changes that allow these actions might assist jurors in
competently and confidently fulfilling their duty to determine the credibility of any
presented evidence.

As proposed, S.B. 1300 enacts Chapter 25 (Jury Trial Procedures), Civil Practice
and Remedies Code, to provide for certain jury trial reforms. This bill also requires
the name of a prospective juror who is not impaneled due to an excuse to be
immediately returned to the jury wheel and provides certain limitations to the
exemption from jury duty for legislators and legislative staff.

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Supreme Court in SECTION
I (Section 25.001, Civil Practice and Remedies Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION I. Amends Subtitle B, Title 2, Civil Practice and Remedies Code, by adding
Chapter 25, as follows:

                           CHAPTER 25. JURY TRIAL PROCEDURES

       Sec. 25.001. SUPREME COURT TO MAKE RULES. Requires the Texas
       Supreme Court (supreme court) to promulgate rules relating to jury
       procedures for trials in this state in accordance with guidelines provided by
       this chapter.

       Sec. 25.002. PRELIMINARY INSTRUCTIONS TO JURY. (a) Requires the rules
       promulgated by the supreme court (rules) to provide that the court is
       required to instruct the jury in certain matters immediately after the jury is
       sworn.

       (b) Requires the rules to provide that the court is required to read the charge
       to the jury in the manner provided by Rule 275 (Charge Read Before


                                             Appendix i
Proposals for Improving the Jury System                                       Chapter 18


       Argument), Texas Rules of Civil Procedure.

Sec. 25.003. SUBMISSION OF WRITTEN QUESTIONS. (a) Requires the rules to
provide that the court is required to permit jurors to submit to the court written
questions to be directed to a witness or to the court as provided by this section.

       (b) Authorizes the anonymous submission of the questions.

       (c) Requires the rules to provide that the court is required to provide an
       opportunity, outside of the presence of the jury, to counsel for the parties to
       object to the questions, is required to require that the questions are
       answered orally in open court and are made part of the record, and is
       authorized, for good cause, to prohibit or limit the submission of questions to
       witnesses.

Sec. 25.004. JUROR DISCUSSIONS. (a) Requires the rules to provide that the court
is required to admonish jurors, if jurors are permitted to separate during the trial,
regarding the jurors' duty not to converse with or permit themselves to be
addressed by any person on any subject connected with the trial, except that jurors
are permitted to discuss the evidence among themselves in the jury room during
recesses from trial when all jurors are present, as long as they reserve judgment
about the outcome of the cause until deliberations commence, except as provided
by Subsection (b).

       (b) Requires the rules to provide that the court is authorized, for good cause,
       to prohibit or limit the discussion ofthe evidence by jurors among themselves
       during recesses.

Sec. 25.005. NOTE-TAKING BY JURORS. (a) Requires the rules to provide that the
court is required to instruct the jurors that the jurors are authorized to take notes
regarding the evidence; are authorized to use those notes while court is in session
for the purpose of refreshing their memory for use during recesses, discussions,
and deliberations; and are required to turn in the notes to the bailiff at the end of
each day when the court is not in session or when deliberations have ended for that
day.

       (b) Requires the rules to provide that the court is required to provide
       materials suitable for the note taking described in Subsection (a), to require
       the bailiff or clerk to collect and promptly destroy those notes after the jury
       has rendered its verdict, and to prohibit the use of the notes as evidence on
       appeal or in any other proceeding.

Sec. 25.006. INTERIM SUMMATIONS. Requires the rules to provide that the court
is, at the request of either party or on its own initiative, is authorized to allow
counsel for each party to make interim summations after opening statements and
before closing arguments.

SECTION 2. Amends Section 62.01 I(b), Government Code, to require a plan for the

                                          Appendix ii
Proposals for Improving the Jury System                                     Chapter 18


selection of names of prospective jurors authorized by Section 62.011 (Electronic or
Mechanical Method of Selection), Government Code, to require that the name of a
prospective juror who is not impaneled due to an excuse be immediately returned
to the jury wheel.

SECTION 3. Amends Section 62.106(a), Government Code, to establish an
exemption from petit juror service for a person who is an officer or an employee of
certain entities in the legislative branch of state government, and the date of the
trial or jury selection is within 30 days of a date when the legislature is to be in
session or on a date when the legislature is in session or sits as a constitutional
convention.

SECTION 4. Amends Section 62.110, Government Code, by amending Subsection
(c) and adding Subsection (d), as follows:

       (c) Prohibits the court or its designee from excusing a prospective juror for
       an economic reason unless each party of record is present and approves
       excusing, rather than the release of, the juror for that reason. Prohibits the
       court from informing a prospective juror excused under this subsection of the
       reason for excusing the juror.

       (d) Requires the name of a prospective juror who is not impaneled due to an
       excuse to be immediately returned to the jury wheel.

SECTION 5. (a) Makes application of this Act prospective, regardless of the date of
the case's commencement, except as provided by Subsection (b).

       (b) Provides that the change in law made by Sections 62.106 and 62.11 0,
       Government Code, as amended by this Act, applies only to a person
       summoned for jury service who is required to appear on or after the effective
       date of this Act. Makes application of this Act toward a person required to
       appear for jury service before that date prospective.

6. Effective date: September 1, 2007.




                                          Appendix iii
Proposals for Improving the Jury System                                     Chapter 18



4 Appendix

80R10082 JRH-D

By: Wentworth                                                         S.B. No. 1300



                                     A BILL TO BE ENTITLED
                                             AN ACT
relating to juries.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1. Subtitle B, Title 2, Civil Practice and Remedies Code, is
amended by adding Chapter 25 to read as follows:
                       CHAPTER 25. JURY TRIAL PROCEDURES
       Sec. 25.001. SUPREME COURT TO MAKE RULES. The supreme court shall
promulgate rules relating to jury procedures for trials in this state in accordance
with the guidelines provided by this chapter.
       Sec. 25.002. PRELIMINARY INSTRUCTIONS TO JURY.                (a)    The rules
promulgated by the supreme court must provide that, immediately after a jury is
sworn, the court shall instruct the jury concerning:
              (1) its duties;
              (2) its conduct;
              (3) the order of proceedings;
              (4) the procedure for submitting written questions to witnesses or the
court under Section 25.003; and
              (5) the elementary legal principles that will govern the proceeding.
       (b) The rules promulgated by the supreme court must provide that the court
shall read the charge to the jury in the manner provided by Rule 275, Texas Rules
of Civil Procedure.
       Sec. 25.003. SUBMISSION OF WRITTEN QUESTIONS.                   (a) The rules
promulgated by the supreme court must provide that a court shall permit jurors to
submit to the court written questions directed to a witness or to the court as
provided by this section.
       (b) The questions may be submitted anonymously.
       (c) The rules promulgated by the supreme court must provide that the
court:
              (1) shall provide an opportunity, out of the presence of the jury, to
counsel for the parties to object to the questions;
              (2) shall require that the questions are answered orally in open court
and made part of the record; and
              (3) may, for good cause, prohibit or limit the submission of questions
to witnesses.
       Sec. 25.004. JUROR DISCUSSIONS.           (a) The rules promulgated by the
supreme court must provide that, except as provided by Subsection (b), if the
jurors are permitted to separate during the trial, the court shall admonish them
that it is their duty not to converse with or permit themselves to be addressed by

                                           Appendix i
Proposals for Improving the Jury System                                       Chapter 18


any person on any subject connected with the trial, except that they are permitted
to discuss the evidence among themselves in the jury room during recesses from
trial when all jurors are present, as long as they reserve judgment about the
outcome of the case until deliberations commence.
       (b) The rules promulgated by the supreme court must provide that the court
may, for good cause, prohibit or limit the discussion of the evidence by jurors
among themselves during recesses.
       Sec. 25.005. NOTE-TAKING BY JURORS. (a) The rules promulgated by the
supreme court must provide that the court shall instruct the jurors that they:
              (1) may take notes regarding the evidence;
              (2) may use the notes during the time the court is in session for the
purpose of refreshing their memory for use during recesses, discussions, and
deliberations; and
              (3) must turn in the notes to the bailiff at the end of each day when
the court is not in session or when deliberations have ended for that day.
       (b) The rules promulgated by the supreme court must provide that:
              (1) the court shall provide materials suitable for the purpose
described in Subsection (a);
              (2) after the jury has rendered its verdict, the bailiff or clerk shall
collect the notes and promptly destroy them; and
              (3) the notes may not be used in evidence on appeal or in any other
proceeding.
       Sec. 25.006. INTERIM SUMMATIONS.             The rules promulgated by the
supreme court must provide that the court may, at the request of either party or on
its own initiative, allow counsel for each party to make interim summations after
opening statements and before closing arguments.
       SECTION 2. Section 62.011(b), Government Code, is amended to read as
follows:
       (b) A plan authorized by this section for the selection of names of
prospective jurors must:
              (1) be proposed in writing to the commissioners court by a majority of
the district and criminal district judges of the county at a meeting of the judges
called for that purpose;
              (2) specify that the source of names of persons for jury service is the
same as that provided by Section 62.001 and that the names of persons listed in a
register of persons exempt from jury service may not be used in preparing the
record of names from which a jury list is selected, as provided by Sections 62.108
and 62.109;
              (3) provide a fair, impartial, and objective method of selecting names
of persons for jury service with the aid of electronic or mechanical equipment;
              (4) designate the district clerk as the officer in charge of the selection
process and define his duties; [and]
              (5) provide that the method of selection either will use the same
record of names for the selection of persons for jury service until that record is
exhausted or will use the same record of names for a period of time specified by
the plan; and
              (6) require that the name of a prospective juror who is not impaneled
due to an excuse be immediately returned to the jury wheel.

                                          Appendix ii
Proposals for Improving the Jury System                                     Chapter 18


       SECTION 3. Section 62.106(a), Government Code, is amended to read as
follows:
       (a) A person qualified to serve as a petit juror may establish an exemption
from jury service if the person:
              (1) is over 70 years of age;
              (2) has legal custody of a child younger than 10 years of age and the
person's service on the jury requires leaving the child without adequate
supervision;
              (3) is a student of a public or private secondary school;
              (4) is a person enrolled and in actual attendance at an institution of
higher education;
              (5) is an officer or an employee of the senate, the house of
representatives, or any department, commission, board, office, or other agency in
the legislative branch of state government, and the date of the trial or jury
selection is:
                     (A) within 30 days of a date when the legislature is to be in
session; or
                     (B) on a date when the legislature:
                           (i) is in session; or
                           (ii) sits as a constitutional convention;
              (6) is summoned for service in a county with a population of at least
200,000, unless that county uses a jury plan under Section 62.011 and the period
authorized under Section 62.011(b)(5) exceeds two years, and the person has
served as a petit juror in the county during the 24-month period preceding the date
the person is to appear for jury service;
              (7) is the primary caretaker of a person who is an invalid unable to
care for himself;
              (8) except as provided by Subsection (b), is summoned for service in
a county with a population of at least 250,000 and the person has served as a petit
juror in the county during the three-year period preceding the date the person is to
appear for jury service; or
              (9) is a member of the United States military forces serving on active
duty and deployed to a location away from the person's home station and out of the
person's county of residence.
       SECTION 4. Section 62.110, Government Code, is amended by amending
Subsection (c) and adding Subsection (d) to read as follows:
       (c) The court or the court's designee as provided by this section may not
excuse a prospective juror for an economic reason unless each party of record is
present and approves excusing [the release of] the juror for that reason. The court
may not inform a prospective juror excused under this subsection of the reason for
excusing the juror.
       (d) The name of a prospective juror who is not impaneled due to an excuse
shall be immediately returned to the jury wheel.
       SECTION 5. (a) Except as provided by Subsection (b) of this section, this
Act applies to a case in which a jury is sworn on or after the effective date of this
Act, without regard to whether the case commenced before, on, or after that date.
       (b) The change in law made by this Act to Sections 62.106 and 62.110,
Government Code, applies only to a person summoned to appear for jury service

                                          Appendix iii
Proposals for Improving the Jury System                                     Chapter 18


who is required to appear on or after the effective date of this Act. A person who is
summoned to appear before the effective date of this Act is governed by the law as
it existed immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 6. This Act takes effect September 1, 2007.




                                          Appendix iv
Proposals for Improving the Jury System                                       Chapter 18



5 Appendix

                     REPORT TO THE SUPREME COURT OF TEXAS
                                February 2, 2007


The Task Force on Jury Assembly and Administration has met and discussed the
issues assigned to it by the Supreme Court. The Task Force now makes the
following recommendations.

The matters listed in section I should be mandated and uniform throughout the
state. The matters listed in section Il should be decided by each county in a written
jury plan (approved by a majority of the district judges) specifying its procedures
for each matter listed. Jury plans should be mandatory, and should be subject to
review and approval by the Supreme Court (or its designee) to ensure that they
conform to the rules enacted pursuant to this report. It is contemplated that several
model jury plans would be prepared and made available for judges to review and
use as models when they consider their own local needs and draft individualized
plans for their counties.

I. The following matters should be mandated and uniform throughout the
state.

(A) The Secretary of State (SOS) will continue to merge the Voter Registration (VR)
and Department of Public Safety (DPS) lists and compile a master source list of
jurors available for each county to summon.

(B) The SOS will increase its efforts to:

       (i) produce clean juror source lists for the counties (by eliminating duplicates,
       removing the names of felons and deceased persons, correcting bad
       addresses, eliminating those who have moved, etc.) and

       (ii) update the lists at least quarterly and keep them current (by periodically
       adding newly registered voters, newly licensed drivers, and new residents of
       the county).

In cleaning and keeping current the juror lists for each county, the SOS may need
to employ additional personnel, improve existing software, work with the VR and
DPS officials in improving their original source lists, contract with outside National
Change of Address (NCOA) vendors, and make other efforts. Steps should be taken
to ensure that DPS keeps its list more current than is occurring at the present time.




                                          Appendix i
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The SOS should be expressly authorized by statute to do the tasks specified in this
paragraph.

(C) When a county needs a list of jurors to summon for a day or week or month or
any other period of time (see § II-A), it will obtain the needed names of potential
jurors on-line from the SOS (see § I-A). In downloading the list of juror names,
counties would have two options.

       (i) They could use the SOS on-line software to form jury lists, print
       summonses, form panels, etc., without further change.

       (ii) Or they could choose to use their own software to form lists, etc., and to
       perform further cleaning of the list of jurors (see § II-F), provided that they
       specify the software and the additional procedures in their written jury plan.

(D) Counties will use the data received from SOS to form jury panels and send
them to courtrooms. Rescheduled jurors will be mixed in by a predetermined
method pursuant to local jury plan (see § II-B). Judges should have the discretion
to let jurors pick reschedule dates.

(E) Each week the SOS will return to the master list for each county the names that
the county obtained as potential jurors two years earlier. (For example, jurors
whose names are sent to a county in week five of 2007 will be returned to the
master source list in week five of 2009.) In its local plan a county may:

       (i) choose to return names to the list more often or less often than every two
       years, and may choose to return to the list immediately the names of those
       who were summoned but did not "serve," and


       (ii) define "service" to mean that the juror (i) was mailed a summons, (ii)
       appeared for jury duty, (iii) served on a panel, or (iv) was selected and
       sworn in a case.


(F) Judges should expressly be given the discretion to excuse jurors who have
recently served on a jury of any kind, including service on a state, federal, or
municipal petit jury or grand jury.


(G) In the event these jury assembly procedures are not followed, the statutes
should not grant unsuccessful litigants any rights to challenge verdicts or
judgments beyond the rights guaranteed by the state or federal constitution.


(H) Any lawyer or other person who desires to observe any of these procedures at
the state or county level must be permitted reasonable access and opportunity to

                                          Appendix ii
Proposals for Improving the Jury System                                      Chapter 18


observe.


II. The following matters shall be decided by each county pursuant to a
written jury plan that is fair, impartial, and objective. Each plan must be
approved by the Supreme Court (or its designee). The court should be
given express authority to enforce compliance.


(E) The procedure to be followed, and the person or persons to be designated, for
juror orientation and for deciding qualifications, exemptions, and rescheduling.

(F) The procedure for any further local clean-up of the list (e.g., because juror is
deceased, has moved, or is felon, etc.) before summonses are mailed (see §I-C(ii)).
If there is further clean-up of lists by the county, its jury plan must require that
records be kept.

(G) Whether to have a “one day or one trial” policy or to use jurors for more than
one day or trial.

(H) Whether to allow immediate re-use of jurors eliminated by challenge for cause
or peremptory challenge in a previous case.

(I) Whether and how to use the Internet for juror response and rescheduling.

(J) Whether to use different procedures for death-qualified capital cases.

(K) Whether to allow JPs and/or municipal courts to use county-summoned jurors.
If a county chooses to do this, its plan must ensure that the randomness of the pool
of jurors available for the district and county courts remains unaffected.

(L) When to let litigants and attorneys learn who has been summoned.

III. The Task Force also recommends the following non-legislative
reforms.

(A) Local officials should consider ways to improve the operation of the jury
assembly process, such as: (i) free parking, transportation, coffee, and Internet
access; (ii) improved and comfortable facilities in the waiting area for jurors; and
(iii) on-line filling out of questionnaires.

(B) Local officials should consider making public service announcements that
publicize item III-A above and explain other basic details about jury service and
pay, one-day-or-one-trial policy (where applicable), protection from retaliation by
employer, etc.

(C) There should be educational programs and gatherings designed to assist jury

                                          Appendix iii
Proposals for Improving the Jury System                                      Chapter 18


room managers as they adapt to these changes in the jury assembly process.


(D) The new jury assembly and administration procedures should be the subject of
judicial education at the annual College for New Judges and at other seminars for
judges.


IV. The Task Force believes that the reforms stated above are too
extensive to be implemented by amending existing statutes. Instead there
should be comprehensive reform through a comprehensive new set of
statutes or through a set of rules promulgated by the Supreme Court. The
Task Force believes that it would be premature to draft proposed language
at this time.


The Task Force urges the Legislature to:

(A) Grant the Supreme Court express rulemaking authority to accomplish the
reforms set forth in this report by a comprehensive set of rules. In the alternative,
the Task Force urges the Legislature to enact these reforms through a
comprehensive statute.

(B) Repeal Gov't Code §§ 62.001-62.021, with the following exceptions: § 62.019
(providing for appointment of jury bailiff and specifying duties, a topic the Task
Force did not address) and § 62.020 (providing for alternate jurors, a topic outside
the Task Force's purview); harmonize or repeal, as appropriate, other code
provisions (e.g., Code of Criminal Procedure articles 35.01-.12).

(C) Amend the existing qualifications for jury service and exemptions from jury
service as follows:

• Qualifications (Gov't Code § 62.102):

       (i) Delete "misdemeanor theft" as a disqualification in ¶¶ (7) and (8).

• Exemptions (Gov't Code § 62.106):

       (i) Modify ¶ (3) to raise the age of children who would be unsupervised from
       10 to 14 years. A corresponding change should be made in the exemption for
       grand jury service found in article 19.25(2) of the Code of Criminal
       Procedure.

       (ii) Modify ¶¶ (3) and (4) to require that students claiming exemption be in
       actual attendance.

       (iii) Delete exemption for the public officials and employees listed in ¶ (5),
       who are already entitled to the same automatic six-month postponement


                                          Appendix iv
Proposals for Improving the Jury System                                      Chapter 18


       that every citizen may claim under Gov't Code § 62.0142(b).

       (iv) Delete ¶¶ (6) and (8), which would be rendered moot by adoption of the
       reforms proposed herein.

(D) Clarify and consolidate statutory penalties and procedures (including existing
rights and protections for jurors) for those who fail to respond to a summons. In
addition to any other penalties imposed by law, fines should compensate the county
for the cost of prosecution. The following statutes should be harmonized:

       (i) Gov't Code § 62.0141 ($100-1000 fine for failure to respond to jury
       summons

       (ii) Gov't Code § 62.111 ($10-100 fine for failure to attend)

       (iii) Code of Criminal Procedure art. 19.16 ($10-100 fine for failure to report
       for grand jury duty)

       (iv) Code of Criminal Procedure art. 35.01 ($50 fine for failure to report for
       jury duty)

(E) Provide funding for:

       (i) Secretary of State to clean up lists and keep them current [§ I-B];

       (ii) Software to be used by counties (§§ I-C & I-D);

       (iii) Training of jury assembly room managers (§§ I-C & III-C). (Funding
       could be provided by increasing the fee for jury trials and making the fee
       nonrefundable.)

       (iv) Supreme Court's supervision of jury plan process.

(F) Grant to the Supreme Court express authority to ensure that counties prepare
and adopt written jury plans in compliance with these reforms.

(G) Review Civil Practice and Remedies Code chapter 122 to ensure that no
employer takes adverse action against an employee who answers a jury summons
or serves as a juror.

Respectfully Submitted,

                                          David Peeples, Chair




                                               Appendix v

								
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