Judicature Genes and Justice
The Growing Impact of the New Genetics on the Courts
November-December 1999 Vol 83(3)
COMPLEX SCIENTIFIC EVIDENCE and the JURY
by Robert D. Myers, Ronald S. Reinstein, and Gordon M. Griller
DNA—deoxyribonucleic acid, the chemical molecule inside cells which carries biological information. DNA is a double stranded molecule held together by weak hydrogen bonds between complementary base pairs of nucleotides (Adenine and Thymine; Guanine and Cytosine). This molecule carries genetic information from parent to offspring.
Genome—one copy of all the DNA found in each cell of an organism. The human genome is composed of three billion base pairs of DNA packaged as 23 chromosomes. There are two copies of each [chromosome] in a cell, one copy from each of your parents. The genome contains the organism's genes, the instructions for building that life form.
These definitions of DNA and genome, two scientific concepts at the heart of this issue of Judicature, seem rather straightforward and simple. One may think that even without scientific background and learning, these concepts can be readily understood, perhaps with a few additional definitions, or a little more explanation from someone knowledgeable. But as the twentieth century draws to a close, the U.S. Human Genome Project moves closer to its goal: determining and mapping the complete sequence of DNA in the human genome by the year 2003. The implications of the Project's work for courts and the entire legal system are enormous:
The HGP's ultimate goal is to discover all of the more than 80,000 human genes and render them accessible for further biological study.... Information obtained as part of the HGP will dramatically change almost all biological and medical research and dwarf the catalog of current genetic knowledge. Both the methods and data developed through the project are likely to benefit investigations of many other genomes, including a large number of commercially important plants and animals. In a related project to sequence the genomes of environmentally and industrially interesting microbes, in 1994 DOE initiated the Microbial Genome Program. For this reason, in addition to the DOE and NIH programs, genome research is being carried out at agencies such as the U.S. Department of AgricultureÉand the private sector. In a departure from most scientific programs, research also is being funded on the ethical, legal, and social implications (ELSI) of HGP data.1
Potential government and private sector applications of this knowledge—gene therapies, gene transfers, genetic screening, and new biotechnologies—ultimately will give rise to a myriad of disputes that will make their way into the courts for resolution. The legal issues involved in these controversies, and the evidence that underlies them, will be far more complex than the two brief definitions of DNA and genome at the outset of this article. As judges and lawyers ready themselves for this growing level of scientific evidence, one principal justice system decision maker is largely unprepared...the trial juror.
Already, the most familiar form of genomic evidence, DNA "fingerprinting" (or "profiling," or "typing") in criminal cases, is widely admissible in state and federal courts, by court decision or legislation. The possible uses of genomic evidence, however, are not limited to criminal matters. Some states have already enacted legislation regulating health insurers' use of genetic testing data. Disputes involving insurance coverage, medical malpractice, product liability, toxic torts, employment discrimination, paternity, privacy, and intellectual property will become increasingly complex as the knowledge of not only human, but plant and animal genetics, and the practical applications of that knowledge, become more widespread. As one commentator has said, it is "not whether genetic evidence will ever be admitted into court, but when and under what kinds of circumstances."2
Against this backdrop, the ability of juries to adequately understand genomic evidence, distinguish between and resolve contradicting opinions of expert witnesses, and properly apply the law to the evidence is being called into question. Some court watchers believe juries are not competent to resolve scientific evidence issues, and matters of complex scientific evidence should be removed from them. Others argue that the societal values represented by both criminal and civil juries are too important to forego, and that the common sense approach jurors bring to disputes equip them in a unique, capable manner to comprehend novel and complex scientific evidence. In reality, the truth likely lies somewhere in between. Yet, there is little doubt that increasingly complex scientific issues have the potential to further tax the jury system, and that courts must seek new ways to help jurors deal with scientific evidence. To do so, courts will have to promote an active learning environment within the courtroom—in effect, turn courtrooms into classrooms. This new approach to jury trials is under way in some states today, pioneered by Arizona in its far-reaching 1995 jury rule changes including permitting jurors to ask questions, take notes, and in civil cases allowing jurors to discuss the evidence during the trial.3 Arizona's objective: improve the experience and decision making of jurors by redefining their role from passive observers to active participants, using applied, proven adult learning methods, and permitting information to unfold during the trial in more meaningful and understandable ways—in other words, to increase the potential of the "search for the truth."
As research on Arizona's jury reform experience progresses, there is growing evidence that the courtroom, turned juror-friendly classroom, is more conducive to juror comprehension and promotes ease in understanding complex concepts and data. If such is the case, must others wait for statewide system changes? The simple answer: no. Courts and lawyers already possess the means and discretion to enable juries to better carry out their vital roles. Judges and lawyers can independently recognize their roles as educators by embracing ground breaking jury reforms and introducing them in their own courts. These reforms will become increasingly important as genomic evidence appears ever more routinely in America's courtrooms.
Juries and complex cases
Over the past 30 to 40 years, the perceived performance of juries has been criticized, both in high-profile criminal cases and in complex civil litigation in antitrust, securities, intellectual property, and product liability cases. Critics have questioned whether a jury of untrained and inexperienced people can be a competent fact finder and decision maker in lengthy trials that require comprehension of substantial quantities of complex scientific, technical, or statistical evidence, and resolving the testimony of duplicative expert witnesses whose opinions conflict.
Moreover, it is alleged, juries in complex trials will have greater difficulty understanding and remembering the court's instructions, and properly applying the law to the facts. Faced with such a burden, say critics, jurors who are untrained in science and technology are ill-equipped for sound fact finding. As a result, critics allege, jurors will base their decisions less on the evidence and a careful consideration of the reliability of expert testimony, than on external cues, such as the perceived relative expertise and status of the expert witnesses, and will be more susceptible to "junk science" and emotional appeals.4
Intuitively then, we would expect juries to have enormous difficulties with the complex legal issues and scientific evidence that will confront the courts as disputes involving the strange, new world of human genetics and statistical probabilities become more commonplace. We would expect, as well, new proposals for replacing juries with such expert bodies as science courts and expert or "blue ribbon" panels. At the same time, however, a growing body of research on juries and their performance in both "simple" and complex cases is giving us a different picture.5 This research, based on case studies and "lab" or experimental studies, shows that jurors, rather than giving up in the face of voluminous evidence and conflicting expert opinions, take their fact-finding and decision-making responsibilities seriously.
The research shows that while certain elements of complex trials do tax jurors' comprehension and understanding, there is no firm evidence that their judgments have therefore been wrong. Jurors are in fact capable of resolving highly complex cases. These studies have also shown that factors such as length of trial, and evidentiary complexity in itself, are not necessarily the critical factors in jury performance in complex matters. The problem presented by conflicting testimony of experts hired by the respective parties, for example, is present in simple as well as complex cases. Finally, the research shows that jurors, rather than being passive participants in the trial process, are active decision makers and want to understand. Jurors actively process evidence, make inferences, use their common sense, have individual and common experiences that inform their decision making, and form opinions as a trial proceeds.6
What the research shows then, along with the experiments and experiences of active and concerned judges in complex cases, is that the trial process itself may be as much an impediment to jury comprehension and understanding as the complexity of the legal concepts and evidence, or the competencies of jurors.7 Many factors, including failure to follow instructions, confusing instructions, non-sequential presentation of evidence, "dueling" expert witnesses, evidentiary admissibility rulings, and attorney strategic errors, affect the jury's ability to follow and comprehend complex evidence. Researchers, and increasingly many progressive courts, suggest that reforming and improving the "decision making environment"8 can improve not only jury comprehension and performance, but juror satisfaction with their trial experience.
Challenging the current model
The Arizona Supreme Court's Committee on More Effective Use of Juries recognized these issues when it made 55 recommendations to reform the jury system, many of which resulted in the officially adopted comprehensive jury reform rules in 1995. In the introduction to Jurors: The Power of 12, its report to the supreme court, the Committee cited "unacceptably low levels of juror comprehension of the evidence" as one of the motivating factors in urging the Supreme Court to adopt its proposed jury reform rules.9 Arizona's reforms, designed to make jurors active participants during the trial, include juror note taking, pre-deliberation discussions of evidence during civil trials, and the right of jurors to ask written questions. The Arizona reforms also permit judges greater latitude in exercising their inherent powers to provide to each juror preliminary and final written jury instructions, as well as to open up a dialogue between the jurors, the judge, and the lawyers when a jury believes it is deadlocked or needs assistance. The result has been increased satisfaction with the judicial process by judges, lawyers, jurors, and litigants. For years, jury reforms such as note taking and question asking were opposed on the assumption that jurors would miss crucial pieces of evidence or assume the role of advocate rather than neutral fact-finder. The empirical evidence collected thus far, however, overwhelmingly indicates that such opportunities do not adversely affect the pace or outcome of trials.
It is intellectually arrogant for those in the legal system to assume that lay jurors are incapable of processing complex information. We have all been thrust into a technologically advanced world, and lawyers and judges are hardly better prepared for the task of sifting through scientific evidence than the jury. But common sense suggests that jury reform measures will aid understanding, and jurors themselves support reforms such as those described above.10 We should recognize that it makes little sense to oppose practices that make jurors more comfortable with complex scientific information. To drive the point home, we have often made the observation that it is difficult to imagine an academic setting in which taking notes and asking questions would not be permitted.
Fortunately, the tides are beginning to shift in the debate over jury reform. Already a number of states are adopting new rules; Arizona, Colorado, and California are just a few.11 In New York, much of the reform debate has centered on the selection, administration, and management of the jury, but substantive changes are not far behind. Reforms such as increased jury fees and security, and a juror hotline to report problems have been quite successful. However, the trend in these states and others is to expand beyond administrative concerns and attempt to improve jury deliberations and performance. These grassroots efforts led the American Bar Association in 1998 to adopt a number of jury reform ideals drafted by a Section of Litigation task force as part of its Civil Trial Practice Standards. In adopting these standards, the ABA recognized the need to provide juries, lawyers, and judges with the tools to increase jury comprehension in this era of increasingly complex evidentiary issues.
However, a complete overhaul of state and local jurisdictional rules is not necessary. These reforms can often be implemented, consistent with existing rules, at the discretion of the trial judge. Of course, when local rules conflict, those rules control, but most judges possess the inherent power to implement reforms in complex cases. For example, Rule 611 of the Federal (and Arizona) Rules of Evidence permit the judge to control the mode and order of questioning witnesses and presenting evidence. With the number of complex cases dramatically on the rise, judges and lawyers need to collaborate to help the jury become better fact-finders.
A practical guide
Many lawyers and judges seem to have forgotten the proper role of juries. Alexis de Tocqueville, the renowned historian, once said:
[t]he jury...may be regarded as a gratuitous public school, ever open, in which every juror learns his rights,...and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties...I look upon the [the jury] as one of the most efficacious means for the education of the people which society can employ.12
It is this idea of educating the jury, of treating the courtroom as a classroom, that judges and lawyers alike need to recapture. We urge all members of the legal profession to implement, on their own initiative, the appropriate reforms when cases require an understanding of complex scientific evidence.
Before we discuss individual reforms in more detail, it is important to note the role of judges in rigorously applying the rules of evidence. The judge plays a very important role in improving jury comprehension by appropriately screening evidence and admitting only that which meets the appropriate standards. The judge must scrupulously protect the jury from unreliable scientific evidence.13
Jury selection. Lawyers are often criticized for using their peremptory challenges to "dumb down" the jury. In complex cases, however, it is in the best interest of all concerned to select educated jurors and not strike persons based on the extent of their education. While there is little empirical evidence to demonstrate that more educated jurors are struck more often than less educated jurors, there does seem to be an unwritten rule of practice that professionals should be struck when possible. The authors themselves plead guilty to using that approach as trial lawyers.
Perhaps lawyers fear that highly educated individuals will dominate in the jury room and be able to persuade the jury to their side during deliberations. However, preliminary data suggest, and we believe, that jurors take their job seriously and will not be easily persuaded to a position with which they do not agree.14 Those lawyers who believe in "dumbing down" juries should adjust their views accordingly, and recognize the important role of jurors as fact finders and decision makers. Of course, both lawyers and judges must still attempt to detect jurors with prejudices or preconceived ideas, but they should also seek to empanel the best jurors available from the pool.
Juror note taking and notebooks. Of all the reforms discussed, allowing the jury to take notes during the trial must be the most common-sense and least controversial. Nevertheless many jurisdictions just don't get it. Research indicates that note taking does not distract jurors, nor does it create an undue influence on those jurors who choose not to take notes. Judges in Arizona instruct jurors that they are not obligated to take notes, and they tell the jury to pay attention to all aspects of the trial including witness demeanor and the documentary and testimonial evidence. The vast majority of courts recognize that it is within the sound discretion of the trial judge to permit jurors to take notes. Judges need to thoughtfully exercise their discretion and allow juror note taking in complex cases, and lawyers must urge judges to do so. Jurors need to be encouraged to take an active role in the trial. Allowing the jury to keep track of parties, witnesses, testimony, and evidence by taking notes will empower juries to improve their recall and understanding of all issues, simple and complex.
Jurors in complex cases should also be given a comprehensive notebook containing items such as simplified jury instructions, layouts of the courtroom with the names and locations of lawyers and parties, and glossaries of scientific terms or helpful scientific diagrams, photographs, charts, and background data of all types.
Better jury instructions. Judges historically instruct juries at the end of the trial. There are few rules or cases, however, that prohibit judges from instructing juries earlier. Judges in Arizona provide juries with pretrial instructions that, for example, define the elements of the alleged crime or define terms such as "negligence" and "fault." This permits the jury to understand the basic legal standards early in the case, refer to them during the trial, and then concentrate on the presentation of the evidence.
Jury instructions should be written in plain English. When drafting jury instructions, both judges and lawyers should avoid unnecessary legal jargon. In Arizona, the state bar's Civil Jury Instruction Committee even includes a linguistics professor from a local university. Jury instructions must also be tailored to the case at trial. Instead of using only pattern jury instructions, judges should work with counsel to draft case-specific instructions that include party names and actual facts in the case, without commenting on the evidence. Instructions should be given early in the case both orally and in writing for maximum comprehension and memory retention. The written instructions should be included in the jury notebook. Jurors need to understand the legal context of the evidence presented, and early instruction facilitates a better understanding of its legal relevance.
Finally, jurors should each be given a written copy of the final instructions and they should be allowed to have the instructions in the deliberation room. Arizona's rules require judges to provide each juror with a copy of all the jury instructions. After all, why should jurors have to pass a single copy when a few dollars can provide copies all around? And where is it written that jury instructions must only be oral?
Permitting the jury to ask written questions. When it comes to issues of scientific evidence, lawyers and judges collaborate to understand and narrow the issues before the court. They ask each other questions to clarify misunderstandings prior to trial, and will confer even during the trial. Yet, once the trial begins, jurors traditionally are not permitted to ask questions. It is time to end this nonsensical practice.
Jury questions should be written and given to court personnel before the witness leaves the courtroom. Counsel should be given the opportunity to object in a sidebar, or outside the hearing of the jury, and the jury should be instructed about the limitations on questions that can be asked. In Arizona, there have been no reports of problems with this type of procedure after thousands of trials over the last four years. A study reported in the March-April 1996 issue of Judicature found that jury questions helped jurors understand the facts and issues, that jurors did not ask inappropriate questions, and that jurors did not draw inappropriate inferences when their questions, due to counsel's objection, for example, were not asked.15
As the comments to the ABA Standards noted, state and federal courts have overwhelmingly recognized that it is within the sound discretion of the trial judge to allow juror questioning of witnesses. We encourage judges and lawyers to experiment with jury questions in complex cases. The empirical evidence, and our own experience, reveals that the fears and concerns about jury questions are unfounded. As two Arizona attorneys recently wrote, "Our experience [with juror questions] reinforces for us the effectiveness of juror questions in keeping the jury engaged and in improving the quality of our own trial presentations. The jurors' questions revealed areas of confusion or concern, enabling us to adjust our presentation accordingly."16
Juror discussion during civil trials. Perhaps one of the most controversial Arizona reforms at the time of its adoption, and still controversial today, is allowing jurors in civil cases to discuss the evidence prior to final deliberation. In Arizona, jurors are carefully instructed by the trial judge that they may discuss the case, so long as all members of the jury are present and they reserve judgment until final deliberations. The general consensus of the Arizona bench and bar is that this reform has been a success. In fact, the Committee on the More Effective Use of Jurors, in its second report to the Arizona Supreme Court (in June, 1998), recommended that the rules be expanded to allow pre-deliberation discussions during criminal trials. As of this writing, however, the supreme court has not adopted that recommendation.
Traditionally, the view has been that permitting jurors to discuss the evidence early in the trial will lead them to make up their minds before hearing both sides. Recent studies suggest that this is not true.17 In fact, some studies have gone so far as to say that requiring jurors to refrain from discussing evidence actually hinders their ability to process information.18 Pre-deliberation discussion can help improve juror comprehension, improve memory recall, and relieve the tension created by a forced atmosphere of silence with regard to the evidence presented at trial.19
Social scientists report that jurors naturally tend to actively process information as it is received. Therefore, it is not surprising to find that studies show that anywhere from 11 to 44 percent of jurors discuss the evidence among themselves during the trial despite judicial admonitions to avoid such discussion.20 Explicitly allowing pre-deliberation discussions, then, is really an acknowledgment of what often occurs naturally.
Perhaps surprising to some, Arizona's experience has shown that when one individual juror makes a preliminary judgment during pre-deliberation discussions, that judgment is often tested or challenged by the entire group.21 In United States v. Wexler (1987) Judge Ditter aptly explained that "jurors are concerned, responsible, conscientious citizens who take most seriously the job at hand." Like Judge Ditter, we believe the jurors are more interested in doing justice than in justifying their own loosely based preliminary conclusions, which are frequently subject to modification as a result of group discussions.
A recent study of jury discussions during Arizona trials found that jurors overwhelmingly support this reform and report that it has positive effects.22 Specifically, jurors said that discussions improved comprehension of evidence, that all jurors' views were considered, and evidence was remembered accurately. Additionally, only a very low percentage of participants in the study said that trial discussions encouraged jurors to make up their minds early on. The study also found that, among judges, lawyers, and jurors, support for this reform increases with experience. Permitting pre-deliberation discussion, more than any other reform, challenges the legal profession's traditional notions of jury behavior, but it is time to recognize the need for juries to have better tools in dealing with complex evidentiary issues.
Independent court appointed or stipulated experts. Unlike fingerprint or ballistic evidence, where it is easier to understand the samples juries are asked to compare, genetic evidence requires juries to sit through conflicting scientific interpretations from expert witnesses presented by the opposing parties. Early presentation of independent experts, either court appointed or stipulated, can help solve many of the problems presented by genetic evidence. Recent surveys suggest that judges favor appointing independent experts in complex cases. However, statistics show that the actual use of court appointed experts is relatively low.23 This situation is unfortunate because there are many advantages to be realized by the use of independent experts. For example, a case involving the admissibility of DNA evidence using a particular type of analysis was recently before the Arizona Superior Court. Both parties agreed to the appointment of a neutral court expert to testify about the procedures used in this analytial method. Substantial saving, in time and money, were realized by the appointment of the court expert. Judicial economy and fairness demand the use of innovative techniques in dealing with admittedly complex scientific issues.
In most jurisdictions trial judges have inherent authority to appoint experts as technical advisors to assist the court. In fact, judges may appoint expert witnesses for testimonial purposes under Rule 706 of the Federal Rules of Evidence and similar provisions in force in most states. However, the use of court appointed experts to serve as a jury tutor on the basics of, for example, DNA evidence, is an under-utilized tool.24 Pre-recorded video "lectures" may be another avenue to explore when considering how to educate jurors on issues of "common" scientific knowledge. The basic building blocks of DNA and the basic methods of DNA testing could be simplified and presented to the jury in such a fashion as to make it much less intimidating.25
Many lawyers may argue that "dueling experts" is the model courts should adhere to, based on the adversarial nature of our justice system. However, a recent study found that jurors do not rely on cross-examination of expert witnesses designed to point out flawed scientific methodology.26 The authors suggest that this is because jurors do not believe lawyers are sincere in their attempts to educate jurors, but rather see cross-examination as the lawyer's attempt to undermine the expert through any means possible.
Independent experts present an opportunity to not only improve juror comprehension and performance, but also decrease the substantial costs of expert witnesses, and increase judicial economy. The adversarial nature of the trial may be diminished, but that is actually a benefit, not a cost, according to independent experts considering jury reactions to lawyer cross-examination of opposing party witnesses. It is the judge's responsibility to be proactive in ensuring that the trial is a search for the truth, and that it is not about lawyers setting up roadblocks to that search.
Allow a dialogue between jurors, lawyers, and the judge during deliberations. In place of the traditional "pep talk" judges often give to deadlocked juries, Arizona explicitly provides for an opportunity for further instruction by the judge and argument by the parties. Why should the opportunity to educate jurors further stop once deliberations begin? Allowing additional evidence, argument by counsel, or providing further instruction is not problematic, legally or pragmatically. Of course, judges must be careful not to influence jurors and need to limit further inquiries only to those issues that confuse or divide the jury. Once again, there are many cases approving the judge's inherent authority to reopen a case for additional evidence or argument where the jury needs further admissible evidence to reach a verdict, or to determine if a deadlock is unavoidable.27
Opening the courtroom to more creative learning. Increasingly, the Human Genome Project's Ethical, Legal and Social Implications Program is sensitizing the judicial and legal community about the changing rule of the law in light of new genetic discoveries and testing methods. Primers reviewing DNA and genome science have been written, memorable cartoon drawings simplify sophisticated concepts,28 and video background resources explaining genetics in meaningful non-scientific ways are growing in number.
Further, difficult concepts can be reduced to plain English and conveyed to juries through innovative technologies, including live, videotaped, or interactive Internet-based testimony. These approaches can easily be presented while simultaneously ensuring that complex scientific evidence is afforded the utmost of seriousness.
Educating the jury early in the trial, by using court appointed experts, better written jury instructions, jury notebooks, and basic adult education techniques, will provide a foundation for later testimony of experts presented by the lawyers. Jurors who have been tutored early about complex scientific issues will be in a better position to judge both the content and character of dueling experts.
Two central participants in the courtroom are the ultimate beneficiaries of reform-oriented jury approaches when heavy doses of scientific evidence are the subject of an unfolding courtroom drama: jurors, and more importantly, litigants. Contemporary behavioral research, and Arizona's jury reform experience, substantiate that comprehension and understanding are significantly enhanced when information is actively processed. Most courts already possess the tools to implement the educational techniques discussed above. Whether through system-wide jury reform or the efforts of individual trial judges and trial lawyers, a more jury-centered trial will not only allow jurors to actively and intelligently participate in the fact-finding and decision-making process, but also give the litigants a better truth-finding forum.
Robert D. Myers is Presiding Judge of the Arizona Superior Court in Maricopa County.
Ronald S. Reinstein is Associate Presiding Judge of the Arizona Superior Court in Maricopa County.
Gordon M. Griller is court administrator, Arizona Superior Court in Maricopa County and a member of the Board of Directors of the American Judicature Society.
The authors wish to thank Timothy D. Keller, a law researcher for Judge Robert D. Myers, and Richard Teenstra, assistant director of the Maricopa County Superior Court Law Library, for their assistance.
1. Department of Energy, Office of Biological and Environmental Research, Life Sciences Division, Human Genome Research: An Introduction (visited Sept. 2, 1999) http://www.science.doe.gov/.
2. Denno, Legal Implications of Genetics and Crime Research, in Bock and Goode, eds., Genetics of Criminal and Antisocial Behaviour 235 (Chichester, N.Y.: Wiley, 1996).
3. See Arizona Supreme Court Orders, Nos. R-94-0031, R-92-004 (1995).
4. See Adler, The Jury: Trial and Error in the American Courtroom (New York: Times Books, 1994); Jury Comprehension in Complex Cases: Report of a Special Committee of the ABA Litgation Section (Chicago: American Bar Association, 1989).
5. For a review of criticisms of civil jury competencies and the jury research literature, see Lempert, Civil Juries and Complex Cases: Taking Stock after Twelve Years, in Litan, ed., Verdict: Assessing the Civil Jury System 181-247 (Washington, D.C.: Brookings Institution, 1993); Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849 (1998); Cecil, Hans and Wiggins, Citizen Comprehension of Difficult Issues: Lessons from Civil Jury Trials, 40 Am. U. L. Rev. 727 (1991).
6. Hans, Hannaford and Munsterman, The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The Views of Trial Participants, Judges, and Jurors, 32 U. Mich. J.L. Reform 349 (1999).
7. See Dann, "Learning Lessons" and "Speaking Rights": Creating Educated and Democratic Juries, 68 Ind. L.J. 1229 (1993).
8. Cecil, Hans and Wiggins, supra n. 5, at 765.
9. Jurors: The Power of 12, Report of the Arizona Supreme Court Committee On More Effective Use of Juries (November 1994).
10. Hans, Hannaford and Munsterman, supra n. 6, at 371-372.
11. For a review of state jury reform efforts, see Munsterman, A brief history of state jury reform efforts, 79 Judicature 216 (1996); Murphy, et al, Managing Notorious Trials (Williamsburg, Va.: National Center for State Courts, 1998); Enhancing the Jury System: A Guidebook for Jury Reform (Chicago: American Judicature Society, 1999).
12. de Tocqueville, Democracy in America 295-296 (Vintage ed. 1945).
13. Daubert v. Merrell Dow Pharm. Inc., 509 U. S. 579 (1993).
14. Hans, Hannaford and Munsterman, supra n. 6.
15. Heuer and Penrod, Increasing juror participation in trials through note taking and question asking, 79 Judicature 256, 260-261 (1996).
16. Cabot and Coleman, Arizona's 1995 Jury Reform Can be Deemed a Success, Arizona Journal, July 12, 1999, at 6.
17. See Hans, Hannaford and Munsterman, supra n. 6; Hannaford, Hans and Munsterman, "Permitting Jury Discussions During Trial: Impact of the Arizona Reform" 9 (1998) (unpublished manuscript, on file with the authors).
18. Chilton and Henley, Improving the Jury System, Jury Instructions: Helping Jurors Understand the Evidence and the Law, §II, PLRI Reports (Spring 1996) http://www.uchastings.edu/plri/spr96tex/juryinst.html.
19. Hans, Hannaford and Munsterman, supra n. 6; Hannaford, Hans and Munsterman, supra n. 17; Chilton and Henley, supra n. 18.
20. Chilton and Henley, supra n. 18.
21. Myers and Griller, Educating Jurors Means Better Trials: Jury Reform in Arizona, 36 Judges J. 13-17, 51 (Fall 1997).
22. Hans, Hannaford and Munsterman, supra n. 6.
23. Sanders, Scientifically Complex Cases, Trial by Jury, and the Erosion of Adversarial Processes, 48 DePaul L. Rev. 355, 378-379 (1998).
24. The Evaluation of Forensic DNA Evidence 169-171 (Washington, D.C.: National Research Council, 1996).
25. For examples of excellent illustrations and explanations, see Hoagland and Dotson, The Way Life Works (New York: Time Books, 1995).
26. Kovera, McAuliff and Hebert, Reasoning About Scientific Evidence: Effects of Juror Gender and Evidence Quality on Juror Decisions in a Hostile Work Environment Case, 84 J. of Applied Psychology 362, 372-373 (1999).
27. Myers and Griller, supra n. 21, at 16-17.
28. See Hoagland and Dotson, supra n. 25.
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