Task Force Report

1. INTRODUCTION
2. REPORT OF THE JUROR QUESTIONNAIRE STUDY
3. TABLES
4. 1. JURY SELECTION RECOMMENDATIONS
      1. Encourage Mini-Opening Statements Before Voir Dire
      2. Allow Judges to Choose Between the "Struck" and the "Strike and Replace" Methods of Jury Selection
      3. Assure Lawyers the Right to Voir Dire in all Cases
      4. Judges Should Receive Training in Voir Dire
      5. Protect Juror Privacy During Voir Dire
      6. Continue Peremptory Strikes in Present Form and Number
      7. Vigourously Enforce Batson Safeguards
      8. Number of Jurors
   2. JURY TRIAL RECOMMENDATIONS
      1. Set and Enforce Time Limits for Trials
      2. Guidelines for Severance in Complex Cases are Needed
      3. Jury Trial Time Should be Maximized
      4. Trial Interruptions Should be Minimized
      5. Juror Notebooks Should be Provided in Some Cases
      6. Expand Use of Preliminary Jury Instructions
      7. Ensure Notetaking by Jurors in All Cases
      8. Improve Management of Trial Exhibits
      9. Deposition Summaries Should be Used
      10. Allow Jurors to Ask Questions
      11. Educate Attorneys and Judges Concerning Interim Summaries During Trial
      12. Use Modern Information Technology More Often in Trials
      13. Allow Jurors to Discuss the Evidence Among Themselves During the Trial
      14. Use Only Plain English in Trials, Especially in Legal Instructions
      15. Do Not Keep Jurors Waiting While Instructions are Settled
      16. Make Jury Instructions Understandable and Case-Specific and Give Guidance Regarding Deliberations
      17. Do Not Instruct Juries on Jury Nullification; However the Rules of Evidence Ought to be Expanded in Recognition of the Jury's Power to Nullify
      18. Give Jurors Copies of the Jury Instructions
      19. Read the Final Instructions Before Closing Arguments of Counsel, Not After
      20. Alternate Jurors Should Not be Released From Service in Criminal Cases Until a Verdict is Announced or the Jury is Discharged
      21. Allow All Jurors Remaining at the End of a Civil Trial to Deliberate and Vote
      22. Juror Contact
      23. Statement on the Existence and Effect of Insurance in Civil Cases
   3. POST-VERDICT STAGE RECOMMENDATIONS
      1. Become Proactive in Detecting and Treating Juror Stress
      2. Assist Jurors In Coping With Fears of Contact or Retaliation
      3. Solicit Jurors' Reactions to Their Courthouse Experiences
      4. Advise Jurors Concerning Post-Verdict Conversations with the Judge, Attorneys and the Media

Appendix A: Juror Note Taking: Exploring A New Frontier

This Report of the Task Force on the More Effective Use of Jurors is divided into four segments which pertain to recommended areas of reform. They are:

1. Jury Selection Recommendations;
2. Jury Trial Recommendations;
3. Post-Verdict Stage Recommendations.

As Chairman of the Task Force, I am indebted to those members who served on the Subcommittees on Jury Selection, Jury Trials, Jury Deliberations and Post-Verdict Stage. I am also indebted to Professor Valerie Hans of the University of Delaware who provided systematic information from jurors themselves about their experiences and reactions to jury duty in Delaware. The data which Professor Hans provided was instrumental in enabling the Task Force to reach many of its conclusions as to particular recommendations for jury reform.

Those recommendations which were adopted by the Task Force should be implemented at the earliest possible time. Many of the adopted recommendations will appear radical to some. To others, perhaps the recommendations did not go far enough. However, based upon the empirical data available, the Task Force concluded that its recommendations are worthy of implementation at least for now. Future developments may influence us to review our conclusions. Our primary focus has been to generate change where change is needed to enhance and facilitate the difficult civic responsibility of being a juror.

John E. Babiarz, Jr.
Chairman

1. JURY SELECTION RECOMMENDATIONS

   1. Encourage Mini-Opening Statements Before Voir Dire

      To make examination of the jury panel more meaningful to the parties, the court and the jurors themselves, judges should have counsel give a brief, non-argumentative opening statement about their cases before questioning.

      Commentary:

      The Task Force does not support this recommendation. As an alternative, we suggest that the Task Force recommend that in civil cases the trial judges encourage counsel to prepare a single page summary of facts and issues for the judge to read to the jury before voir dire.

   2. Allow Judges to Choose Between the "Struck" and the "Strike and Replace" Methods of Jury Selection

      Civil and criminal rules should be revised to allow trial judges to choose between jury selection methods, using either the "struck" system (all panel members participate in voir dire) or the "strike and replace" procedure (only the minimum number of jurors needed for strikes participate), depending on the judge's preference.

      Commentary:

      The Task Force supports an alternative to this recommendation that would encourage trial judges to consider the struck method of jury selection where preemptory challenges are exercised silently.

   3. Assure Lawyers the Right to Voir Dire in All Cases

      Lawyers for the parties ought to be entitled to examine prospective jurors in both civil and criminal cases. Trial judges should monitor lawyer voir dire to ensure that interrogation by counsel remains consistent with the purposes of voir dire and to safeguard juror privacy.

      Commentary:

      The Task Force does not support this recommendation.

   4. Judges Should Receive Training in Voir Dire

      All judges, but especially new judges, should receive mandatory training and education in the conduct of voir dire.

      Commentary:

      The Task Force supports this recommendation and suggests this would be a good topic for inservice training for the judges.

   5. Protect Juror Privacy During Voir Dire

      In addition to monitoring lawyer questions to prevent unreasonable and unnecessary intrusions into the privacy of jurors' lives, the trial judge should provide alternatives for jurors who do not wish to answer particular questions in open court. The jury panel should be informed of these options prior to questioning.

      Commentary:

      While the Task Force agrees a juror's privacy should be protected it does not suggest this recommendation be adopted as it does not recommend that lawyers conduct voir dire.

   6. Continue Peremptory Strikes in Present Form and Number

      Peremptory strikes should be retained in their present number, as they are necessary for the selection of a fair jury.

      Commentary:

      The Task Force supports this recommendation.

   7. Vigorously Enforce Batson Safeguards

      In order to protect the rights of the parties and of potential jurors, trial judges should be vigilant and, where necessary, take the initiative to assure that there is an objective and verifiable race, ethnic and gender-neutral basis for every peremptory strike of a potential juror.

      Commentary:

      The Task Force supports this recommendation.

   8. Number of Jurors

      Commentary:

      The Task Force has considered a proposal to reduce the number of jurors in civil cases to less than twelve and would not support a recommendation to do that.

2. JURY TRIAL RECOMMENDATIONS

   1. Set and Enforce Time Limits for Trials

      Given the benefits to the parties, jurors and the court system of trials that are as short as fairness permits, judges ought to be given express authority, by rule, to impose reasonable time limits on trials or portions of trials.

      Commentary:

      The Task Force supports this recommendation. Judges are already given such authority, by implication, under DRE 611. The two most important factors under this recommendation are: (1) Limitation on the total amount of time for the entire trial; and, (2) Time limits on discrete portions of the trial, e.g., how long each side will be allowed for opening and/or closing statements.

      Since Delaware has instituted in New Castle County the one trial or one day approach for jury service, attorneys have a duty to gauge, with candor, the anticipated time it will take to present their cases. Prospective jurors should be given a realistic assessment of total trial length as such an assessment will impact on their availability to serve as jurors. A realistic assessment is necessary, in any event, for accurate judicial scheduling purposes. ¹

      Further, depending on the complexity of the case, judges should be able to limit the length of opening and closing statements recognizing that such statements are not considered as evidence.

      If we want judges to be given express authority to impose reasonable time limits on trials or portions thereof, it would appear that this could be easily accomplished by changing the heading of Super.Ct.Civ.R. 63 and Super.Ct. Crim.R. 25 to read: "Judge; Authority to Impose Time Limitations; Disability" and adding the following sentence to the end of Super.Ct.Civ.R. 63 and Super. Ct.Crim.R. 25(a) to read: "In either case, the presiding judge is authorized to impose reasonable time limits on trials or on portions of trials such as opening and/or closing statements by counsel."

   2. Guidelines for Severance in Complex Cases are Needed

      Existing authority to sever parties or claims for trial purposes ought to be utilized more often, at least in especially lengthy trials or trials in complex cases, to keep trial time to a minimum and to reduce juror overload and confusion. The Supreme Court should promulgate guidelines for severance for the benefit of trial judges.

      Commentary:

      The Task Force does not support this recommendation. The Supreme Court should not promulgate guidelines for severance for the benefit of trial judges in Delaware. On the criminal side, such guidelines already exist in numerous pronouncements from the Supreme Court.² The same holds true on the civil side.³

   3. Jury Trial Time Should be Maximized

      Jurors and attorneys should be surveyed to determine whether there is a preference for trials lasting full days (6 hours) and full weeks (5 days) or trials lasting only half days (3 hours) and 4 days a week. A study should be undertaken of the relative advantages and disadvantages of various options for hours of trial.

      Commentary:

      The Task Force does not support this recommendation. Delaware utilizes almost exclusively the full-day trial option. This should continue. Normally, civil trials are conducted Monday through Friday. In New Castle County, criminal trials are conducted Tuesday through Friday with Monday being utilized for case reviews. Fridays are also utilized for many other matters such as sentencings. Thus, Friday will be utilized as a trial day, either half-day or full-day depending upon court/attorney scheduling conflicts.

      Normal trial days commence at 10:00 a.m. and end at 5:00 p.m. with one 15-minute recess in the morning and one 15-minute recess in the afternoon and with a 13 hour lunch break. Thus, the normal trial day consists of 5 hours and 15 minutes of trial time. Total daily trial time could and should be increased. See Recommendation 4.

   4. Trial Interruptions Should be Minimized

      The conduct of a jury trial ought to take precedence over all other trial court business except emergencies. Trial judges should receive training in the effective use of specific trial management techniques that would reduce unnecessary disruption and delay. When in a jury trial, the judge should allow no more than one hour for lunch, absent special circumstances.

      Commentary:

      The Task Force supports, in principle, this recommendation. The conduct of a jury trial ought to take precedence over all other trial court business except emergencies. When in a jury trial, the judge should allow no more than one hour for lunch, absent special circumstances. Further, as scheduling permits, a carry-over trial should resume at 9:30 a.m. instead of 10:00 a.m. These two time changes would result in an additional 45 minutes of trial time per day. Thus, the 5-1/4 hour trial day would increase to a 6 hour trial day.

      To make the most effective use of this trial time, the court should schedule matters to be heard outside the presence of the jury before or after scheduled trial hours. The court should also be more diligent in impressing upon counsel the importance of starting on time with the jury at the beginning of the trial day, following periodic recesses and at the end of the lunch break.

      At the same time, allowances must sometimes be made for counsel to attempt to settle other cases to which they have been assigned. Case disposition is of paramount importance. When other case assignments interfere with the conduct of a trial in progress, allowance should be given to such other case assignments where counsel would attempt to resolve such cases between 9:00 a.m. and 10:00 a.m. Regarding criminal cases, the case assignment judge or case review judge should always give preference to counsel involved in such other cases so as to insure a 10:00 a.m. trial start for the case in progress.

   5. Juror Notebooks Should be Provided in Some Cases

      In all lengthy trials and trials of complex cases jurors should be supplied with juror notebooks for the keeping of documents or information, e.g., juror notes; preliminary and, eventually, final instructions; lists of witness names (and possibly photos); copies of key exhibits; and, where helpful, a glossary of terms.

      Commentary:

      The Task Force supports this recommendation, not only in lengthy trials and in trial of complex cases, but even in certain routine cases. The creation and use of a juror notebook is seen as an aid to juror understanding and recall of the evidence.⁴

      Among the contents suggested for juror notebooks are:

      1. A copy of the court's preliminary jury instructions, if given;
      2. Jurors' notes;
      3. Witnesses' names;
      4. A glossary of technical terms, such as economic terms or medical terms;
      5. Copies of key photographs;
      6. Copies of economic projections;
      7. Copies of key documents including diagrams, maps, etc.; and,
      8. A copy of the court's final instructions.

      While recognizing that these aids may not be advisable for routine trials of short or moderate duration, jury notebooks are of considerable value to jurors in trials of complex cases and for unusually long trials. Whether they are used in a given trial and decisions regarding the contents of the notebooks ought to be left to the discretion of the individual trial judge. In several lengthy civil cases, juror notebooks have already been utilized in Superior Court with very favorable juror reaction.

      To clarify the judge's authority in this regard and in order to encourage the use of juror notebooks in appropriate cases, the committee recommends a modest addition of language to Super.Ct.Civ.R. 39(a), Super.Ct.Civ.R. 39(aa) and Super.Ct.Crim.R. 23(a):

      In its discretion, the court may authorize the use of notebooks for jurors during trials to aid the jurors in performing their duties.

   6. Expand Use of Preliminary Jury Instructions

      Preliminary jury instructions should be expanded in scope to include elements of the charge or claim and any known defenses. They should be case-specific where possible and always in plain English. In complex or technical cases, definitions of terms and other information that would help orient the jury to the case should be included.

      Commentary:

      The Task Force supports this recommendation. The committee endorses the use of expanded preliminary jury instructions in both civil and criminal cases.⁵ Given before opening statements and the evidence, they ought to deal with more than procedural and housekeeping matters. Preliminary instructions should be both substantive and case-specific. At a minimum, the jury ought to be informed of what the plaintiff in a civil case must prove to win and what the State must prove before a defendant in a criminal case can be found guilty. In addition, definitions of technical terms and elements of the offenses or claims and anticipated defenses should be included. In technical or complex cases, the instructions could contain a glossary of terms or other information that would help orient the jury to the case.

      The language of the preliminary jury instructions ought to be case-specific wherever possible, identifying the parties by name and referring to the incident or transaction in specific, descriptive terms.

      Research shows that telling the jurors more, rather than less, in advance of the evidence assists the jurors in understanding and organizing the evidence as they hear it, improves their recall of evidence, reduces the chances that the jurors will apply the wrong rules to the evidence and increases juror satisfaction.⁶

      Delaware's civil and criminal rules neither require nor forbid the giving of substantive preliminary instructions.⁷ To encourage greater use of substantive and case-specific preliminary jury instructions, the committee makes the following recommendation:

      That Super.Ct.Civ.R. 51 be supplemented by adding the following language:

      Immediately after the jury is sworn, the court may, in its discretion, in any civil case instruct the jury concerning its duties, its conduct, the order of proceedings and the elementary legal principles that will govern the proceeding.

      Preliminary jury instructions shall comply with applicable rules and should inform the jury of the legal rules applicable to any claim and anticipated defense. Where necessary or helpful, a glossary of terms may also be provided.

      That Super.Ct.Crim.R. 30 be supplemented by adding the following language:

      Immediately after the jury is sworn, the court may, in its discretion, in any criminal case instruct the jury concerning its duties, its conduct, the order of proceedings and the elementary legal principles that will govern the proceeding.

      Preliminary jury instructions shall comply with applicable rules and should inform the jury of the legal rules applicable to any charge and anticipated defense. Where necessary or helpful, a glossary of terms may also be provided.

      For reasons stated elsewhere in this report,⁸ these instructions should be in plain English and, in the court's discretion, copies should be provided the jury and to counsel.

   7. Ensure Notetaking by Jurors in All Cases

      Notetaking by jurors in criminal and civil trials in Delaware has been permitted for years. Experience has shown that the obvious benefits of the practice (aid to memory, increased attention to the trial, etc.) outweigh any supposed drawbacks. Jurors should be able to review their own notes during any recess.

      Commentary:

      The Task Force supports this recommendation on a case-by-case basis. For many years, jurors in civil and criminal trials in Delaware have had the option, in the court's discretion, to take notes. Experience has shown that the obvious benefits of the practice (aid to memory, increased attention to the trial, etc.) outweigh any supposed drawbacks. Jurors should be able to review their own notes during any recess.

      Notetaking by jurors during trial is commonplace in Delaware, at least in lengthy or complex civil and criminal cases.⁹ The sense of the Task Force is that the majority of Delaware Superior Court judges permit jurors to take notes in certain cases. Practice varies among judges concerning whether jurors are permitted to take their notes into the jury room during recesses, but most do not. While some trial courts elsewhere in the country do not permit the taking of notes by jurors, researchers and commentators tout the advantages of allowing notetaking by jurors.¹⁰ Among the advantages found are these:

      1. Increased attention to the trial by jurors;
      2. Enhanced ability of jurors to refresh their memories from their notes, especially during deliberations;
      3. Reduction in requests, during deliberations, for court reporter readbacks of testimony; and
      4. Increased juror morale and satisfaction.

      A fairly recent American Judicature Society-sponsored study failed to document any material drawbacks to juror notetaking.¹¹ Subsequent studies have drawn the same conclusions.¹²

      So that all jurors will have the right to take and use trial notes, the committee urges the court to promulgate a civil and criminal rule assuring jurors the right to take notes.

      Super.Ct.Civ.R. 39 and Super.Ct.Crim.R. 23 could each be amended by adding a new subdivision (d) to each rule which would state as follows:

      (d) In a jury trial, the court may instruct the jurors that they may take notes regarding the evidence and keep the notes for the purpose of refreshing their memory when they retire for deliberation. The court shall provide materials suitable for this purpose. During recesses of the trial the jurors shall be permitted to have access to their notes in the jury room. After the jury has rendered its verdict, the notes shall be collected by the bailiff who shall promptly destroy them.

      A pattern instruction on notetaking is being developed by a Committee on Standard Criminal Jury Instructions chaired by Judge Richard R. Cooch.

   8. Improve Management of Trial Exhibits

      The trial judge should control the number of exhibits, have relevant portions of documents that are admitted highlighted for the jury and provide copies of key documents to the jurors. In document-intensive cases, the judge should provide an index or retrieval system for the jury's use during deliberations. For the control and safe-guarding of documents in an especially paper-intensive trial, a document depository should be considered.

      Commentary:

      The Task Force supports this recommendation for complex cases. The proliferation of exhibits at trial, the significance of which is too often lost on jurors, has been shown to be a significant cause of juror confusion and decreased juror comprehension.¹³ Jury researchers observe, and jurors themselves often complain, that there are too many exhibits, that the jury is not told which ones are important and why, and that the task of finding particular exhibits during deliberations was often difficult to impossible.¹⁴

      Concluding that these complaints are well-taken in too many cases, the Task Force recommends that the following language be incorporated into the Official Comment to D.R.E. 611.

      Document Control:

      1. The trial judge should become involved as soon as possible, and no later than the pretrial conference, in controlling the number of documents to be used at trial.
      2. For purposes of trial, only one number should be applied to a document whenever referred to.
      3. Copies of key trial exhibits should, in the Court's discretion, be provided to jurors for temporary viewing or for keeping in juror notebooks.
      4. Exhibits with text should and, on order of the court, shall be highlighted to direct jurors' attention to important language. Where necessary to an understanding of the document, that language should be explained.
      5. At the close of evidence in a trial involving numerous exhibits, the trial judge shall ensure that a simple and clear retrieval system, or index, is provided to the jurors to assist them in finding exhibits during deliberations.

      Document Depository: In complex, multi-party and document-intensive cases, document control can begin after the pleading stage and before disclosure or discovery commences. By assuring that a "document depository" is established early on, the trial judge enhances the chances of effective document control at trial and saves counsel and the parties substantial time and costs.

      In such cases, the attorneys can by agreement establish and operate a joint depository for all case-related documents. Absent a voluntary arrangement, the court should order the establishment and operation of a depository and appoint someone to be responsible for its operation. Costs should be shared among the parties, either by agreement or by order.

      All documents disclosed or discovered are required to be deposited in the single depository. There would be no need to serve copies on other parties; a simple notice of filing should suffice. Each document received by the depository should be separately numbered. Duplicates can be eliminated. Parties wishing to read or copy any document could do so under the supervision of the depository custodian. For trial purposes, custody of all documents, an index and other important depository records could be maintained by the depository or transferred to the clerk of the court. The document numbers assigned by the depository, and uniformly used by counsel prior to trial, would provide the basis for exhibit numbers at trial.

   9. Deposition Summaries Should be Used

      To reduce the tedium of reading the contents of a deposition to the jury, and in order to improve juror comprehension of the relevant deposition testimony, counsel should be encouraged and, in some cases, required to prepare concise written summaries of depositions for reading at trial. Copies of the summaries should be provided to the jurors before they are read.

      Commentary:

      The Task Force supports this recommendation. The reading of depositions at trial, question and answer by question and answer, is a tedious exercise that often drives the most committed jurors to distraction. Deposition reading also unduly prolongs many civil trials. Although no empirical data could be found on the subject, an assumption was made that juror comprehension of a witness' testimony is negatively affected by having the deposition contents read verbatim.

      Encouraging or requiring lawyers to prepare and read concise summaries of depositions is by far the preferable practice. Where the attorneys are unable to agree upon part of a summary (or separate summaries of direct and cross-examination), the court should offer to settle any differences. Copies of the written summaries may be, in the court's discretion, provided to the jurors prior to their being read. Once the summary is read, the jurors' copies could be collected or left with the jurors.

      Although the actual words used in some deposition testimony might be so important to a party's case that a word-for-word reading would be warranted, if summaries are used for most depositions, trial time will be saved and juror attention and comprehension will be enhanced.

      To accomplish this goal, the Task Force recommends that Super.Ct.Civ.R. 32 be amended by adding the following to Super.Ct.Civ.R. 32(e):

      In its discretion, and in lieu of a reading of an uncontroverted deposition's text or a portion thereof, the court may require the reading of a concise written summary of a deposition sought to be used at any hearing or trial.

      We also suggest that the following language be added to the Official Comments to D.R.E. 611:

      Deposition summaries. In order to improve jury attention to and comprehension of the contents of depositions used at trial pursuant to Super.Ct.Civ.R. 32(e) this rule now sanctions the use of concise written summaries of uncontroverted depositions in lieu of reading the text or portions thereof. The trial judge is given the power to compel the use of summaries when thought necessary.

      Naturally, it is expected that trial judges shall encourage the use of deposition summaries and facilitate the task where necessary.

   10. Allow Jurors to Ask Questions

       Jurors should be allowed to ask questions during trials of civil and criminal cases, subject to careful judicial supervision. At a minimum the safeguards should include: telling the jurors in advance of trial of the procedures to be followed; having questions put in writing and left unsigned; discussing the question with the attorneys and allowing them to object to the question out of the jury's presence; the asking of the question of the witness by the judge; and telling the jurors that the law may prevent some of their questions from being asked.

       Commentary:

       The Task Force does not support this recommendation with regard to criminal cases. The Task Force defers making a recommendation regarding juror questioning in civil cases until experimentation with juror questioning provides a clearer picture of the costs and benefits of the process.

       The practice of permitting jurors to ask questions during trial is new to Delaware. Other state courts have permitted such questioning.¹⁵

       Many authorities have concluded that carefully controlled juror questioning enhances active participation by jurors in the fact-finding process and improves juror comprehension.¹⁶ Among the advantages of juror questioning are: it assists in clarifying information and avoiding confusion; jurors remain more alert and better focused; jurors seem more satisfied concerning their roles at trial; and their questions may reveal juror confusion or misconduct.¹⁷ If proper safeguards are announced and carefully followed, no substantial risks are incurred.¹⁸

       For purposes of experimentation, the Task Force recommends that the recommended amendment to Super.Ct.Civ.R. 43(a) be adopted as an Interim Rule for a period of one (1) year. The Task Force recommends that the following language be added to Super.Ct.Civ.R. 43(a) to assure jurors the right to ask questions in civil trials:

       Juror Questions. At the discretion of the trial judge, jurors shall be permitted to submit written questions of witnesses to the court.

       The Task Force would also suggest that the official comment to this rule, interim or permanent, contain the procedural safeguards thought necessary by the authorities cited.

       Official Comment

       The following procedures are suggested for juror questioning:

       The jurors should be instructed about the procedures for juror questions in advance of the taking of evidence. Jurors' questions must be in writing and left unsigned. Jurors should be instructed to give their questions to the bailiff. If a juror has a question for a witness about to leave the witness stand, the juror should communicate that fact to the court. After receiving the question, the judge must allow counsel an opportunity to object to it out of the presence of the jury.

       If found to call for admissible evidence, the question should be asked or answered by stipulation or other appropriate means. If a jury question calls for inadmissible evidence, the question shall not be read, and the jury should be told that trial rules do not permit some questions to be asked and that the jurors should not attach any significance to the failure of having their question asked.

       A suggested preliminary jury instruction implementing the procedure should be framed as follows:

       Questions by Jurors

       Delaware practice governing jury trials prohibit jurors from asking questions directly of a witness or of the lawyers. However, you may have questions from time to time. If one is important to you please write it down, do not sign it, and hand it to the bailiff if you have a question for a witness about to leave the witness stand. The bailiff will bring it right to me. Please do not confer with each other regarding questions to be asked. Your question should start with who, what, when, where or why.

       If I decide that the question is a proper one, the attorneys and I will attempt to provide an answer at the earliest logical opportunity. Where deemed appropriate, the court shall read the question to the witness who will then answer the question asked. Keep in mind that the rules of evidence or other rules of law may prevent some of your questions from being asked.

       Do not speculate as to why your question was not asked, if it wasn't. The failure to answer a question is not a reflection on the person asking it.

   11. Educate Attorneys and Judges Concerning Interim Summaries During Trial

       Trial judges and attorneys should be made more aware of the advantages of interim summaries for the jury after discrete segments of especially long trials or trials in unusually complex cases.

       Commentary:

       The Task Force does not support this recommendation with regard to criminal cases. The Task Force recommends experimentation with the use of interim summations with regard to civil cases with the consent of the parties. Interim summaries or arguments by counsel after the conclusion of discrete segments of protracted or complex civil cases have been found to be advantageous.¹⁹ Interim summaries can enhance jury comprehension, aid juror recall of the evidence and help jurors avoid making premature judgments in the case.²⁰

       The Task Force recommends that lawyers and judges consider utilizing interim summaries, on an experimental basis, in lengthy and complex civil cases.²¹ It was not thought necessary to recommend a rule recognizing the technique or to give the trial judge the authority to compel interim summaries.²²

       However, and because of the potential for assisting juries in at least a limited number of cases, the Task Force recommends that trial judges and attorneys become educated in the effective use of interim summaries in appropriate situations, given the understandable needs of the jurors for "help along the way" in unusually long civil trials or in civil trials of unusually complex cases. Following an adequate experimentation phase, the Task Force would then be in a position to make a concrete recommendation regarding the use of interim summaries in certain civil cases.

   12. Use Modern Information Technology More Often in Trials

       Trial lawyers and judges should become more aware of the availability, advantages and costs of the technologies, present and future, that can aid the parties in case presentation and the jury in understanding and recalling the evidence.

       Commentary:

       The Task Force supports this recommendation. Courtroom technology can improve juror understanding and makes trials more interesting by simplifying, clarifying and demonstrating large amounts of information, by increasing juror attention to and memory of the evidence as they are given greater opportunity to visualize the material, and by facilitating instantaneous recall of evidence. However, use of technology at jury trials poses risks too. For example, new and greater opportunities are presented for the manipulation of data. The inability of some parties, especially in criminal cases, to afford such trial aids can raise serious policy and constitutional problems.

       Technologies now available for use at trial in "hi-tech" or "multi-media" courtrooms include videotaped testimony; use of videophone for live long distance testimony; computer generated CD-ROM-driven graphs, charts, simulated reenactments, and other informative graphics; electronic recall of documents; and bar codes and touch-screens that allow juror interaction with stored information to recall past evidence. In the near future laser and other technologies will create even more opportunities for lawyers and jurors.

       Unfortunately, utilization of currently available technology in trials is very low. Among the apparent reasons is a lack of information about availability, advantages and costs for lawyers, their clients and judges.

       The Task Force notes that the Delaware Supreme Court has established a committee to address these issues and facilitate greater and appropriate use of current and future technology. By our recommendation, we merely wish to endorse this effort.

   13. Allow Jurors to Discuss the Evidence Among Themselves During the Trial

       After being admonished not to decide the case until they have heard all the evidence, instructions of law and arguments of counsel, jurors should also be told, at the trial's outset, that they are permitted to discuss the evidence among themselves in the jury room during recesses.

       Commentary:

       The Task Force supports this recommendation. The traditional admonition that forbids any and all discussions about the case among jurors until deliberations commence is a corollary of the "passive juror" model. Through enforced passivity, jurors are expected to merely store all evidence for later use and to suspend all judgments until the trial is over. The assumption is that pre-deliberation discussions of the evidence by jurors will inevitably lead to premature judgments about the case.

       The Task Force concluded that this limitation of all discussions among trial jurors and the accompanying assumption that jurors can and do suspend all judgments about the case are unnatural, unrealistic, mistaken and unwise. Behavioral researchers agree that the juror's natural tendency is to actively process information at and after it is received, forming at least tentative preferences or judgments about the evidence as they do.²³ By their own admissions to jury researchers, at least 11 to 44% of jurors discuss the evidence among themselves before deliberations.²⁴

       We agree with those who favor permitting structured or regulated discussions of the evidence among jurors during trial as long as they are told that it is important to reserve final judgment until the entire case has been presented and why it is important to do so. These authorities conclude that the traditional rule forbidding all discussions is anti-educational, nondemocratic and not necessary to ensure a fair trial.²⁵

       Structured jury discussions of the evidence during trial will benefit the jurors and the trial in a number of ways:

       1. Juror comprehension will be enhanced, given the benefits of interactive communication;
       2. Questions can be asked and impressions shared on a timely basis rather than held until deliberations or forgotten;
       3. A juror's tentative or preliminary judgments might surface and be tested by the group's knowledge; and
       4. Divisive "fugitive" conversations and cliques might be reduced, given the opportunities for "venting" in the presence of the entire jury in the jury room.

       Super.Ct.Civ.R. 39(a), Super.Ct.Civ.R. 39(aa) and Super.Ct.Crim.R. 23(a) should be amended to provide that:

       Trial jurors shall be instructed that they are permitted to discuss the evidence among themselves in the jury room during recesses from trial, when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence.

       A suggesting preliminary jury instruction, one that accommodates jurors' natural tendencies, but which discourages premature decisions on the ultimate issue would provide as follows:

       Juror Discussions

       During the trial you may talk with each other about the evidence, but only privately in the jury room during recesses when all jurors are present.

       However, do not make up your minds about guilt or innocence [who should win the case] until you have heard all the evidence, my instructions of law, arguments of counsel and your deliberations have begun.

       You are not to discuss the case with anyone other than your fellow jurors when all are present in the jury room.

   14. Use Only Plain English in Trials, Especially in Legal Instructions

       Judges and lawyers should keep legalese and other technical terms to an absolute minimum at trial. Instructions on the law should be in clear and understandable language.

       Commentary:

       The Task Force supports this recommendation. The legalese and other technical jargon frequently used by attorneys and judges during trial is lost on most jurors and is a major source of confusion and frustration for them. For example, the high rate of failure of jurors to fully understand legal instructions is specially documented.²⁶ A committee, chaired by Judge Susan Del Pesco, has just completed a standard civil jury insructions handbook. The product was edited by a linguistics expert with a view towards juror comprehension.²⁷ Another committee, chaired by Judge Richard R. Cooch, is expected to produce a similar product on standard criminal jury instructions. With regard to each set of standard jury instructions, they are intended to be written for the jury, with their needs in mind, not for the appellate court. They will be understandable to an adult with a high school reading level.

       The Task Force also recognized that remarks between and among lawyers and judges and those made by them to the jurors during trial must often sound like a foreign language to the jurors. Technical legal terminology is used too often, when plain English will do. Sometimes judges and trial lawyers even lapse into Latin in front of the jury. Too often jurors are spoken down to. At the same time, communications intended for their consumption go right past them. The language of trials should be demystified for the jury. The new standard jury instruction handbooks, for both civil and criminal cases, will go a long way to demystify the language of trials.

   15. Do Not Keep Jurors Waiting While Instructions are Settled

       The trial judge and counsel should have the final jury instructions substantially ready by the close of evidence. If additional preparation is needed following the close of evidence, the jurors should be released, overnight if necessary, in order to avoid keeping them waiting.

       Commentary:

       The Task Force supports this recommendation. Frequently, juries are kept waiting for long periods of time while instructions are being settled by the judge and attorneys. A requirement that proposed instructions dealing with substantive issues be submitted no later than the start of trial ought to be and is now, at least with regard to civil cases, uniformly enforced. Even in those few cases where it is not practicable to seriously consider final instructions until the close of evidence, the jury ought to be sent home, or at least given a long break, while the instructions are discussed, settled and a record and copies made.

       These and other techniques are available to reduce, if not eliminate, unnecessary delay and waiting by the jurors near the end of the trial.

   16. Make Jury Instructions Understandable and Case-Specific and Give Guidance Regarding Deliberations

       In addition to couching jury instructions in plain English, they should be case-specific where possible (e.g., use of parties' names) and should give the jury some suggestions regarding the deliberation process.

       Commentary:

       The Task Force supports this recommendation. The need to rewrite current pattern instructions in plain English has been addressed.²⁸ Reliance on such generic forms creates other problems in understanding. Experts tell us that jury instructions should be as case-specific as possible, utilizing parties' names and actual fact issues in more complex cases. The more closely tailored the law to the case the higher the level of comprehension.²⁹

       In addition, the more instructions there are, the greater the task in understanding them. Accordingly, the volume should be reduced to the absolute minimum.³⁰

       Finally, many jury experts stress the need for the jury to hear from the judge at least a brief discussion about the deliberation and group decision-making processes.³¹ Delaware Superior Court judges routinely add such an instruction as part of the charge. An example of a jury instruction that addresses both subjects follows:

       Conduct During Jury Deliberations

       How the jury conducts its deliberations is within the province of the jury itself. However, I would like to suggest that you discuss the issues fully, giving all jurors a fair opportunity to express their views, before committing yourself to a particular position. Jurors have a duty to consult with one another with an open mind and to deliberate with a view to reaching a verdict. Each of you should decide the case for yourself, but only after impartially considering the evidence with your fellow jurors. You should not surrender your own opinion or defer to the opinions of your fellow jurors for the mere purpose of returning a verdict, but you should not hesitate to re-examine your own view and change your opinion if you are persuaded by another view.

       You are officers of the Court, and must act impartially. Throughout your deliberations you may not be influenced by passion, prejudice, sympathy, the consequences of a verdict, or any motive except a desire to declare the proper verdict upon the evidence and law.

   17. Do not Instruct Juries on Jury Nullification; However the Rules of Evidence Ought to be Expanded in Recognition of the Jury's Power to Nullify

       Juries should not be instructed on the subject of jury nullification. However, relevancy rules should be amended or interpreted to permit greater latitude in evidence in recognition of the jury's undoubted power to nullify the law. For example, evidence of the defendant's intent and motive ought to be received in most cases.

       Commentary:

       The Task Force supports this recommendation at least insofar that juries should not be instructed on the subject of jury nullification. Inherent in the jury's return of a general verdict in criminal cases is the power to nullify the law. The exercise of this power to acquit a criminal defendant despite the law is unreviewable, given the constitutional prohibition against double jeopardy.

       Most authorities state that this is a power of the jury outside the law about which they should not be told in the instructions.³² Others claim that it is a right deeply rooted in the notion that juries must be able to decide the law as well as the facts and ignore or nullify the law where its application would result in an injustice, a right about which the jury ought to be instructed.³³

       The Task Force agrees with the traditional view that while juries in criminal cases have the unreviewable power to acquit despite the law, there is no "right" to jury nullification on the part of the jury or either party and that the jury ought not be instructed on the subject.

       Given the ongoing debate, the Task Force recommends that the subject of nullification be handled as follows at jury trials:

       1. The jury should not be instructed one way or the other regarding jury nullification in criminal cases. Rather, they should be instructed that they are bound by the juror's oath to follow and apply the law that is read and given to them in the final instructions.
       2. In civil jury trials, jurors should be instructed that they must follow the law in the instructions, and apply the law that is read and given to them in the final instructions.
       3. Attorneys in criminal and civil trials should not be permitted to argue jury nullification. However, attorneys should be allowed to request and argue for a "just" result or verdict.

       There was no sentiment among the Task Force for a recommendation that juries in criminal cases be informed of the range of sentence. However, an argument can be made that the jury cannot do justice in the case without knowing the punishment. Delaware case law currently prohibits consideration by the jury of the consequences of their verdict. See e.g., Rush v. State, Del.Supr., 491 A.2d 439, 446 (1985); McCarthy v. State, Del.Supr., 372 A.2d 180 (1977); Aizupitis v. State, Del.Supr., 699 A.2d 1092 (1997). The Task Force sees no need to change current law in this area.

   18. Give Jurors Copies of the Jury Instructions

       The judge's preliminary and final instructions should be in writing. Each juror should be given copies of both. The jurors should be able to take their copies of the jury instructions with them to the jury room, especially during deliberations.

       Commentary:

       The Task Force supports this recommendation. Studies of the practice of furnishing jurors with written copies of the judge's legal instructions attest to its advantages. They are: increased understanding of the instructions; facilitation of deliberations; reduction in the number of questions about the instructions during deliberations; and increased confidence of the jurors in their verdict.³⁴

       Because of the rather obvious advantages of furnishing at least several copies to the jury, most if not all Delaware Superior Court judges do so.³⁵ However, it is only in the most serious cases in which every juror has been supplied with a copy of the instructions.

       The Task Force was of the unanimous view that a copy of the final instructions ought to be given to each juror in all complex civil cases and in all first degree murder cases, and that they be able to take their individual copies with them into deliberations.

       To assure jurors these rights in every case, the following rules should be amended in the manner shown:

       Super.Ct.Crim.R. 30

       Jurors' Copies. The court's final instructions on the law shall be in written form and at least four copies of the final instructions shall be furnished to the jury upon retiring for deliberations. In every first degree murder case, each juror shall be furnished with a copy of the final jury instructions upon retiring for deliberations.

       Super.Ct.Civ.R. 51

       The court's final instructions on the law shall be in written form and at least four copies of the final instructions shall be furnished to the jury upon retiring for deliberations. In every complex civil case, each juror shall be furnished with a copy of the final jury instructions upon retiring for deliberations.

       The Task Force felt that providing copies of the preliminary instructions to the jury should be left to the sound discretion of the Court.

   19. Read the Final Instructions Before Closing Arguments of Counsel, Not After

       To increase juror understanding of the law and its relation to the case, their understanding of closing arguments, and to facilitate the arguments, the final instructions ought to be read before closing arguments by counsel.

       Commentary:

       The Task Force supports, as an option, this recommendation. The traditional method of instructing juries is that such instructions be given following closing argument. However, Super.Ct.Civ.R. 51 and Super.Ct.Crim.R. 30 permit the judge to charge the jury before or after arguments, or both.

       The Task Force found that Delaware Superior Court judges often follow tradition by instructing after the attorneys argue despite the obvious appeal in reversing that order so that jurors can learn of the law they are to apply before hearing counsel sum up. Studies of instructing juries before argument, as opposed to after, suggest a number of advantages. For one, jurors are better equipped to evaluate the arguments generally. When they have heard the law first, jurors are at an advantage when they attempt to integrate the attorneys' summations of the facts with the instructions. Finally, since the jury has already been instructed, counsel are relieved of the awkward, if not unseemly, task of "predicting" for the jury what the instructions will be and of explaining legal concepts they may not have heard yet.³⁶ The experience of some of the Task Force members who routinely instruct before closing arguments is consistent with the studies' results.

       At the same time, the sentiment of the Task Force opposes changing Super.Ct.Civ.R. 51 and Super.Ct.Crim.R. 30 to require that jury instructions precede closing arguments.³⁷ These Rules, as currently written, give the Court discretion as to when the Court should give its final instructions. The Task Force feels that continued discretion in this area is desirable.

   20. Alternate Jurors Should Not be Released From Service in Criminal Cases Until a Verdict is Announced or the Jury is Discharged

       Because of the ever-present risk of losing a deliberating juror to illness or other personal emergency, which would reduce the jury in a criminal case below the minimum number required for a verdict, alternate jurors should be admonished that they might be needed for deliberations and to continue to observe all the rules governing jurors' conduct until notified of a verdict. If an alternate is substituted, the jurors should be instructed to begin deliberations anew.

       Commentary:

       The Task Force supports this recommendation. According to practice and in accordance with the Delaware Constitution, alternates are discharged and released at the close of the case. The jury then begins its deliberations with only the minimum required by law.

       In many criminal cases, deliberations last longer than one or two hours. In some cases, it takes the jury days to reach its verdict. If, during deliberations, a juror dies, becomes seriously ill or must be excused on account of a grave personal or family emergency, a mistrial results since the size of the jury has been reduced below that required by law for a verdict. While Super.Ct. Crim.R. 23 allows for a jury of less than twelve to render a verdict when a juror must be excused during deliberations, rarely if ever in a criminal case has the defendant stipulated that such a verdict would be acceptable.

       In order to avoid automatic mistrials in those cases where the parties do not agree to a jury of less than twelve, the Task Force recommends that jurors chosen as alternates in criminal cases be instructed to continue to observe all the admonitions until notified that a verdict has been returned or the jury discharged, as one or more of the alternates might be needed to join deliberations and to vote on the result. If a deliberating juror is lost, the trial judge can replace the juror with an alternate. If such a substitution is made, the jury should be told that deliberations must begin anew because of the substitution. Whether an alternate is substituted during deliberations should be left to the sound discretion of the trial judge, taking into account such factors as the nature and complexity of the case, the length of deliberations already had and whether the alternate has carefully followed the court's admonitions since being physically excused.

       The committee recognizes that in order to accomplish this recommendation, an amendment to the Delaware Constitution is required.³⁸ The following amendment to Del.Const. art. I, Section 4 would suffice:

       Trial by jury shall be as heretofore provided that: In criminal cases, the alternate, or alternates, upon being physically excused by the court, shall be instructed to continue to observe the admonitions to jurors until they are informed that a verdict has been returned or the jury discharged. In the event a deliberating juror is excused due to inability or disqualification to perform required duties, the court may substitute an alternate juror, choosing from among the alternates in the order previously designated, unless disqualified, to join in the deliberations. If an alternate joins the deliberations, the jury shall be instructed to begin deliberations anew.

   21. Allow all Jurors Remaining at the End of a Civil Trial to Deliberate and Vote

       No juror should be designated an alternate and excused at the end of civil cases. All jurors who remain at the close of arguments should deliberate upon and decide the case. The number of jurors' votes needed for a verdict should be determined by the trial judge to assure that the requirement of a unanimous vote is met.

       Commentary:

       The Task Force supports this recommendation for civil cases with the exception that unanimity should be required regardless of the number of jurors deliberating. Again, a constitutional amendment would be necessary.

       To accomplish this recommendation and taking into account Recommendation 20, the following amendment to Del.Const. art. I, ' 4 would suffice:

       Trial by jury shall be as heretofore provided that:

       1. In criminal cases, the alternate, or alternates, upon being physically excused by the court, shall be instructed to continue to observe the admonitions to jurors until they are informed that a verdict has been returned or the jury discharged. In the event a deliberating juror is excused due to inability or disqualification to perform required duties, the court may substitute an alternate juror, choosing from among the alternates in the order previously designated, unless disqualified, to join in the deliberations. If an alternate joins the deliberations, the jury shall be instructed to begin deliberations anew.

       2. In civil cases, no alternate juror shall be excused at the end of the case. All jurors who remain at the close of arguments should deliberate upon and decide the case. Unanimity shall be required regardless of the number of jurors deliberating.

   22. Juror Contact

       In limited circumstances, lawyers ought to be given an opportunity to speak with jurors in civil cases if the jurors wish to do so.

       Commentary:

       The Task Force supports this recommendation. Because of interest on the part of many jurors, because of the instructional benefits available, and because of the ability of the Court to exercise discretion and control, the Task Force, upon review of experiences of other jurisdictions permitting jury contact, recommends the following amendment to Rule 3.10(d) of the Rules of Professional Conduct. This does not affect any other portion of Rule 3.10.

       (d)(i) If any counsel in a civil case requests, the trial judge (or Court official taking the verdict) may permit any jurors so desiring to speak with any counsel interested. The Court may designate a location in the courthouse for that purpose.

       The following is an illustration instruction:

       Ladies and gentlemen, on occasion, some jurors are interested in speaking to or asking questions of the lawyers in a case.

       If any of you would like to discuss the case with counsel (or either of them, or any of them, depending upon which counsel so requests) you are free to do so. This is entirely up to you. You certainly have no obligation to speak to anyone.

       (Optional)

       For these purposes, (the names of any lawyers interested) will be in different areas of the courtroom (or will come into the jury room).

       The intent of this recommendation is, as stated, to accommodate natural juror curiosity and potentially improve future trial presentation. The opportunity is expressly not designed to be used by counsel to accumulate support for post trial procedures. Hence, counsel are not permitted to probe into jury deliberations. Any information obtained may not be included in any motion or appeal without prior approval, separately determined by the trial judge upon application made to the Court not later than the close of business of the Court on the court day following the rendition of the verdict by the jury.

   23. Statement on the Existence and Effect of Insurance in Civil Cases

       Upon request of counsel, a civil jury ought to be informed about the existence and effect of insurance.

       Commentary:

       The Task Force supports this recomendation. The Task Force recommends the following as an instruction to be given in civil trials after the selection of the jury and any alternates, but before opening statements, upon request by counsel:

       Some of you may be wondering about the existence and effect of insurance in a case such as this. In this case, that would not be relevant to any of the issues you will decide. Therefore, you should not consider that question at all.

   The Task Force on Post-Verdict Stage offers the following report:

3. POST-VERDICT STAGE RECOMMENDATIONS

   1. Become Proactive in Detecting and Treating Juror Stress

      After trials likely to cause unusual stress or trauma for jurors, the judge should conduct an immediate jury debriefing with the help of a mental health professional. One follow-up visit with the professional ought to be provided at no cost. Any juror needing further aid should be referred to community resources.

      Task Force comments:

      The Task Force does not support this recommendation.

   2. Assist Jurors in Coping With Fears of Contact or Retaliation

      When jurors express what appear to be reasonable concerns about the dangers of being contacted or made the target of retaliation during or following trial, the court should, after notice to the parties, conduct a debriefing and make referrals to law enforcement authorities as necessary.

      Task Force comments:

      The Task Force considers this recommendation appropriate, and suggests we determine whether it is already included in the jury handbook.

   3. Solicit Jurors' Reactions to Their Courthouse Experiences

      The jury manager and trial judge should conduct regular surveys of juror responses to jury service in general and to the trial in particular. Survey results should be tallied and reviewed by judges, jury managers and court policy makers.

      Task Force comments:

      The Task Force supports the concept that jurors' reactions be surveyed, but would suggest it be done by an exit survey conducted by the jury manager. This process is already in force in New Castle County.

Return to Task Force Report Table of Contents.

1. The Delaware Task Force on the More Effective Use of Juries (the Task Force) commissioned one of its members, Dr. Valerie Hans of the University of Delaware, to survey juror/judicial sentiment regarding many of the areas which the Subcommittee on Trials was assigned to study and the furnish recommendations in regard thereto. Dr. Hans' report, Report of the Juror Questionnaire Study provided a multitude of statistical data some of which is cited herein. Her report was based upon the answers given to a questionnaire which was completed by jurors who had sat on 36 jury trials and the judges who presided over 35 of those trials.

   Her report notes that most trials (83%) finished on the day estimated. Thus, Delaware attorneys appear to be providing accurate assessments as to the time necessary for the presentation of the case. See The Hans' Report, Section II, supra.

2. See Super.Ct.Crim.R. 8 and Super.Ct.Crim.R. 14. See also Wiest v. State, Del.Supr., 542 A.2d 1193 (1988); Skinner v. State, Del.Supr., 575 A.2d 1108 (1990); Younger v. State, Del.Supr., 496 A.2d 546 (1985); Mayer v. State, Del.Supr., 320 A.2d 713 (1974); Bates v. State, Del.Supr., 386 A.2d 1139 (1978); Lampkins v. State, Del.Supr., 465 A.2d 785 (1983); Burton v. State, Del.Supr., 149 A.2d 337 (1959); Jenkins v. State, Del.Supr., 230 A.2d 262 (1967), aff'd, Del.Supr., 240 A.2d 146 (1968), aff'd 395 U.S. 213 (1969); Bradley v. State, Del.Supr., 559 A.2d 1234 (1989). See also State v. Ellis, Del.Super., 375 A.2d 473 (1977); State v. McKay, Del.Super., 382 A.2d 260 (1978).

3. See generally Super.Ct.Civ.R. 19, 20, 21, 22, 23 and 24. See also Webster v. State Farm Mut. Auto Ins.Co., Del.Super., 348 A.2d 329 (1975); Bank of Del. v. Allstate Ins.Co., Del.Super., 448 A.2d 231 (1982); Hurwitch v. Adams, Del.Supr. 155 A.2d 591 (1959); Scott v. Kay, Del.Super., 227 A.2d 572, aff'd Del.Supr., 233 A.2d 52 (1967); John Julian Constr. Co. v. Monarch Bldrs., Inc., Del.Super., 306 A.2d 29 (1973), aff'd Del.Supr., 324 A.2d 208 (1974); Monsanto Co. v. Aetna Cos. & Sur. Co., Del.Super., 565 A.2d 268 (1989); White v. Metzer, Del.Super., 159 A.2d 788 (1960); Ebersole v. Lowengrub, Del.Supr., 208 A.2d 495 (1965); Rash v. C & M Corp., Del.Supr., 218 A.2d 670 (1966); McMichael v. Delaware Coach Co., Del.Super., 107 A.2d 895 (1954); Pennamco, Inc. v. Nardo Mgt. Co., Del.Super., 435 A.2d 726 (1981); Parker Realtors, Inc. v. Dutch Village, Inc., Del.Super., 174 A.2d 320 (1961); Bramble Transp., Inc. v. Sam Senter Sales, Inc., Del.Super., 294 A.2d 97 (1971), aff'd Del.Supr., 294 A.2d 104 (1972).

4. ABA Litigation Section Report, Jury Comprehension in Complex Cases, 36-37 (1989). See also Interim Report of the Council for Court Excellence, D.C. Jury Project, July 1997.

5. Dr. Hans reports that 56% of the jurors who were surveyed agreed that it would have been quite helpful to have been pre-instructed in the law. See The Hans' Report, Section II, supra. See also Section III, Tables, supra.

   The judges who participated in the Task Force survey reported that in 57% of their cases, some instructions were given at the beginning of the trial. See The Hans' Report, Section II, supra.

6. E.G., ABA Litigation Section Report, Jury Comprehension in Complex Cases 614-17 (1989); Elwork, Sales & Alfini, Juridic Decisions: In Ignorance of the Law or in Light of It? 1 L.& Hum. Beh. 163 (1977).

7. See Super.Ct.Civ.R. 51 and Super.Ct.Crim.R. 30.

8. Recommendation 14 (use of plain English in final instructions); Recommendation 16 (written copies of instructions for jurors).

9. Jurors were asked in the Task Force questionnaire a series of questions about notetaking, which was permitted in a minority of trials during the study period. Seventy-four jurors said that they were allowed to take notes in their trial, 235 said they were not allowed, and another 55 did not know whether they were allowed to take notes. Of the 74 jurors who could take notes, the vast majority (67) did so. Forty-nine percent of those who could not take notes said they would have liked to do so (ratings of 1, 2, 3, or 4 on a 9-point scale). Whether they were allowed to take notes during the trial or not, most of the trial jurors described themselves as fairly experienced notetakers, with an average of 6.2 on a 9-point scale taping experience with notetaking.

   Several questions assessed the experience of notetaking in trials. Those who did take notes rated them as quite useful: The average response was 6.6 on a 9-point scale. The majority of jurors refuted a common concern about notetaking: 74% agreed (1, 2, 3, or 4 rating) that it was very easy to pay attention to the trial proceedings and take notes at the same time. The amount that jurors relied on their notes varied. Twenty-four percent stated that they did not rely much on their notes (1, 2, or 3), another 35% relied on their notes a moderate amount (4, 5, or 6) and 41% stated that they relied on their notes a good deal (7, 8, or 9). Only 29% of the jurors agreed that jurors who had notes had more influence than jurors without notes (rating of 1, 2, 3, or 4). See The Hans' Report, Section II, supra; Section III, Tables, supra.

10. ABA Litigation Section Report, Jury Comprehension in Complex Cases, 602-06 (1989); Sand & Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U.L. Rev. 423, 448-49 (1985). See also Jury Note Taking: Exploring A New Frontier, Kathryn L. Wemmers, Esquire, December 12, 1996, attached as Appendix A to this Report.

11. American Judicature Society, Toward More Active Juries: Taking Notes and Asking Questions, 14 (1991).

12. Rosenhan, Eisner & Robinson, Notetaking Can Aid Juror Recall, L. & Hum. Beh., 53 (1994); ForsterLee, Horowitz & Bourgeois, Effects of Notetaking on Verdicts and Evidence Processing in a Civil Trial, L. & Hum. Beh. 567 (1994).

13. ABA Report, supra, at 29-31; A. Austin, Complex Litigation Confronts the Jury System 100 (1984).

14. Id.

15. See State v. LeMaster, 137 Ariz. 159, 669 P.2d 592 (App.1983)(approved as long as "scrupulously controlled" by trial judge); State v. Taylor, 25 Ariz.App. 497, 544 P.2d 714 (1976)(same; in dictum). D.R.E. 611(a) and 614(b) are thought by some to constitute additional authority for the procedure.

16. E.g., American Judicature Society, Toward More Active Juries: Taking Notes and Asking Questions (1991); Report by the Committee on Federal Courts of the New York Bar Association, 62 St.Johns L.Rev. 549, 558-61 (1988); Comment, Jurors Questions: A Survey of Theory and Use, 55 Mo.L.Rev. 817 (1990).

17. There are potential down-sides to jury questioning which must be recognized: delays in the trial; lawyer discontent; and, often, confusion over the form of the question.

18. In The Hans' Report, jurors were asked about a novel technique -- allowing jurors to ask questions under carefully controlled circumstances -- that is currently being used in a number of courts nationwide. They were told: "Imagine that after the lawyers had finished questioning the witnesses, there was a question that you felt should have been asked but wasn't. Some people have suggested that in this situation, jurors should be allowed to submit their questions in writing to the judge for the judge to ask the witness. We would like to know your general opinion about being allowed to ask questions in this way." Jurors were highly favorable to this reform. Fully 80% of the jurors said that they would have like to ask a question about the evidence in their trials, and 56% stated that they would have like to have asked a question about the law in their trials. Sixty-four percent said that it would have been very helpful to be able to ask questions (1, 2, or 3), while another 25% stated that it would have been moderately helpful (4, 5, or 6). The vast majority of jurors believed that they would feel free to ask questions, if allowed by a judge. See The Hans' Report, Section II, supra; Section III, Tables, supra.

19. ABA Litigation Section Report, Jury Comprehension in Complex Cases, 621-22 (1989); New York State Bar Report, supra, at 555-58.

20. ABA Litigation Section Report, supra; New York State Bar Report, supra; Higginbotham, Juries and Complex Cases: Observations About the Current Debate, in The Jury in American, 70, 78 (Guinther ed. 1987).

21. A majority concluded that use of interim summaries in criminal cases would not be productive or wise.

22. Current court rules appear to give the judge such authority, albeit by implication. See Super.Ct.Civ.R. 51.

23. E.G., R. Hastie, S. Penrod & N. Pennington, Inside the Jury, 24 (1983) and Forston, Sense and Non-Sense: Jury Trial Communication, 1975 B.Y.U.L. Rev. 601, 612.

24. Loftus & Leber, Do Jurors Talk?, 22 Trial 59, 60 (Jan.1986); Note, Jurors Judge Justice: A Survey of Criminal Jurors, 3 N. Mex. L. Rev. 352, 358 (1973).

25. A. Austin, Complex Litigation Confronts the Jury System, 103-04 (1984); Schwarzer, Reforming Jury Trials, 1990 U. Chi. L. Forum 119, 142-43; Friedland, The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. L. Rev. 190, 199, 208-09 (1990); and Austin, "Why Jurors Don't Heed Trials," National Law Journal, 15, 18 (Aug. 12, 1985).

26. See ABA Litigation Section Report, supra at 43-49 and 610-13; Steele & Thornburg, Jury Instructions: A Persistent Failure to Communicate, 74 Judicature 249, 250 nn. 10-17 (1991).

27. See Steele & Thornburg, supra at 254; Austin, "Why Jurors Don't Heed Trials," National Law Journal 15, 18 (1985).

28. See Recommendation 14.

29. ABA Report, supra at 47-48; Schwarzer, Communicating with Juries: Problems and Remedies, 69 Cal. L. Rev. 731, 732-36 (1981).

30. Schwarzer, supra at 747-55.

31. S. Kassim & L. Wrightsman, The American Jury On Trial, Psychological Perspectives, 131 (1988); Hastie, Penrod & Pennington, Inside the Jury, 230 (1988).

32. See e.g., Sharf v. United States, 156 U.S. 51 (1895); United States v. Powell, 936 F.2d 1056 (9th Cir.1991).

33. United States v. Dougherty, 473 F.2d 1113, 1142 (D.C. Cir.1972) (Bazelon, J., dissenting); Heumann & Cassak, Not-So-Blissful Ignorance: Informing Jurors About Punishment in Mandatory Sentencing Cases, 20 Am. Crim. L. Rev. 343 (1983). Compare Weinstein, Considering Jury "Nullification": When, May and Should a Jury Reject the Law to do Justice, 30 Am. Crim. L. Rev. 239 (1993).

34. ABA Report, supra at 51-52 and 622-26; New York State Bar Report, supra at 565; Sands & Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U.L. Rev. 423 (1985).

35. Dr. Hans reports that in 91% of the trials studied, written copies of the judge's instructions were given to jurors. See The Hans' Report, Section II, supra.

36. New York State Bar Report, supra at 563; Schwarzer, Reforming Jury Trials, 1990 U. Chi. L. Forum 119, 131-32; and Singleton & Kass, Helping the Jury Understand Complex Cases, 12 Litigation 11, 12 (Spring 1986).

37. Forty-two percent of the jurors surveyed by Dr. Hans agreed with the notion that it would have been helpful to receive judicial instructions prior to the attorneys giving their closing arguments. See The Hans' Report, Section II, supra.

38. See Del.Const. art. I, þ 4; Claudio v. State, Del.Supr., 585 A.2d 1278 (1991).