This August will mark the five-year anniversary of Michigan’s receipt of the G. Thomas Munsterman Award for Jury Innovation from the National Center for State Courts. You can certainly be forgiven for not recalling the 2012 event. There were a few other things going on that might have arrested your attention — the Tigers won the pennant that year and the Lions would go on to the playoffs.
However, the effort that earned us the Munsterman award — the Michigan jury reform project — deserves serious reflection, because it significantly improved our justice system. The path of our jury reform process also underscores the importance of trusting in our citizens and relying on common sense to overcome the temptation of staying with the status quo.
Michigan was given the 2012 national award for Jury Innovation in recognition of a new program that allowed our juries to become more engaged, informed and active in the cases they were hearing. The concept was simple: help jurors better understand the evidence and law presented at a trial, and to deliberate effectively to arrive at a fair verdict.
Before the reforms, jurors were treated like children: they were forced into very passive, disconnected roles inconsistent with their responsibility to make informed, just decisions. Old Draconian jury rules seemed to hinder, rather than help, the quest for truth. Jurors were not allowed to take notes, ask questions or speak to other jurors until formal deliberations. That began to change in 2009, when new jury rules were tested as part of a pilot program in 11 state courts. The biggest changes included:
■Jurors were allowed to submit written questions for witnesses.
■Jurors could discuss evidence with each other before formal deliberations.
■Jurors were given notebooks with witness lists, key exhibits and other relevant data about their case.
■Judges could require to-the-point summaries of depositions instead of having lengthy and often tedious transcripts read out in court.
Other changes included allowing expert witnesses to hear each other’s testimony, and permitting attorneys to present interim commentary.
During and shortly after the pilot program, rather predictably, the reaction from many lawyers was negative. A common refrain was “If it’s not broken, don’t fix it,” along with specific concerns that I believe boiled down to a lack confidence in the ability of jurors to think independently and accurately assess the evidence being presented.
As they say, change is hard, particularly for our tradition-bound legal profession.
The easy thing would have been to set the results on a shelf, make some cosmetic changes to our process and keep things more or less the same. But that path would have ignored the true need for change. Pilot jurors and judges alike strongly favored the new approach, with more than one participating judge noting they would not want to go back to the old system.
As a result, on Sept. 1, 2011 — ignoring some continued opposition from the bar — the Michigan Supreme Court enacted the jury reforms statewide, and national recognition followed. Five years and hundreds of cases later, I am proud of Michigan’s success making jurors a more engaged part of each trial.
Jurors perform a critical, indeed irreplaceable service to our society. History shows that any well-planned effort to provide jurors with more respect, more trust and more independence will yield positive results.
To that end, I believe Michigan now has a number of opportunities to build on its legacy of success in regard to juries and the jury process. Technology can play a role in making the jury participation process easier for residents. Calling down individuals for hours of potential jury duty, often only to send them home, is a poor use of our citizens’ volunteer time and is disrespectful.
In a time when it is increasingly hard in many communities to get citizens to perform jury service, the old way of doing things needs to end.
Five years have passed since Michigan’s in-court jury reforms gained national praise. It is now time to build on that thinking and find new ways to further improve our system. Government should serve its citizens, not the other way around. If the secretary of state can do it, our Michigan courts should, too.
Robert P. Young is former chief justice of the Michigan Supreme Court and currently of counsel for Dickinson Wright.