Michigan to Change Court Rules Regarding Jury Instructions

The State Bar of Michigan Blog today announced the decision of the Michigan Supreme Court to adopt changes to court rules regarding the role of the Jury in our court system. The order itself that lays out the new court rule can be found here, also through the SBM Blog.

For a quick summary of what the rule changes are, I’ll turn to the Detroit Free Press, because I haven’t made it through all of the Order itself, only the opinion that followed.

Michigan jurors will be able to pose question to witnesses, take notes, get mid-trial commentaries from lawyers and, in civil cases, discuss the evidence while the case is still in progress, under new jury rules.

A recent article in the Michigan Bar Journal also touched on the changes, and actually included a survey that was conducted when these changes were tested in pilot programs. They asked Attorneys and Jurors how they felt Questions During the Trial, Jury Discussion before Deliberation and Notebooks During the Trial affected their process.

Long story short: Jurors liked the programs. Attorneys did not. Overwhelmingly so, in some regards. In terms of discussion of the evidence, 91% of jurors found that this addition helped jurors reach a correct verdict or increased the fairness of the trial attorneys. 10% of Attorneys answered positively on that. In terms of notebooks, the numbers were a bit closer (85% from jurors, 43% from attorneys on the fairness question). Same with Juror Questions during the trial (64% from the jurors, 35% from Attorneys).

I’m certainly not naive to why this would be the outcome. I wouldn’t be a criminal defense attorney if I didn’t understand that. To an attorney, the trial is most definitely not about finding out what really happened. All of these devices tend to help the aspect of finding out what really happened as opposed to the story Attorneys want the jury to believe.

Look, there’s just no good reason why jurors shouldn’t be able to have notebooks and keep notes during the trial. It’s archaic nonsense to think otherwise. The other two areas are a bit more murky, so, I’ll leave that alone in terms of making bold statements (I like them, though). But, we don’t select our jury pools only from kids who dominate spelling bees. Normal people need to write some stuff down before giving a reasoned answer. Some more than others, but, why should the option be off the table?

I’m not saying that if I conduct a great trial that the jurors having notebooks, asking questions and discussing the case will help me win. That shouldn’t be the question. We shouldn’t be concerned with the fairness to Attorneys putting up W’s. The fairness of the results is what should matter. To answer that these things don’t help jurors in that regard seems a bit disingenuous.

Do these things change how lawyers will have to practice? Absolutely. It’s something that changes how you address jurors and prepare for trial because there are more checks in place that will ensure the trial is not simply about the better lawyer, but about the case in front of the jurors.

I haven’t been a practicing attorney for too long, having graduated from Michigan State University College of Law three years ago, so I welcome the changes as I’ll be learning to adapt with these changes at the same time as more experienced attorneys. Before criticizing that these changes don’t make things more fair, attorneys should probably look to how they can adapt to the changes.


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