Methods of conveying information to jurors: evidence review

3. Reform Initiatives and Practice in Comparable Jurisdictions

This chapter sets out the available evidence for the usage of the eight different techniques identified in chapter 1 in a range of comparable jurisdictions: Australia, Canada, England and Wales, Ireland, New Zealand, and the United States of America. Jury trials in these jurisdictions typically involve juries with 12 members (although smaller juries may be used for some cases in some US jurisdictions), two verdicts (guilty or not guilty) and a requirement that verdicts be reached by at least near-unanimity (10 or 11 of 12 jurors) and in some instances unanimity only. ^[245] This contrasts with the Scottish system of 15-member juries, three verdicts (guilty, not guilty or not proven) and verdicts being permissible by a simple majority (normally eight votes from fifteen members) rather than unanimity or near-unanimity being required.

3.1 Key Findings

• Juror note-taking and the use of structured decision aids (routes to verdict) are well-established across the jurisdictions surveyed. In respect of juror note-taking, this is only to the extent of advising jurors that they may take notes and not in the form of trial-ordered notebooks, which the empirical evidence suggests may be particularly beneficial. In a number of jurisdictions, written directions may go beyond structured decision aids and cover matters additional to the elements of the offence(s) and any defence(s).
• Pre-instruction is clearly established as good practice in a range of jurisdictions.
• Providing transcripts to the jury has become more common in recent years, but remains the exception rather than the rule and has been resisted in a number of jurisdictions.
• The practice of questions being asked by jurors is generally discouraged across the jurisdictions surveyed, despite occasional suggestions that this might be beneficial and the practice having been put on a statutory footing in one jurisdiction (New Zealand). In general, jurors are not normally advised that they may put questions to witnesses but a question may be put by the judge if a juror spontaneously requests this and the judge considers it appropriate to do so.
• There is very limited available evidence on the use of the other techniques surveyed in this report ( audio-visual methods of conveying information and plain language directions), although this may reflect only which practices are recorded in the materials surveyed rather than suggesting such methods are not used.

As noted in chapter 1, ^[246] none of these methods other than juror note-taking is established practice in Scotland.

3.2 Limitations

Two notes of caution are appropriate. First, jury systems afford a considerable deal of discretion to the trial judge in how a jury is instructed. The use of particular techniques need not have specific legislative sanction and judges who choose to use particular techniques will not necessarily use those techniques in exactly the same way as other judges. It is not therefore possible to state categorically that a particular technique is used in certain jurisdictions and not used in others: the use of any technique will normally be a matter for an individual judge in the context of a specific trial. It is, however, possible to identify where particular techniques have become established or explicitly sanctioned. This may be evidenced through standard judicial instructions (sometimes referred to as "bench books") where these exist and are made publicly available, the reported decisions of the courts, recommendations from official bodies, surveys of judges, or specific provision in legislation or court rules.

The absence of readily available evidence regarding a particular technique does not in itself demonstrate that it is not used. In particular, the sources consulted primarily document the use of particular practices by judges in directing juries, rather than by counsel in leading evidence from witnesses. It was not therefore possible in this study readily to identify evidence of established practice relating to audio-visual presentation methods (about which, as noted above, ^[247] there exists only a small number of research studies). This suggests such methods are not routinely used by judges in instructing juries, but implies nothing about their use in relation to particular types of evidence, which will in any event vary significantly depending on the evidence being led.

Secondly, bespoke solutions may be developed for complex or unusual trials. For example, in a recent and very lengthy English trial for conspiracy to cheat the Revenue (lasting for just under one year), the judge made the following remarks after passing sentence: ^[248]

The trial itself has taken a very long time and there are multiple lessons to be learnt from it. One thing I wish to say is that the use of iPads (or other tablet devices) was used in this trial very successfully. Each juror had an iPad on which the whole of the evidence was available through chronological schedules of events which contained links. They also had the legal directions, the Indictment, the admissions and everything else they required. They could annotate these, highlight them and so on. The support we received from the contractor was admirable. I am very grateful to the team for all that they have done. The jury very quickly learned how to operate their iPads and were able to access them in retirement. They had almost no paper at all.

This evidence review does not address the use of such bespoke solutions, which may not be recorded in the literature, but instead is concerned with techniques which can be routinely applied across a range of trials in the normal course of court business.

3.3 Australia

Criminal trial procedure in Australia differs between the various individual jurisdictions. The review here focuses on the three largest states - New South Wales, Victoria, and Queensland - which in total account for around three-quarters of the Australian population and where the most detailed accounts of practice and reform suggestions are available.

3.3.1 Transcripts

In New South Wales, there is legislative provision to the effect that a judge may supply a copy of all or part of the transcript of evidence at a trial to the jury if the jury requests it and the judge "considers that it is appropriate and practicable to do so". ^[249] In making the recommendation which led to this provision, the New South Wales Law Reform Commission drew on a survey of judges which revealed a split of views on whether the transcript might ever assist the jury. ^[250] The Commission cited the example given by one judge who suggested that the transcript might be of use "where the case turns upon: (a) precise words in conversation, (b) a comparison of details of events given by witnesses; (c) complex descriptions" and commented that "it would only seldom be appropriate to provide more than part of the transcript". ^[251] The current suggested directions in the Criminal Trial Courts Bench Book suggest that the jury should be told at the outset of the case that "[i]if you would like to have a copy of the transcript, either of all the evidence, or just of the evidence of a particular witness, then you only need to ask". ^[252]

In Queensland, the Supreme and District Courts Bench Book suggests that juries should be directed at the outset that although the proceedings are being recorded, it is not the practice for a jury to be supplied with a copy of the transcript, but that if the jury need to be reminded of what any of the witnesses said it can be read back to them. ^[253]

In Victoria, the judge may order that the transcript of some or all of the evidence in the trial be given to the jury for the purpose of helping the jury to understand the issues or the evidence. ^[254]

3.3.2 Note-taking

The suggested preliminary directions for juries in New South Wales, Victoria and Queensland all propose that juries should be told that they may take notes if they wish but should not allow this to distract them from assessing the witnesses and their evidence. ^[255]

3.3.3 Allowing or Encouraging Questions During the Trial

In a recent New South Wales decision, the Court of Criminal Appeal was highly critical of the trial judge for having directed the jury during her introductory remarks that they were entitled to ask questions of the witnesses, an invitation which the jury had taken up to the extent of asking 56 questions. This had "crossed the boundary to the point in which the very nature of the trial was altered in a fundamental respect". ^[256] While this does not appear absolutely to preclude allowing a question from the jury to be put to a witness (as may be done in Victoria and Queensland, discussed next), it demonstrates a clear disapproval of jury questioning.

In R v Lo Presti, the Supreme Court of Victoria noted the "perils" of jury questioning and formulated the following guidelines for trial judges: ^[257]

1. Juries should not be told of any right possessed by them to question a witness.

2. A juror who wishes to put, or have put, a question to a witness has a right for that to be done provided that the question or questions is or are limited to the clarification of evidence given or the explanation of some matter about which confusion exists.

3. It is not essential that the question asked be formulated by the foreman.

4. It is highly desirable that the question sought to be asked first be submitted to the judge so that he may consider its relevance and admissibility.

5. If the judge allows the question it is immaterial whether it is actually asked by the juror or the judge. However, if the judge puts the question there will be removed the risk that exists when a layman is the questioner of the generation of a spontaneous exchange of questions and answers in the course of which improper material may emerge.

In Queensland, the Supreme and District Court Benchbook offers a form of direction to be offered for when a juror raises the issue of putting a question to a witness, based on the decision in Lo Presti: any potential question should be submitted to the judge in writing, and the judge will decide whether it is to be put to the witness. If it is put to the witness this will be done by the judge. ^[258]

3.3.4 Pre-instruction

The suggested preliminary directions for juries in New South Wales propose that juries should be directed at the outset on "where known, the issues to be raised in the trial", and that these should be recorded in a written document to be provided to the jury for reference during the trial, alongside a number of other issues. ^[259]

This topic was the subject of extensive discussion in the Victorian Law Reform Commission's 2012 report on Jury Directions , which recommended that: ^[260]

The jury should receive guidance about the issues that are in dispute from the start of the trial, although those issues may be narrowed and refined as the trial proceeds. Jurors should not have to wait until the end of the trial, as sometimes happens, to fully understand the relevance of the evidence they have heard.

3.3.5 Written Directions and Structured Decision Aids

In New South Wales, judges have had express statutory sanction for giving written directions to juries since 1987. ^[261] This provision implements a recommendation of the New South Wales Law Reform Commission, which noted that it was clear that judges already had this power, but "some are wary of exercising the discretion over the objections of counsel". ^[262] Written directions may be given at any point during the trial. ^[263] The Criminal Trial Courts Bench Book suggests that "in an appropriate case written directions on the elements of the offences and available verdicts and any other relevant matter be given to the jury before counsel address but with a short oral explanation of the directions". ^[264]

All this refers to written directions generally rather than to structured decision aids, although it is clear from reported case law that structured decision aids are used in at least some cases. ^[265] A 2014 case noted that "question trails" were "common practice in some jurisdictions, including other States and Territories of Australia, and [are] becoming more common place in this jurisdiction [and] can be of great use in complex trials". ^[266] A 2016 speech to the District Court Annual Conference by a New South Wales judge, endorsing the practice of using question trails as in New Zealand and making recommendations as to how this should be done, has been published on the Supreme Court website. ^[267]

In Queensland, the Supreme and District Court Benchbook notes that "self-defence is recognised as a difficult area in which to direct a jury" and that a judge "should endeavour to lay out a logical and coherent pathway for the jury e.g. by written aids, flow charts etc" but does not appear to address the question of written directions or structured decision aids more generally. ^[268] There is a relatively small number of reported appellate decisions in which the use of a "question trail" by the trial judge is recorded, and where the court has considered the terms of the question trail but has not commented on the practice of using such aids. ^[269]

In Victoria, written directions and structured decision aids are explicitly sanctioned by section 223 of the Criminal Procedure Act 2009, following various amendments made to that section between 2013 and 2017. ^[270] The effect of that provision is summarised in the Victoria Criminal Charge Book as follows: ^[271]

Under the Criminal Procedure Act 2009 s 223, a judge may give the jury written directions summarising relevant matters of law, setting out the questions it may be pertinent for them to consider, or describing the possible verdicts at which they may properly arrive.

Written directions may be particularly helpful where the law is complicated, or where there are a number of alternative verdicts to be considered.

In cases involving numerous, detailed and complex legal issues, it may be an imposition on the jury not to assist them by providing them with written directions. It may be unrealistic to believe that they will be able to retain the key structure and content of the summing-up in their minds without the assistance of such a document.

Written directions should not be used as a substitute for directions of law or references to how the parties have put their case. Instead, written directions may be used in conjunction with and to supplement oral directions (see Jury Directions Act 2015 ss 65, 66).

In addition to this provision, section 67 of the Jury Directions Act 2015 permits a trial judge to give to the jury "directions that contain, or are in the form of, factual questions that address matters that the jury must consider or be satisfied of in order to reach a verdict, including the elements of the offence and any relevant defences": that is, a question trail. ^[272] Amendments in 2017 expressly permit the judge to direct the jury on the order in which it must consider the issues in a trial. ^[273]

3.4 Canada

In Canada, model jury instructions are published by the Canadian Judicial Council. ^[274] These instructions are regularly referred to by the courts, ^[275] albeit with the caveat that they are "a tool" which exists "to guide, not govern". ^[276] These, along with the reported decisions of the appellate courts, provide clear evidence of accepted best practice in relation to various aspects of jury direction.

3.4.1 Transcripts

The Model Jury Instructions include a direction addressing this point, to be given at the end of the trial, to the effect that jurors will not be provided with a transcript but may ask for guidance when they cannot recall a point or their recollections differ. It reads as follows: ^[277]

Although the testimony of every witness has been recorded, we will not have a written transcript of the evidence available for you to review when you go to the jury room to discuss your decision in this case. I think you will find that your collective memory of the evidence is good. However, if there is something you cannot recall or your recollections differ, counsel and I will try to assist you by reviewing our notes or I may direct that the evidence be played back from the recorder. Normally, we would play back both the direct evidence and the cross-examination on any point.

3.4.2 Note-taking

The Model Jury Instructions include a direction on note-taking to be given (if at all) at the outset of the trial. It reads as follows: ^[278]

We depend on the memory and judgment of all jurors to decide this case. If you want to take notes during the trial to help you remember what a witness said, you may do so. You may find it difficult, however, to take detailed, accurate notes and, at the same time, pay close attention to what witnesses are saying and how they are saying it. If you take notes, do not be distracted from your duty to observe the witnesses. You may always ask to hear a tape of a witness's testimony or have some evidence read back to you, but you only have one chance to observe the appearance and behaviour of the witnesses when they testify. If you decide not to take notes, you must still listen carefully to the evidence.

This direction is suggested as optional, to be given only "when the judge decides to tell jurors that they may take notes". This reflects judicial authority from 1985 acknowledging arguments that had been made against note-taking, albeit suggesting that those arguments had been refuted by a Law Reform Commission of Canada report recommending that jurors be provided with note-taking facilities. ^[279] A judge in a later (2003) case suggested that note-taking had become more common in recent years and should be permitted "with appropriate cautions from the Court". ^[280]

3.4.3 Allowing or Encouraging Questions During the Trial

The Model Jury Instructions include an optional direction on questions from the jury which "should only be given when the judge decides to permit jurors to ask questions and to tell them that they may do so". It reads as follows: ^[281]

It is not the role of jurors to conduct the trial. It is your duty to consider the evidence that is presented, not to decide what questions the witnesses should be asked or how to ask them. Sometimes you might wish to ask a witness a question. It is usually best to listen to the rest of the witness's testimony in case your question is answered later. It may even be answered by another witness. This is why it is generally best simply to be patient and listen closely to all the evidence. However, if there is an important point that you believe needs to be clarified, put up your hand to indicate that you have a question. Please hand your question to me in writing. After I have read the question, I will decide what to do. I may need to ask you to go to the jury room while I discuss the question with the lawyers.

In 2001, two commentators observed that "[w]hile some judges have allowed jurors to ask some questions, Canadian courts have devoted very little attention to this practice". ^[282] In a 2015 case where jurors requested additional information about aspects of a witness's testimony, the trial judge reviewed the (limited) authorities and concluded that they supported a procedure whereby questions could be permitted where "(a) clear preliminary jury instruction is provided; (b) the questions are considered only at the end of a witness's testimony; (c) the questions are reduced to writing; (d) counsel is given the opportunity to make submissions in the absence of the jury, and; (e) the judge considers whether the question is admissible in light of counsel's submissions and the usual rules of admissibility". ^[283]

3.4.4 Pre-instruction

The Model Jury Instructions include an optional direction, to be given before evidence is led: ^[284]

To help you follow the evidence in this case, I will describe the essential elements of the offence charged. After all of the evidence has been presented, I will give you complete instructions on the law that applies to these essential elements and to any other issues you must consider.

A note accompanying the instruction advises that it "should be used with care, especially where there are several definitions of an offence and a dispute between the parties whether there is an evidentiary foundation for the submission of some of them to the jury", and that "[e]xcept in the rarest of cases… should not include any reference to substantive defences as the evidence may unfold differently than anticipated".

3.4.5 Written Directions and Structured Decision Aids

Notwithstanding some hostility to the use of written directions in earlier cases, ^[285] more recent decisions have endorsed this practice. In 2002, the Ontario Court of Appeal commented that: ^[286]

The time has come to embrace the use of written material to enhance juror comprehension of oral instructions, particularly where those instructions must be lengthy and complex. There is no legal impediment to the use of written material as an adjunct to oral instructions. While the Criminal Code contemplates that trial judges will give closing instructions to the jury (s. 650.1), it says nothing about how those instructions should be given.

The court in that case was critical of the trial judge for not including, in a written document consisting of 30 typed pages, instructions on the presumption of innocence and reasonable doubt in his written directions, but concluded that this omission had not prejudiced the accused.

The practice of providing the jury with a route to verdict, commonly referred to in Canada as a "decision tree", has become more common in Canadian practice in recent years, ^[287] as is evidenced by such aids being regularly cited in appellate court decisions ^[288] and the fact that the Model Jury Instructions in respect of offence and defence elements are presented in the form of decision trees (albeit that this does not itself require that the directions be given in writing, as the questions could be put to the jury orally).

3.5 England and Wales

3.5.1 Transcripts

Jurors are not routinely provided with transcripts in England and Wales. While there is some case law on the extent to which jurors should be permitted to access the transcript of a police interview recording which is played in court, ^[289] this is very different both from being provided with a transcript of the trial or from being allowed to refer to such a transcript during deliberations. Darbyshire records that in research for her book Sitting in Judgment, she interviewed 25 Crown Court judges, 19 of whom considered this a bad idea - referring to the risk of juries getting "bogged down", and emphasising their role in noting the demeanour of witnesses - but six of whom would be prepared to allow jurors access to a transcript. ^[290]

3.5.2 Note-taking

The Crown Court Compendium suggests that a jury should "if appropriate" be directed to the following effect at the start of the trial: ^[291]

Notepaper and writing materials have been made available for use by the jury. The jury may take such notes as they find helpful. However, it would be better not to take so many notes that they are unable to observe the manner/demeanour of the witnesses as they give their evidence. The jury are not obliged to take any notes at all if they do not wish to. In any event the judge will review the evidence when summing up at the end of the trial.

3.5.3 Allowing or Encouraging Questions During the Trial

In its 2012 consultation paper on Contempt of Court, the Law Commission suggested "that jurors should be given greater encouragement to ask questions during the proceedings about the evidence in the case, in order to discourage them from trying to find the information on their own initiative". ^[292] A consultation response from the senior judiciary was critical of this proposal: ^[293]

As to the asking of questions by jurors, we understand they are already made aware of their ability to do this. We see no need to emphasise this further. It raises false expectations since many questions cannot properly be answered or may hamper the efficient progress of the case. Moreover, to encourage questions and then not to answer them because they relate to inadmissible background or irrelevant matters is unsatisfactory.

The opening remarks suggested by the Crown Court Compendium do not in fact include an express statement about the ability of jurors to ask questions, but include an optional direction to the effect that "[i]f any juror needs to ask a question or give any information to the judge during the trial they should write a short note and give it to the usher". ^[294]

3.5.4 Plain Language Directions

Most of the example directions in the Crown Court Compendium were reviewed by the Plain English Campaign prior to their inclusion in the Compendium. ^[295]

3.5.5 Pre-instruction

The Criminal Procedure Rules place an obligation on the court, in "order to manage a trial", to "establish, with the active assistance of the parties, what are the disputed issues". ^[296] The Criminal Practice Directions ^[297] note that the prosecution's opening speech, which should "concisely outlin[e] the facts and the matters likely to be in dispute". ^[298] After this speech has been made, the court may, "to help the jurors to understand the case and resolve any issue in it… invite the defendant concisely to identify what is in issue, if necessary in terms approved by the court", or direct that the jurors be given a copy of any defence statement. ^[299]

The identification of issues in this way provides an opportunity for pre-instruction, as explained in the Criminal Procedure Directions: ^[300]

To identify the issues for the jury at this stage also provides an opportunity for the judge to give appropriate directions about the law; for example, as to what features of the prosecution evidence they should look out for in a case in which what is in issue is the identification of the defendant by an eye-witness. Giving such directions at the outset is another means by which the jury can be helped to focus on the significant features of the evidence, in the interests of a fair and effective trial.

The Crown Court Compendium suggests that such directions might be given either orally and/or in a short document, emphasising that they are intended as no more than a brief introductory summary. ^[301]

The Criminal Procedure Rules require the court to "give the jury directions about the relevant law at any time at which to do so will assist jurors to evaluate the evidence". ^[302] This could be pre-instruction, as set out above, but could also consist of specific directions prior to the relevant evidence being led, or shortly thereafter. ^[303]

3.5.6 Written Directions and Structured Decision Aids

In English practice, a "route to verdict" is defined as a written document "which poses a series of questions that lead the jury to the appropriate verdict". ^[304] Since April 2016, the Criminal Practice Directions have stated that a trial judge should provide a written route to verdict "save where the case is so straightforward that it would be superfluous to do so". ^[305] Sample routes to verdict are provided in the Crown Court Compendium.

Even before the April 2016 amendment, the use of such documents, sometimes referred to as "steps to verdict", ^[306] had become well-established in English practice, ^[307] and they are now regularly referred to in Court of Appeal judgments. ^[308] The introduction of the presumption in favour of their use follows arguments made in their favour by various judges over time, whether in the context of official reviews ^[309] or extra-judicially. ^[310]

While acknowledging that some cases may be sufficiently straightforward that no route to verdict is required, ^[311] the Court of Appeal has in recent years, even before the 2016 amendment, regularly criticised trial judges for not providing written routes to verdict, ^[312] noting that they may be particularly valuable in, for example, cases involving multiple defendants alleged to have performed different roles, ^[313] or where the burden of proof differs in respect of different issues before the jury. ^[314]

A route to verdict may be provided before closing speeches from counsel, along with other directions on the law if the judge decides that this will assist the jury. This is referred to as a "split summing up", which "may avoid repetitious explanations of the law by the advocates". ^[315]

A judge may provide the jury with further written materials in addition to any route to verdict. These might address, for example, directions beyond the route to verdict itself (such as in relation to particular types of evidence) or a complex chronology. ^[316] Where material, such as a chronology, addresses matters of fact rather than law, it would be expected that such a document would be agreed with counsel, ^[317] or prepared by the parties and approved by the judge. ^[318] It has been held that it is generally inappropriate (as being liable to confuse) to provide a jury with copies of relevant legislation unless it is short and straightforward. ^[319]

3.6 Ireland

3.6.1 Transcripts

Section 57 of the Criminal Justice (Theft and Fraud Offences) Act 2001 makes specific provision in relation to the trial on indictment of offences under that Act, permitting the judge to order that the jury should be given transcripts of all or part of the trial, including the judge's charge to the jury. ^[320] Concerns about the high cost of this measure and the technical difficulties of implementing it meant that it was not brought into force until August 2011. ^[321] Similar provisions have been made in other legislation in respect of other specified offences. ^[322]

A 2013 report by the Law Reform Commission recommended that section 57 of the 2001 Act should be extended to all trials on indictment. ^[323]

3.6.2 Note-taking and Questions

The Courts Service website includes a list of "common questions" asked by jurors, including: ^[324]

May I take notes?

You may take notes if you wish but there is no need to write everything down as the judge will summarise the evidence for you at the end of the case. The notes can only be used in the courtroom and jury room. You cannot take them home with you. They are destroyed at the end of the trial.

May I ask a question during the trial?

Each juror must understand the case. Therefore, if you need to check something, you may write down a question and pass it to the foreman/woman who will then ask the judge.

3.6.3 Written Directions

In its 2013 report, the Law Reform Commission noted research suggesting that juror comprehension of legal directions was aided by written directions, ^[325] but did not make specific recommendations in this regard, recommending instead that legislative provision be made for empirical research into various matters including juror comprehension. ^[326]

3.7 New Zealand

3.7.1 Transcripts

According to a 2012 lecture by a New Zealand judge, "[i]t is common practice now for juries to be given a transcript of the evidence to assist them in their deliberations". ^[327] This practice is a "relatively recent phenomenon", following the findings of jury research. ^[328] In a 2013 case discussing giving videotaped evidence in chief, it was noted that practice had moved on considerably from when the jury might be provided with a transcript of that video and that alone: ^[329]

In earlier times, although a transcript of the complainant's video was normally available to the jury, a transcript of the remainder of the complainant's evidence (cross-examination and re-examination), and the other evidence in the trial was not generally available to the jury. All this changed some time ago. It is routine for juries to have available a transcript of the entire oral evidence given at the trial as well as other documentary assistance. This has had two main benefits. First, the task of the trial judge is simplified because it is no longer necessary for the judge to read to the jury the transcript of the complainant's oral evidence after the video is replayed. Second, the jury has ready access to all the other evidence in the case as well.

3.7.2 Note-taking

A 2004 postal survey of New Zealand judges, found that the "vast majority" of judges allowed jurors to take notes, recording that 84 per cent of judges specifically advised jurors that they could take notes during the trial. ^[330]

3.7.3 Allowing or Encouraging Questions During the Trial

New Zealand has a specific statutory framework for questions by jurors. Section 101 of the Evidence Act 2006 provides as follows: ^[331]

(1) If a jury wishes to put a question to a witness in a proceeding,-
(a) the jury must first inform the Judge of the question; and
(b) the Judge must determine-
(i) whether and how the question should be put to thewitness; and
(ii) if the question is to be put to the witness, whether the parties may question the witness about matters raised by the question.

(2) If a question from the jury is put to a witness, then, subject to any determination made by the Judge under subsection (1)(b)(ii),-
(a) every party, other than the party who called the witness, may cross-examine the witness on any matter raised by the jury's question; and
(b) the party who called the witness may re-examine the witness.

3.7.4 Written Directions and Structured Decision Aids

New Zealand juries are "almost always offered a 'question trail' which outlines the key factual issues that must be determined to reach a verdict". ^[332] This can be seen by the fact that "question trails" are now regularly cited in appellate court decisions. ^[333] A 2012 lecture by the former chair of the Institute for Judicial Studies noted that the Institute's training on directing juries required participants to draft and discuss question trails based on a mock case provided to participants. ^[334] A 2014 case summarised the position as follows: ^[335]

While they have no statutory basis, question trails or issues sheets - written directions provided by judges to assist juries in reaching a verdict - are regarded as "contemporary best practice" in criminal trials. Their principal purpose is to supplement the judge's oral summing-up by distilling in written form the issue or issues for determination in a series of logical steps which relate the essential factual allegations of a charge directly to its legal elements. The judicial expectation is that the question trail will give proper contextual guidance on the relevant legal principles and serve as a structural framework for the jury's deliberations.

Adopting a best practice approach, the question trail should: (a) correctly state the substantive law; (b) remind the jury that the Crown has the onus of proof and that its standard is beyond reasonable doubt; (c) emphasise that a not guilty verdict must be delivered if the jury is unsure about proof of an essential element of the charge or charges; and (d) not strive for artificiality if the evidence clearly favours one side - fair presentation depends on the facts of the case. Best practice also requires that the judge should consult with counsel about the contents of the document before finalising its terms.

3.8 United States of America

Practice and legislation in respect of juries differs across the various United States jurisdictions and a comprehensive account would be a considerable undertaking well beyond the scope of the current report. This section does not, therefore, attempt to conduct a full review of individual state (or federal court) practice or legislation in respect of communication with juries, but provides a highly selective note drawing on published material which itself seeks to provide an overview of practice in the United States.

3.8.1 Transcripts

The position relating to requests by the jury to review testimony or evidence has been summarised as follows: ^[336]

It sometimes happens that the jury after retiring will submit to the trial judge a request to review certain testimony or evidence. A number of states have statutes or court rules which appear to require the judge to honor such a request, but the courts are not in agreement as to whether these provisions are mandatory or discretionary. Elsewhere the judge has some discretion as to whether to act favorably upon the jury's request. If the judge grants the request, it is advisable that the judge consider having the jury review other evidence relating to the same factual issue so as not to suggest the evidence requested is especially important.

Review of this sort will not necessarily involve providing a transcript to the jury: it may instead (and, from the reported cases, appears more likely to) involve a "read-back" of the relevant evidence. ^[337]

3.8.2 Note-taking

Despite historic opposition to the practice of note-taking, ^[338] it appears to have become widely established in US practice, with a 2002-2006 survey finding that 69% of state courts and 71.2% of federal courts permitted jurors to take notes. ^[339] These figures relate to both civil and criminal jury trials; a follow-up study limited to civil jury trials in 2014 reported an increase in the extent to which note-taking was permitted, to 76% of courts. ^[340]

3.8.3 Allowing or Encouraging Questions During the Trial

Some US jurisdictions permit questions by jurors (provided the questions are asked through the trial judge), while others prohibit it. ^[341] A 2010 article summarised the position as follows: ^[342]

More than half of the states and all of the federal circuits permit jurors to submit written questions for witnesses but leave it to the discretion of the trial judge to decide whether to permit the practice in any given case. The American Bar Association, in its Principles for Juries & Jury Trials, recommends permitting juror questions and suggests that juror questions might be particularly useful in cases that are "complex" or where there is "complicated evidence or unclear testimony." In criminal trials three states have rules that mandate juror questions, and six states have case law that prohibits juror questions. In civil trials, six states have rules that mandate juror questions, and ten states have case law that seems to prohibit juror questions. Thus, most states simply permit the practice but give the trial judge discretion in deciding when to use it.

3.8.4 Plain Language Directions

The New South Wales Law Reform Commission has identified California as having carried out perhaps the largest project aiming to draft jury directions in plain English. A task force was appointed in 1997 to carry out this task, and sets of civil and criminal jury instructions were published in 2003 and 2005 respectively. ^[343] Similar efforts have been undertaken in a range of other US jurisdictions. ^[344]

3.8.5 Pre-instruction

A 2007 report found that "[e]ight states report that they require judges to pre-instruct jurors on the substantive law before the evidentiary portion of the trial, although most of the required instructions deal with basic legal principles such as burden of proof and admonitions concerning juror conduct rather [than] specific instructions on the elements of crimes or claims to be proven at trial. Two states - Nevada and Texas - prohibit pre-instructions". ^[345] In a 2006 decision, ^[346] the Appellate Division of the Supreme Court of New York noted that it had previously held that it was an error "to instruct the jury before summations with respect to the elements of the crime with which the defendant has charged", ^[347] and had regularly adhered to that holding. It concluded, however, that it was appropriate to change that position, noting that since that earlier decision an "enormous amount" of jury research had found benefits in the practice.

3.8.6 Written Directions and Structured Decision Aids

In James v Kentucky, ^[348] the US Supreme Court agreed that a state was entitled to require that jury instructions be provided in writing, as Kentucky law does. ^[349] Some other states have a similar requirement but most, "along with the federal courts, leave the use of written instructions to the discretion of the trial judge". ^[350]